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Home My WebLink AboutAgenda Report - May 16, 2018 G-02 PHTM CITY OF LODI COUNCIL COMMUNICATION G-2 AGENDA TITLE: Public Hearing to Consider Appeal of Erik and Staci Jones Regarding Public Works Department's Denial of Encroachment Permit for 3031 Celebration Drive, Lodi MEETING DATE: May 16, 2018 PREPARED BY: Public Works Director RECOMMENDED ACTION: Public hearing to consider appeal of Erik and Staci Jones regarding Public Works Department's denial of 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 October 26, 2017 denial of an encroachment permit application for approval of modifications to the driveway at their residence located at 3031 Celebration Drive. On March 3, 2017, Staci Jones applied for an encroachment permit (Exhibit A) to widen the driveway approach at her residence, 3031 Celebration Drive, located in the RoseGate subdivision. The Joneses residence has a three -car garage with a two -car approach, which is standard for the subdivision where her residence is located. The encroachment permit application was denied based on numerous factors, including structural integrity of the pavement, sidewalk, curb, and gutter, and on -street parking allowances. Subsequent to the first encroachment permit denial; there were numerous communications between City Staff and representatives from the Hughey Law Group regarding the City's basis of denial. The Hughey Law Group is representing Mrs. Jones in the appeal. On October 10, 2017, Mrs. Jones again submitted an application for an encroachment permit (Exhibit B) for the same work previously applied for in the encroachment permit dated March 3, 2017. For the same reasons the original permit was denied, the second permit application was also denied. On March 20, 2018, The City Council received the "Appeal of Encroachment Permit Denial 3031 Celebration Drive, Lodi, California" (Appeal) from Kevin Hughey of the Hughey Law Group (Exhibit C). This 15 page appeal letter (not including exhibits) alleges that both Frontier Land Companies (Developer) and the City of Lodi constructed, or allowed to be constructed, "defects" causing the Joneses "significant risks of harm or injury to individuals and vehicles, as well as causing reduced property value." The subdivision public improvements (including the driveways) were constructed using the City's adopted design and construction standards. The City's professional engineering staff has reviewed and approved the design standards. In fact, the standard has also been applied in other subdivisions in Lodi, such as Sunwest Meadows, which was constructed in the early 2000's. Of the 26 houses with a three - car garage in the RoseGate subdivision, all driveways have been generally aligned with the main two -car portion of the garage. To date there have been no incidents or complaints reported to City staff or the Developer, other than the Appeal, in either RoseGate or Sunwest Meadows. The public improvements were accepted by the City Council on November 8, 2015. Contrary to the Appeals claims, there is no APPROVED: a ICI m ephen Suer, City Manager K:\WP\COUNCIL\2018\PH 3031 Celebration Drive.doc 5/2/2018 Public Hearing to Consider Appeal of Erik and Staci Jones Regarding Public Works Department's Denial of Encroachment Permit for 3031 Celebration Drive, Lodi May 16, 2018 Page 2 "defect" in the Developer's design and construction, nor is there any evidence presented that the "significant risks of harm or injury to individuals and vehicles, as well as causing reduced property value" could not be remedied by simply adjusting the location of the vehicles within the driveway, as reflected in Exhibit D. As reflected in the Developer's Information & Disclosure Statement (Exhibit E) that was initialed and signed by the Joneses on October 25, 2015, the Joneses were made aware of potential issues related to the two -car driveway condition relative to their three -car garage home. In Paragraph 4.7 "Garage/Driveway Limitations on Use and Access" it is disclosed, and the Joneses acknowledge, that some vehicles may be too large to access the property driveway and/or garage, and that the governmental authority (City of Lodi) may prohibit increasing the size or location of the driveway. Additionally, the Joneses initialed two separate site plans (Exhibit F and Exhibit G) that clearly represent the configuration of the driveway and garage relationship, as a condition of sale. The primary basis of the Public Works denial is as follows: Developer requested driveway modifications: The Rose Gate development is designed on an irregular shaped parcel. City design standards require the driveway locations for all lots be established during the subdivision improvement plan design and approval process to maximize parking and to minimize vehicle conflicts. Typically, the improvement plans are approved (along with the advanced location of each two -car driveway) long before the final house plan is located on each lot. It is not practical to expect any developer to assign the appropriate house models to each lot with 100 percent accuracy. In this case, the Developer requested to relocate five driveways (with no extensions) to accommodate a particular model/lot configuration. Of the three cases where driveways were extended, one was extended so it could be shared between two lots to minimize on street parking impacts. The second was extended because the lot frontage was just under 90 feet wide. The third was slightly widened without permission of the City, but was allowed to remain in order to avoid additional pavement damage. For the RoseGate Subdivision, Staff allowed eight developer requested driveway modifications only. No private resident requested driveway modifications have been allowed to date. The driveway modification request from the Joneses is the only private request received to date. Residential parking: Three car garage configurations with a two -car driveway represent 26 of the 230 homes/lot in the RoseGate Subdivision. Three car driveway approaches are discouraged because they reduce on -street parking in neighborhoods with minimal on -street parking available. Preserving the useful life of the roadway: In order to preserve the streets in new subdivisions, the City maintains a practice to minimize the number of cuts being made into new pavement. To re -enforce this practice, on February 7, 2018, Council authorized a modification to the Lodi Municipal Code Section 12.04 that prohibits pavement cuts on pavement that is less than five years old. To modify existing driveways, or curb and gutter, the asphalt must be saw -cut, removed, and replaced along the entire length of the newly placed driveway, per City construction standards. This pavement cut compromises the integrity of the new roadway by allowing a potential path for water to enter the subgrade structure below the paved surface. It is commonly known that water intrusion is detrimental to paved roadways and will contribute toward decreasing the life expectancy of the street improvements. Often, pavement failures are more exaggerated along the curb and gutter since this is the primary route of heavy garbage trucks. K:\WP\COUNCIL\2018\PH 3031 Celebration Drive.doc 5/2/2018 Public Hearing to Consider Appeal of Erik and Staci Jones Regarding Public Works Department's Denial of Encroachment Permit for 3031 Celebration Drive, Lodi May 16, 2018 Page 3 For the reasons noted above, Staff recommends Council uphold the denial of the encroachment permit application from Mr. and Mrs. Jones for driveway modifications located at 3031 Celebration drive in the Rose Gate Subdivision. FISCAL IMPACT: Not applicable. FUNDING AVAILABLE: Not applicable. Charles E. Swimley, Jr. Public Works Director CES/CES/tdb Attachments cc: The Hugey Law Group Tom Doucette, FCB Homes K:\WP\COUNCIL\2018\PH 3031 Celebration Drive.doc 5/2/2018 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 incuded.) 1. Permit Address or Street Name 3 I Ce le cat ay, N,1f - 2. Cross Street (Distance and direction from site) 3. Applicant Sia t Name 4. Contractor Rr .« ,n (1<; t lS Name 209 112 Office Phone No. AcyNe? C�1�ei br�Ycq ArJwll Add PO—BSt�9--Buy S ress State Address Cify ' State) 2( l boy• t�IZ Cellular Phone No. -2 X12 20,37. (0.715` ip Phone No. CA 922 Zip -:11 lc 22 1 License No. 5. Estimated Start Date Estimated Completion Date 6. Estimated Cost in City Right -of -Way (Excluding material costs) 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.): Pyi,' kla 1 el (pi, b :s TI -14.1r d94'' - ,• • • 1)L.4 4a- k._LJ4-u -(23e cAv.�L�t ,� cy�t.( L,..._v u - �urev• 1 r�� , JP Ce y,ACy e4 • AY ,tel le,cn.,e f c Lr�b '1r- Qtrz� r 3' - c- kl 8. Additional Information ( i. heck one or more of the following): ❑ Sidewalk Replacement/ Installation: Length Lineal feet Sidewalk Width feet (Excluding curb) D riveway Replacement/ Installation (Check one): Ry Residential VVidlh Lineal feet 0 Commercial Width Lineal feet Gutter Type (Check one if applicable): ❑ Square (15" gutter) [Vertical (24" gutter) e`�i 5i-. rtG` ❑ Rolled [9f DrivewayNecg.% 0 Other. ❑ Utility Work O Excavation 0 Directional Boring 0 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 fila provisions ofthe Lodi Municipal Code Section 12.04.120. tri t:) DATE 3/3 f 1 4 SIGNED :lA OFFICE USE ONLY PERMI 1 S FAl PERMIT NO- ❑PENDING ❑FINAL DATE & TIME RECEIVED DENIEDANITl (DRAWN FEE Minimum amount (Balance to be collected al permit issuance) TOTAL FEE: EncroachmentPermitApp.doc 3/12/2004 5- S 4 City of Lodi Public Works Department C 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. 2. 3. 4. 5. 6. 7. Permit Address or Street Name 3031 Celebration Drive Cross Street (Distance and Applicant Staci Jones Name Contractor Brian Gates Name 209.772.2171 direction from site) 3031 Celebration Dr. Lodi CA 95242 209.747.6715 Address City State Zip Phone No. PO Box 69 Burson CA 95225 Address City State Zip 209.304.1212 776221 Office Phone No. Cellular Phone No. License No. Estimated Start Date 11/1/17 Estimated Completion Date 11/8/17 Estimated Cost in City Right -of -Way (Excluding material costs) $1500 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 Lineal feet O Driveway Replacement/ Installation (Check one): Residential ❑ Commercial Width Gutter Type (Check one if applicable): ❑ Square (15" gutter) Vertical (24" gutter) ❑ Rolled 0 Driveway ❑ Other O Utility Work ❑ Excavation ❑ Directional Boring Max. Depth Avg. Depth Surface Type Conduit: Type 0 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 : use of Action to recoup the City's expenses in completing the work and for all other costs and fees in a .or. ance with the provisio e Lodi Municipal Code Section 12.04.120. Sidewalk Width feet (Excluding curb) Width 15 Lineal feet Lineal feet 0 Other Avg. Width Length Diameter DATE 10/10/17 SIGNED OFFICE USE ONLY PERMIT STATUS: PERMIT NO. ❑PENDING ❑FINAL DATE & TIME RECEIVED ❑DENIEDNVITHDRAWN FEE: Minimum amount (Balance to be collected at permit issuance) TOTAL FEE: EncroachmentPermitApp.doc 3/12/2004 1-1I I1 520 9th Street, Suite 230, Sacramento, CA 95814 0: 916,758.2100 1 F: 916.758.2200 LAW GROUP www.hugheylawgroup.com March 20, 2018 Via Email and U.S. Postal Lodi City Council c/o Lodi City Clerk's Office P.O. Box 3006 Lodi, CA 95241-1910 C ityclerkr]a,lod i.gov 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. 2 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. 3 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 4 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. 5 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 6 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. 7 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. 8 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. 9 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. 10 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 1% " 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 11 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(esin KEVIN HUGHEY 15 EXHIBIT "A" 9/7/2017 Hughey Law Group Mail - Encroachment Permit Issue with Rose Gate Grail 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. haps://mMI.google.com/mail/u/ORui=2&Ik=ac2G57b133&jsver=EIWGK3tyASk.en.&view=pi&msg=15e3347549a99709f&search=inbox&siml= 504754%99709f 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 baps://mail.google.com/mail/u/0/?ui=2&ik=ec2657bf33&jsver=EIWGX3tyA5k.eei.&view=pi&msgWlye347549a99709r&search=inbox&siml=lSe.347549a99709{ 2/3 EXHIBIT "B" GM1I 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: 1 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 included.) l 1. Permit Address or Street Name 'i❑ 3 1 i . le c : I t L y . , ; 2. Cross Street (Distance and direction from site) �i C.e :ers+fioq4; ti 3. Applicant -�'c C. �r�r��'� 3C 31 l]t jrui I A 1..c2 L /2 • bj• !'i 7, 4/7/5 — Name Address, a City State Zip Phone No 4. Contractor lir ,an GE, is Poji,x t, 9 ,A. f s r+n C A q'.- 2-a Name Address Cify j r State) Zip 201 112 2I1t 200t•104.t71i /1L221 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 Casis) lr r {'} 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.): e,.i - ' J(t_ O4. )1 lG � L..- (6 Lk: -(2,t, ('1Lv r 51 P Gk 1.) p c:c i. c- L., CLA v i e t ri J t J.P UJ i'I of k: Ct. vvk v e (1 ' (iv , •..• r r. c r,.i e y CL,.... b r ') t, r2 trLt (r 3 t c` V h c>L L 8. Additional Information (heck one or more of the following): ❑ Sidewalk Replacement/ Installation: Length D riveway Replacement/ Installation (Check one): gy Residential Width 1 Lineal feet 0 Commercial Width ,Lineal feet Gutter Type (Check one if applicable): ❑ Square (15" gutter) ((Vertical (24" gutter) e`it 5i--:%. A G� ❑ Rolled at DrivewaysCt.J ❑ Other__... ❑ Utility Work ❑ Excavation 0 Directional Boring [D 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 ora 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. Lineal feet Sidewalk Width feet (Excluding curb) DATE 3'3 1 r SIGNED LcA OFFICE -USE ONLY PERMIT STAT) S: PERMIT NO :PENDING ❑FINAL DATE & TIME RECEIVED ®DENIEDN THDRAVNV FEE: Minimum amount (Balance to be collected al 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 Lineal feet Sidewalk Width feet (Excluding curb) ❑ Driveway Replacement/ Installation (Check one): Residential 15 Lineal feet El Commercial WidthWidth Lineal feet Gutter Type (Check one if applicable): ❑ Square (15" gutter) al Vertical (24" gutter) ❑ Rolled 0 Driveway 0 Other ❑ Utility Work ❑ Excavation 0 Directional Boring 0 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 - use of Action to recoup the City's expenses in completing the work and for all other costs and fees in a..ar.ance with the provisio • e Lodi Municipal Code Section 12.04.120. DATE 10/10/17 SIGNED OFFICE USE ONLY PERMIT STATUS: 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 ROSE GATE INFORMATION & DISCLOSURE STATEMENT ROSE GATE City of Lodi This Disclosure Statement ("Disclosure Statement") is made in reference to, and shall be deemed a part, of Rose Gate New Home Purchase Contract (the "Agreement") entered into by and between - h+ c �n�., 2 (collectively, "Buyer" or "You") and W.L. Investors LP, a California limited parte ("Seller") for the purchase by Buyer and the sale by Seller of the "Property" described in the Agreement. apitalized terms not defined in this Disclosure Statement shall have the same meaning given to those same terms in the Agreement. Buyer should carefully read and review the enclosed information, which could be material to Buyer's decision to purchase a home at the Rose Gate project (the "Project"). This General Disclosure Statement is by no means intended to be all-inclusive and does not relieve or otherwise modify Buyer's obligations to review other documents provided by Seller, or to diligently perform a thorough physical inspection of the Property and the surrounding areas, and to satisfy himself/herself that the physical conditions are acceptable as they pertain to the intended uses of the Property. To Seller's actual knowledge, the information in this Disclosure Statement is current as of the issue date of this statement. However, Buyer should read all documents provided by Seller as a part of the Agreement, including but not limited to this Disclosure Statement, Rose Gate Subdivision, Lodi, California, Protective Restrictions, which were recorded in the Official Records of the County of San Joaquin, State of California as Document Number 2015- 038063 (the "CC&R's"), the Amended and Restated Master Declaration for Title 7 & Dispute Resolution for Rose Gate (the "Master Title 7 Declaration"), and the Preliminary Title Report before Buyer enters into the Agreement. Further, Buyer should independently verify the information regarding any matter of concern to Buyer regarding this purchase. Because much of the information included in this Disclosure Statement has been obtained from other sources (e.g., governmental and other public agencies, public records, etc.) and because the information is subject to change for reasons beyond Seller's control, Seller cannot guarantee the accuracy or completeness of any information disclosed. Further, Seller has no obligation to advise Buyer of any such changes, and Buyer should contact the appropriate agency directly for the most up-to-date information. Buyer is advised to visit the Project and to drive around the general vicinity surrounding the Project on several occasions on different days and at different times to become familiar with physical and other conditions, and to determine if there are material factors that might affect Buyer's decision to purchase a home in the Project. It is Buyer's responsibility, before signing the Agreement, to carefully review all documents provided by Seller and to seek additional information from other sources (including, but not limited to, appropriate consultants, the City of Lodi (the "City"), the County of San Joaquin (the "County"), and/or other governmental jurisdictions and agencies) as may be reasonably necessary to confirm the information in such documents is true and correct and to determine what additional facts or conditions may affect the Property or the Project. By signing the Agreement, Buyer acknowledges that Buyer has conducted or will conduct within seven (7) days after Seller accepts Buyers signed Offer, its own due diligence investigation of the Property such that Buyer is aware of circumstances, conditions, and situations that might impact the Property or Buyer's lifestyle on the Property. By placing Buyer's initials on the bottom of each page, Buyer acknowledges that Buyer has read, understands and agrees with, and waives any claims against Seller arising out of, the matters disclosed therein. TABLE OF CONTENTS 1. THE ROSE GATE PROJECT 2 1.1 VARIATIONS FROM PLANS AND MAPS 2 1.2 VIEWS 2 1.3 MAINTENANCE OF PUBLIC PROPERTY AND STREET TREES 2 1.4 MAIL AND MAILBOXES 2 1.5 LEASE OF DWELLINGS 2 2. THE COMMUNITY AND SURROUNDING AREA 2 2.1 NOISE 2 3. NATURAL CONDITIONS 3 3.1 SOILS CONDITIONS 3 3.2 EARTHQUAKE INFORMATION 3 3.3 INSECTS, PESTS, RODENTS 3 4. THE HOME/LOT 3 4.1 FOUNDATIONS 3 4.2 WATER -CONSERVING PLUMBING FIXTURES 3 4.3 WATER -CONSERVING IRRIGATION SYSTEM 3 4.4 LAUNDRY FACILITIES 4 4.5 FORMALDEHYDE 4 4.6 DRAINAGE AND GRADING 4 4.7 GARAGE / DRIVEWAY LIMITATIONS ON USE AND ACCESS 4 Project: Rose Gate Document: General Disclosures Revision Date: October 7, 2015 1 BUYER'S Initials ROSE GATE 5. BUYER MODIFICATIONS AND/OR IMPROVEMENTS 4 5.1 NO RELIANCE ON SELLER FOR BUYER'S IMPROVEMENTS 4 5.2 BUYER'S RESPONSIBILITY FOR IMPROVEMENTS 5 6. RECORDED DOCUMENTS / RESTRICTIONS ON USE 5 6.1 CC&Rs 5 6.2 SELLER NOT RESPONSIBLE FOR CC&R ENFORCEMENT 5 6.3 EASEMENTS/RESTRICTIONS ON USE 5 7. ACKNOWLEDGEMENTS 5 7.1 ONGOING CONSTRUCTION 5 7.2 COMPLETION OF CONSTRUCTION 6 7.3 PUBLIC SCHOOLS 6 7.4 UTILITIES AND SERVICES 6 7.5 MATERIALS AVAILABLE FOR BUYER'S REVIEW 6 1. THE ROSE GATE PROJECT 1.1 VARIATIONS FROM PLANS AND MAPS The plotting of homes on the lots, as shown on any sales map, preliminary plot plan. and/or other plans or maps are preliminary and are subject to change. Similarly all measurements on such plans or maps are approximate. There may be some variations between depiction and actual construction with respect to side, rear and front dimensions as a consequence of various factors, including City building ordinances. Field conditions may also require Seller to move fences, fence posts, retaining walls, utility structures, mailboxes, and/or other improvements from the locations shown on plans or maps. 1.2 VIEWS Seller does not warrant any privacy or protected views within the community or on adjacent property and no home or lot is assured privacy or the existence or unobstructed continuation of any particular view. Any view from the Project, whether developed or undeveloped, is not intended as part of the value of the Property and is not guaranteed. 1.3 MAINTENANCE OF PUBLIC PROPERTY AND STREET TREES While many people assume that the City has the responsibility to maintain the City sidewalk, state law provides otherwise. Streets and Highway Code Sections 5600, et seq., and particularly Section 5610, places that responsibility on the owners of adjacent property. Buyer is likewise responsible for maintaining the curb and any parkway strip between the sidewalk and curb in front of Buyer's home. Buyer must not alter the landscaping materials, including, but not limited to the trees and other vegetation, located in the parkway strip without the consent of the City. 1.4 MAIL AND MAILBOXES The U.S. Postmaster may require the use of cluster mailboxes within the Project for efficiency of mail service. The Postmaster determines the location and grouping of these cluster mailboxes on various lots within the Project. If you have any questions, please call or visit a U.S. Post Office. Seller reserves the right to modify mailbox configurations and makes no representation or warranty regarding the number of mailboxes at a given a location or the distance from a particular home to its assigned mailbox. Seller may locate a cluster mailbox on the Property, in which case Buyer's use of the Property may be impacted or restricted by the presence of such mailbox. 1.5 LEASE OF DWELLINGS Although Seller desires to sell all of the homes to be built, circumstances may lead Seller to rent or lease one or more of the homes at the Project on a short or long term basis. Seller therefore reserves the right to lease homes in the Project and makes no representation that Buyer has any similar right to lease. 2. THE COMMUNITY AND SURROUNDING AREA 2.1 NOISE Buyer may experience various levels of ambient and/or interrnittent noise at the Property at any time, twenty-four hours a day, seven days a week. Commercial, residential, industrial and agricultural uses of property in the vicinity of the Property may be the sources of such noise. Seller has no way of knowing or predicting the noise that may be experience while occupying the Property. If Buyer is concerned about noise levels at the Property, Buyer should undertake its own investigation and be satisfied before executing the Agreement or purchasing the Property. Project: Rose Gate Document: General Disclosures Revision Date: October 7, 2015 2 BUYER'S Initials ROSE GATE 3. NATURAL CONDITIONS 3.1 SOILS CONDITIONS One or more soil reports have been prepared for the Project and are available for review in the Seller's sales office. According to the `Geotechnical Exploration Report' prepared by ENGEO Incorporated, dated November 19, 2013 (the "Soils Report"), with some exceptions, "the near -surface soils encountered consisted predominantly of very loose to medium dense silty and clayey sands..." Buyer is strongly encouraged to review such soils reports prior to executing the Agreement. Buyer should give special consideration and attention to the soils conditions and soil composition when planning and/or installing improvements such as masonry walls, planters, concrete slabs, spas, decking, and other concrete or masonry improvements, particularly when these improvements are installed near the home's foundation and/or retaining walls. Before constructing any improvements, be sure that adequate precautions have been incorporated into the design, including, but not limited to, adequate drainage and structural provisions. Damage to improvements, including but not limited to the home's foundation and retaining walls, as well as neighboring property owners' improvements, may result from soils expanding and/or shrinking if sufficient precautions are not used. 3.2 EARTHQUAKE INFORMATION The Project is located near the San Francisco Bay Area, which is considered one of the most seismically active regions in the United States. Significant earthquakes have occurred in the San Francisco Bay Area and are believed to be associated with crustal movements along a system of sub -parallel fault zones that generally trend in a northwesterly direction. Buyer's home is not warranted against damage due to earthquakes. Each Buyer is responsible for conducting his or her own investigation, if any, regarding the potential for earthquakes. If Buyer elects to obtain earthquake insurance for Buyer's Property, Buyer is advised to contact his/her own earthquake insurance carrier. For additional Information, please refer to the Natural Hazards Disclosure. 3.3 INSECTS, PESTS, RODENTS All construction sites represent some levet of disturbance to the ecosystems and soils at the construction site. Buyer is advised that due to the proximity of the Subdivision to open space and/or agricultural land, wild animals, rodents, and pests including but not limited to skunks, raccoons, opossums, dogs, cats, snakes, rats, mice, ants, bees, wasps, roaches and other insects are expected to be found in or around the Subdivision and the Property and may be disturbed or displaced and seek new locations Buyer is hereby advised of the potential danger and inconvenience that may be caused by such creatures. Buyer should provide appropriate safeguards and take sufficient mitigation or remediation measures should this problem occur on the Property. The occurrence of such insects, pests, rodents or vermin are not covered under the Seller's Warranty. 4. THE HOME/LOT 4.1 FOUNDATIONS The foundations of the homes are described as either slab -on -grade, post -tensioned slab, pier and grade beam, spread footings, or thickened mat -type slabs, or some combination thereof. Changes to foundations should be undertaken only under the advice and supervision of competent and licensed geotechnical and structural engineers. Changes to the foundation may destroy the structural integrity of the foundation and the home, and may void any warranty under which Buyer would otherwise be covered. Be advised that any changes Buyer makes to the foundation of Buyer's home will relieve Seller of any liability for damage resulting therefrom. Some level of foundation settlement may occur as the soil beneath the foundation expands or contracts over time. Such settlement occurs in virtually all construction. During this process, natural phenomena such as hairline cracks, shrinkage, joint separations, and slight re -alignments of molding, trims and door jams may appear in your home. In addition, various appliances and operating components of your home may also require fine-tuning or adjustment after initial move -in. 4.2 WATER -CONSERVING PLUMBING FIXTURES Each home is fitted with low -flow toilets and showerheads for water conservation purposes. These fixtures may provide less water pressure than Buyer may be accustomed to, but are fully functional. Low -flow toilets may require two flushes in normal use, and are subject to some degree of special care. No item other than those specifically meant for toilet disposal should be flushed. Paper towels, excessive tissue, feminine hygiene products, cat litter, and other flushed matter may cause a stoppage. In the event of stoppage caused by improper use, the use of Seller's plumbing contractor may result in a charge for a service call. If evidence indicates improper usage of the toilet and/or damage to floors, etc., has occurred, neither Seller, nor Seller's plumbing contractor shall be held responsible. 4.3 WATER -CONSERVING IRRIGATION SYSTEM Homes in the Project may be constructed with drip irrigation in the planter beds, weather sensor irrigation timers, drought tolerant plant materials, and other potential water conserving irrigation and landscaping features. Project: Rose Gate Document: General Disclosures Revision Date: October 7, 2015 3 BUYER'S Initials �i' ROSE GATE 4.4 LAUNDRY FACILITIES Prior to purchasing a clothes washer or dryer, Buyer should ensure that the laundry room area in Buyer's home offers sufficient clearance to accommodate the proposed appliance(s). In this regard, Seller makes no representations or warranties that any such appliances Buyer currently owns may be accommodated within Buyer's new home in the Project. 4.5 FORMALDEHYDE WARNING! MATERIALS INCLUDED IN THE CONSTRUCTION OF THESE HOMES WILL EXPOSE BUYER TO FORMALDEHYDE, A SUBSTANCE KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER. The following information is intended to explain the warning furnished by Seller for exposures to formaldehyde, a substance known to the State of California to cause cancer. The homes in the Project have not been tested for formaldehyde levels. Most homes that have been tested elsewhere do contain formaldehyde, although the concentrations vary from home to home with no obvious explanation for the differences. One of the problems is that many suppliers of building materials and home products do not provide information on chemical ingredients to builders. In the absence of specific information on these homes, and in light of the materials used in their construction, we believe that a warning is warranted. The United States Environmental Protection Agency, the California Air Resources Board, and other agencies have measured the presence of formaldehyde in the indoor air of homes in California. Levels of formaldehyde that present significant cancer risks have been measured in most homes. Formaldehyde is present in the air because it is emitted by a variety of building materials and home products purchased by the builder from material suppliers. The materials and products include carpeting, pressed wood products, insulation, plastics, and glue. Buyer may have further questions about these issues. Seller is willing to share any further information it has obtained and will provide, upon request, a list of known material suppliers that may be contacted for further information. For further information on Proposition 65, Buyer may contact the State of California Office of Environmental Health Hazard Assessment Agency at (916) 445-6903. 4.6 DRAINAGE AND GRADING Prior to beginning construction of the Project, qualified professionals were retained to provide recommendations for the proper design and grading of the Property with respect to drainage. Any change in the grading to install landscaping or other improvements, may adversely affect drainage and damage the home, as well as adjacent homes. Before planning any improvements on the Property, Buyer should consult with a qualified professional The proposed improvements must not interfere with the existing lot drainage, existing lot grading, slopes or retaining walls. Furthermore, no changes may be made to the grading, contours or drainage, and no new work of improvement may be made without obtaining prior approval of appropriate .governmental authorities. Permits may also be required depending upon the extent of the work. All improvements are subject to the requirements of the CC&Rs. Because the soils beneath Buyer's home may expand or contract with changing moisture Levels, adequate and proper drainage is critical in order to ensure that these expected movements stay within serviceability criteria For this reason, it is particularly important to maintain proper drainage away from your home's foundation and away from any improvements constructed by you an your lot. Buyer must maintain the slope of the finished grade away from building exteriors, and maintain and keep clean and clear of any obstruction any drainage facility or system not otherwise maintained by the City, including, but not limited to, drainage ditches, swales, subdrains, downspouts, roof gutters, and similar systems. Seller shall have no liability or responsibility in connection with any lot grading or lot drainage modifications or any lot improvements that are made after Buyer occupies the home. This includes, but is not be limited to, any cracking which may occur to foundations/slabs or other structures/improvements as a result of the improvements installed by Buyer. 4.7 GARAGE / DRIVEWAY LIMITATIONS ON USE AND ACCESS Buyer acknowledges that some vehicles may be too large to access the Property's driveway and/or garage. Buyer is advised to carefully consider the size of the Property's garage as well as the driveway's accessibility and to determine, prior to signing the Addendum #1 and purchasing the Home, the acceptability of the Property's garage and driveway for Buyer's intended use. Buyer is further advised that governmental authorities may prohibit increasing the size or location of the driveway. 5. BUYER MODIFICATIONS AND/OR IMPROVEMENTS 5.1 NO RELIANCE ON SELLER FOR BUYER'S IMPROVEMENTS Buyer will not rely upon or make the decision to purchase Property based upon any statements made to Buyer by Seller or its representatives concerning the placement, style, height, size or any other feature of any Project: Rose Gate Document: General Disclosures Revision Date: October 7, 2015 4 BUYER'S Initials ROSE GATE structure, flatwork, or landscaping which Buyer may contemplate placing on the Property following acquisition of the Property. For more information on improvements, please refer to the CC&Rs. 5.2 BUYER'S RESPONSIBILITY FOR IMPROVEMENTS Buyer acknowledges and agrees that Seller shall not be liable or responsible for any damage to improvements constructed by Seller that have been subsequently altered or modified by Buyer or that is the result of improvements that have been constructed by Buyer, or for any improvements constructed by Buyer in like style to those constructed by Seller. Improvements constructed by Buyer should not be installed, constructed or modified without the assistance of qualified consultants in addition to proper government permits and must conform to the requirements of the CC&Rs. Professional soils and structural engineers should be consulted to determine existing soils conditions and the impact such conditions may have upon the proposed improvements. Any soils information acquired by Seller for the construction of improvements within the Project is NOT available as a primary source document for improvements contemplated by Buyer. Any building plans used by Seller for purposes of construction of structures upon Buyer's Property are NOT available for Buyer to use for improvements contemplated by Buyer. 6. RECORDED DOCUMENTS / RESTRICTIONS ON USE 6.1 CC&Rs All lots within the Rose Gate will be encumbered by its CC&Rs. This document will be recorded in the County Recorder's Office prior to the close of escrow on the first lot sale within the Project. This Disclosure Statement is a summary and highlight of information, some of which is included in the CC&Rs, which contain several covenants, conditions and restrictions. In the event of any conflicts between this Disclosure Statement and the CC&Rs, the CC&Rs takes precedence. BY PURCHASING A HOME IN THE PROJECT, BUYER IS AGREEING TO THE RESTRICTIONS CONTAINED IN THE ROSE GATE CC&Rs, WHICH INVOLVE THE USE OF BUYER'S PROPERTY AND ANY IMPROVEMENTS OR ALTERATIONS TO THE SAME. FOR INFORMATION AS TO BUYER'S RIGHTS AND OBLIGATIONS, BUYER SHOULD READ AND UNDERSTAND THE CC&Rs. 6.2 SELLER NOT RESPONSIBLE FOR CC&Rs ENFORCEMENT Seller is NOT the enforcement agency of the Rose Gate CC&Rs. The CC&Rs state how an owner is to proceed to enforce alleged violations of the CC&Rs. 6.3 EASEMENTS/RESTRICTIONS ON USE Buyer should thoroughly review the Preliminary Title Report and should carefully analyze the easements and restrictions contained therein. In addition, Buyer should evaluate the limitations and restrictions imposed on the use of the Property by the owners of said easements. Title to the Property shall be subject to all items of record as set forth in a title policy for the Property that will be delivered to Buyer through escrow, as well as to all easements, restrictions, covenants, conditions, bonds, liens and encumbrances shown on the Final Map, the plot plan, the CC&Rs, or that are necessary for the improvement, development, and/or maintenance of the Project. Buyer may have been given a Preliminary Title Report, which is not final. Utility easements for electrical transmission, communication, conununity water systems, irrigation, sewer, and drainage are typical easements to be expected to affect the Property. The Property may also subject to recorded reciprocal use agreements and/or easements. Seller retains the right to obtain and record future easements or necessary maintenance areas for structures, pipes, drains, landscaping, access -ways, fences, etc., on the Property, provided such easements do not materially or substantially affect the continued use of the Property ANY DIGGING IN OR AROUND EASEMENT AREAS, OR AREAS WHERE UNDERGROUND UTILITIES MAY BE PRESENT, COULD RESULT IN SERIOUS INJURY OR DEATH IF NOT DONE PROPERLY. (PLEASE CONTACT UNDERGROUIVD SERVICE ALERT AT 1-800-227-2600 AT LEAST 48 HOURS BEFORE THE INTENDED DIGGING DATE AND THEY WILL SEND PEOPLE FROM ALL OF THE PROSPECTIVE AGENCIES TO LOCATE THE UNDERGROUND SERVICES.) 7. ACKNOWLEDGMENTS 7.1 ONGOING CONSTRUCTION Ongoing construction activity will continue until the Project is complete. Buyer may be impacted by construction or street improvements or similar such activities, as well as the traffic, vibration, noise, dust, and debris (including but not limited to nails, screws, sheetrock, wood, and other related materials in the roadway or otherwise) that generally accompanies such construction. Generally, construction activities may take place between the hours of 7 a.m, to 6 p.m. Monday through Sunday and on holidays. Project: Rose Gate Document: General Disclosures Revision Date: October 7, 2015 5 BUYER'S Initials ROSE GATE 7.2 COMPLETION OF CONSTRUCTION Seller shall use reasonable efforts to complete the required public and private improvements affecting the Property to allow Buyer to occupy the Property at the Close of Escrow. If Seller is unable to timely complete exterior improvements such as finish grading, landscaping and fencing, Buyer agrees that Escrow may close and all documents may be recorded without installation of such improvements, provided a certificate of occupancy for the home (whether temporary or fmal) is issued by the governmental agency with jurisdiction over the Property, and that such improvements are thereafter installed without additional cost to Buyer. Buyer shall take all reasonable efforts necessary to initiate utility services at the Property, such as gas, electric, cable TV, and telephone services immediately following the Close of Escrow. Buyer understands and agrees that Seller shall not be responsible for scheduling of such utility services and that the Close of Escrow is not dependent upon utility activation. The Seller will disconnect all utility services not already transferred into Buyer's name within 3 business days following the close of escrow. 7.3 PUBLIC SCHOOLS Seller makes no representations to Buyer that Buyer, or Buyer's children, are guaranteed enrollment now, or at any time at a specific school within the local school districts. However, Buyer should contact the school district listed above at (209) 331-7000 for complete details regarding the schools and to confirm the enrollment of students from this Project. Seller strongly recommends that Buyer contact the school district(s) directly for the most up-to-date information regarding placement at public schools. School districts have the right to relocate children from one school to another at their sole discretion. School districts may provide bus service, but Buyer should contact the school districts for verification and details. For information on individual school scores, visit the STAR (Standardized Testing and Reporting) Results website at http://star.cde.ca.gov. Seller makes no representations regarding the accuracy or currency of any information listed on the STAR Results website. 7.4 UTILITIES AND SERVICES Buyer is advised to contact the appropriate companies and/or agencies sufficiently in advance of the close of escrow to determine the amount of such fees and to allow for scheduling of necessary utility meters and hookups. Some cities and counties may require certain approvals prior to authorizing installation of gas meters or the provision of other utilities. Buyer acknowledges that Seller has no control over the City or County processing of such authorizations or the scheduling or workload of utility providers and as a result, gas or other utility services may not be "connected" or "turned on" at the close of escrow. Buyer agrees that the lack of utility service will not delay or extend the close of escrow. In addition, Seller has made no representation or warranty regarding the size or location of utility easements, utility meters, boxes, pedestals, or other equipment on or near the Property. Buyer acknowledges that the Seller will disconnect all utilities in their name oat the end of the third business day following the close of escrow. Seller was informed that the following utility and/or service providers may be servicing the Project: • PG&E (Gas) (800) 743-5000 • AT&T U -verse (Cable TV, internet and phone) (800) 288-2020 • Lodi Utility (Water, sewer and electric) (209) 333-6719 • Lodi Public Works (Garbage) (209) 333-6706 However, Buyer should contact the utility and/or service providers directly for complete details regarding such services and to confirm that such utility and/or service providers will be servicing Buyer's home. Seller makes no warranty regarding the availability of any of the utilities/services set forth above, or as to whether or not such utility/service providers will serve Buyer's home, or about the accuracy of the above information, which is provided for Buyer's convenience. Project: Rose Gate Document: General Disclosures Revision Date: October 7, 2015 6 BUYER'S Initials ROSE GATE 7.5 MATERIALS AVAILABLE FOR BUYER'S REVIEW Various materials concerning the Project and the Property are available for Buyer's review at the Seller's sales office. Buyer is strongly encouraged to visit Seller's sales office before executing the Agreement to review all of the materials regarding the Project and the Property. 4)Z -A -A BUYER LOT NO. /95 ADDRESS CITY �j [r 257 DATE DATE lo�tsllS J / 4 4 Q,4 c'/ 3 SELLER'S SALES REPRESENTATIVE , CA TRACT NO. Project: Rose Gate 7 Document: General Disclosures Revision Date: October 7, 2015 /2/2 /a DATE LOT 19 LOT 208 939. 12'20"E 60.00' I I N00'47'40"E 100.00' _ R LOT 195 6,000 S.F. � J 5' V V V V --�— - — —— qC5•r V V V V — — 5' — Y >K a` � N -j w a a A �� a . — AI ,, «S89"1220 60,00. LOT 196 0 0 N00'47'40"E CELEBRATION DRIVE 2. ELATER METER = 1" ECTRICAL SERVICE PANEL = 200 AMP DATE: JUNE 15, 2015 3. POST CONSTRUCTION BMPS PER SWPP WDID# 5539C369372 4. EX. DRIVEWAY APPROACH TO REMAIN U.O.N. REVISED: NOVEMBER 2, 2015 NOTES: 1. ALL GROUND SHALL SLOPE AWAY FROM BUILDING WITH A DRAINAGE SWALE CONSTRUCTED TO MAINTAIN POSITIVE DRAINAGE. 2. ROOF DRAINS ARE TO BE DIRECTED TO A PERMEABLE AREA OR INFILTRATION TRENCH BEFORE ENTERING CITY OF LODI MUNICIPAL STORM WATER SYSTEM. THE CAPTURE AND REUSE FOR SAME INITIAL FLOW VOLUME IS ALSO AN ACCEPTABLE BMP. 3. ELECTRICAL, CABLE, AND/OR TELEPHONE BOXES MAY BE LOCATED ON THIS LOT, 4. HOME CONTRACTOR TO COMPLY WITH CALIFORNIA CODE SECTION R401.3 AND SOILS REPORT RECOMMENDATIONS. 5. THE ROSE GATE SWPPP WDID# 5S39C369372 IS INCORPORATED HEREIN BY REFERENCE, m LEGEND TELEPHONE BOX 0 ® DRY UTILITY BOX ❑W WATER METER • SEWER CLEANOUT PER STD. PLAN 201 o CABLE UTILITY PUE PUBLIC UTILITY EASEMENT DIRECTION OF DRAINAGE WATER LINE LATERAL SEWER LINE LATERAL ELECTRICAL SERVICE FIRE HYDRANT ELECTROLIER 1A1 PAD MOUNT TRANSFORMER 0 10 20 MASTER PLAN: 20143649 GARAGE SPACE: 623 S.F. LOT COVERAGE AREA: 3,330 SF ADDRESS: 3031 CELEBRATION DRIVE PLAN & ELEVATION: 302A- EUROPEAN COTTAGE PORCH SPACE: 37 S.F. LOT COVERAGE:55.5% DRAWN: RP IIICRMCR ENGINEERING, INC. 1242 DUPONT COURT MANA , CA 95336 ENGINEERING EL: ( 209) 239-6229 FAX : ( 209) 239 - 8839 w,wtyv:r_tm c•r e n g. c o m LIVING SPACE: 2,335 S.F. OPTIONS: 3 BEDROOM, CALIFORNIA ROOM LOT NO.: 195 CHECKED: SLS y LODI, CALIFORNIA FCB HOMES PRIVACY FENCE LOT 195 z W zz W O CONCRETE PAVING 4' 3,-9„ ^/ I • PRIVACY FENCE AND GATE • Nf DRIVEWAY CUT, SCD PLANTING ROSE GATE: LOT 195 PAVING PLAN Prepared By: LEVESQUE DESIGN 1414 BAY STREET, SUITE 100 ALAMEDA, CALIFORNIA 94501 (510) 521 6700 PROJECT: 15-101 DATE: 03.14.2016 SCALE: 1" = 10'-0" 5 10 20 30 RESOLUTION NO. 2018-93 A RESOLUTION OF THE LODI CITY COUNCIL GRANTING APPEAL OF ERIK AND STACI JONES REGARDING PUBLIC WORKS DEPARTMENT'S DENIAL OF ENCROACHMENT PERMIT FOR 3031 CELEBRATION DRIVE, LODI WHEREAS, notice thereof having been published according to law, an affidavit of which is on file in the office of the City Clerk, a public hearing was held on May 16, 2018, by the Lodi City Council to consider the appeal of Erik and Staci Jones regarding the Public Works Department's denial of encroachment permit for 3031 Celebration Drive, Lodi. NOW, THEREFORE, BE IT RESOLVED by the Lodi City Council that it does hereby grant the appeal of Erik and Staci Jones regarding the Public Works Department's denial of encroachment permit for 3031 Celebration Drive, Lodi, under the conditions described below: • appellants Erik and Staci Jones are authorized to widen the driveway approach at the residence of 3031 Celebration Drive, Lodi, up to three lineal feet; and • Public Works Department will authorize the driveway replacement/installation as described above following submittal of an encroachment permit application by appellants Erik and Staci Jones, compliance with the Lodi Municipal Code, City policies and regulations, and payment of fees, as may be applicable. Date: May 16, 2018 I hereby certify that Resolution No. 2018-93 was passed and adopted by the Lodi City Council in a regular meeting held May 16, 2018, by the following vote: AYES: COUNCIL MEMBERS — Kuehne, Mounce, and Mayor Nakanishi NOES: COUNCIL MEMBERS — Chandler and Johnson ABSENT: COUNCIL MEMBERS — None ABSTAIN: COUNCIL MEMBERS — None NIFER i FERRAIOLO ity Clerk 2018-93 The City of Lodi Public Works Public Hearing to Consider Appeal of Public Works Denial of Encroachment Permit Application For 3031 Celebration Drive Item G-02 May 16, 2018 00 41110.1 NO 41. I OW 041 , •0.4 Background • Rose Gate Subdivision • Accepted November 8, 2015 by Council • 230 single-family, residential lots • 26 three -car garage configurations • Driveway modifications/relocations after construction • Eight allowed between May 2016 and November 2017 • Allowed due to atypical parcel shape and some oddly shaped Tots • Developer requested only — no private modifications/relocations requested, besides the Joneses • Five relocations — no widening • Three extensions - one to accommodate two houses — one due to large frontage - and one performed without permission during relocation. Background • Sunwest Meadows • 25 3 -Car garage w/ 2 -car driveway Background Ir. .n. 55 MOMQ..p.. mQ N ▪ � • r 2417 ti f�2423 2.403 2429 r --- 2414I 5 2420 2507 Muirfieid Dr. 2426 2515 2432 2438 2494 2521 2529 01 to 2573 k 2579 2576 ▪ m 2565 a t7 2408 2416 2422 2510 2516 2528 2509 2515 2523 Centennial Dr 2512 2511 i' 7518 2524 d d 2630 4VC 2517 Q 2513 2523 O 2522 2519 P4.1:1 2528 2525 N • 2534 2536 rot Lexington Dr. 11. ry I m i n i! Springhaven Wy. 2543 • 2559 ▪ 2577 250 Wildwood Dr. Marney Ln. 25p6 524 2518 2524 2530 2536 Q 14 2542 IC t.% 2548 2554 2579 ,----,----i- , ',,,, is 1,325 ,Lg "'JD' 2269 2323 22 2265 f7 2333 "' 2338 2338 2317 2245 2344 2401 2351 V 2350 240/ 2357 E 2356 2415 2403 p2 2402 2421 C -- 2409 Y 2405 2427 0 2414 2433 2415 0, 2421 2420 2439 2427 2426 2446 x456 2433 2515 2525 Background .t' sNi• w f / t� pp, Er 411 f 1 • f�� e j �r e.:.• & r.-9 . $ R i5' LOT MO 22...... rn T 21 r n Lo ■ 2 e S► 7,S68s.F• �•. 7� 8.['S g I. GENP _SSS �.{ S...... L•ip, MEM -ONE ecrx gm DRY Lm LEN BOP ® WATERAAFTER SFWCR GEANDur PER OTO. PLAN 207 n CAERE UTILITY POE PUNK UNLIT" EASEMENT DIRECION EN DRAmA[r %NATEFE UNE LATERAL _ SEYYFRI.NE LATERAL m ELECTRICAL St BODE p-� V ORE FA'➢RAKT ELL T10[IER PAD MOUNT TRANSPOPPAFR 6- HOSE IRS .__ O 20 y ' tS f•. • o1216 i 1 f r 4 1! �r '---' f _---- LOT217 h l 1 , r` g N ' 1 . •• E 1 . 1 •1 !SO f.7857-_ Replace lids with traffic rata. liCdO dt '), 1 is . .,_ e-- __ .. 2107' l'. -I, ~_ - x • 't ~ �� -- R.las.D¢'-� - METER Z9 8E --� ji[LGGTF.O. - • 524'17'39'N- 5.88' - • �JJJ �- _ 0-101.50' PROPOSES DR BELMONT D�P�AFi+� W c ERn3EhR=L" Ex. DRIVER/AY ''''' j1s•ftas per ublic rirslRu 1ICi1PlMo`sr.FF,5so wm 13,E yPJ p �SFNL'R-,-'V� 91VISED. 10 IM 7R P EL'15!'P'jUMf ]f., 1017 ImI1mVAfnQnt plans IYEItiAY APAADAnt TO REMAIN u11.0. NOM: 2. ...DAD SLte7l MLCATAYCAY FROM EIILDALGVATH A ORArcauc SWALE CONSTA04TEP T51tra1.41,1" ROEETYE DRAYAGE Pace DROPS AAE TO DE(TAFCTEO-9A PI RAI ERRE AREA DR INFILTR0.TISH I REM, WORE ENTERING DTV ....CO API NIOPAL 1 TORE* WA(LA 5,700 TY.ECAPTVRE AHDH[Al5Lf0R 5AUTEINITIA1 FL544,00pAE 1007007A'ACCFRIA*LEBMR 3. ELL( MNRM.(ARIE. ANOfORIELLPHONE BONES MOYEN'..CRMED CH TN15000T, [1 LM1OA SO COMPLY WPM [AUFORRFA CODE 51CrAN 0.001.1 AND SOILS AEDDRT RACLIMMERPA+. PRS HOE7F071 7. TILE FOST CATE3W?RP Willa ,L]'A1E437315 IRCORl0RP r ED HF.EEIN Ar AFFEREHCF MA57Eb PLAri: 20150919 PLAN & ELEVATIDN:304A TUSCAN L17IYCi SPACE 3.7810 f SS ____ GARAGE SPALL. OA S.F. PDRCN 93ACE: 1705.E OPTI0A13: 5 E...CARD:rpm Lod •___ 101 C.OYE0A:.E AREA 2,003 S.E. ._ LOT COVERAGE. ii$9'.__.. ..._ 101 HO: 215 ADDRESS. 9021 BELMON1 311 ORA1.04: LLP_._ . CI1ECTSE D. 111 CR M[P EN6WEERING, PIC 1202 DLPPRT CL1URT MANTECA. GO. 45336 ENGINEERING ELL: 126129 5229 FAY E 34 8839 RNIA PCBOpl, CAI IFOIFDE-i • 20 913 Timeline • October 25, 2015 • Mr. & Mrs. Jones sign "Information and Disclosure Statement" • Paragraph 4.7 Garage / Driveway Limitations on Use and Access 4`7 GARAGE / DRIVEWAY LIMITATIONS ON USE AND ACCESS Buyer acknowledges that some vehicles may be too large to access the Property's driveway andior garage. Buyer is advised to carefully consider the size of the Property's garage as well as the driveway's accessibility and to determine, prior to signing the Addendum #1 and purchasing the Home, the acceptability of the Property's garage and driveway for Buyer's intended use. Buyer is further advised that governmental authorities may prohibit increasing the silk or location of the driveway. 5. BUYER MODIFICATIONS AND/OR IMPROVEMENTS 5.1 NO RELIANCE ON SELLER FOR BUYER'S IMPROVEMENTS Buyer will not rely upon or make the decision to purchase Property based hsps any statements made to Buyer by Seller or its representatives concerning the placement, style, height, size or any other feature of any Project: Rose Gate Document: General Disclosures Revision Date_ October 7, 2015 4 i Timeline • October 25, 2015 • Mr. & Mrs. Jones sign "Information and Disclosure Statement" ROSE GATE 7.5 MATERIALS AVAILABLE FOR BUYER'S REVTEw Various materials cuing the Project and the Property are available for Buyer's review at the Seller's sales office_ Buyer is strongly en caged to visit Seller's sales office before executing the Agreement to review all of the materials regarding the Projcet and the Property_ BTJ YER LOT NO.5ADDRESS CITYr� ICA 125/15 DATE DATE 1 SELLER'S SALES REPRESENTATNE ,CA TRACT NO. '/3 /6/2 T7/ DATE Timeline • November 15, 2015 (or thereafter) • Mr. & Mrs. Jones acknowledge, by initial, a plot plan that clearly shows the location and configuration of the three -car garage with two -car driveway • March 14, 2016 (or thereafter) • Mr. & Mrs. Jones acknowledge, by initial, a landscape plan that clearly shows the location and configuration of the three -car garage with two -car driveway • May 28, 2016 • Mr. & Mrs. Jones move into their new home Timeline LOT 194 4 0 LOT 208 12.20 •E F5. I LOT 195 6,000 S.F. T • -- 58W1220E 60,00 E LOT 196 A 0 0 CELEBRATION DRIVE2. EEU�ECTR,SRV CE PANEL -200AMP DATE: IUNEI.5. 2015 3. POST CONSTRUCTION BMPS PER SWPP REVISED: NOVEMBER 2, 201.5 55390365372 4. EX. DRIVEWAY APPROACH TO REMAIN 1.0.5 LEGEND TELEPHONE BOX IP! DRY UTILITY BOX WATER METER • SEWER CLEANOUT PER STD. PLAN 201 O CABLE UTILITY PUE PUBLIC UTILITY EASEMENT DIRECTION OF DRAINAGE WATER LINE LATERAL N SEWER LINE LATERAL ELECTRICAL SERVICE FIRE HYDRANT ELECTROLIER [�I PAD MOUNT TRANSFORMER O 20 10 NOTES: 1. ALL GROUND SHALL SLOPE AWAY FROM BUILDING WITH A DRAINAGE SWALE CONSTRUCTED TO MAINTAIN POSITIVE DRAINAGE. 2. ROOF DRAINS ARE TO BE DIRECTED TO A PERMEABLE AREA OR INFILTRATION TRENCH BEFORE ENTERING CITY OF 1011 MUNICIPAL STORM WATER SYSTEM. THE CAPTURE AND REUSE FOR SAME INITIAL FLOW VOLUME 15 ALSO AN ACCEPTABLE BMP. 3. ELECTRICAL, CABLE, AND/OR TELEPHONE BOXES MAY BE LOCATED ON THIS LOT. 4. HOME CONTRACTOR TO COMPLY WITH CALIFORNIA CODE SECTION 8401.3 AND 501L5 REPORT RECOMMENDATIONS. 5 THE 905E GATE SWFPP WDIDH 11303643755 INCORPORATED HEREIN BY REFERENCE. MASTER PLAN: 20143649 GARAGE SPACE:623 S.F. LOT COVERAGE AREA: 3.3365E ADDRESS: 3031 CELEBRATION DRIVE PLAN & ELEVATION; 302A_EUROPEPN COTTAGE PORCH SPACE: 37 S.F. LOT COVERAGE:55.5°% DRAWN: RP LIVING SPACE: 2,335 5.F. OPTIONS: 33EDR00NA CALIFORNIA ROOM LOT NO.: 195 CHECKED: SLS CIRMCR ENGINEERING, INC. 1242 DUPONT COURT CA , CA 95336 ENGINEERING E� (209)2239-5229 IMMINVENEEMILIME FAX : ( 209 ( 239 - 8839 L a. LODI, CALIFORNIA FCB HOMES LOT 195 a Roan' FENCE p; Ho ECONCRETE PAVING tares RsS PRFVACY FENCE AND GATE 4139, • ORIVEYAY CUT, SCD ROSE GATE: LOT 195 PAVING PLAN f Prepared By: LEVESQUE DESIGN 1414 BAY STREET. 5411TE 100 ALAMEDA, CALIFORNIA 94501 (510) 521 6700 Timeline • March 3, 2017 • Initial Encroachment Permit Application submitted • Denied based on following basis: • Pavement preservation — very new pavement • Parking impacts • Other solutions • March 2017 — October 2017 • Hughey Law Group becomes involved • Staff responded to multiple Public Records Act requests • Correspondence by phone and email (litigious tone) • October 10, 2017 • Second Encroachment Permit Application submitted • Denied October 26, 2017 for same reasons above Timeline • October 2017 — March 2018 • Additional correspondence / responses and additional Public Records Request by Hughey Law Group • March 20, 2018 • Received appeal from Hughey Law Group alleging Joneses are substantially damaged due to: • Defective design and construction • Safety concerns for residents and neighbors • Loss of home value ($35,044.35) • Harm to vehicle ($7,500) • Only remedy is driveway modification • April 4, 2018 — Set Public Hearing • May 2, 2018 — Public Hearing Continued • May 16, 2018 — Public Hearing Appeal Allegations • Allegation: Defective design and construction • City has adopted design standards for residential driveway construction — used since early 2000's in Sunwest Meadows subdivision • Driveways are located during the improvement plan design phase • Aligned with most likely location of garage — near property line • Carefully located to maximize on -street parking, minimize potential vehicle conflicts, and comply with maximum driveway frontage requirements • Public improvements / design was accepted by Council November 8, 2015 Appeal Allegations • Allegation: Safety concerns for residents and neighbors • 25 other three -car garages with two -car driveways in Rose Gate • 25 three -car garages with two -car driveways in Sunwest Meadows • Garages align with main, two car portion of garage • Some negotiating to get large vehicles in 3rd bay • To date — no complaints received by City Staff or FCB Homes regarding driveways, aside from this appeal • No complaints received by City Staff from Sunwest Meadows residents • Insistence by homeowner to use westerly bay for large truck parking may in fact pose an unnecessary risk to neighbors Appeal Allegations • Allegation: Loss of home value ($35,044.35) • Per Zillow - home value increased by $70,000 since May 2016 ($20,780 over the last 30 days) • Garage bay is useable (with caution) by smaller vehicles — Chevy Tahoe • No complaints received from 50 other homeowners in same situation — 25 in Rose Gate and 25 in Sunwest Meadows • Allegation: Harm to vehicle ($7,500) • Avoidable by utilizing other garage bays Appeal Allegations • Allegation: Only remedy is driveway modification • Homeowner could use alternate garage bays for truck parking (as neighbor to the west does) • Bay is useable (with caution) by smaller vehicles — Chevy Tahoe size • No complaints received from 25 other homeowners in same situation in Rose Gate • No complaints received from 25 other homeowners in Sunwest Meadows Allegations Appeal Allegations n 336 -I- C-9"C.G. 2!eo lc 401 — 460 SLI1V1 403 ENTRY H.S *i 14;11 'O-G'CLa. H.S R-0-" JnF1N II Chevrolet ! II Silverado I ! I 401I Ii 1-BrY GARAGE/ OPT. DE , I I OPT BEDRM. 4/ 0'T. BA! 3 ! I f 1-•-1 ll� CARPET_ __ 462 1C'-0' CtG. H.5. I+ 1110 II 221 101 17'-12" 11 3'-1' • 2030 FX.PAW Y p�'o ac f'X. . 8" 6'-8" ----- I r -Cr a'• Ce $EGT'Gpf+ -{ 545 ! 422f� OPT. 8' 1'-2" GARAGE 141 23 so sC 1€'-0' 8'-0' SECT. DOOR 541 Reasons for Denial • Reasons for Joneses encroachment permit denial • Developer requested driveway modifications • Limited to eight total • No other private requests received • Preserve on -street residential parking • Small driveways — limited on -street parking • Pavement preservation • New pavement — now three years old • Recent amendment to LMC — restricting cuts in pavement less than five years old • Pavement cuts reduce life of public roadway Reasons for Denial f7TFH61-01 {-00024 MANUAL FOR CONTROLLING AND REDUCING THE FREQUENCY OF PAVEMENT UTILITY CUTS Final Report Submitted to federal 1 Iighaay Ad rni nisi ral inn Oficcor, Program Ad m i nistra Hon 1IIPA-20 400 7th Street, S.W. 4Va shinok}n, f] -C:- 10.590 Reasons for Denial Charles Swi mley From- Sear Kalman Sant Friday. November 110. LOlb 90:00 AM To: Andrew peck; Any3; Charles Swimley; Hasan Shahriar, Jamie Russell; Jerry Dewslh Jim • Billigmeier Jules Alarchesseault; Kimberly Sohin; KKBA; Kris Cook; tynpan M Chang; Michelle NiemantsPerdrfet; MK; PC; SD; Denise Wiman Subject: RE NOv:mbcr Meeting Minutes Attachments: Pavement Map S Year.pdf At the November Utility COardinatiGn Nleaing it was req uesteo that we send est an updatec 5 -Year Moratorium Map P lease Reg attached updated m&P. Let us know if you have any questions Thanks, S ean Nathan Senior Civil Era neer City of Lodi - Public Works Dept. 221 West Pine St. Lodi, CA 26240 (209) 333.6900 12665 From: Tiffani &utnmvich Sent: Thursday, November 16, 2016 6:26 AM To: Andrew Peck; Any3; Charles Swlmley; Hasan Shahriar; Jamie Russell; Jerry Dewttti Jim! Dllllgmeler; iodlua Swearingen; Jules Mardlesseault; Karl Chadwick; Klmbeliy SObin; NNBA; Kris Conk; Lyman M Chang; Michelle .liementsverdnet; MK; P0; SD; Sean Nathan; Steve Dutra Subject: November Meeting M in uLes Good morning, Attached you wilF find thls month's meeting minutes. Thank you, Ti 414 OtuU. rovi.ch' Administrative Secretary City of Lodi Public V4or1<s Department 221 West Pirie Street Lodi. CA 26240 (209) 333-6706 ext. 2676 Reasons for Denial 5 YEAR MORATORIUM MAP Installation Year -- 2011 2012 - 2013 T^ 2014 - 2015 - 2016 S 0 1,000 2,000 Feet Grounds for Granting Appeal Lodi, CA Code of Ordinances Page 1 of 1 12.04.100 - Refusal—Appeal. A. Any person aggrieved by the refusal of a permit required by this article may appeal to the city council. Administration of this chapter is referred to the director. B. If the city council finds all of the following to be true, the 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. 3. The granting of the permit will not be materially detrimental to the public interest, safety, health and welfare or injurious to other property. (Ord. No. 1948, § 1, 2-21-2018) Findings • Possible Council findings that support denial: • Pavement cuts negatively impact the useful life of street pavement improvements • Applicants have the option to relocate their large vehicle to an alternate garage bay • Applicants were made aware and acknowledged the City may not allow a driveway modification and that driveway and garage access may be less than ideal • The practice of extended driveway approaches would reduce the amount of available on -street parking • The City's design standards for subdivisions utilizing vertical curb, separated sidewalk and isolated driveway approaches existed since the early 2000's with no reported design related accidents Questions??? rzscild. 2014 Chevrolet Silverado 150( Truck Cars TheCarConnection MSRP: $25,575 - $49,180 Fuel economy (MPG): 16 - 18 city 22 - 24 highway Dimension: 205.6" L x 80° W x 74" H Weight: 4,387 lbs Seating: 6 Model years: 2018 2017 2016 2015 2013 2012 G-2 HUGHEY LAW GROUP City Council c/o City Clerk's Office P.O. Box 3006 Lodi, CA 95241-1910 520 9th Street, Suite 230, Sacramento, CA 95814 0: 916.758.2100 1 F: 916.758.2200 www.hugheylawgroup.com May 15, 2018 Subject: Reply to Public Works' Recommended Action Dear City Council Members, This reply is in response to the May 10, 2018, Recommended Action prepared and submitted by Lodi Public Works Director, Charles E. Swimley, Jr., and approved by City Manager Stephen Schwabauer. For the foregoing reasons, Staci and Erik Jones disagree with the recommendation to uphold the denial of their encroachment permit for the minor driveway modification, and respectfully request that the City Council approve the encroachment permit and modification for their 3031 Celebration Drive property located in the Rose Gate Subdivision. Public Works and Mr. Schwabauer's continued reliance on any alleged disclosures and acknowledgement by the Joneses is both improper and irrelevant to the current issue of the driveway modification request. Any present or future action between the Joneses and FCB is an entirely separate and distinct matter and should not affect the City's grant of an encroachment permit. As a practical question, if there were no alleged disclosures or the Joneses home was located elsewhere, would that factor into the Public Works and City Manager's deliberative process? The clear answer appears to be no. It is inappropriate for the Public Works Department to base its denial of an encroachment permit request on a developer's negligent construction of a subdivision or individual purchase agreements between buyers and sellers. Instead, Public Works and this Council should look directly at and consider Lodi Municipal Code Section 12.04.100(b), which states that a permit shall be granted if the following is found: (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; (3) The granting of the permit will not be materially detrimental to the public, interest, safety, health and welfare of injurious to other property. Without reiterating in full detail the points discussed in their March 20, 2018 encroachment appeal notification letter, the Joneses hope that is clear to the Council that the above criteria are met. Clearly, the only method for the Joneses to obtain the desired result of widening their driveway approach so that they may simply use their second garage bay is through the Lodi encroachment permitting process. Where Public Works and the City Manager differ is on the level of harm sustained by the Joneses from the continued refusal of Public Tristan Hills thills@hugheylawgroup.com Works to issue a permit, as well as the potential impact that granting a permit will have on the public, interest, safety, health and welfare to other property. There is little dispute that the present state of the Joneses driveway imposes a substantial harm. As stated, the Joneses are forced to engage in an elaborate approach just to back their vehicles into the driveway, which comes at a serious risk to pedestrians and vehicles in the area. This approach heightens the risk and liabilities of the Joneses, as it increases potential for accidents. Again, a risk that is entirely unnecessary given the minor remedial measures that can be taken here. This daily maneuvering continues to cause further unnecessary wear and tear on both the driveway, curb, and most importantly to the Joneses, causing damage to their vehicles in the form of damage to the front end, ball joints, springs, contortion bars, and other areas of the vehicle. The damages to their vehicle(s) is quite real and has been conveyed to them by their mechanics on multiple occasions. Public Works and Mr. Schwabauer continue to rely on the alleged fact that any modification to the driveway and the surrounding pavement will compromise the integrity of the roadway. However, this concern seems grossly overstated and, to date, neither has provided evidence as to any actual damage that would occur, nor have they indicated any impact studies that were conducted or relied upon prior to granting the previous eight driveway modifications. The Joneses, through our office, specifically requested any and all documents and studies that the Public Works and City Manager's Office has relied on in making the above determinations regarding previous encroachment permit decisions. (See attached Exhibit A.) In response, Deputy City Attorney John P. Fukasawa sent us three impact studies, one being a 2002 study from Santa Cruz County, a 1999 report from the City of Santa Ana, and an undated document from the Federal Highway Administration. (Collectively attached here as Exhibit B.) Neither Mr. Schwabauer, in his August 30, 2017 email, nor the Public Works Department in their Recommended Ruling have indicated how these studies relate to the nature of the Joneses requested driveway modification or pointed to actual decrease in life expectancy of the curbs in the RoseGate subdivision. The individual studies referenced indicate a range of outcomes, certainly affected by both traffic, materials and topography that may or may not be applicable to the City of Lodi and the RoseGate subdivision. Public Works has yet to indicate the expected decrease of life expectancy from the Joneses proposed modification, which proposes minor modifications that would not cut into the middle of a street or any heavily trafficked area. In the same vein, any reduction in on -street parking appears to be minimal and certainly the consideration is outweighed by, once again, the harm to the Joneses and increased risk of harm to pedestrians and vehicles in the area. In fact, they highlight this risk. If the Joneses are continued to be required to back their vehicle out of their driveway in its present state, forcing them to back over the sidewalk, grass and curb as indicated in Exhibit D of Public Work's Recommended Action, and there is a vehicle actually parked on the street in front of the second garage bay, then there is a very real and substantial increased risk of harm to vehicles and 2 individuals. As is, it would be unsafe for anyone to park a vehicle along the area of the proposed modification. Finally, the City Council's February 7, 2018 decision to authorize modification to Lodi Municipal Code 12.04.090 to state that, in pertinent part, "[n]o application will be approved [for]... work that disturbs existing asphalt pavement on streets or alleys that have been resurfaced within the past five years" appears to be directly targeted at the Joneses and is arbitrary given the lack of impact studies on the part of Public Works to show how or why one cannot make modifications within five years, as opposed to within any other time frame. The fact that Public Works recommended, and the City adopted modification to the Municipal Code while they were aware that the Joneses were in the process of appealing the denial of their encroachment permit, strongly indicates that this change to the Code was directly targeted at the Joneses. Public Work's makes clear that this "driveway modification request from the Joneses is the only private request received to date." City Clerk Jennifer Ferraiolo was aware as early as November 6, 2017, that the Joneses were in the process of reviewing and preparing an appeal to the City Council, not to mention continued email follow-up with Mr. Fukusawa regarding document requests. (See email communications attached hereto as Exhibit C.) Given the extensive communication between our office and Public Works, the City Clerk's Office, City Manager and the City Attorney's Office, Public Works' Recommended Action in modifying the applicable Municipal Code appears as an attempt to directly restrict the Joneses from exercising their rights to an appeal. The fact that the Joneses applied for an encroachment permit prior to the modification to the Code and were both within the allotted time to appeal the decision and had given the City extensive notice of their intent to do so, any subsequent change to the Code should have no bearing on the present appeal. In light of the foregoing, the City Council is respectfully urged to grant the Joneses appeal and approve an encroachment permit so that this issue may be put to rest and allow the Joneses the safe and practical use of their family home. Sincerely, HUGHEY LAW GROUP Tristan Hills 3 CITY HALL 221 WEST PINE STREET P.O. BOX 3006 LODI, CALIFORNIA 95241- 1910 (209) 333-6701 (209) 333-6807 FAX Tristan Hills Hughey Law Group 520 9th Street, Suite 230 Sacramento, CA 95814 CITY OF LODI CITY ATTORNEY'S OFFICE November 9, 2017 Via email: thills(hugheylawgroup.com RE: California Public Records Act Request dated October 17, 2017 Dear Mr. Hills: JANICE D. MAGDICH City Attorney JOHN P. FUKASAWA Deputy City Attorney This letter (pursuant to an extension granting a response by November 9, 2017) is in response to your Public Records Act request dated October 17, 2017, seeking the following records: 1. Any and all documents showing the locations of homes with both a three - car garage and a twenty -foot approach, built in the City of Lodi between January 1, 2007 and present. 2. Any and all city, county, or state studies that the City of Lodi has either conducted or relies upon in determining the impact that adding new curb cuts to a sidewalk will have in decreasing the life expectancy of the curb. 3. Any and all city, county, or state studies that the City of Lodi has either conducted or relies upon in determining the impact that adding new curb cuts to a sidewalk will have in decreasing the life expectancy of the gutter. 4. Any and all city, county, or state studies that the City of Lodi has either conducted or relies upon in determining the impact that adding new curb cuts to a sidewalk will have in decreasing the life expectancy of the sidewalk. 5. Any and all city, county, or state studies that the City of Lodi has either conducted or relies upon in determining the impact that adding new curb cuts to a sidewalk will have in decreasing the life expectancy of other street improvements. 6. Any and all city, county, or state studies that the City of Lodi has either conducted or relies upon in determining the increased risk of water intrusion that new curb cuts presents for an existing curb. 7. Any and all city, county, or state studies that the City of Lodi has either conducted or relies upon in determining the increased risk of mismatched soil compaction that occurs when new curb cuts are made on existing curbs. 8. Any and all documents related to site inspections of driveways in the Rose Gate subdivision conducted by the City of Lodi. 9. Any and all documents related to required street parking determinations for City of Lodi neighborhoods between January 1, 2007 and present. 10. Any and all documents related to procedures and practices of the City of Lodi Planning Department, City Managers office, or City Attorneys office for reviewing, approving, or commenting on new home purchase contracts. 11. Any and all documents related to procedures and practices of the City of Lodi Planning Department, City Managers office, or City Attorneys office for reviewing, approving, or commenting on new home purchase contracts entered into by FCB for the Rose Gate subdivision. 12. Any and all documents related to procedures and practices of the City of Lodi Planning Department, City Managers office, or City Attorneys office for reviewing, approving, or commenting on individual purchase contracts. The records attached herewith are identified as responsive to the above-described requests and provided to comply with your request. No responsive records have been withheld or identified as exempt from release. Please feel free to contact me if you have any questions. Sincerely, i John P. Fukasawa Deputy City Attorney Analysis of the Impact of Utility Cuts on Rehabilitation Costs in Santa Cruz County, CA November 2002 Prepared for the County of Santa Cruz, CA by: ' Shahin & Associates Pavement Engineering 1. PURPOSE -- The purpose of this report is to summarize the results of utility cut patching studies conducted by other agencies. This will include the estimated effect of utility cut patching on pavement life and increase pavement rehabilitation costs. 2. SUMMARY of RELEVANT STUDIES -- Dr. Shahin has participated in several efforts to study the effects of utility cuts on pavement degradation. Four of these efforts are similar in nature to the study for Santa Cruz County. To better understand the methods and results of the study, a review of these past efforts is valuable. These studies were conducted for and on the City of Burlington, VT (1986), the City of Los Angeles, CA (1996), the City and County of San Francisco, CA (1998), and the City of Sacramento, CA (1996). Detailed summaries of these studies are attached as Appendices A thru D. a. City of Burlington, VT (Appendix A) — A representative sample of streets (50 pavement sections) was randomly chosen from areas throughout the city. A Pavement Condition index (PCI) (ASTM 0-6433) survey was conducted to determine the effect of utility cut patching on the PCI and subsequent pavement life. A nondestructive deflection testing (NDT) program was also conducted at positions in and around patched areas using a falling weight deflectometer (FWD) to measure the effects of patching on the structural performance of the pavement. The PCI analysis indicated that the utility patches reduced the pavement life by a factor of at least 1.64. The NDT program data indicated a significant increase in overlay thickness required by the patched areas. This increase ranged from 0.75 in. to 1.5 in. in depth. Based on these results, the extra costs required annually for pavement maintenance and rehabilitation was estimated at $500,000. b. City of Los Angeles, CA (Appendix B) — A representative sample of streets (100 pavement sections) was randomly chosen from areas throughout the city. These sections were split evenly between local streets and select streets. A PCI survey was conducted to determine the effect of utility cut patching on the PCI and subsequent pavement life. An NDT program was also conducted at positions in and around patched areas using an FWD to measure the effects of patching on the structural performance of the pavement. In addition, a standard penetration test was conducted to test the relative strength of the soil in the patch versus the original pavement. The PCI analysis indicated that the utility patches reduced the pavement life by a factor of 1.21 for local roads and 1.52 for select roads. The NDT program data indicated a significant increase in overlay thickness required by the patched areas. This increase ranged from 0.66 in. for local roads to 2.31 in. for select roads. Based on these results, the extra costs required annually for pavement maintenance and rehabilitation was estimated at $3.5 million for local roads and $12.9 million for local roads. 1 c. City and County of San Francisco, CA (Appendix C) — The City of San Francisco commissioned a study in 1992 to study the effects of utility cuts on pavement service life. That study concluded that streets with utility cuts experienced decreases as high as 50% in service life and reduced condition scores. Local utility companies commissioned a critical review and expressed concerns over the data and methods used in the analysis. To address the concerns, the City commissioned an expert panel to reevaluate the results of the original study and expand its scope based on new engineering techniques. The panel of experts concluded that the results of the 1992 study were legitimate. The expert panel concluded that utility cuts reduce condition scores and pavement service life. In addition, even high quality patching disrupts the surface integrity and supporting soils for the pavement, thereby reducing the service life. Lastly, the panel's findings were consistent with the findings of engineering -based studies which used deflection testing to conclude that utility cuts inevitably and irreparably disrupt the subsurface of a street and that this damage extends beyond the perimeter of the trench. d. City of Sacramento, CA (Appendix D) -- A representative sample of streets was collected and grouped in four zones based on soil and traffic conditions. No distress survey or visual condition rating was performed as part of the study. A nondestructive deflection testing (NOT) program was conducted at positions in and around patched areas using a Dynaflect to measure the loss of strength and area extent of influence of the utility cuts on surround pavement. A coring program was used to determine asphalt concrete (AC) thicknesses. Two Separate analyses were performed one for longitudinal cuts and one for transverse cuts. For longitudinal cuts it was determined that an additional 1.5 inch of overlay is required to make up for the pavement structural weakening by the patch. For transverse patching, it was determined that the average extent of damaging influence from patch edge is 3.64 feet. The prior studies all indicate a strong relationship between utility patches and increased maintenance and rehabilitation costs. These costs are the result of both faster pavement deterioration and increased requirements for overlays. The following conclusions can be drawn based on the results of the previous studies. ■ Pavement performance is significantly affected by utility cut patches ■ Pavement service life is significantly decreased by utility cut patches ■ Overlay thickness requirements are increased by utility cut patches • Utility cut patches create increased pavement rehabilitation costs for local governments • Utility cut patches negatively affect pavement outside of the patch area 2 3. ECONOMIC ANALYSIS — Based on the results presented in the previous sections of this report (Figure 1), it will be assumed that the utility patches decrease the life of the pavement by at least 25%. Also based on the studies presented, an additional asphalt thickness of 1.5 inch is required to bring the deflection to the same level before the utility cut. To maintain roads in good condition, Santa Cruz must therefore perform rehabilitation practices at a greater frequency, thereby increasing their costs over a given time period. To estimate the extra costs incurred, the following assumptions were made: • Current overlay practices call for a 2" asphalt overlay • The expected life without a utility cut is 20 years • The expected life with a utility cut is 15 years (25% life reduction based on PCI analysis) • Santa Cruz has a total of 600 miles with an average width of 27 feet • Approximately 70% of the miles have patching • Percentage of streets with manholes is 45% • Manhole realignment cost is $2500/mile • Approximately 50% of the roads will require cold planing prior to overlay • The cost of cold planing is $1.5/sylnch • The cost per short ton of asphalt is $54.50 Rehabilitation Costs for Areas without Utility Cuts The first step in the process is to calculate the rehabilitation costs for areas without utility cuts. The basic cost for overlays (OL) on an annual basis is shown by the following equation: Annual OL Cost = Overlay thickness x Cost of Asphalt x Number of miles / Frequency of Rehab Annual OL Cost = 2712 ft x 5280 fix 27 ft x .075 tons/ft3 x $54.5 x 600/20 = $2,913,570/yr However, the cost for manhole realignments and cold planing associated with the overlay must also be considered. Annual Manhole Realignment Cost = Cost per mile x Number of miles with manholes / Frequency of Realignment Annual Manhole Realignment Cost = $2500/mile x (0.45 x 600) x (1/20) = $33,750 Annual Cold Planing Cost = Cost per mile x Number of miles / Frequency of Cold Planing Cold Planing Cost per Mile = $1.5 x 2 in x (5280 x 27/9) = $47,520 without utility cut patching Annual Cold Planing Cost = $47,520/mile x (0.5 x 600) x 1/20) = $712,800 Total Annual Cost for unpatched areas is $3,660,120 3 Rehabilitation Costs for Areas with Utility Cuts The second step in the process is to calculate the rehabilitation costs given that utility cuts do occur. It is assumed that 70% of the roads have areas of utility cut patching: Annual OL Costc„t = Overlay thickness x Cost of Asphalt x Number of miles / Frequency of Rehab Annual OL Costt,oc„ t = Overlay thickness x Cost of Asphalt x Number of miles / Frequency of Rehab Annual OL Costwt = 3.5712 ft x 5280 ft x 27 ft x .075 tons e x $54.5 x 600 x 0.7 x 1/15 = $4,758,831/yr Annual OL Cost,,,,, = $2,913,570 x 0.3 = $874,071/yr Total Annual Overlay Cost = $5,632,902 The manhole alignment and cold planing calculations differ slightly in with the utility patches. Based on the greater thickness of overlays on patched areas, the thickness of cold planing will be 3.5 inch for patched areas. Number of miles with manholes and patches = 70% x (45% x 600) = 189 miles Number of miles with manholes and no patches = 600 x 45% - 189 = 81 miles Annual Manhole Cost = Cost per mile x Number of miles with manholes / Frequency of Realignment Annual Manhole Cost„ocut = $2500/mile x 81 x (1/20) = $10,125 Annual Manhole Costc„t = $2500/mile x 189 x (1/15) = $31,500 Total Annual Manhole Realignment Cost = $41, 625 Annual Cold Planing = Cost per mile x Number of miles / Frequency of Cold Planing Annual Cold Planingn,cut = $42, 520/mile x (600 x 0.5) x 0.3 x 1/20 = $213, 840 Cold Planing Cost per Mile for Areas with Utility Cut Patching = $1.5 x 3.5 in x (5280 x 27x9) = $83,160 Annual Cold Planings t = $83,160/mile x (600 x 0.5) x 0.7 x 1/15 = $1,164,240 Total Annual Cold Planing Cost = $1,378,080 Total Annual Cost for areas including utility cuts is;7,052,607 Based on the calculations above, the average annual increase in rehabilitation costs is estimated at $3,392,487, or approximately $3.4 million. The costs are further illustrated in Figure 2. 4 City & County of San Francisco, CA Figure 1 — Summary of Results from Relevant Studies Life Reduction Factor Extra Overlay Thick. Required, inch City of Burlington, VT City of Los Angeles, CA Local Roads Select Roads 1.64 1.21 1.50 0.65 1.52 2.31 2.00 NA City of Sacramento, CA NA 1.50 Pavement Life without Utility Cuts (years) Life Reduction Factor = Pavement Life with Utility Cuts (years) Figure 2 — Extra Rehabilitation Costs Incurred as a Result of Utility Cuts Overlay Cost Manhole _ Alianment Curb Replacement TOTAL Areas without Utility Patches Areas with Utility Patches $2,913,570 $5,632,902 $33,750 $41,625 $712,800 $1,378,080 Extra Cost $3,660,120 $7,052,607 ($3,392,487) Introduction The City of Burlington, VT commissioned a study in 1984 to determine the average life of pavements with and without utility cut patches. Visual inspection and nondestructive testing (NDT) methods were employed. The results were analyzed to 1) determine the effect of patching on pavement life, and 2) to determine what level of rehabilitation is necessary to upgrade the patched areas to levels equivalent to non -patched areas. II. Pavement Testing Program A representative sample of streets (a total of 50 pavement sections) was randomly chosen from areas throughout the city. A paired experiment was conducted in each section to determine the effect of utility cut patching on the Pavement Condition Index (PCI) for streets of various ages throughout the city. An NDT program was also conducted at positions in and around patched areas using a falling weight deflectometer (FWD) to measure the effects of patching on the structural adequacy of the pavement. 111. PC1 Data Analysis and Results The PCI is a surface distress based index on a scale from 0 to 100, with 100 being a perfect score. Specific types of cracking and other distresses are recorded by quantity and severity level. The PCI survey results were analyzed to determine the effect of utility cut patching on pavement life. Pavement life was defined as the age in years that the street can be economically maintained without the need for major rehabilitation such as an overlay. This was defined as the pavement age at which a PCI value of 70 would be reached. Three methods were used to determine the average pavement life before PCI of 70 would be reached. These methods were the Rate of Deterioration, Best Line fit through PCI vs. Age Data, and Best Curve fit through PC1 vs. Age Data. Table 1 presents a summary of the results obtained from the three analysis methods. As can be seen from this table, the life reduction factor varies from 1.64 to 3.71. For the purposes of follow-up analysis, the 1.64 factor was used as the most conservative assessment of the damage caused as a result of utility cut patching. IV. Structural Data Analysis and Results The structural strength of pavement sections with and without patching was measured by recording the magnitude (Do) that the surface of the pavement deflected under a load impulse similar in magnitude and duration to a moving truck wheel load. Measured Do data were grouped into four categories based on the test locations illustrated in Figure 1. in sound pavement areas (PVT), the average measured Do was 20.43 mils 8 (1 mil = .001 inch). Actual values varied from 9.4 to 50.5 mils. In PVT -E areas, an average value of 29.07 mils was calculated with a range from 13 to 73.9 mils. In PAT -E areas, an average value of 27.68 mils was calculated with a range from 13.6 to 54.3 mils. In central patch areas (PAT), the average value was 25.21 mils with a range from 12.6 to 54.8 mils. The results are presented in Figure 2. For comparative purposes, overlay design requirements were calculated for pavements with and without patches. Pavements with patching are those in locations PVT -E, PAT -E, and PAT_ Pavements without patches are those in test locations PVT. The overlay thickness requirements were determined using the Asphalt Institute method and the results are shown in Table 2. V. Calculation of Extra Rehabilitation Costs Due to Utility Cut Patching To compute the extra rehabilitation costs associated with utility cut patching, the results obtained from both the PCI and deflection analyses were utilized. The life reduction factor of 1.64, as determined from the PCI analysis, and the overlay thickness requirements for 10 ESALfday, as determined from the overlay requirement analysis, were used to compute the overlay costs in 1984 dollars. Inflation and interest rate adjustments were excluded from the cost figures. The average annual rehabilitation cost was calculated as the sum of the overlay cost, curb replacement cost, and manhole alignment cost. The total network of streets in the city contains 87 miles of pavement with an average width of 30 feet. At the time of the study, 88% of this mileage contained utility cut patching. The annual cost was calculated for the total network assuming no utility cut patching and repeated with 88% of the pavement patched. The annual costs from the calculations were $599,443 and $1,113.655 respectively. Thus, the annual extra rehabilitation cost for the network was calculated as the difference between the two costs or $514,212 per year. VI. Conclusion Based on the analysis presented, it was concluded that pavement performance is significantly affected by utility cut patching. The life reduction factor, computed from the PCI survey, and the increased overlay requirements, computed from the FWD analysis, result in significant rehabilitation costs to the city. The increase was calculated at approximately $514,000 annually for the paved street system. These costs were based on a minimum acceptable PCI value of 70 to avoid excessive reconstruction costs at lower PCI values. Furthermore, it was concluded that utility patching operations on streets with PCI values below 40 would produce no consequential damage. 9 Table 1: Comparison of Average Pavement Lives For Patched and Non -Patched Pavements Reduction Average Life of Non- Average Life of Patched Analysis Method Patched Pavements (yrs) Pavements (yrs) Method 1: Rate of Deterioration 20.1 Life Reduction Factor 11.6 1.73 Method 2: Best -fit Line through data • All data 19.8 12.1 1.64 . PCI>40 30.0+ 11.9 2.52 Method 3: Best -fit Curve through data • All data 25.9 8.5 3.05 . PCI>40 28.9 7.8 3.72 Table 2: Overlay Requirements Traffic Non -Patched Areas Patched Areas 2 ESAUday 0.00' 1.50" 10 ESAUday 2.25" 3.00" 20 ESAUday 3.00" 3.75° 10 Figure 1: FWD Test Locations Falling Weight Deflectometer (FWD) Test Locations PVT 4 PAT PVT -E PAT -E Figure 2: Effect of Patching on Deflection (Do) DEFLECTION IN MILS 4C MIN 12 APPENDIX B City of Los Angeles, CA References: Shahin, M.Y., Chan, S., and Villacorta, R., 1996, "The Effects of Utility Cut Patching on Pavement Life Span and Rehabilitation Costs", City of Los Angeles, CA. 1. Introduction 11. Pavement Testing Program III. PCI Data Analysis and Results IV. Structural Data Analysis and Results V. Calculation of Extra Rehabilitation Costs Due to Utility Cut Patching VI. Conclusion 13 1. Introduction The City of Los Angeles, CA commissioned a study in 1996 to assess the effects of utility cut patching on the pavements' lifespan and rehabilitation costs. Visual inspection and nondestructive testing (NDT) methods were employed. Based on the available data, a cost analysis was conducted to quantify the extra rehabilitation cost incurred by the city due to utility cut patching. II. Pavement Testing Program A total of 100 street sections were randomly selected and surveyed to provide a representative data sample. Fifty of these sections were functionally classified as "Local" and the other fifty as "Select." AU selected sections were flexible (asphalt) pavements. Two adjacent inspection units (2500 Sqft ± 40%) were selected from each section where one of the units had utility cut patches while the adjacent unit did not. The surface condition was quantified using the Pavement Condition Index (PCI) method. The structural adequacy of the patched and non -patched pavement was evaluated using a falling weight deflectorneter (FWD). Pavement deflections were measured inside and outside the patches. A standard penetration test was also conducted to determine the relative strength of the soil in the patch as compared to the original pavement. III. PCI Data Analysis and Results The PCI is a surface distress based index on a scale from 0 to 100, with 100 being a perfect score. Specific types of cracking and other distresses are recorded by quantity and severity level. The PCI results were used to establish four pavement deterioration models (also known as family curves): 1) Select without patching 2) Select with patching 3) Local without patching 4) Local with patching The family curves were developed using least squared polynomial curve fitting. Each family curve has what is known as the Critical PCI Value. A Critical PCI is the PCI Value beyond which the rate of pavement deterioration increases significantly, and the pavement can no longer be economically maintained without the need for major rehabilitation such as overlay. Therefore, a pavement life span was defined as the pavement age at which the pavement reaches its' Critical PCI. Table 1 shows the Critical PCI and corresponding life span for each family. It should be noted that the Critical PCI was kept the same for within the Select and Local networks to allow for comparison of the effect of utility cut patching on pavement life. 14 IV. Structural Data Analysis and Results The Falling Weight Deflectometer (FWD) was used to determine the deflections of the existing asphalt concrete pavements in the patched and non -patched areas (Figure 1). Figures 2 and 3 show a comparison of the center Toad plate deflections for both Select and Local networks respectively. The figures show deflections for pavement away from utility cut patching (Avg PAT: average of PVT1 and PVT2), pavement edge next to patching (Avg PVTE: average of PVTE1 and PVTE2), patch center (PATC), and patch edge (Avg. PATE: average of PATE1 and PATE2). As can be seen, on the average, there is a considerable increase in deflection in and around the patching areas and adjacent pavement edges as compared to the original pavement. This translates into weaker structural support for traffic and shorter pavement life span. Pavement cores were cut to determine the thickness of the pavement structure. A soil investigation of the sub -grade was also conducted to determine type of soil (USCS Classification), moisture content, and standard penetration values. The results of pavement coring (Figures 4 and 5) show that, on the average, the patch asphalt (AC) surface thickness is considerably less than the original pavement asphalt surface thickness. This also translates into weaker support and shorter pavement life span. The deflection results were used to determine the overlay requirement for each area utilizing the 1993 AASHTC Darwin Pavement Design program. Figure 6 shows a summary of the average overlay requirements for both Select and Local streets with and without patching. V. Calculation of Extra Rehabilitation Cost Due to Utility Cut Patching The PCI and FWD results were used to calculate the extra annual rehabilitation cost for the Select and Local roads. The Select roads network in the City consisted of 1,469.5 centerline miles with an average width of 53.5 feet. The Local roads network consisted of 3,963.28 centerline miles with an average width of 33.86 feet. Approximately 70% of the Select and Local roads had utility cut patching. The rehabilitation costs included cold planing, profiling, overlay, and manhole alignment. The cost analysis was performed in 1996 dollars. The annual cost was calculated once assuming no utility cut patching and a second time with 70% of the pavement patched. For Select roads, the annual costs were $11,412,427 and $24,349,378 respectively. In Local roads, the annual costs were $4,180,299 and $7,656,672 respectively. Thus, the extra annual rehabilitation cost was calculated as approximately $12.9 million for Select roads and $3.5 million for Local roads. VL Conclusion Based on the analysis presented, it was concluded that pavement performance is significantly affected by utility cut patching. A life reduction factor of 1.21 for local roads and 1.52 for select roads was determined. The life reduction factor, computed from the PCI survey, and the increased overlay requirements, computed from the FWD analysis, result in significant rehabilitation costs to the city. The increase was calculated at approximately $12.9 million for Select roads and $3.5 million for Local 15 roads. These costs were based on Critical PCI values of 55 for Select roads and 65 for Local roads to avoid excessive reconstruction costs at lower PCI values. 16 Table 1: Critical PCI and Life Span for Each Family Pavement Family Critical PCI Life Span (years) Select without patch 55 25.0 Select with patch 55 16,5 Local without patch 65 34.5 Local with patch 65 28.5 17 Figure 1: FWD Test Locations Falling Weight Deflectometer (FWD) Test Locations PVT1 PATE1 PATC PVTE2 PVT2 4li \ • PVTE1 PATE2 Figure 2: Center Toad plate deflections for Select roads (1 mil = .001 inch) Do (mile) 20. 20 • 15 10 0 v ' 11S$ 14A0 7244 Avg PVT Avg PVTE Ave PATE Location Avg PATC Figure 3: Center Toad plate deflections for Local roads (1 mil = .001 Inch) Do (mils) 2s 20- 15 10 17.42 22 01 23 71 Avg PVT Avg PVTE Ave PATE Location Avg PATC 19 Figure 4: Average Asphalt Thickness for Select roads AC Thickness for "SELECT" Average Pavement Thickness = 9.21 in Average Patch Thickness = 6.20 in • • Expected • • •+ • a •. • • • 44 • • •• • • • • • . • • • • • • • • • • • •• • • Actual 1a Existing Pavement AC Thickness (inches) Figure 5: Average Asphalt Thickness for Local roads AC Thickness for "LOCAL Average Pavement Thickness = 6.75 in Average Patch Thickness = 5.81 in r • • • a • • Expected • • Actual 5 10 15 20 Existing Pavement AC Thickness (inches) 20 Figure 6: Average Overlay Requirements with and without patching 5 Thickness (Inches) 3 G Overby Thickness Required 5.32 3.01 1.15 0.49 Select with Patch Shed w10 Patch Local with Patch Local w/o Patch 21 APPENDIX C City and County of San Francisco, CA References: Department of Public Works for City and County of San Francisco and The Blue Ribbon Panel on Pavement Damage, 1998, "The Impact of Excavation on San Francisco Streets", City and County of San Francisco, CA. Marcus, William B., 1998, "Economic Report: Estimated Costs of Accelerated Repaving Required as a Result of Utility Excavation in San Francisco Streets", City and County of San Francisco, CA. 1. Introduction II. Initial Study III. Follow Up Study IV. Follow Up Study Results V. Economic Analysis VI. Conclusion 22 I. Introduction In 1992, the City commissioned a study to determine the effects of utility cuts on the service life of City streets. The City retained Dr. Ghassan Tarakji, Ph.D., P.E., of the Engineering Design Center at San Francisco State University (SFSU), to perform this task. Local utility companies commissioned a critical review and expressed concerns over the data and methods used in the analysis_ In response, the city commissioned an expert panel to reevaluate the results of the original study and expand its scope based on new engineering techniques. II. Initial Study The SFSU Study took data from the PMMS and compared the Pavement Condition Scores for streets with few (0-2), some (3-9), and many (more than 9) utility cuts. The data used in the City and County of San Francisco study was obtained from their existing Pavement Management and Mapping System (PMMS). The PMMS contained a description of each block in the City, the condition of the pavement, number of utility cuts, and other key information. Pavement Condition is measured by the Pavement Condition Score (PCS). The best score a pavement can get is 100. "Points are deducted based on three factors: RIDE, which represents the smoothness or ride quality of the block; RAVELING, which describes the severity and extent of surface erosion from weathering and traffic; and CRACKING, which considers the amount and severity of cracks in the pavement. Points are not deducted for utility cuts unless cracks form around them." The SFSU Study concluded that streets with some cuts have lower condition scores than streets with few cuts and that streets with many cuts have lower condition scores than streets with some or few cuts. These conclusions were consistent for every functional class of asphalt street and for concrete streets. Assuming streets require repaving when they reach a pavement condition score of 65, the SFSU Study concluded that: Asphalt Streets With: Less than 3 cuts Between 3 and 9 cuts More than 9 cuts Have a Service Life of: 26 years 18 years 13 years 111. Follow Up Study In 1997, the City assembled a panel of experts to provide an objective assessment of whether engineering evidence and statistical analyses 23 supported the SFSU conclusion that excavation reduces the condition and service life of City streets. The panel included five Engineers with expertise in pavements and a Statistician with expertise in analyzing pavement data. The panel members were: Jon Epps, P.E., Ph.D., is Professor of the Civil Engineering Department at the University of Nevada, Reno. R_ a "Gary" Hicks, P.E., Ph.D_, is Professor Emeritus of the Civil Engineering Department at Oregon State University. Ram Kulkarni, Ph.D., is Vice -President and Senior Principal of Woodward -Clyde Consultants. Olga J. Pendleton, Ph.D, is Research Statistician and Co -President of Pen -Hock Statistical Consultants. M. Y. Shahin, P.E., Ph.D., is a national and international pavement evaluation and management consultant. He is also a Principal Investigator for the U. S. Army Corps of Engineers. Roser Smith, P.E_, Ph.D., is Associate Professor of the Department of Civil Engineering at Texas A & M University and Associate Research Engineer for the Texas Transportation Institute. The panel used the data from the PMMS and grouped the pavement blocks based on number of utility cuts: none, few (1-2), some (3-9), and many (10 or more). The 1997 Statistical Study was performed using updated PMMS information and included the variables of functional class, age, number of utility cuts, and area and type of utility cuts. Table 1 shows the sample sizes for the data used in the 1997 Analysis, divided into groups by age and the number of cuts present. The Panel and the Statistician determined that the sample size for the 1997 Analysis was more than sufficient to make statistically significant conclusions regarding the impact of utility cuts on the condition of the City's pavement. N. Follow Up Study Results The Statistician determined that the most significant variables were age and number of utility cuts — the same variables used in the SFSU Study. Figure 1 is a bar chart presentation of the analysis. The chart shows the average of pavement condition scores for streets with zero, few, some, and many cuts in various age groups. As can be seen from Figure 1, the average condition score of streets with trenches is lower than the average condition score of streets with no trenches. Based on the review of the literature, the findings derived from the 1997 Analysis, and their 24 engineering expertise, the Panelists arrived at the following conclusions regarding the impact of utility cuts on the service life of San Francisco's asphalt streets: 1. On average, pavements with utility cuts have lower condition scores than pavements without cuts. 2. On average, increasing the number of cuts reduces condition scores. 3. A large number of cuts early in the life of a pavement dramatically reduces pavement performance. 4. Conclusions 1-3 remain the same, whether considering the number of cuts per block, number of cuts in an area, or the percentage of area cut. 5. Conclusions 1-3 are statistically supported by data to at least a 95% confidence level. 6. The findings of the 1997 Analysis and other municipal utility cut studies are consistent with the following universally accepted engineering principles: • Street cuts disrupt surface integrity, creating surface roughness, reducing pavement strength, and allowing for entry of moisture, which accelerates long-term deterioration, Figure 2. • Street cuts disrupt pavement layers and supporting soil in the area surrounding the trench. This disruption can be minimized, but cannot be eliminated. As a result, trenching causes unavoidable damage to the pavement layers and soil supporting the pavement around the perimeter of the utility cut. • Similar to a protective membrane, pavement layers perform best with no cuts or breaks. Street cuts create joints in the pavement layers that reduce the structural integrity of those pavement layers; and • Although high quality patching may reduce the structural damage caused by utility cuts, the street will still incur ride quality and cracking damage, and its service life will be diminished. 7_ The statistical findings of the 1997 Analysis are consistent with the findings of engineering -based studies which used deflection testing to conclude that utility cuts inevitably and irreparably disrupt the subsurface of a street, and that this damage extends beyond the perimeter of the trench. V. Economic Analysis The City retained an economist to estimate the extra cost of pavement rehabilitation as a result of utility excavation. The procedure used to perform the analysis is summarized in the following steps: 1. Identify the total number of blocks that require repaving, "repaving candidates." This was done using two methods: a. Using the decision tree built into the City's pavement management system (PMMS). This method does not consider budgetary constraints. 25 b. Using what the economist termed the Excess Failed Street Method (EFS). The EFS method identifies Repaving Candidates as those blocks with a PCS of less than 53. This generally reflects the reality of the City's current repaving practices. 2. Identify the number of "excess" blocks requiring repaving due to excavation. This was determined by comparing the number of repaving candidates with "no cuts" to the number of repaving candidates with "few, some, or many cuts." The analysis presumes that, absent excavation damage, there should be proportionally the same number of repaving candidates in each cut group of the same age. In other words, of streets age 0-5, there should be proportionally the same number of repaving candidates with no cuts, as with few, some, or many cuts. 3. Identify and annualize the total cost to repave excess repaving candidates. The total cost was determined by multiplying the average cost of repaving a block by the total number of excess repaving blocks. The total cost is then annualized over a 26 -year paving cycle using a 5.58% discount rate. The 26 years was selected as the City estimated that it repaves the streets at a rate equivalent to 26 years. 4. Convert the annual cost into a square foot cost. This was done by dividing the annual cost by the number of square feet likely to be excavated in a year. All the above steps were performed twice: once by analyzing only pavement under 20 years, and a second time using all pavements. The 20 years was selected since the City had more confidence in the data for pavement 20 years or less. Table 2 shows a summary of the Analysis findings. The City, however, has proposed a conservative fee shown in Table 3. VI. Conclusion Based on the results from the 1997 analysis and the subsequent economic report, it can be conduded that utility cuts lower pavement condition scores, reduce pavement service life, and increase pavement rehabilitation costs due to accelerated repaving requirements. 26 Table 1. Number of Blocks in 1997 Analysis By Age and Number of Cuts AGE No Cuts Few Cuts Cuts (3 to (14 or Total (0) (1 to 2) 9) more) Some Many Cuts 0-5 Years 1248 399 246 53 1946 6-10 Years 373 271 451 127 1222 11-15 Years 16-20 Years 232 331 669 295 1527 Total 75 97 232 105 509 1928 1098 1598 580 5204 Table 2. Economic Analysis Findings EFS Method PMMS Method (Age < 20 (Age < 20 Sample) Sample) EFS Method PMMS Method (Entire Sample) (Entire Sample) Number of Repaving 1546 2653 2756 3992 Candidates Number of Excess Repaving 566 568 1153 1000 Candidates Total Repaving Cost $44.5 million $45.4 million $69.3 million $60.1 million Annual Repaving $3.3 million $3.4 million $5.1 million $4.4 million Cost Square Foot Cost $5.37 $5.49 $8.38 $7.27 27 Table 3. Proposed Restoration Fees AGE OF STREET FEE AMOUNT (Years since last (Per square foot of repaving) excavation) 0 - 5 $3.50 6 - 10 $3.00 11 -15 $2.00 15 - 20 $1.00 28 90 80 70 30 a. 20 10 0 Figure 1. Effect of Utility Cuts on Pavement Condition B7 u f ■ No Cuts (0) ® Few Cuts (1-2) D Some Cuts (3-9) ® Many Cuts (10+) JJ 65 46 81 419 k5 38 0-5 6-10 11-15 Age of Pavement 16-20 29 Figure 2. Pavement Surface and Soil Disruption from Excavation Asphalt Concrete Wearing Surface Concrete Pavement Base . • . Supporting Soil • • • • • 19 '• _ 3 1 '. • •• • • • 3' r . . Undercutting of Pavement Sag from Release , of Lateral Support Pavement Weakened by Excavation 30 APPENDIX D City of Sacramento, CA References: CHEC Consultants, Inc., 1996, "Impact of Utility Cuts on Street pavements", City of Sacramento, CA. 1. Introduction 11. Pavement Testing Program 111. Longitudinal Utility Cuts Data Analysis and Results IV. Transverse Utility Cuts Data Analysis and Results V. Calculation of Extra Rehabilitation Costs Due to Utility Cut Patching vi. Conclusion 31 I. Introduction In 1996, the City of Sacramento, CA contracted with Chec Engineering Consultants to determine the extent and quantify cost associated with utility cuts. Dr. M.Y. Shahin was retained by the City as an independent consultant to review the results of the report prepared by Chec Engineering and to participate in City Council meetings during the discussion of the damage resulting from utility cuts. The following sections present a summary of the study performed by Chec Engineering. II. Pavement Testing Program The testing program was limited to deflection testing using the Dynaflect device and a coring program to determine asphalt concrete (AC) surface thicknesses_ No distress survey or visual condition rating was performed as part of the study. The test sections were grouped in four zones based on soil and traffic conditions. Separate data collection and analysis were performed for longitudinal and transverse utility cuts. Longitudinal cuts were tested for Toss of strength and associated difference in AC overlay requirements. Dynaflect testing was performed on each cut as well as two feet left and right of the trench, if possible. A base line test was also conducted in the same pavement section for comparison purposes. Transverse cuts were tested for loss of strength and extent of influence from the cut. Each wheel path was tested five feet on either side of the patch, at one -foot intervals. A baseline test was also conducted in the same section for comparison purposes. HI. Longitudinal Utility Cuts Data Analysis and Results Each of the pavement sections was analyzed to determine the overlay requirement and the difference between the test area and baseline overlay requirements calculated. The overall average from the four zones (Table 1) showed an extra 1.5 inches of AC overlay is required relative to the baseline. IV. Transverse Utility Cuts Data Analysis and Results The purpose of the testing was to determine the distance from the edge of the cut that the pavement is affected. The assumption made is that the only repair needed would be the replacement of the surrounding weak areas prior to overlay. The results of the analysis (Table 2) showed that the average influence from the cut edge is 3.64 feet. V. Calculation of Extra Rehabilitation Costs Due to Utility Cut Patching For longitudinal cuts, the extra cost was limited to the cost associated with the additional AC thickness required, which was determined to be 1.5 32 inches. The costs associated with manhole adjustment or cold milling were not included. Using and AC cost of $26/ton, two separate costs were calculated based on whether the extra overlay thickness will be applied to one or two lanes. If the utility cut is within three feet of a lane line, then two lanes will require the extra overlay thickness. For one lane, the extra cost was calculated as $16,068/mile or approximately $3/1inear foot. For two lanes, the extra cost was approximately $6/linear foot. For transverse cuts, only the cost associated with replacing the weakened area prior to overlay was considered. A full depth AC patch (approximately $3/square foot), was assumed for the calculation. Using the 3.64 feet average influence extent, two costs were calculated: one for cuts that go across the entire street width, and another for cuts that cover Tess than the entire street width. Cuts that cover less than the entire street width exert influence on four sides rather than two. The first cut was assumed to be 2 ft by 24 ft. Therefore, the area to be replaced prior to the overlay is [(2 + 2 x 3.64) x 24] or 223 square feet. At $3lsquare foot, the cost is $669 or $13.94 per square foot of actual cut. The second cut size was assumed to be 4 ft by 5 ft. Therefore, the area to be replaced prior to the overlay is [(4 + 2 x 3.64) x (5 + 2 x 3.64)) or 139 square feet. At $3/square foot, the cost is $417 or $20.85 per square foot of actual cut. VI. Conclusion The study has proven that utility cuts cause a discontinuity in the pavement structure and cause a Toss of strength within the adjacent pavement. The approximate extent of influence was also determined. 33 Table 1: Average Additional AC Overlay Required for Utility Cub ZONE Average Additional AC Overlay Required (feet) Zone 1 0.13 Zone 2 0.13 Zone 3 0.11 Zone 4 0.14 OVERALL 0.13 Table 2: Influence of Utility Cuts on Surrounding Pavement ZONE Influence Nom Cut Ledge (feet) Zone 1 3.35 Zone 2 3.16 Zone 3 3.81 Zone 4 4.24 OVERALL 3.04 34 THE EFFECTS OF UTILITY CUT PATCHING ON PAVEMENT LIFE SPAN AND REHABILITATION COSTS Prepared for City of Santa Ana Draft Report January 1999 Prepared by M. Y. Shahin, Ph.D., P.E. Consulting Engineer RJN 029 TABLE OF CONTENTS Page Chapter 1 Introduction 1 Chapter 2 City of Los Angeles Study Results 4 Chapter 3 Rehabilitation Cost Analysis 8 Part I Rehabilitation Costs for Arterial Streets without Utility Cuts 9 Part II Rehabilitation Costs for Arterial Streets with Utility Cut Patches 11 Part III Rehabilitation Costs for Local Streets without Utility Cuts 13 Part IV Rehabilitation Costs for Local Streets with Utility Cut Patches 15 Chapter 4 Conclusion 17 References 18 CHAPTER I. INTRODUCTION Background The following paragraphs are paraphrased from a City of San Francisco report on street excavation (1). Over the past decade, many cities — including Phoenix, AZ; Los Angeles, CA; Sacramento, CA; Austin, TX; Kansas City, MO; Burlington, VT; and Cincinnati, OH — have sponsored studies to evaluate and quantify the effect of trenching and utility patching on the service life of streets. Many of these studies have used measuring devices to compare the strength and performance of trenched and untrenched sections in a sample group of streets. The City of Phoenix, AZ measured the strength of pavement structure in and around trenched areas using a Falling Weight Deflectometer (FWD). A FWD measures the amount a pavement sags (deflection) under varying loads traveling over the surface. The FWD simulates a wheel traveling over the pavement surface and registers the amount of deflection. Stronger pavements have smaller deflections. The Phoenix Study found that, on average, the area in and around a trench registered a 24% higher deflection than untrenched areas. The higher deflections in trenched areas demonstrate reduced structural load carrying capacity, which is caused partially by the discontinuity in the street caused by the utility cut. The report determined that trenched areas would require an additional 1.25 inches of asphalt concrete to reduce deflection to normal levels. The study also concluded that trenching doubled street maintenance costs for the City by reducing pavement life (i.e. requiring more frequent repaving) and increasing required resurfacing thickness. Several other studies, including those conducted for Kansas City, Los Angeles, and Sacramento, have included deflection testing in their analyses of the effect of utility cuts on the service life of streets. Similar to the Phoenix study, all of these studies determined that utility cuts reduce the structural strength and service life of streets, the structural damage caused by utility cuts extends beyond the perimeter of the cut itself, and utility cuts result in increased maintenance costs. The Kansas City Study concluded, on average, the test sites evaluated would require an additional 1.5 inches of asphalt concrete to offset the structural damage caused by trenching. This study concluded utility cuts caused structural damage to the street beyond the perimeter of the initial trench. The Los Angeles Study concluded trenches resulted in weaker structural support in and around the trenched area. This study concluded arterial streets, on average, over 2.5 inches of additional asphalt concrete would be required to make up for the weakness caused by utility cuts. For local streets, 0.65 additional inches would be required. 1 RJN 031 The Sacramento Study analyied transverse and longitudinal utility cuts separately. For transverse utility cuts, the study concluded that the area extending an average of 3.64 feet outside the cut was weakened, requiring a structural patch prior to resurfacing of the street. It found that an additional 1.5 inches of asphalt concrete would be required to put a street that has a longitudinal utility cutin structurally adequate condition. Some municipal studies, including the Los Angeles, Austin, Phoenix, And Burlington Studies, have also compared the condition of a sample of streets with and without trenches using pavement condition scores. Following this approach, the Los Angeles Study concluded that utility cuts reduced average pavement life from 25 to 16.5 years for arterial streets and from 34.5 to 28.5 for local streets. The Austin Study concluded that on average, pavement life is reduced 17.5% on streets where longitudinal cuts exist and 33.36% on streets where transverse cuts or a combination of both transverse and longitudinal cuts exist. It also found that even utility cuts, which were carefully repaired showed a significant decrease in ride quality. The Phoenix Study revealed a 4.5 year reduction in the typical pavement life as the result of utility cuts (from 20 years to 15.5 years). The Burlington Study concluded that, on average, in the City of Burlington, streets without utility cut patching have a life of 18.5 years while streets with utility cut patching have a life of 10.9 years. A report from the City of San Francisco concluded that 'street cuts disrupt pavement layers and supporting soil in the area surrounding the cut.' The disruption can be reduced, but not eliminated. Utility cuts cause unavoidable damage to the pavement layers and soil supporting the pavement around the perimeter of the utility cut. Although high quality patching may reduce the structural damage caused by utility cuts, the street will still incur ride quality and cracking damage and its service life will be diminished. The collective results of the above reports indicates a strong relationship between the presence of utility cut patching and decreased pavement life in asphalt pavements. Objective The objective of this report is to calculate the effect of utility cut patching on pavement life and consequent rehabilitation costs of arterial and local streets in the City of Santa Ana, CA. Approach This report presents the calculation of the effect of utility cut patching on pavement rehabilitation costs for the City of Santa Ana. The calculations are based on test results from a comprehensive engineering study conducted for the City of Los Angeles (2) and cost data provided by the City of Santa Ana. 1n the Los Angeles study, 100 2 RJN 032 street sections were randomly selected and surveyed. Fifty of these sections were functionally classified as "Local" and the other fifty as "Select" (Arterial). All street sections were flexible (asphalt) pavements. The street sections were surveyed using the Pavement Condition Index (PCI) (Figure 1) for distress survey and the Falling Weight Deflectometer (FWD) for structural evaluation. Distress _ Distress Quantity 1 Type PCI Distress Severity 100 85 70 55 40 25 10 0 PIII Good Poor Very Poor Failed Figure 1. Pavement Condition index (PCI) 2. Discussion of the Problem - Pavement Utility Cuts - Publications - Utility Program - D... Page 1 of 4 Design « Previous Contents Next » Pavement Utility Cuts 2. Discussion of the Problem This chapter of the manual describes the effects of excessive pavement utility cuts in the Nation's infrastructure. This discussion focuses on the degradation of the pavement and other public ROW infrastructure. In addition, this chapter considers the impacts on the public through user costs, traffic delay and business access, and the differences between state and local agencies in the methods of dealing with these impacts. 2.1 Degradation of National and Local Infrastructure When utility companies, and others, make cuts into the pavement for utility installation or maintenance, not only does it affect the pavement structure itself, but also the other utilities which, with the pavement, are part of the national and local transportation infrastructure. This section includes a discussion on how utility cuts cause street pavements to deteriorate more quickly, and their potential effect on other utilities present in the highway and street system. 2.1.1 Untimely Pavement Deterioration Utility cuts into the pavement of the Nation's highways and streets almost always increase the roughness of a pavement structure in both the immediate and surrounding areas of a cut. Not only do cuts increase pavement roughness, but they also introduce discontinuities in the pavement structure. Both of these can cause the pavement's expected life span to decrease. There are two types of degradation that can occur - structural and functional - both of which can cause early failure of the pavement, depending on the user's definition of pavement failure. Structural Structural failure occurs when the pavement can no longer carry the loads for which it was designed without large deflections or deformations.(? Functional Functional failure occurs when the pavement no longer provides a smooth and safe riding surface for vehicles and passengers. A pavement can sometimes experience functional failure while remaining structurally sound. However, it Is even less likely that a pavement that has experienced structural failure will remain functionally adequate. Another aspect of pavement degradation is that a rough pavement can quickly lead to structural failure, through a synergistic effect. Rough pavements can cause vehicles to bounce, thus creating greater loads on the pavement, which can lead to more rapid advancement of structural failure, and by consequence, further functional failure, or roughness. https://www.fhwa.dot.gov/utilities/utilitycuts/man02.cfm 11/9/2017 2. Discussion of the Problem - Pavement Utility Cuts - Publications - Utility Program - D... Page 2 of 4 2.1.2 Congestion of Utilities The chances of accidental rupture of existing underground utilities increase with increased congestion, or the density of utilities underground. This is not a problem solely associated with trenchless technology. Open trenching also poses a risk of disturbing existing utilities. In rural applications, the probability of encountering densely situated existing utilities is much lower. However, care should be taken to ensure any existing utilities are identified and located. Public and private utilities are most often located in the public ROW, meaning that access to underground physical facilities often results in digging and backfilling trenches. Many times this means trenching into public roads: city streets, highways, and other public transportation facilities. While it is true that the utility companies' financial success depends on their ability to place facilities and provide services to customers as quickly as possible, the detrimental effects on the public transportation infrastructure has been largely overlooked in the past. San Francisco, like many other cities in the Nation, confirmed its suspicion about the damage caused by utility street cuts after completing a study on the effects of cuts on the life of pavement.(2) The cities of Austin, Cincinnati, and Washington, DC, also conducted similar studies within the past six years.(4.5,1) These studies found that street cuts not only reduce the expected life of the streets but consequently cost millions of dollars to agencies in premature repair and street remediation expenses. Other financial impacts from utility cuts and poor repairs include traffic delays, increased congestion in urban areas and damage to both public and private vehicles. 2.2 Public Impacts There are several types of impacts that excessive trenching and utility cuts can have on the public. These include those that cause a direct cost to the public in terms of money, and those that have indirect, or intangible, costs. Direct impacts are generally those that the public pays individually or collectively, whereas indirect impacts include those which are paid by society as a whole, and to which a specific price cannot be easily affixed. 2.2.1 Public Perception In the public's perception, the highways and streets seem to be under construction constantly. If the road network is improved as a result of this construction, the public perception could become more positive. However, a poor perception is often the result, due to the endless presence of utility cuts and other road construction. The public quickly notices when a newly -paved highway or street is cut for utility work. In the absence of a moratorium on cuts, or in an atmosphere of lenient enforcement of such a moratorium, pavement utility cuts can occur in new pavements quite frequently. The ability to reduce the number of pavement utility cuts would have the obvious effect of reducing the number of work zones and pavement roughness. If an agency can encourage more utility work to be done using trenchless technology, the public is likely to notice. With the ability to control pavement utility cuts more closely, improved inspection could lead to better and more timely repairs, more coordination and sharing of information and resources between utility companies, and a better public perception of the agency and the infrastructure. https://www.fhwa.dot.gov/utilities/utilitycuts/man02.cfm 11/9/2017 2. Discussion of the Problem - Pavement Utility Cuts - Publications - Utility Program - D... Page 3 of 4 2.2.2 Traffic Delay When a lane of traffic is temporarily made unavailable, and especially in areas of heavy traffic, vehicles can be delayed due to decreased traffic capacity.(8) If utility cuts are coordinated with joint trenching requirements, traffic delays can be minimized. Other impacts associated with traffic delay include costs to local businesses, user costs, air quality, and others. These will be discussed in the next sections. 2.2.3 Local Business Lane closures and other traffic control associated with utility cuts can impact local business by either limiting access to the business, or by deterring potential customers from navigating around the traffic control. Especially in conditions of heavy traffic, motorists may choose to visit businesses in another location rather than spend additional time in traffic congestion caused by a utility cut work zone. These costs are rarely quantifiable, but can result in significant impacts to local businesses. The importance of this impact is evident by the fact that most state and local transportation agencies require local business access mitigation for road construction or utility work. 2.2.4 User Costs Direct impacts to users of a facility are often called user costs. These costs can include tangible items such as excess fuel, oil, maintenance, and time expended while negotiating a work zone, and the associated traffic congestion that often accompanies lane closures. Several studies have been conducted to quantify user costs in various situations and work zone configurations.(9'10,11) Many of these user costs are also borne by the traveling public after the work zone has been removed, when a rough pavement remains. Studies have shown the relative incremental increase in user costs due to pavement rOughness.(8,12,13) 2.2.5 Air Quality While users of a highway or street facility accumulate costs due to the presence of a work zone, their excess fuel and oil consumed is creating additional vehicular emissions that contribute to the deterioration of the air quality. This effect is most pronounced in the immediate area of the work zone, but in urban areas, the excess emissions also contribute to the detriment of the overall air quality.(14,15) 2.2.6 Untimely Pavement Deterioration The public pays the cost of untimely pavement deterioration either directly through premature maintenance and rehabilitation, or indirectly through the effect of rough roads on their vehicles. It is very difficult, if not impossible, to repair a pavement that has been cut to its original state. More appropriately, it is very difficult, if not impossible, to make a repair match the current state of the surrounding pavement's physical properties. Any other condition other than the pavement's current state can result in a rough surface to some degree. At the time of the repair, the pavement surface may be very smooth across the patched utility cut. However, after vehicles load the patch material for a time, differential material deformation is inevitable, of which roughness is a direct effect.(4) https://www.fhwa.dot.gov/utilities/utilitycuts/man02.cfin 11/9/2017 2. Discussion of the Problem - Pavement Utility Cuts - Publications - Utility Program - D... Page 4 of 4 While improved inspection and quality control on the part of the contractor can reduce the ultimate pavement roughness due to the cut, it is almost impossible to prevent it completely. Only a reduction in the number of utility cuts can preserve the pavement in its current, original state. « Previous Contents Next >> Federal Highway Administration 11200 New Jersey Avenue, SE l Washington, DC 205901 202-366-4000 https://www.fhwa.dot.gov/utilities/utilitycuts/man02.cfin 11/9/2017 5/15/2018 Hughey Law Group Mail - Appeal process GM1T Appeal process 3 messages Tristan Hills <thills@hugheylawgroup.com> Jennifer Ferraiolo <jferraiolo@lodi.gov> Mon, Nov 6, 2017 at 5:24 PM To: "Tristan Hills (thills@hugheylawgroup.com)" <thills©hugheylawgroup.com> Dear Tristan: Pursuant to Lodi Municipal Code Section 12.04.100 relating to encroachment permits (below), send the letter of appeal to the City Clerk's Office. Once received, we will place the matter on the next available City Council agenda to set the date for a public hearing. Please let me know if you have any questions. 12.04.100 - Refusal—Appeal. A. Any person aggrieved by the refusal of a permit required by this article may appeal to the city council. Administration of this chapter is referred to the director of the city. B. If the city council finds all of the following to be true the 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. 3. The granting of the permit will not be materially detrimental to the public interest, safety, health and welfare or injurious to other property. (Prior code § 9A-10) Jennifer M. Ferraiolo, MMC City Clerk P.O. Box 3006 Lodi, CA 95241-1910 (209) 333-6702 (209) 333-6807 FAX Tristan Hills <thills@hugheylawgroup.com> Mon, Nov 6, 2017 at 7:31 PM To: Jennifer Ferraiolo <jferraiolo@lodi.gov> Thanks, Jennifer. A couple questions leap to mind: Do you know how quickly we need to send a letter of appeal? I couldn't see anything under the municipal code that stated whether an appeal needs to occur within 'x' amount of time after a refusal. As Kevin mentioned, we do need to await the https://mai I .googl e.com/mail/u/Onui=2&ik=ac2667bf33&jsver=GAFHaMvshdw.en.&cbl=gmail_fe_180506.06_p7&view=pt&cat=Cases%2FJones%20v.%20FCB&search=cat&th=1 5/15/2018 Hughey Law Group Mail - Appeal process results of the last PRA and gather together all other necessary documents before any hearing. Secondly, is there a specific format that should be followed for the letter of appeal? As always, I do appreciate your help with this. Hope you have a nice rest of your week, [Quoted text hidden] Tristan Hills Due Diligence Director HUGHEY LAW GROUP Hughey Law Group 520 9th Street, Suite 230 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. Jennifer Ferraiolo <jferraiolo@lodi.gov> Tue, Nov 7, 2017 at 6:30 AM To: Tristan Hills <thills@hugheylawgroup.com> The code does not specify a timeframe or deadline. Also, no specific format for the letter of appeal. I would probably include the pertinent details of the matter and make it clear you are appealing the decision to the City Council. Jennifer From: Tristan Hills [mailto:thills@hugheylawgroup.com] Sent: Monday, November 06, 2017 7:32 PM To: Jennifer Ferraiolo Subject: Re: Appeal process [Quoted text hidden] https://mail .google.com/mail/u/0/?ui=2&ik=ac2667bf33 &jsver=GAFHaMvshdw.en.&cbl=gmail_fe_180506.06_p7&view=pt&cat=Cases%2FJones%20v.%2OFCB&search=cat&th=1 CITY COUNCIL ALAN NAKANISHI, Mayor JOANNE MOUNCE, Mayor Pro Tempore MARK CHANDLER BOB JOHNSON DOUG KUEHNE Kevin Hughey Hughey Law Group 520 9th Street, Suite 230 Sacramento, CA 95814 CITY OF LODI CITY HALL, 221 WEST PINE STREET P.O. BOX 3006 LODI, CALIFORNIA 95241-1910 (209) 333-6702 / FAX (209) 333-6807 www.lodi.gov citvcierk a�7,lodi.gov May 21, 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 The Lodi City Council, at its meeting of May 16, 2018, adopted the enclosed resolution granting the appeal of Erik and Staci Jones regarding the Public Works Department's denial of encroachment permit for 3031 Celebration Drive, Lodi. The resolution authorizes Erik and Staci Jones to widen the driveway approach at 3031 Celebration Drive up to three lineal feet and that they must complete and submit an encroachment permit application to the Public Works Department for approval before making any modifications. Should you have any questions, please feel free to contact me at (209) 333-6702 and/or Public Works at (209) 333-6706. JMF Enclosure cc: Public Works Director Community Development Department Sincerely, nnifer ill] Ferraiolo, MMC City Clerk RESOLUTION NO. 2018-93 A RESOLUTION OF THE LODI CITY COUNCIL GRANTING APPEAL OF ERIK AND STACI JONES REGARDING PUBLIC WORKS DEPARTMENT'S DENIAL OF ENCROACHMENT PERMIT FOR 3031 CELEBRATION DRIVE, LODI WHEREAS, notice thereof having been published according to law, an affidavit of which is on file in the office of the City Clerk, a public hearing was held on May 16, 2018, by the Lodi City Council to consider the appeal of Erik and Staci Jones regarding the Public Works Department's denial of encroachment permit for 3031 Celebration Drive, Lodi. NOW, THEREFORE, BE IT RESOLVED by the Lodi City Council that it does hereby grant the appeal of Erik and Staci Jones regarding the Public Works Department's denial of encroachment permit for 3031 Celebration Drive, Lodi, under the conditions described below: • appellants Erik and Staci Jones are authorized to widen the driveway approach at the residence of 3031 Celebration Drive, Lodi, up to three lineal feet; and • Public Works Department will authorize the driveway replacement/installation as described above following submittal of an encroachment permit application by appellants Erik and Staci Jones, compliance with the Lodi Municipal Code, City policies and regulations, and payment of fees, as may be applicable. Date: May 16, 2018 I hereby certify that Resolution No. 2018-93 was passed and adopted by the Lodi City Council in a regular meeting helcl May 16, 2018, by the following vote: AYES: COUNCIL MEMBERS — Kuehne, Mounce, and Mayor Nakanishi NOES: COUNCIL MEMBERS — Chandler and Johnson ABSENT: COUNCIL MEMBERS — None ABSTAIN: COUNCIL MEMBERS — None NIFER �FER AIC�6 ity Clerk 2018-93 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 citvclerkQ1odi.gov May 10, 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 This letter is to notify you that a continued public hearing will be held by the City Council at a Regular Meeting on Wednesday, May 16, 2018, at 7:00 p.m., or as soon thereafter as the matter can be heard, at Carnegie Forum located at 305 West Pine Street in the City of Lodi. This hearing is being held to consider your appeal of the Public Works Department's encroachment permit denial for the property located at 3031 Celebration Drive. Enclosed is a copy of the May 16, 2018, City Council agenda and staff report related to Public Hearing Item G-2. If you challenge the proposed action 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 Council at, or prior to, the public hearing. NOTE: Written correspondence for the City Council may be mailed in c/o the City Clerk's Office, P.O. Box 3006, Lodi, CA 95241-1910, or delivered to the City Clerk at 221 West Pine Street, Lodi, California. Should you have any questions, please feel free to contact me at (209) 333-6702 and/or Public Works at (209) 333-6706. Sincerely, ---,1/11:-.--riA-0--04 Kehnifer Mjerraiolo, MMC City Clerk JMF Enclosure cc: Public Works Director Community Development Department 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 9t" 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.00v cityclerk(Jodi.gov April 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 This letter is to notify you that a public hearing will be held by the City Council at a Regular Meeting on Wednesday, May 2, 2018, at 7:00 p.m., or as soon thereafter as the matter can be heard, at Carnegie Forum located at 305 West Pine Street in the City of Lodi. This hearing is being held to consider your appeal of the Public Works Department's encroachment permit denial for the property located at 3031 Celebration Drive. Enclosed is a copy of the May 2, 2018, City Council agenda and staff report related to Public Hearing Item G-4. If you challenge the proposed action 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 Council at, or prior to, the public hearing. NOTE: Written correspondence for the City Council may be mailed in c/o the City Clerk's Office, P.O. Box 3006, Lodi, CA 95241-1910, or delivered to the City Clerk at 221 West Pine Street, Lodi, California. Should you have any questions, please feel free to contact me at (209) 333-6702 and/or Public Works at (209) 333-6706. JMF Enclosure cc: Public Works Director Community Development Department Sincerely, a;Aika-U:g nifer IFerraiolo, MMC City Clerk 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 cityclerk a[�lodi.00v March 29, 2018 STEPHEN SCHWABAUER City Manager JENNIFER M. FERRAIOLO City Clerk JANICE D. MAGDICH City Attorney RE: APPEAL OF ENCROACHMENT PERMIT DENIAL Regarding 3031 Celebration Drive, Lodi, CA This is to notify you that at the City Council meeting of April 4, 2018, at 7:00 p.m., or as soon thereafter as the matter can be heard, in the Council Chamber, at the Carnegie Forum, 305 West Pine Street, Lodi, the Council will consider setting the date for the public hearing pertaining to the above matter. Enclosed is a copy of the April 4, 2018, City Council agenda and staff report related to Consent Calendar Item C-13. Please note that prior to voting on the Consent Calendar the Mayor will offer an opportunity to the public to make comments. Should you wish to do so, please submit a "Request to Speak" card (available in the Carnegie Forum) to the City Clerk prior to the opening of the meeting; otherwise, testimony regarding the matter will be received at the public hearing. Should you have any questions, please feel free to contact me. Sincerely, JMF Enclosures cc: Public Works Director Community Development Department ifer M. y Clerk raiolo, MMC 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.00v citvclerk(o]io.d1.00v 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, y Clerk City Council City Manager City Attorney Public Works Department Community Development Department a ola MMC DECLARATION OF POSTING NOTICE OF CONTINUED 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, May 3, 2018, in the City of Lodi, San Joaquin County, California, a copy of a Notice of Continued 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 May 3, 2018, at Lodi, California. � y Andr•i_—!• 1 _ PAMELA FARRIS ELIZABETH BURGOS ORDERED BY: JENNIFER M. FERRAIOLO CITY CLERK DEPUTY CITY CLERK ADMINISTRATIVE CLERK N:\Administration\CLERK\Public Hearings \AFFADAVITS\DECPOST1.DOC DECLARATION OF MAILING NOTICE OF CONTINUED PUBLIC HEARING TO CONSIDER APPEAL OF ERIK AND STACI JONES REGARDING PUBLIC WORKS DEPARTMENT'S DENIAL OF ENCROACHMENT PERMIT FOR 3031 CELEBRATION DRIVE On May 3, 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 Continued 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 May 3, 2018, at Lodi, California. ORDERED BY. JENNIFER M. FERRAIOLO CITY CLERK, CITY OF LODI PAMELA FARRIS ELIZABETH BURGOS DEPUTY CITY CLERK Forms/decmail.doc ADMINISTRATIVE CLERK CITY OF LODI Carnegie Forum 305 West Pine Street, Lodi NOTICE OF CONTINUED PUBLIC HEARING Date: May 16, 2018 Time: 7:00 p.m. For information regarding this notice please contact: Jennifer M. Ferraiolo City Clerk Telephone: (209) 333-6702 E".."?. OPP NOTICE OF CONTINUED PUBLIC HEARING NOTICE IS HEREBY GIVEN that on Wednesday, May 16, 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 continued public hearing at the Carnegie Forum, 305 West Bine 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, 2"d Floor, Lodi, 95240, at any time prior to the hearing scheduled herein, and oral statements nay 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: OP nifer M. rraiolo ity Clerk Dated: May 2, 2018 Appro ed7 t form: John Fukasawa Deputy 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\PUBHEARWOTICESINOT_Appeal doe 512118 EXHIBIT B 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 520 9'h Street, Suite 230 Sacramento, CA 95814 Erik and Staci Jones _ 3031 Celebration Drive Lodi, CA 95242 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 (1) 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.Q RRIS EPUTY CI CLERK ELIZABETH BURGOS ADMINISTRATIVE CLERK Verify Appearance of this Legal in the Newspaper — Copy to File Emailed to the Sentinel at classified)@lodinews.com at (time) on (date) (pages) LNS Phoned to confirm receipt of all pages at (lime) EES 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 declare under penalty of perjurY that the foregoing is true and correct. Executed on April 5, 2018, at Lodi, California. ),l�L1J 1� I�.fil_L 1 13 MELA F ORIS DUTY C CLERK ORDERED BY: JENNIFER M. FERRAIOLO CITY CLERK ELIZABETH BURGOS ADMINISTRATIVE CLERK N:Wdministration\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. 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, 2"d 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: nifer M. ity Clerk rraiolo Dated: April 4, 2018 Approved as to form: r_> - Janice D. Magdich City Attorney AVISO: Para obtener ayuda interpretativa con esta noticia, por favor Ilame a Ia oficina de Ia Secretaria Municipal, a las (209) 333-6702. CLERKIPUBHEARINOTICESINOT Appeal,doa 3/29/16 EXHIBIT B 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 Kevin Hughey Hughey Law Group Address 520 9th Street, Suite 230 Sacramento, CA 95814 Erik and Staci Jones 3031 Celebration Drive Lodi, CA 95242