show concentrated streams of water flowing underneath the Sarems' fence, and a stormwater system that clearly is not functioning as intended. 1 The only "evidence" in support of these decisions is the ce1tification of the Sarems' engineer. The sum total of the engineer's certification is as follows:
The permanent BMPs associate [sic] with this project are functional. They have been installed, inspected and are in full conformance with the approved grading plans and City standards."
(Toal Engineering Letter, Aug. 23, 2023, p. 1.)2
This ce1tification is conspicuously written in the passive voice and lacking in detail. It leaves open many critical questions: Who conducted the inspection(s) and when? Were inspections conducted during construction before pipes, connections, and other components were buried? What inspection, if any, was performed by Toal Engineering after construction? Was the system tested? If so, how? What standards was the system measured against? How did it perform against those standards? There have been numerous natural tests subsequent to construction , including a tropical storm on August 11, 2023, and several subsequent winter storms, and the system has proven to be an abject failure.
The deficiencies of the Toal Engineering certification are even more glaring in light of the Sarems' recent complaints filed in superior court against their contractors. The Sarems allege the following against their general contractor:
In December 2022, there were significant rain events at the Subject Property. As a result of the construction issues identified above, the Subject Prope1ty experienced significant flooding issues and resultant damage. The rear of the Subject Property flooded and there were mudslides. The flooding and mudslides extended to the neighbor's property and resulted in significant damage to the property.
The cause of the flooding and damage was the failure of BMG and the landscape [sic] to install the drainage components in compliance with the grading permit and plans and specifications. As a result, the drainage and water retention basin 1 https://www .dropbox.com /scl/fi/avujcg lk23 786uk48 ivg u/Stonnwater-Runoff-4020-Sunnyhil l-1.22 .24- Event.MOV?rlkey =ppxuto4128g2pnptus741 hz8l&dl=0 (January 22, 2024, storm event) https://www .dropbox.com /scl/fi/ehu7 ao2b l l 8m86y4xknxw /Stormwater-Runoff-4020-S unnyhill-1.22.24- Video-
2.MOV?rlkey=gl l 9arltfhnrf9orcf2atj9ug&dl=0 (January 22, 2024, storm event) https://www .dropbox.com /scl/fi/d9g4o90zci6k6k27x0d 17 /Stormwater-Runoff-4020-Sunnyhil 1-1.22.24-Video- 3 .MOV?rlkey=z3 re7xe0166mhgv4sjxc2t4ej&d l=0 (January 22, 2024, storm event) https://www .dropbo x.com/scl/fi/d9g4o90zci6k6k27x0d 17 /Sto1mwater-Runoff-4020-Sunnyhill-1.22.24-Video- 3 .MOV?rlkey =z3re7xe0166mhgv4sjxc2t4ej&dl=0 (January 22, 2024, storm event) 2 The staffrep011 makes vague reference to three engineering reports but does not indicate which other than the Toal Engineering letter of August 23, 2023, are relevant to the instant decisions. 2 Carlsbad City Council
March 12, 2024
improvements did not function as intended. However , BMG had represented to SAREM the drainage improvements had been inspected and approved in accordance with the civil engineering plans and grading permit. This was false.
The City of Carlsbad was notified of the flooding/mudslide events. The project civil engineer, Toal Engineering , was advised of the flooding and mudslides . The City and Toal Engineering initiated an investigation. It was determined the cause of the flooding and mudslides was the defective work of the landscape contractor and BMG 's failure to supervise the installation and secured the required testing of the drainage system.
(Complaint, Sarem v. BMG Construction, Nov. 15, 2023, ,i,i 10-12 , italics added.) In this pleading , the Sarems admit that flooding and mudslides occurred during construction ( due to failure to implement construction BMPs, which is undisputed) and caused damage to the neighboring property, i.e., the Edwards' . These events appear to have resulted in conditions that are still unresolved. Notably, the Sarems admit that the stormwater capture system was not inspected during construction.
The Sarems also filed a complaint against their landscaping subcontractor, which states:
First, the Toal Engineering plans called for the installation of a solid drain line from the water retention basin to the emitters. CW DESIGN supplied and supplied a perforated drain line.
Second, CW DESIGN installed the drain lines with negative slope such that any draining water captured by the emitters did not flow to the water retention basin but back towards the rear of the Subject Property and a neighbor 's property. The drain lines were also installed at improper heights and not in conformance with the Toal Engineering plans and the City of Carlsbad grading permit.
Third, CW DESIGN installed the emitters at the wrong height such that water intended to drain from the Subject Property could not do so.
Fourth, CW DESIGN installed the remainder of the drain lines on the Subject Property with negative slope such that water captured by the system flow back towards the residence on the Subject Property as opposed to the intend location.
Fifth, when CW DESIGN installed the drain lines, it failed to compact the soil to the specifications provided in the Toal Engineering plans and the City of Carlsbad grading permit.
Sixth, pursuant to the City of Carlsbad grading permit, CW DESIGN was required to have the drainage system it installed inspected and tested by Toal Engineering during construction. CW DESIGN failed to do so. This proved to be a monumental 3 Carlsbad City Council
March 12, 2024
failure .
(Complaint, Sarem v. Chicweed Design & Landscape, LLC, Dec. 18, 2023, ~~ 9- 13, italics added.)
These allegations provide impmiant information about where things went wrong. To start with, the Sarems' landscaping subcontractor did not follow the plans and city standards in several respects. And the Sarems state that the system was not inspected and tested by Toal Engineering during construction as required. The Sarems fmiher state that "[f]rom December 2022 through July 2023," the landscaping subcontractor "attempted to repair and correct the drainage issues at the Subject Property. It was unable to do so." (Id., ~ 19.) Shortly thereafter , on August 11, 2023, a tropical storm came through , and the system performed inadequately. Given these known issues and the miserable performance of the system, the inspection, testing, and certification by Toal Engineering should have been much more thorough and detailed. Under the circumstances, the vague, passive-voice certification by Toal Engineering is not substantial evidence to support a decision to provide final signoff on construction and release the Sarems ' deposit.
Note that even though the grading permit has been issued and construction is purportedly complete, the city is not without power to require corrections and improvements to the system to bring it up to city standards. The Sarems' grading and erosion control agreement states:
If the City Engineer determines that erosion control measures or devices are not adequate or are not being maintained in an acceptable manner, or that a hazardous condition exists due to erosion, or to work being done, applicant shall take immediate action to construct or install additional erosion control devices or repair the existing erosion control devices or correct the hazardous condition upon notification by the City Engineer.
(Grading and Erosion Control Agreement , pp. 2-3, italics added.) Further, the municipal code provides:
The issuance of a grading permit based on approved grading plans, construction SWPPP, specifications and other data shall not prevent the City Engineer from thereafter requiring correction of errors in said plans, specifications and other data, or from preventing grading operations being carried on thereunder when in violation of this chapter or any other chapter of this code. (Carlsbad Mun. Code, § 15.16.l00(B) , italics added.)
Regardless of whether or not a grading permit has been issued or is required to be issued, it is unlawful for any person to commit or cause to be committed the following acts or, to maintain or cause to be maintained a property in such a manner as to result in the commission of the following acts:
4 Carlsbad City Council
March 12, 2024
1. Grading in such a manner as to become a hazard to life and limb or to endanger property or to adversely affect the safe use or stability of~ public property , place or way; [or]
2. Grading without application of appropriate stormwater best management practices (BMPs) in accordance with the provisions of this title, city standards and municipal permit .... "
(Carlsbad Mun. Code, § 15.16.l ?0(B), italics added.)
If the Sarems do not comply voluntarily, the city can exercise numerous remedies including issuing a notice with orders requiring "co1Tective action" and restoration of "all cash deposits and/or other securities"; recording a violation on the property ; prohibiting issuance of additional permits; imposing criminal penalties ; and bringing an action for abatement or for other corrective actions. (Carlsbad Mun. Code, § 15.16.190.) It would be a dereliction of duty for the city to simply throw its hands up and say, "what's done is done."
Thank you for your attention to this matter.
Very truly yours,
AANNESTAD ANDELIN & CORN LLP
~lr/ 1, bdM.A{~L
cc: Arie Spangler
Gina Herrera
5 Public Hearing to Consider an Appeal of the City
Engineer’s Decision to Approve the Grading Final
Punch List, Release Securities and Approve the
Notice of Completion and Acceptance of Public
Improvements for Grading Permit No. GR2021-0016
Paz Gomez, Deputy City Manager, Public Works
Gina Herrera, Assistant City Attorney
March 12, 2024
{ City of
Carlsbad
2 APPEAL PROCEDURE
• Staff presentation
• Council opportunity to ask questions of staff
• Appellant presentation (Edwards)
• Applicant presentation (Sarem)
• Mayor opens public hearing
• Council receives comments from speakers
• Mayor closes public hearing
• Council discussion
• Council decision
ITEM 8: PUBLIC HEARING ON GRADING PERMIT
{ City of
Carlsbad
3 BACKGROUND
• Scott & Kyra Sarem own a property at 4005 Skyline Road • I
n 2020, the Sarems began the process to redevelop their single-family residence
• Neighbors received notice of the project in early 2020 • A Coastal Development Permit was issued in Oct. 2020
• The Grading Permit was issued a year later in Sept. 2021 ITEM 8: PUBLIC HEARING ON GRADING PERMIT
{ City of
Carlsbad
4 BACKGROUND
• The project took almost two years to construct and complete • F
inal punch list was completed on 9/6/23
• Cash deposit ($65,128) was released on 9/14/23
• Grading bond ($586,151.90) was released on 9/14/23
• Notice of Completion signed on 9/14/23
• Acceptance of Public Improvements signed on 9/14/23
• City Engineer designee
ITEM 8: PUBLIC HEARING ON GRADING PERMIT
{ City of
Carlsbad
5 APPEAL
• On Sept. 25, 2023, attorneys, on behalf of Josh & Terri E
dwards, the owners of a downhill neighboring property, filed an Appeal objecting to the decisions of the City Engineer related to the completion of the Grading Permit
ITEM 8: PUBLIC HEARING ON GRADING PERMIT
{ City of
Carlsbad
6 APPEAL
• The Appeal is n arrow and only pertains to the completion of the final punch list, release of the securities (bond and cash deposit), and approval of the Notice of Completion and Acceptance of the Public Improvements
• These decisions are ministerial decisions that are
procedural in nature
• “Ministerial” decisions are non-discretionary and are based on fixed, objective standards
ITEM 8: PUBLIC HEARING ON GRADING PERMIT
{ City of
Carlsbad
7 APPEAL – STANDARD OF REVIEW
• City Council is being asked to consider whether the
d
ecision-maker followed the applicable law and whether
there is substantial evidence to support the facts on which the decision-maker relied
• Substantial evidence means more than a mere scintilla but less than a preponderance
ITEM 8: PUBLIC HEARING ON GRADING PERMIT
{ City of
Carlsbad
8 APPEAL – STANDARD OF REVIEW
• Here, the City Engineer’s designee relied on the three r
eports listed below to complete the ministerial action
ITEM 8: PUBLIC HEARING ON GRADING PERMIT
GRADING FINAL PUNCH LIST
CDP 2020-0017 SAREM RESIDENCE, DWG 531 -lA
1. Subm it final soils report.
~ Date complete : 8/10/23
2. Subm it final as-built drawings and complete as-bui lt process. ~ Date complete: _____.9/_5 ...... /2_3 __ _
3. Subm it BMP Certification Report w ith photos.
cg] Date complete : 8/23/23 { City of
Carlsbad
9 APPEAL – STANDARD OF REVIEW
• The subsequent ministerial actions procedurally follow the c
ompletion of the final punch list, specifically:
o Release of the cash deposit ($65,128)
o Release of the grading bond ($586,151.90)
o Filing the notice of completion
o Accepting the public improvements
ITEM 8: PUBLIC HEARING ON GRADING PERMIT
{ City of
Carlsbad
10 RECOMMENDED ACTIONS
• Hold a public hearing
• Adopt a resolution denying the appeal and
affirming the City Engineer designee’s
completion of the final punch list, release of
grading securities and approval of the Notice
of Completion and Acceptance of Public
Improvements for Grading Permit No.
GR2021-0016
ITEM 8: PUBLIC HEARING ON GRADING PERMIT
{ City of
Carlsbad
11 APPEAL PROCEDURE
• Staff presentation
• Council opportunity to ask questions of staff
• Appellant presentation (Edwards)
• Applicant presentation (Sarem)
• Mayor opens public hearing
• Council receives comments from speakers
• Mayor closes public hearing
• Council discussion
• Council decision
ITEM 8: PUBLIC HEARING ON GRADING PERMIT
{ City of
Carlsbad
12 ??? QUESTIONS?
ITEM 8: PUBLIC HEARING ON GRADING PERMIT
{ City of
Carlsbad