TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA REPORT CityofPoway
June 6, 2023
Honorable Chairman and Members of the Housing Authority Robert Manis, Director of Development Services~
Marie Sanders, Senior Management Analyst J fJJ
(858) 668-4637 or [email protected] '1(t'
Poway Housing Successor Annual Report Fiscal Year 2021-22
CITY COUNCIL
Pursuant to California Health and Safety Code Sections 34176 and 34176.1 (f) (Dissolution Law), the Poway Housing Authority, in its capacity as Housing Successor to the dissolved Poway Redevelopment Agency, must prepare an annual report detailing its activities during each fiscal year. The Poway Housing Successor Annual Report for Fiscal Year 2021-22 (Attachment A), and the Poway Housing Authority Basic Financial Statements and Independent Auditors Report for the year ending June 30, 2022 (Attachment B), are included with this agenda report for review by the Poway Housing Authority Board. The Poway City Council also sits as the Poway Housing Authority Board.
Recommended Action:
It is recommended the Poway Housing Authority Board receive and file this report.
Discussion:
Part 1.85, Division 24 of the California Health and Safety Code, particularly Sections 34176 and 34176.1 (f), require that the Housing Successor provide an annual report of the Successor's activities during the prior fiscal year. The purpose of the report is to provide the governing body of the Housing Successor with an annual report on the housing assets and activities of the Housing Successor. The report is to be provided to the Poway Housing Authority Board, along with an independent financial audit of the Low- and Moderate-Income Housing Asset Fund (LMIHAF) within six months after the end of each fiscal year. Due to Poway's annual timing for completion of the Housing Authority audit, it is not possible for this report to be completed within the six-month period. However, there is no penalty for delayed submission of the report.
The Poway Housing Successor Annual Report for Fiscal Year 2021-22 indicates a balance in the LMIHAF of $5,152,809. LMIHAF monies can be spent to acquire, rehabilitate, acquire long term affordability covenants for, or preserve lower income housing (affordable to households earning 80 percent of median income or less). Additionally, funds may be used for program administration and monitoring as well as for homelessness prevention and rapid rehousing services. The source of funding for the LMIHAF is derived from the previous balance of Redevelopment financing, program income from operations, repayments of loans, and land sales.
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June 6, 2023, Item #11
Environmental Review:
This item is not subject to California Environmental Quality Act (CEQA) review.
Fiscal Impact:
There is no fiscal impact associated with this item.
Public Notification:
None.
Attachments:
A. Poway Housing Successor Annual Report for Fiscal Year 2021-22 B. Poway Housing Authority Basic Financial Statements and Independent Auditors Report for the year ended June 30, 2022
Reviewed/ Approved By:
Assistant City Manager
2 of 36
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
ChtM#.
City Manager
June 6, 2023, Item #11
POWAY HOUSING SUCCESSOR ANNUAL REPORT
REGARDING THE LOW- AND MODERATE-INCOME HOUSING ASSET FUND FOR FISCAL YEAR 2021-2022
PURSUANT TO CALIFORNIA HEALTH AND SAFETY CODE SECTION 34176.1(f)
FOR THE POWAY HOUSING AUTHORITY
This Housing Successor Annual Report (Report) regarding the Low- and Moderate-Income Housing Asset Fund (LMIHAF) has been prepared pursuant to California Health and Safety Code Section 34176.1 (f) and is dated as of June 6, 2023. This Report sets forth certain details of the Poway Housing Authority, in its capacity as Housing Successor to the dissolved Poway Redevelopment Agency, activities during Fiscal Year 2021-22 (Fiscal Year) . The purpose of this Report is to provide the governing body of the Housing Successor an annual report on the housing assets and activities of the Housing Successor under Part 1.85, Division 24 of the California Health and Safety Code, in particular sections 34176 and 34176.1 (Dissolution Law).
The following Report is based upon information prepared by Housing Successor staff and information contained within the Poway Housing Authority Basic Financial Statements and Independent Auditor's Report for Fiscal Year 2021-22 as prepared by Davis Farr, LLP, which Audit is separate from this annual summary report ; further , this report conforms with and is organized into sections I. through XII., inclusive, pursuant to the Dissolution Law:
I. Amount Deposited into LMIHAF: This section provides the total amount of funds deposited into the LMIHAF during the Fiscal Year. Any amounts deposited for items listed on the Recognized Obligation Payment Schedule (ROPS) must be distinguished from the other amounts deposited.
II. Ending Balance of LMIHAF: This section provides a statement of the balance in the LMIHAF as of the close of the Fiscal Year. Any amounts deposited for items listed on the ROPS must be distinguished from the other amounts deposited.
Ill. Description of Expenditures from LMIHAF: This section provides a categorized description of the expenditures made from the LMIHAF during the Fiscal Year.
IV. Statutory Value of Assets Owned by Housing Successor: This section provides the statutory value of real property owned by the Housing Successor, the value of loans and grants receivables, and the sum of these two amounts.
V. Description of Transfers: This section describes transfers pursuant to Health and Safety Code Section 34176.1 (c)(2), if any, to another housing successor agency made in previous Fiscal Year(s), including whether the funds are unencumbered and the status of projects, if any, for which the transferred LMIHAF will be used. The sole purpose of the transfers must be for the development of transit priority projects, permanent supportive housing, housing for agricultural employees or special needs housing .
3 of 36 POWAY HOUSING SUCCESSOR ANNUAL REPORT FISCAL YEAR 2021 - 2022
ATTACHMENT A
June 6, 2023, Item #11
VI. Project Descriptions: This section describes any project for which the Housing Successor receives or holds property tax revenue pursuant to the ROPS and the status of that project.
VII. Status of Compliance with Section 33334.16: This section provides a status update on compliance with Section 33334.16 for interests in real property acquired by the former redevelopment agency prior to February 1, 2012. For interests in real property acquired on or after February 1, 2012, the Housing Successor must provide a status update on the project. The Poway Housing Successor has acquired two properties since February 1, 2012.
VIII. Description of Outstanding Obligations under Section 33413: This section describes the outstanding inclusionary and replacement housing obligations, if any, under Section 33413 that remained outstanding prior to dissolution of the former redevelopment agency as of February 1, 2012, along with the Housing Successor's progress in meeting those prior obligations, if any, of the former redevelopment agency and how the Housing Successor's plans to meet unmet obligations, if any.
IX. Income Test: This section provides the information required by Section 34176.1 (a)(3)(B), or a description of expenditures by income restriction for five-year period, with the time period beginning January 1, 2014, and whether the statutory thresholds have been met.
X. Senior Housing Test: This section provides the percentage of units of deed-restricted rental housing restricted to seniors and assisted individually or jointly by the Housing Successor, its former redevelopment Agency, and its host jurisdiction within the previous 10 years in relation to the aggregate number of units of deed-restricted rental housing assisted individually or jointly by the Housing Successor, its former Redevelopment Agency and its host jurisdiction within the same time period. For this Report, the ten-year period reviewed is January 1, 2012 to December 31, 2022.
XI. Excess Surplus Test: This section provides the amount of excess surplus in the LMIHAF, if any, and the length of time that the Housing Successor has had excess surplus, and the Housing Successor's plan for eliminating the excess surplus.
XII. Inventory of Homeownership Units: This section provides a summary of covenanted homeownership units assisted by the former redevelopment agency or the housing successor that are subject to covenants or restrictions or to an adopted program that protects the former redevelopment agency's investment of monies from the Low- and Moderate-Income Housing Fund pursuant to subdivision (f) of Section 33334.3. Inventory shall include the following: a) the number of those units; b) in the first report pursuant to this subdivision, the number of units lost to the portfolio after February 1, 2012, and the reason or reasons for those losses. For all subsequent reports, the number of the units lost to the portfolio in the last fiscal year and the reason for those losses; c) any funds returned to the housing successor as part of an adopted program that protects the former redevelopment agency's investment of moneys from the Low- and Moderate-Income Housing Fund; and d) whether the housing successor has contracted with any outside entity for the management of the units and, if so, the identity of the entity. 4 of36 POWAY HOUSING SUCCESSOR ANNUAL REPORT FISCAL YEAR 2021- 2022 June 6, 2023, Item #11
I. AMOUNT DEPOSITED INTO LMIHAF
A total of $1,841,652 was deposited into the LMIHAF during the Fiscal Year.
II. ENDING BALANCE OF LMIHAF
At the close of the Fiscal Year, the ending balance in the LMIHAF was $5,152,809 none of which is being held for items listed on the ROPS. This includes $5,201, 162 in cash and investments, and $427,743 in housing loans receivable, less $18,793 in liabilities. The $427,743 is due from the Successor Agency and represents the Housing Authority's 20% of the former Redevelopment Agency's loan balance, and repayment is subject to approval by the California Department of Finance.
Ill. DESCRIPTION OF EXPENDITURES FROM LMIHAF
The following is a description of expenditures from the LMIHAF by category:
Fiscal Year 2021-22
Monitoring & Administration Expenditures $9,925
Homeless Prevention & Rapid Rehousing Expenditures $0
Housing Development Expenditures $73,974
Total LMIHAF Expenditures in Fiscal Year $83,899
IV. STATUTORY VALUE OF ASSETS OWNED BY HOUSING SUCCESSOR Under the Dissolution Law and for purposes of this Report, the "statutory value of real property" means the value of properties formerly held by the former redevelopment agency as listed on the housing asset transfer schedule approved by the Department of Finance as listed in such schedule under Section 34176(a)(2), the value of the properties transferred to the Housing Successor pursuant to Section 34181 (f), and the purchase price of properties purchased by the Housing Successor. Further, the value of loans and grants receivable are included in these reported assets held in the LMIHAF. The following provides the statutory value of assets owned by the Housing Successor:
Fiscal Year 2021-22
Cash and Cash Equivalents $5,201,162
Accounts Receivable $10,290
Statutory Value of Real Property Owned by Housing A1:.1thority . $13,917,824 Value of Loans and Grants Receivable $427,743
Total Value of Housing Successor Assets $19,557,019
V. DESCRIPTION OF TRANSFERS
The Housing Successor did not make any LMIHAF transfers to other Housing Successor(s) under Section 34176.1 ( c)(2) during the Fiscal Year.
5 of 36 POWAY HOUSING SUCCESSOR ANNUAL REPORT FISCAL YEAR 2021- 2022 June 6, 2023, Item #11
VI. PROJECT DESCRIPTIONS
The Housing Successor did not receive and did not hold property tax revenue pursuant to the ROPS.
VII. STATUS OF COMPLIANCE WITH SECTION 33334.16
Section 34176.1 provides that Section 33334.16 does not apply to interests in real property acquired by the Housing Successor on or after February 1, 2012.
With respect to interests in real property acquired by the former redevelopment agency prior to February 1, 2012, and transferred to the Successor Agency pursuant to Health and Safety Code Section 34176, the time periods described in Section 33334.16 shall be deemed to have commenced on the date that the Department of Finance (DOF) approved the property as a housing asset on the Housing Asset Transfer Form; thus, as to real property acquired by the former redevelopment agency now held by the Housing Successor, the Housing Successor must initiate activities consistent with the development of the real property for the purpose for which it was acquired within five years of the date the DOF approved such property as a housing asset.
Poway 's Housing Assets Transfer Form was approved by the DOF on August 31 , 2012.
The following provides a status update on the real property housing assets that were ·acquired by the former redevelopment agency prior to February 1, 2012, and transferred to the Housing Successor on February 1, 2012, and compliance with the five-year period to commence development activities .
APN Street Address p~:~~:!e Size Status
27546061 1267 4 Monte Vista Rd 02/22/2000 2.06 Acres Housing Authority is currently negotiating an affordable
housing agreement and ground
lease with a developer to build
an affordable community for
developm~ntally disabled
adults and veterans.
32119028 Twin Peaks Rd 11/03/2004 2.15 Acres Vacant land. 31423026 13424 Scots Way 08/27/2002 0.70 Acres Vacant land. Due to access issues, development options
are still actively being
evaluated.
31421418 14048 Sycamore Ave 06/30/2005 0.32 Acres Vacant land. Development options are still being
evaluated.
31710151 Floodway adjacent to 08/27/2004 2.15 Acres Vacant land (remnant parcel & 52 the Solara Affordable from development of adjacent Housing Development Solara affordable housing
development). Property is in
the floodway and cannot be
develo ed.
6 of 36 POWAY HOUSING SUCCESSOR ANNUAL REPORT FISCAL YEAR 2021 - 2022 June 6, 2023, Item #11
The following provides a status update on real property housing assets that were acquired by the Housing Successor after February 1, 2012.
APN Street Address p~:!~:!e Size Status
31723222 12207 & 12237 Old 01/9/2018 1.07 Acres Future affordable housing site. & 36 Pomerado Road Funds for demolition of the site
are budgeted, awaiting
Housing Authority Board
a roval.
VIII. DESCRIPTION OF OUTSTANDING OBLIGATIONS PURSUANT TO SECTION 33413 Replacement Housing: According to the 2010-2014 Implementation Plan for the former redevelopment agency, no Section 33413(a) replacement housing obligations were transferred to the Housing Successor. Furthermore, the Housing Successor has not caused the demolition of any units and no new replacement housing obligations have been created. lnclusionary/Production Housing. According to the 2010-2014 Implementation Plan for the former redevelopment agency, no Section 33413(b) inclusionary/production housing obligations were transferred to the Housing Successor.
The former redevelopment agency's Implementation Plans are posted on the City's website at http://poway.org/207 /Affordable-Housing.
IX. EXTREMELY LOW-INCOME TEST
This section provides the information required by Section 34176.1 (a)(3)(B), or a description of expenditures by income restriction for five-year period, with the time period beginning January 1, 2014 and whether the statutory thresholds have been met.
Section 34176.1 (a)(3)(B) requires that the Housing Successor must require at least 30% of the LMIHAF, after expenditures allowed pursuant to Code section 34176.1 (a)(1) and (2,) to be expended for development of housing affordable to, and occupied by, households earning 30% or less of the AMI. If the Housing Successor fails to comply with the extremely low income requirement in any five year report beginning with the five year report to be issued in 2019, then the Housing Successor shall ensure that at least 50% of these remaining LMIHAF funds expended in each fiscal year following the latest fiscal year following the five year report are expended for the development of rental housing affordable to, and occupied by, households earning 30% or less of the area AMI until the housing successor demonstrates compliance with the extremely low-income requirement in an annual report. This information is not required to be reported until 2024, for the 2020 - 2024 reporting period.
X. SENIOR HOUSING TEST
The Housing Successor is required to calculate the percentage of units of deed-restricted rental housing restricted to seniors and assisted by the Housing Successor, the former redevelopment 7 of 36 POWAY HOUSING SUCCESSOR ANNUAL REPORT FISCAL YEAR 2021- 2022 June 6, 2023, Item #11
agency and/or the City within the previous 10 years in relation to the aggregate number of units of deed-restricted rental housing· assisted by the Housing Successor, the former redevelopment agency, and/or City within the same time period. If this percentage exceeds 50%, then the Housing Successor cannot expend future funds in the LMIHAF to assist additional senior housing units until the Housing Successor or City assists and construction has commenced on a number of restricted rental units that is equal to 50% of the total amount of deed-restricted rental units. The following provides the Housing Successor's Senior Housing Test for the 10-year period of January 1, 2012 through December 31, 2022:
Housing Test 2012-2022
# of Assisted Senior Rental Units 43
# of Total Assisted Rental Units 246
'C ... ,,, ..
Senior Housing Percentage ~> 17% ...
XI. EXCESS SURPLUS TEST
Excess Surplus is defined in Section 34176.1 (d) as an unencumbered amount in the LMIHAF account that exceeds the greater of one million dollars ($1,000,000) or the aggregate amount deposited into the LMIHAF account during the Housing Successor's preceding four Fiscal Years, whichever is greater.
The LMIHAF was created on February 1, 2012. The current uncommitted balance of $5,152,809 on deposit in the LMIHAF does not exceed the sum of the annual deposits made in the preceding four fiscal years of $5,335,680.
The following provides the Excess Surplus test for the preceding four Fiscal Years:
FY 2018/19 FY 2019/20 FY 2020/21 FY 2021/22 Total FY18-21 Beginning Balance $2,117,450 $1,586,131 $4,438,922 $3,434,907 Add: Deposits $240,904 $2,884,440 $368,684 $1,841,652 $5,335,680 (Less) Expenditures $(772,223) $(31,649) $(1,372,699) $(83,900) k . · ,,. " , .
Ending Balance $1,586,131 $4,438,922 $3,343,907 $5,192,659 (Less) Commitments $(77,366) $(81,783) $(29,263) $(39,850) - ,,, ... ~
Uncommitted Balance $1,508,765 $4,357,139 $3,405,644 $5,152,809 XII. HOMEOWNERSHIP UNITS
The Housing Successor is to provide an inventory of homeownership units assisted by the former redevelopment agency or the Housing Successor that are subject to covenants or restrictions or to an adopted program that protects the former redevelopment agency's investment of monies from the LMIHAF pursuant to Section 33334.3(f). The inventory for the Housing Successor is as follows:
Restricted Homeownership Units as of 12/31/2022
8 of 36 POWAY HOUSING SUCCESSOR ANNUAL REPORT FISCAL YEAR 2021 - 2022 June 6, 2023, Item #11
Add: Restricted Homeowner Units Added by Housing Successor (January 0 1, 2022 through December 31, 2022) -(Less): Restricted Homeowner Units Lost to Portfolio (January 1, 2022 0 through December 31, 2022) - Additionally, no inventory was lost in 2022. A total of $0 was returned to the Housing Successor as a result of the restrictions adopted to protect the former redevelopment agency's investment in LMIHAF monies and the Housing Successor did not contract with an outside entity for the management of the ownership portfolio.
9 of 36 POWAY HOUSING SUCCESSOR ANNUAL REPORT FISCAL YEAR 2021- 2022 June 6, 2023, Item #11
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POWAY HOUSING AUTHORITY
{A Component Unit of the
City of Poway)
Financial Statements
YearEndedJune30,2022
ATTACHMENT B
June 6, 2023, Item #11
POWAY HOUSING AUTHORITY
Table of Contents
Year Ended June 30, 2022
Independent Auditor's Report .... . . ...... .... ....... ........ ... ................... ........... ........ ... . . . ... . .. ............ ...... ... 1 Basic Financial Statements
Government-Wide Financial Statements
Statement of Net Position ..................................... .................................................................. 4 Statement of Activities ............................................................................................................ 5 Fund Financial Statements
Balance Sheet ..................................................... ........................................ ............................. 6 Reconciliation of the Balance Sheet of the Governmental Fund to the Statement of Net Position ............................................................................................ 7 Statement of Revenues, Expenditures and Changes in Fund Balance .................................... 8 Reconciliation ofthe Statement of Revenues, Expenditures and Changes in Fund Balance of the Governmental Fund to the Statement of Activities ................ 9 Notes to the Basic Financial Statements............ ..................................... ............................ ............ 10 Required Supplementary Information {Unaudited)
Budgetary Comparison Schedule .................... .................................................................... .... 18 Note to Required Supplementary Information ................................................... .................... 19 Report on Internal Control Over Financial Reporting and on Compliance and Other Matters based on an Audit of Financial Statements Performed in Accordance with Government Auditing Standards ......................................... ....................... 21 11 of 36
June 6, 2023, Item #11
Davis Farr LLP
18201 Von Karrncm Avenue I Suite 1100 I Irvine, CA 92612 Main : 949.474.2020 I Fax: 949.263.5520
INDEPENDENT AUDITOR'S REPORT
Poway Housing Authority
City of Poway
Poway, California
Report on the Audit of the Financial Statements
Opinion
We have audited the financial statements of the governmental activities and the major fund of the Poway Housing Authority (the Authority), a component unit of the City of Poway, California, as of and for the year June 30, 2022, and the related notes to the financial statements, which collectively comprise the Authority's basic financial statements as listed in the table of contents.
In our opinion, the accompanying financial statements present fairly, in all material respects, the respective financial position of the governmental activities and the major fund of the Authority as of June 30, 2022, and the respective changes in financial position the year then ended in accordance with accounting principles generally accepted in the United States of America.
Basis for Opinion
We conducted our audit in accordance with auditing standards generally accepted in the United States of America (GAAS) and the standards applicable to financial audits contained in Government Auditing Standards, issued by the Comptroller General of the United States.
Our responsibilities under those standards are further described in the Auditor's Responsibilities for the Audit of the Financial Statements section of our report. We are required to be independent of the Authority and to meet our other ethical responsibilities, in accordance with the relevant ethical requirements relating to our audit. We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.
Emphasis of a Matter
As described more fully in Note 1, the basic financial statements present only the Authority and are not intended to present fairly the financial position and results of operations of the City of Poway, California in conformity with accounting principles generally accepted in the United States of America. Our opinion is not modified with respect to this matter.
Responsibilities of Management for the Financial Statements The Authority's management is responsible for the preparation and fair presentation of the financial statements in accordance with accounting principles generally accepted in the United States of America, and for the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error.
In preparing the financial statements, management is required to evaluate whether there are conditions or events, considered in the aggregate, that raise substantial doubt about the Authority's ability to continue as a going concern for one year after the date that the financial statements are issued.
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June 6, 2023, Item #11
Auditor's Responsibilities for the Audit of the Financial Statements Our objectives are to obtain reasonable assurance about whether the financial statements as a whole are free from material misstatement, whether due to fraud or error, and to issue an auditor's report that includes our opinion. Reasonable assurance is a high level of assurance but is not absolute assurance and therefore is not a guarantee that an audit conducted in accordance with GAAS will always detect a material misstatement when it exists. The risk of not detecting a material misstatement resulting from fraud is higher than for one resulting from error, as fraud may involve collusion, forgery, intentional om1ss1ons, misrepresentations, or the override of internal control. Misstatements are considered material if there is a substantial likelihood that, individually or in the aggregate, they would influence the judgment made by a reasonable user based on the financial statements.
In performing an audit in accordance with GAAS, we:
• Exercise professional judgment and maintain professional skepticism throughout the audit.
• Identify and assess the risks of material misstatement of the financial statements, whether due to fraud or error, and design and perform audit procedures responsive to those risks. Such procedures include examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. • Obtain an understanding of internal control relevant to the audit in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Authority's internal control.
Accordingly, no such opinion is expressed.
• Evaluate the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by , management, as well as evaluate the overall presentation of the financial statements.
• Conclude whether, in our judgment, there are conditions or events, considered in the aggregate, that raise substantial doubt about the Authority's ability to continue as a going concern for a reasonable period of time.
We are required to communicate with those charged with governance regarding, among other matters, the planned scope and timing of the audit, significant audit findings, and certain internal control-related matters that we identified during the audit.
Required Supplementary Information
Accounting principles generally accepted in the United States of America require that the Budgetary Comparison Schedule be presented to supplement the basic financial statements.
Such information is the responsibility of management and, although not a part of the basic financial statements, is required by the Governmental Accounting Standards Board who considers it to be an essential part of financial reporting for placing the basic financial statements in an appropriate operational, economic, or historical context. We have applied certain limited procedures to the required supplementary information in accordance with auditing standards generally accepted in the United States of America, which consisted of inquiries of management about the methods of preparing the information and comparing the information for consistency with management's responses to our inquiries, the basic financial statements, and other knowledge we obtained during our audit of the basic financial statements. We do not express an opinion or provide any assurance on the information because the limited procedures do not provide us with sufficient evidence to express an opinion or provide any assurance.
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June 6, 2023, Item #11
Management has omitted management's discussion and analysis that accounting principles generally accepted in the United States of America require to be presented to supplement the basic financial statements. Such missing information, although not a part of the basic financial statements, is required by the Governmental Accounting Standards Board who considers it to be an essential part of the financial reporting for placing the basic financial statements in an appropriate operational, economic or historical context. Our opinion the basic financial statements is not affected by this missing information.
Other Reporting Required by Government Auditing Standards In accordance with Government Auditing Standards, we have also issued our report dated January 17, 2023 on our consideration of the Authority's internal control over financial reporting and on our tests of its compliance with certain provisions of laws, regulations, contracts, and grant agreements and other matters. The purpose of that report is solely to describe the scope of our testing of internal control over financial reporting and compliance and the results of that testing, and not to provide an opinion on the effectiveness of internal control over financial reporting or on compliance. That report is an integral part of an audit performed in accordance with Government Auditing Standards in considering the Authority's internal control over financial reporting and compliance.
Irvine, California
January 17, 2023
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June 6, 2023, Item #11
This page intentionally left blank
15 of 36 4
June 6, 2023, Item #11
BASIC FINANCIAL STATEMENTS
16 of 36 5
June 6, 2023, Item #11
17 of 36
ASSETS
Poway Housing Authority
Statement of Net Position
June 30, 2022
Cash and investments (Note 2)
Accounts receivable
Due from other governments
Capital assets, nondepreciable (Note 3)
Total assets
LIABILITIES
Accounts payable
Unearned revenue
Total liabilities
NET POSITION
Investment in capital assets
Restricted for:
Housing
Total net position
$
$
See accompanying notes to the basic financial statements 6 5,201,162
10,290
427,743
13,917,824
19,557,019
4,057
14,736
18,793
13,917,824
5,620,402
19,538,226
June 6, 2023, Item #11
Functions/Programs
Governmental activities:
General government $
Development services
Community services
Total governmental activities $
Poway Housing Authority
Statement of Activities
Year Ended June 30, 2022
Program Revenues
Expenses
9,925
73,974
83,899
Operating
Charges Contributions
for and
Services Grants
19,969
1,634,152
19,969 1,634,152
General Revenues
Investment income
Other
Capital
Contributions
and
Grants
Total general revenues and transfers
Change in net position
Net position, beginning
Net position, ending
See accompanying notes to the basic financial statements 18 of 36 7
Net (Expense)
Revenue
and
Changes in
Net Position
10,044
(73,974)
1,634,152
1,570,222
35,380
53,338
88,718
1,658,940
17,879,286
$ 19,538 ,226
June 6, 2023, Item #11
19 of 36
ASSETS
Cash and investments
Accounts receivable
Poway Housing Authority
Balance Sheet
Governmental Fund
June 30, 2022
Due from other governments
Total assets
LIABILITIES AND FUND BALANCE
Liabilities:
Accounts payable
Unearned revenue
Total liabilities
FUND BALANCE
Restricted
Total fund balances
Total liabilities and fund balance
$
$
$
$
See accompanying notes to the basic financial statements 8 5,201,162
10,290
427,743
5,639,195
4,057
14,736
18,793
5,620,402
5,620,402
5,639,195
June 6, 2023, Item #11
Poway Housing Authority
Reconciliation of the Balance Sheet of the
Governmental Fund to the Statement of Net Position
June 30, 2022
Total Governmental Fund Balance
Amounts reported for governmental activities in the Statement of Net Position were different because:
Capital assets used in governmental activities were not current financial resources and, therefore, were not reported in the funds.
Net position of governmental activities
See accompanying notes to the basic financial statements 20 of 36 9
$ 5,620,402
13,917,824
$ 19,538,226
June 6, 2023, Item #11
21 of 36
Poway Housing Authority
Statement of Revenues, Expenditures and Changes in Fund Balance Governmental Fund
Vear Ended June 30, 2022
REVENUES
Lease revenue $
Investment income
Loan repayment
Reimbursement agreement fees
Total revenues
EXPENDITURES
Current:
General government
Development services
Total expenditures
Net change in fund balance
Fund balance, beginning of year
Fund balance, end of year $
See accompanying notes to the basic financial statements 10 19,969
35,380
1,634,152
53,338
1,742,839
9,925
73,974
83,899
1,658,940
3,961,462
5,620,402
June 6, 2023, Item #11
Poway Housing Authority
Reconciliation of the Statement of Revenues,
Expenditures and Changes in Fund Balance of the Governmental Fund to the Statement of Activities
Year Ended June 30, 2022
Net change in fund balance - total governmental fund
Change in net position of governmental activities
See accompanying notes to the basic financial statements 22 of 36 11
$ 1,658,940
$ 1,658,940
June 6, 2023, Item #11
POWAY HOUSING AUTHORITY
Notes to the Basic Financial Statements
Year Ended June 30, 2022
Note 1- Reporting Entity and Summary of Significant Accounting Policies The accounting policies of the Poway Housing Authority (Authority) conform to accounting principles generally accepted in the United States of America as applicable to governments. The Governmental Accounting Standards Board (GASB) is the accepted standard setting body for governmental accounting and financial reporting principles. The following is a summary of the Authority's significant accounting policies:
A. Description of Reporting Entity
On March 1, 2011, the City Council of the City of Poway declared a need for a housing authority in the City of Poway and adopted a resolution forming the Poway Housing Authority. The creation of the Housing Authority provides the City legal authority to continue monitoring ongoing rent and income compliance at affordable housing developments.
The former Poway Redevelopment Agency (Agency) and the Authority prepared a Cooperation Agreement to provide for implementation of certain low and moderate income housing projects and to make payments by the Agency to the Authority for the costs to the Authority for performing its obligations. The Agency was dissolved due to the passage of Assembly Bill Xl 26 which became effective on October 1, 2011. In accordance with Health and Safety code 34175(b), on February 1, 2012, all housing assets, liabilities and fund balance of the Agency were transferred to the Authority as the Successor Agency to the Poway Redevelopment Agency.
The Authority meets the criteria set forth in U.S. GAAP for inclusion as a blended component unit within the City reporting entity based on the City's oversight responsibility in selection of the governing board.
In addition, all of the Authority's activities are conducted within the geographic boundaries of the City.
Blended component units, although legally separate entities, are, in substance, part of the City's operations; therefore, data from these units are combined with data of the primary government in the financial statement presentation of the City. Only the funds of the Authority are included herein; therefore, these financial statements do not purport to represent the financial position or results of operations of the City.
8. Basis of Accounting/Measurement Focus
The accounts ofthe Authority are organized on the basis of funds, each of which is considered a separate accounting entity. The operations of each fund are accounted for with a separate set of self-balancing accounts that comprise its assets, deferred outflows of resources, liabilities, deferred inflows of resources, fund equity, revenues, and expenditures or expenses, as appropriate. Governmental resources are allocated to and accounted for in individual funds based upon the purposes for which they are to be spent and the means by which spending activities are controlled . 23 of 36 12
June 6, 2023, Item #11
POWAY HOUSING AUTHORITY
Notes to the Basic Financial Statements
Year Ended June 30, 2022
Note 1- Reporting Entity and Summary of Significant Accounting Policies (Continued) Government-Wide Financial Statements
The Authority's Government-Wide Financial Statements include a Statement of Net Position and a Statement of Activities. These statements present summaries of governmental activities for the Authority.
These basic financial statements are presented on an "economic resources" measurement focus and the accrual basis of accounting. Accordingly, all of the Authority's assets and liabilities, including capital assets, as well as infrastructure assets, and long-term liabilities, are included in the accompanying Statement of Net Position. The Statement of Activities presents changes in net position. Under the accrual basis of accounting, revenues are recognized in the period in which they are earned while expenses are recognized in the period in which the liability is incurred.
Certain types of transactions are reported as program revenues for the Authority in three categories:
• Charges for services
• Operating grants and contributions
• Capital grants and contributions
Governmental Fund Financial Statements
Governmental fund financial statements include a Balance Sheet and a Statement of Revenues, Expenditures and Changes in Fund Balances for the governmental fund. An accompanying schedule is presented to reconcile and explain the differences in fund balance as presented in these statements to the net position presented in the Government-Wide Financial Statements.
All governmental funds are accounted for on a spending or "current financial resources" measurement focus and the modified accrual basis of accounting. Accordingly, only current assets and current liabilities are included on the Balance Sheet. The Statement of Revenues, Expenditures and Changes in Fund Balance presents increases (revenues and other financing sources) and decreases (expenditures and other financing uses) in net current assets. Under modified accrual basis of accounting, revenues are recognized in the accounting period in which they become both measurable and available to finance expenditures of the current period. ·
Revenues are recorded when received in cash, except that revenues subject to accrual (generally 60 days after year-end) are recognized when due. The primary revenue sources, which have been treated as susceptible to accrual by the Authority, are property tax, and intergovernmental revenues. Expenditures are recorded in the accounting period in which the related fund liability is incurred. 24 of 36 13
June 6, 2023, Item #11
POWAY HOUSING AUTHORITY
Notes to the Basic Financial Statements
Year Ended June 30, 2022
Note 1- Reporting Entity and Summary of Significant Accounting Policies (Continued) Unearned revenues arise when the government receives resources before it has a legal claim to them, as when grant monies are received prior to incurring qualifying expenditures . In subsequent periods when both revenue recognition criteria are met or when the government has a legal claim to the resources, the unearned revenue is removed from the balance sheet and revenue is recognized.
The Reconciliation of the Fund Financial Statements to the Government-Wide Financial Statements is provided to explain the differences created by the integrated approach of generally accepted accounting principles.
Fund Accounting
The Authority uses funds to maintain its financial records during the year. A fund is defined as a fiscal and accounting entity with a self-balancing set of accounts. The Authority only has one governmental fund.
Governmental Fund
Housing Authority Fund .- The Housing Authority Fund is the Authority's operating fund. It accounts for all financial resources of the Authority.
C. Cash and Investments
The Authority's cash and investment balances are included in the City's investment pool. The City pools cash resources from all City funds in order to facilitate the management of cash and achieve the goal of obtaining the highest yield with the greatest safety and least risk. The balance in the pooled cash account is available to meet current operating requirements. Cash in excess of current requirements is invested in various interest-bearing accounts and other investments for varying terms. Investments are stated at fair value. Market value is used as fair value for those securities for which market quotations are readily available.
The City participates in an investment pool managed by the State of California titled Local Agency Investment Fund ("LAIF") which has invested a portion of the pool funds in structured notes and asset backed securities. LAIF determines fair value on its investment portfolio based on market quotations for those securities where market quotations are readily available and based on amortized cost or best estimate for those securities where market value is not readily available. LAIF investments are subject to credit risk with the full faith and credit of the State of California collateralizing these investments . In addition, these investments are subject to market risk and changes in interest rates.
Cash equivalents are considered amounts in demand deposits and short-term investments with a maturity date within three months of the date acquired by the Authority and are presented as "Cash and investments" in the accompanying basic financial statements. 25 of 36 14
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POWAY HOUSING AUTHORITY
Notes to the Basic Financial Statements
Year Ended June 30, 2022
Note 1- Reporting Entity and Summary of Significant Accounting Policies (Continued) D. Capital Assets
Capital assets, which include property, plant, equipment and infrastructure assets (e.g., roads, streets, sidewalks, medians and storm drains) are reported in the Government-Wide Financial Statements.
Authority policy has set the capitalization threshold for reporting capital assets at $5,000. Capital assets · are valued at historical cost or estimated historical cost if actual historical cost was not available. Donated assets are valued at their estimated acquisition value on the date donated .
Depreciation is recorded on a straight-line basis over estimated useful lives of the assets as follows:
Buildings
Building improvements
Furniture 9nd equipment
Infrastructure
10-50 years
10-100 years
5-20 years
20-50 years
E. Deferred Outflows/In/lows of Resources
In addition to assets, the balance sheet will sometimes report a separate section for deferred outflows of resources. This separate financial statement element, deferred outflows of resources, represents a consumption of net assets that applies to future periods and so will not be recognized as an outflow of resources (expenditure) until then . The Authority currently has no items that qualify for reporting in this category.
In addition to liabilities, the balance sheet will sometimes report a separate section for deferred inflows of resources. This separate financial element, deferred inflows of resources, represents an acquisition of net assets that applies to future periods and so will not be recognized as an inflow of resources (revenue) until that time . The Authority currently has no items that qualify for reporting in this category .
F. Net Position
Net position is comprised of the various net earnings from operating income, non-operating revenues and expenses. Net position is classified in the following categories:
Net Investment in Capital Assets - This component of net position consists of capital assets, net of accumulated depreciation, reduced by the outstanding balances of debt that are attributable to the acquisition, construction, or improvement of those assets.
Restricted - This component of net position consists of restricted assets and deferred outflows of resources reduced by liabilities and deferred inflows of resources related to those assets.
Unrestricted - This component of net position is the amount of the assets, deferred outflows of resources, liabilities, and deferred inflows of resources that are not included in the determination of net investment in capital assets or the restricted component of net position .
When an expense is incurred for purposes for which both restricted and unrestricted net position are available, the Authority's policy is to apply restricted net position first . 26 of 36 15
June 6, 2023, Item #11
POWAY HOUSING AUTHORITY
Notes to the Basic Financial Statements
Year Ended June_30, 2022
Note 1- Reporting Entity and Summary of Significant Accounting Policies (Continued) G. Fund Balances
In the governmental fund financial statements, fund balances are classified in the following categories:
Nonspendable - Nonspendable fund balances are items that cannot be spent because they are not in spendable form, such as prepaid items and inventories, items that are legally or contractually required to be maintained intact, such as principal of an endowment or revolving loan funds.
Restricted - Restricted fund balances encompass the portion of net fund resources subject to externally enforceable legal restrictions. This includes externally imposed restrictions by creditors, such as through debt ,covenants, grantors, contributions, laws or regulations of other governments, as well as restrictions imposed by law through constitutional provisions or enabling legislation.
Committed - Committed fund balances encompass the portion of net fund resources, the use of which is constrained by limitations that the government imposes upon itself at its highest level of decision making, normally the governing body through council resolutions, etc., and that remain binding unless removed in the same manner. The Board of Commissioners is considered the highest authority for the Authority.
Assigned - Assigned fund balances encompass the portion of net fund resources reflecting the government's intended use of resources. Assignment of resources can be done by the highest level of decision making or by a committee or official designated for that purpose. The Board of Commissioners has authorized the Executive Director for that purpose.
Unassigned - This category is for any remaining balances that are not classified as nonspendable, restricted, committed or assigned.
When expenditures are incurred for purposes for which both restricted and unrestricted fund balances are available, the Authority's policy is to apply restricted fund balances first, then unrestricted fund balances as they are needed.
When expenditures are incurred for purposes where only unrestricted fund balances are available, the Authority uses the unrestricted resources in the following order: committed, assigned, and unassigned.
H. Estimates
The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect certain reported amounts and disclosures. Accordingly, actual results could differ from those estimates.
Note 2 - Cash and Investments
Equity in Cash and Investment Pool of the City of Poway The Authority does not have a separate bank account; however, the Authority's cash and investments are maintained in an investment pool managed by the City. The Authority is a voluntary participant in that pool. This pool is governed by and under the regulatory oversight of the Investment Policy adopted by the City Council of the City. The Authority has not adopted an investment policy separate from that of the City.
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June 6, 2023, Item #11
POWAY HOUSING AUTHORITY
Notes to the Basic Financial Statements
Year Ended June 30, 2022°
Note 2 - Cash and Investments (Continued)
The fair value of the Authority's investment in this pool is reported in the accompanying financial statements at amounts based upon the Authority's pro-rata share of the fair value calculated by the City for the entire City portfolio. The balance available for withdrawal is based on the accounting records maintained by the City, which are recorded on an original cost basis. At June 30, 2022, the Authority had a cash balance of $5,201,162.
Note 3 - Capital Assets
The summary of changes in capital assets for the year ended June 30, 2022 is as follows:
Capital assets, not being
depreciated:
Land
Total capital assets, not being
depreciated
Governmental activities - capital
assets
Note 4 - Related Party Transactions
Balance
June 30, 2021
$ 13,917,824
13,917,824
$ 13,917,824
Additions Deletions
Balance
June 30, 2022
13,917,824
13,917,824
13,917,824
In an effort to ensure that the objectives of Poway's Redevelopment Plan and the Poway Redevelopment Agency's (Agency) 5-Year Implementation Plan are fulfilled, on March 11, 2011, the Agency transferred all housing-related assets to the Authority through a Cooperation Agreement between the Agency and the Authority. Under the terms of this agreement, the Authority agreed to respectively carry out the projects and activities of the Agency in accordance with the objectives and purposes included in the Redevelopment and Implementation Plans. Projects included in the Cooperation Agreement between the Agency and the Authority further the goals of the Redevelopment Plan. It was initially anticipated that these projects would be funded based on available tax increment to be received through 2037, but because of the dissolution of the Agency under AB Xl 26, tax increment revenue has been eliminated, and therefore, no funding for these projects from that source is available.
Future project funding will come from the management of the Authority's assets and may include interest revenue, lease revenue, residual receipt revenue and the sale of assets.
Note 5 - Rehabilitation Loan Program
Housing Rehabilitation Loan Program
There are two types of housing rehabilitation loan. Forgivable rehabilitation loans are forgiven at a rate of 10% per year given all loan covenants are met. Non-forgivable loans are due upon the sale, transfer or foreclosure of the property. Due to the contingent nature of the repayment schedule of these loans, there is an allowance recorded at 100% of the outstanding balance. The balance of the non-forgivable rehabilitation loans at June 30, 2022 is $7,870.
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June 6, 2023, Item #11
POWAY HOUSING AUTHORITY
Notes to the Basic Financial Statements
YearEndedJune3~2022
Note 5 - Rehabilitation Loan Program (Continued)
Affordable Housing Loans
These loans are made to aid in the purchase of affordable housing in the City of Poway. They are for a 45-year term with no interest and if there is a sale, transfer or foreclosure before the end of the term the loan must be assumed by an income qualified buyer and the 45-year term starts over. Due to the contingent nature of the repayment schedule of these loans, there is an allowance recorded at 100% of the outstanding balance. The balance of these Affordable Housing loans at June 30, 2022 is $2,690,132.
Development Loans
The City, through the Housing Authority, has development loans primarily for affordable rental housing projects and for one group home for the developmentally disabled. The affordable rental housing loans have 55-year to 57-year terms with three percent simple interest. Loan payments are made from residual receipts and generally do not cover the annual accrued interest. Therefore, due to the contingent nature of the repayment schedule of these loans, there is an allowance recorded at 100% of the outstanding balance. The balance of the development loans, including accrued interest, at June 30, 2022 is $40,710,578.
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REQUIRED SUPPLEMENTARY INFORMATION
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REVENUES
Lease revenue
Investment income
Loan repayment
Reimbursement agreement fees
Total revenues
EXPENDITURES
Current:
General government
Development services
Total expenditures
Excess (deficiency) of revenues
over (under) expenditures
Net change in fund balance
Fund balance, beginning of year
Fund balance, end of year
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$
$
POWAY HOUSING AUTHORITY
Budgetary Comparison Schedule
Year Ended June 30, 2022
Budget Amounts
Original Final
32,002 32,002
68,486 68,486
40,000 40,000
140,488 140,488
99,900 108,235
49,300 591,944
149,200 700,179
(8,712) (559,691)
(8,712) (559,691)
See note to required supplementary information
21 Actual Variance with
Amounts Final Budget
19,969 (12,033)
35,380 (33,106)
1,634,152 1,634,152
53,338 13,338
1,742,839 1,602,351
9,925 98,310
73,974 517,970
83,899 616,280
1,658,940 2,218,631
1,658,940 2,218,631
3,961,462
$ 5,620,402
June 6, 2023, Item #11
POWAY HOUSING AUTHORITY
Note to Required Supplementary Information
Year Ended June 30, 2022
Note 1 - Budgetary Information
The Authority adopts an annual budget prepared on the modified accrual basis for its major fund. The Executive Director is required to prepare and submit to the Authority's Board of Commissioners the annual budget of the Authority and administer it after adoption. Any revisions that alter the total appropriations of any fund must be approved by the Board of Commissioners.
Prior year appropriations lapse unless they are encumbered at year-end or re-appropriated through the formal budget process. For the major fund, total expenditures may not legally exceed total appropriations .
Budget information is presented for the major fund on a basis consistent with generally accepted accounting principles. Budgeted revenue and expenditure amounts represent the original budget modified for adjustments during the year.
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Davis Farr LLP
18201 Von l<arman Avenue I Su ite 1100 I Irvine, CA 92612 Moin : 949.474.2020 I Fax: 949.263.5520
Report on Internal Control Over Financial Reporting and on Compliance and Other Matters Based on an Audit of Financial Statements Performed in Accordance with Government Auditing Standards
Poway Housing Authority
City of Poway
Poway, California
INDEPENDENT AUDITOR'S REPORT
We have audited, in accordance with the auditing standards generally accepted in the United States of America and the standards applicable to financial audits contained in Government Auditing Standards issued by the Comptroller General of the United States, the financial statements of the governmental activities, and the major fund of the Housing Authority of the City of Poway (Authority), a component unit of the City of Poway (City), as of and for the year ended June 30, 2022, and the related notes to the financial statements, which collectively comprise the Authority's basic financial statements, and have issued our report thereon dated January 17, 2023.
Internal Control Over Financial Reporting
In planning and performing our audit of the financial statements, we considered the Authority's internal control over financial reporting (internal control) as a basis for designing the audit procedures that are appropriate in the circumstances for the purpose of expressing our opinion on the financial statements, but not for the purpose of expressing an opinion on the effectiveness of the Authority's internal control. Accordingly, we do not express an opinion on the effectiveness of the Authority's internal control.
A deficiency in internal control exists when the design or operat ion of a control does not allow management or employees, in the normal course of performing their assigned functions, to prevent, or detect and correct, misstatements on a timely basis. A material weakness is a deficiency, or a combination of deficiencies, in internal control, such that there is a reasonable possibility that a material misstatement of the entity's financial statements will not be prevented or detected and corrected on a timely basis. A significant deficiency is a deficiency, or a combination of deficiencies, in internal control that is less severe than a material weakness, yet important enough to merit attention by those charged with governance.
Our consideration of internal control was for the limited purpose described in the first paragraph of this section and was not designed to identify all deficiencies in internal control that might be material weaknesses or significant deficiencies. Given these limitations, during our audit we did not identify any deficiencies in internal control that we consider to be material weaknesses. However, material weaknesses may exist that have not been identified.
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June 6, 2023, Item #11
Compliance and Other Matters
As part of obtaining reasonable assurance about whether the Authority's financial statements are free from material misstatement, we performed tests of its compliance with certain provisions of laws, regulations, contracts, and grant agreements, noncompliance with which could have a direct and material effect on the financial statements. However, providing an opinion on compliance with those provisions was not an objective of our audit, and accordingly, we do not express such an opinion. The results of our tests disclosed no instances of noncompliance or other matters that are required to be reported under Government Auditing Standards.
Purpose of this Report
The purpose of this report is solely to describe the scope of our testing of internal control and compliance and the results of that testing, and not to provide an opinion on the effectiveness of the Authority's internal control or on compliance. This report is an integral part of an audit performed in accordance with Government Auditing Standards in considering the entity's internal control and compliance. Accordingly, this communication is not suitable for any other purpose.
Irvine, California
January 17, 2023
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June 6, 2023, Item #11
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA REPORT CityofPoway
June 6, 2023
Honorable Mayor and Members of the City Council
Jeff Chumbley, Fire Chief FP(_,,
Jenna Stein, Sr. Management Analyst
858-668-4474 or jstein@poway .org
CITY COUNCIL
Resolution authorizing the acceptance of the 2022 Urban Area Security Initiative Grant Program Funds
The Department of Homeland Security provides funds through the Urban Area Security Initiative (UASI) Grant Program to cities to build and sustain emergency response capabilities. The grant is administered regionally by the San Diego Office of Emergency Services. Funds for training are allocated to each jurisdiction based on population. Poway's allocation for Grant Fiscal Year 2022 is $26,773.
Recommended Action:
It is recommended the City Council adopt the attached resolution authorizing staff to accept funds through the Urban Area Security Initiative Grant Program Fiscal Year 2022. - -
Discussion:
The Department of Homeland Security provides funds through UASI Grant Program to states and local agencies to build and sustain trained members of our Fire Department. The funds help advance the program's goals and objectives.
The County of San Diego applies for, receives and administers federal grant funds associated with the program. The County's Unified Disaster Council, of which Poway is a member, is the governing body that determines the local grant fund distribution formula, which is based on each jurisdiction's population.
The City is committed to offer training for our Fire Department personnel for career development and sustainability in our succession plan. This program offers free training that will increase the capability of our workforce. After individuals take recommended classroom training, cities are reimbursed by the County for the full amount of overtime and backfill while the individuals are in training. 1 of 4
June 6, 2023, Item #12
The County has allocated $26,773 to the City of Poway for staff overtime and backfill to cover the cost of staff during these trainings.
Environmental Review:
This item is not subject to review under the California Environmental Quality Act (CEQA).
Fiscal Impact:
Matching funds are not required for the UASI Grant Program and all grant related expenditures are reimbursable. Upon completion of the grant-related expenditures in the amount of $26,773, the General Fund will be reimbursed through the grant funding. It is anticipated that all grant expenditures and reimbursements will be completed by December 15, 2024.
Public Notification:
None.
Attachments:
A. Resolution
Reviewed/Approved By:
Assistant City Manager
2 of 4
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
City Manager
June 6, 2023, Item #12
RESOLUTION NO. 23-
Resolution No. 23-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
POWAY, CALIFORNIA, AUTHORIZING THE ACCEPTANCE OF
FUNDS THROUGH THE 2022 URBAN AREA SECURITY
INITIATIVE GRANT PROGRAM
WHEREAS, the City of Poway is eligible to receive federal grant funds through the 2022 Urban Area Security Initiative Grant Program for emergency response training; WHEREAS, the approved grant allocation for the City of Poway is $26,773; WHEREAS, the federal grant funds for the Urban Area Security Initiative Grant Program require no City matching funds, all grant-related expenditures are one-hundred percent reimbursable, and the City shall incur no direct costs; and WHEREAS, it is the desire of the City of Poway to participate in this program to enhance emergency response training and education.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Poway as follows
SECTION 1: The following staff are hereby authorized to execute for and on behalf of the City of Poway, a public entity established under the laws of the State of California, any actions necessary for the purpose of obtaining federal financial assistance provided by the federal Department of Homeland Security and sub-granted through the State of California. 3 of4
Jeff Chumbley, Fire Chief
Jenna Stein, Sr. Management Analyst
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ATTACHMENT A
June 6, 2023, Item #12
Resolution No. 23-
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Poway, California on the 6th day of June, 2023, by the following vote, to wit:
AYES:
NOES:
ABSTAINED:
ABSENT:
DISQUALIFIED:
Steve Vaus, Mayor
ATTEST:
Carrie Gallagher, CMC, City Clerk
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June 6, 2023, Item #12
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA REPORT CityofPoway
June 6, 2023
Honorable Mayor and Members of the City Council
Jeff Chumbley, Fire Chief ~
Jenna Stein, Sr. Management Analyst
(858) 668-4474 or [email protected]
CITY COUNCIL
Memorandum of Understanding between Community Church of Poway and the City of Poway to use the Church as an Emergency Shelter in the Event of an Evacuation
During a disaster, it is the City's responsibility to ensure adequate shelters are available for residents who have been evacuated from their respective homes. The City and Community Church of Poway (Church) have expressed mutual interest in establishing a Memorandum of Understanding (MOU) for the Church to be utilized as an emergency shelter in the event of an evacuation . The MOU formalizes the City's and Church's responsibilities to provide evacuees with shelter in the event of an emergency.
Recommended Action:
It is recommended the City Council approve the Memorandum of Understanding with Community Church of Poway and the City's use of the Church in the event of an emergency and authorize the City Manager to execute the agreement.
Discussion:
During a disaster, it is the City's responsibility to ensure adequate shelters are available for those who have been evacuated from their respective homes. Community Church of Poway desires to assist those evacuees and is suitable for providing shelter to those displaced from their homes for an undetermined amount of time. Following the Witch Creek Fire in 2007, it was determined additional shelter sites were needed in the City. An MOU between the City and the Church was previously in place but has since expired . The City and Church now desire to enter into a new MOU to continue to serve the public in an emergency .
The American Red Cross (ARC) has the primary role of providing care and shelter for evacuees in San Diego County. In a significant event with multiple shelters open, the ARC may not be able to fill all requests being made to provide shelter to evacuees. More than 100 City staff and community 1 of7
June 6, 2023, Item #13
volunteers have received training in shelter operations which gives the City the ability to supplement the ARC and provide 24-hour care for evacuees.
The MOU will commence upon its date of execution and remain in effect for five (5) years. Provided either party does not give the other party at least 180 days advance written notice for non-renewal, this Agreement shall automatically renew for one (1) additional five (5) year period on the same terms and conditions.
Environmental Review:
This action is not subject to review under the California Environmental Quality Act (CEQA) Fiscal Impact:
There is uncertainty surrounding the actual use of the emergency shelter following a disaster.
Consequently, the fiscal impact of such events cannot be precisely determined. There is sufficient funding in the Extreme Events Reserve Fund to be able to provide residents with shelter in the event of an emergency. Potentially, a portion of the total cost could be recovered by FEMA and/or the California Disaster Assistance Act (CDAA) respectively. Reimbursements from other sources is also a potential as disaster funding changes over time.
Public Notification:
None.
Attachments:
A. Memorandum of Understanding
Reviewed/Approved By:
Assistant City Manager
2 of7
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
Chr~
City Manager
June 6, 2023, Item #13
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("Agreement" or "Understanding") is effective July 1, 2023, between Community Church of Poway ("Provider") and the City of Poway ("City") ( each a "Party" and collectively the "Parties").
RECITALS
A. The City has the responsibility in a disaster to ensure that adequate shelters are available for those residents who have been evacuated from their homes.
B. The Provider has a facility (13501 Community Road, Poway, California 92064) suitable for sheltering~those displaced from their homes for an undetermined amount of time. The Parties recognize the mutual benefit of utilizing the identified Facility as a disaster shelter. The City has the authority to contract for the use of property on a 24/7 basis within a mutually agreed upon time frame when such property is needed in connection with a disaster causing evacuations of the residents of San Diego County.
C. The Provider desires to assist those disaster evacuees consistent with its obligations and duties owed to its members, users, clients and neighbors.
NOW, THEREFORE, for valuable consideration as hereinafter set forth, the parties hereto agree as follows:
1 Term. The term ("Term") of this Agreement is for a period of approximately five (5) years, commencing July 1, 2023 and ending December 30, 2028 unless sooner terminated under the terms of Agreement. Provided either party does not give the other Party at least 180 days advance written notice of its election for non-renewal, this Agreement shall automatically renew for one (1) additional five (5) year period on the same terms and conditions. 2 Conditions. The parties agree that the following conditions shall apply to this Agreement:
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2.1 For purposes of this Agreement, a disaster shall be defined as the actual or threatened existence of conditions of disaster or extreme peril to the safety of persons and property within the City caused by conditions such as air pollution, fire, flood, storm, epidemic, riot or earthquake, or other conditions, including conditions resulting from war or imminent threat of war, but other than conditions resulting from a labor controversy, which conditions are or are likely to be beyond the control of the services, personnel, equipment, and facilities of the City, requiring the combined forces of other political subdivisions to combat. The City Manager, serving as the EOC Director, has the authority to declare a public emergency and request the services of the Community Church of Poway.
2.2 This Agreement is subject to and conditioned upon the written consent to the terms of this Agreement by the Provider's subtenant and other contractual users of the Facility.
2.3 Physical Surveys and Inspection Reports. The Provider will make the Facility available for security and physical assessments by law enforcement and City employees at reasonable times and during normal business hours at the inception of this Agreement and annually thereafter, even if the Facility is not used as an emergency site.
A written joint physical survey and inspection report of the Facility shall be prepared and signed by each Party each time the City requests use of the Facility, reflecting the existing conditions at that time. A similar written joint physical survey and inspection report of the Facility shall be prepared and signed by each Party at the completion of each use, reflecting the existing conditions.
2.4 Closure. The City shall provide the Provider with 24 hours' notice prior to discontinuing use of the Facility as a shelter.
ATTACHMENT A
June 6, 2023, Item #13
3 Obligations of Parties . During the Term of this Agreement, the Parties shall furnish the following to each other:
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3.1 Obligations of Provider. The Provider shall furnish the following:
3.1.1 Immediate contact information of the person responsible for opening and closing buildings and rooms, repairs, maintenance, and servicing of the Facility and all related equipment fixtures.
Primary Person or Agency Contact: Butch Young
Name: Butch Young
Address: 13501 Community Road, Poway
Office Phone: 858-748-3304
Cell Phone: 858-220-1600
Home Phone:
E-Mail:
Alternate Contact: Kraig Klaproth
Name: Kraig Klaproth
Address: 13501 Community Road
Office Phone: 858-748-3304
Pager/Cell Phone: 858-449-4192
Home Phone:
E-mail:
3.1.2 To the extent the conditions of the disaster permit use of indoor environmental control, the Provider will use its best efforts to maintain 59-86 degrees Fahrenheit;
3.1.3 Parking as it currently exists for emergency vehicles and truck maneuvering space will be made available for emergency use;
3.1.4 Space as it currently exists for the erection of multiple pop-up tents and large storage units will be available for emergency use;
3.1.5 Indoor space as it currently exists to set up a rest area for personnel during the period of the disaster;
3.1.6 Use of the multipurpose room;
3.1.7 Use of office space concurrent with parish staff use;
3.1.8 Access and use of copy machines;
3.1.9 Restrooms;
3.1.10 Available multiple accesses (entrance and exit);
3.1.11 Sprinkler system and fire extinguishers as currently installed will be available during the period of the disaster;
3.1.12 The Provider will use its reasonable efforts to maintain a rodent/insect free environment;
3.1.13 Refrigeration/Cooler;
3.1.14 Electrical power and outlets as currently exist in the Facility;
3.1.15 Accessible Wi-Fi;
3.1.16 The tables and chairs available at the time of the disaster will be available for use;
3.1.17 Hand trucks as currently available will be available for disaster use; June 6, 2023, Item #13
3.2 Obligations of the City. The City shall provide the following:
3.2.1 Immediate contact information of the person(s) responsible for activating the Provider as a shelter.
Primary Contact: Jeff Chumbley
Address: 13325 Civic Center Drive, Poway CA
Office Phone (858) 668-4461
Cell Phone (760) 445-7945
E-Mail: [email protected]
Alternate Contact: Brian Mitchell
Address: 13325 Civic Center Drive, Poway CA 92064
Office Phone (858) 668-4462
Cell Phone (760) 805-6458
E-Mail: [email protected]
3.2.2 The City shall provide training for personnel associated with the Provider so that they are prepared to open and operate a care and shelter facility in the event of a disaster.
3.2.3 The City shall act as a liaison between the Provider and the American Red Cross and make every reasonable effort to assist the Provider in obtaining reimbursement from the Red Cross for the costs of operation of the Facility or the portion of the Facility (including utilities) used during the emergency period. 4 Loss, Damage or Destruction. The City, hereby assumes liability for the loss, damage, or destruction of the Facility and equipment furnished under this Agreement, if such loss, damage or destruction is related to or arises from the City's use of the Facility and equipment, or is otherwise related to or arising from the City's performance of its obligations under this Agreement; provided that no reimbursement will be made for loss, damage or destruction when due to (1) ordinary wear and tear, (2) the fault or negligence of the Provider, the Facility or its agents. 5 Insurance and Indemnity.
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5.1 Liability Insurance. Each Party acknowledges that it has in force and effect appropriate insurance or is permissibly self-insured.
5.2 Indemnity. The City shall indemnify and hold the Provider harmless from and against any and all claims arising from the City's use of the Facility and the equipment furnished, and from the conduct of the City's business or from any activity, work or thing done, permitted or suffered by the City in or about the Facility or elsewhere on the Property. The City shall further indemnify and hold the Provider harmless from and against any and all claims arising from any breach or default in the performance of any obligation of the City or arising from any negligence of the City or any of the City's agents, contractors or employees and from and against all costs, attorney's fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon. If any action or proceeding is brought against the Provider by reason of any such claim, the City, upon notice from the Provider, shall defend the same at the City's expense by counsel satisfactory to the Provider. The City, as a material part of the consideration to the Provider, hereby assumes all risk of damage to property or injury to persons in, upon or about the Facility arising from City's use of the Facility and equipment furnished, and the City hereby waives all claims in respect thereof against the Provider.
5.3 Exemption of the Provider from Liability. The City hereby agrees that the Provider shall not be liable for injury to the City or for any damage to the goods, wares, or other property of the City, its employees, invitees, customers or any other person in or about the Facility. Further, the Provider shall not be liable for any injury to the City, its employees, agents or contractors whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain or from breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures, or from any other cause, whether the damage or injury results from conditions arising upon the premises or upon other portions of the property or from other sources or June 6, 2023, Item #13
places and regardless of whether the cause of damage or injury or the means of repairing the same is inaccessible to the City.
6 Holding Over. In the event the City remains in possession of the Facility after the expiration of this Agreement, the Agreement shall be automatically extended on a day-to-day basis and otherwise on the terms and conditions herein specified.
7 Termination. This Agreement may be terminated as follows:
7.1 Termination by the City. The City may terminate this Agreement for convenience at any time, by providing written notice to the Provider stating the effective date of such termination .
7.2 Termination by the Provider: The Provider may terminate this Agreement with 180 days' written notice to the City.
7.3 By mutual agreement of the Parties hereto;
7.4 Upon expiration of the Term.
8 Assignment. The City shall not assign its interest in this Agreement without first obtaining the Provider's prior written consent.
9 Notices. Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other or any other person shall be in writing and either served personally, sent by prepaid certified mail, first class, or facsimile and shall be addressed to the other party at the address set forth under its name on the signature page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing accordance with this Section. Notice shall be deemed effective upon receipt if personally delivered or seventy-two (72) hours from the date of mailing if mailed as provided in this Section. 10 Attorney's Fees. If either party brings an action to enforce the terms of this Agreement or declare rights hereunder, the prevailing party in such action, on trial or appeal, shall be entitled to reasonable attorney's fees to be paid by the losing party as fixed by the court.
11 Security Measures. The City hereby acknowledges that the Provider hereunder does not include the cost of guard service or other security measures and that the Provider shall have no obligation whatsoever to provide the same. The City assumes all responsibility for the protection of the City, its agents and invitees from acts of third parties. 12 Miscellaneous.
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12.1 Amendments. This Agreement contains all agreements of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Agreement may be modified only in a writing signed by all parties hereto.
12.2 Severability. The invalidity of any provision of this Agreement as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof and it shall remain in full force and effect.
12.3 Governing Law. This Agreement shall be governed by the laws of the State of California.
12.4 Authority. Each individual executing this Agreement on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of that entity.
June 6, 2023, Item #13
12.5 Incorporation of Recitals. Recital provisions set forth above are an integral part of this Agreement and are by this reference incorporated herein as though set forth in full.
12.6 Dispute Resolution
12.6.1 If any party hereto becomes involved in litigation arising out of this Agreement, or the performance of it, the court or tribunal in such litigation, or in a separate suit, may award reasonable costs and expenses of litigation, including expert witness fees and attorney's fees, to the prevailing party.
12.6.2 Mediation of Disputes. Except as otherwise provided herein, the parties agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to court action . Mediation fees, if any, shall be divided equally among the parties involved. If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney's fees, even if they would otherwise be available to that party in any such action.
12.6.3 Exclusions from Mediation . The following matters are excluded from mediation: (1) a judicial or non-judicial foreclosure or other action or proceeding to enforce a deed of trust, mortgage or installment land sale contract as defined in California Civil Code §2985; (2) an unlawful detainer action; (3) the filing or enforcement of a mechanic's lien; and ( 4) any matter that is within the jurisdiction of a probate, small claims or bankruptcy court. The filing of a court action to enable the recording of a notice of pending action, for order of attachment, receivership, injunction, or other provisional remedies, shall not constitute a waiver of the mediation provisions.
By: __________ _ By _______________ _
Susan Gurriell, Past Moderator
Address: 13501 Community Road
Poway, California, CA 92064
Tel.#:
Email:
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Chris Hazeltine, City Manager
13325 Civic Center Drive
Poway, California 92064
Tel.# (858) 668-4501
Email: [email protected]
APPROVED AS TO FORM:
Alan Fenstermacher, City Attorney
June 6, 2023, Item #13
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA RE PQ RT City of Poway
June 6, 2023
Honorable Mayor and Members of the City Council
Alan Fenstermacher, City Attorney
[email protected]
Alan Fenstermacher, City Attorney
[email protected]
CITY COUNCIL
First Reading of Ordinance Establishing Regulations for Camping and Storage of Personal Property in Public Areas (PMC Ch. 8.26)
The proposed Ordinance (Attachment A) would create Chapter 8.26 of the Poway Municipal Code ("PMC") to establish regulations for camping and storage of personal property in public areas, as well as procedures for abatement and other remedies.
Recommended Action:
It is recommended the City Council introduce the Ordinance for first reading by title only, waive further reading, and schedule the adoption of the Ordinance for the next Regular City Council meeting.
Discussion:
The City of Poway has historically avoided many issues associated with homelessness experienced in other areas of the County. However, camping in public has increased over the past several years, as it has all over California in the wake of the April 2019 Ninth Circuit Court of Appeals decision in the case of Martin v. City of Boise ("Boise") Further, this type of activity and associated impacts on the community could increase in the future, because the City of San Diego has recently stepped up efforts to abate public camping, which could cause homeless individuals to travel to Poway. In light of these recent developments, Mayor Vaus and Councilmember Pepin requested City staff and the City Attorney's office to proactively evaluate enhancing the City's ability to protect its public spaces for safe use by all, before any significant problems develop.
The public parks, public streets and alleys, public parking lots, public rights-of-way, parkways, public sidewalks, recreational areas and other publicly owned or controlled property within the City - generally referred to as public property - should be readily accessible and available to residents, businesses and the public at large for their intended purposes. The use of public property for camping purposes and/or for the storage of personal property interferes with the rights of others to use and enjoy these public areas as they are intended. Such activity can constitute a public health and safety
hazard which adversely impacts neighborhoods and commercial areas.
The purpose
of the attached Ordinance (Attachment A) adding Chapter 8.26 to Title 8 (Health and Safety)
of the PMC is to provide the City and law enforcement with all available tools to ensure 1 of 11
June 6, 2023, Item #14
camping on publicly owned property can be abated to the maximum extent of the law. The Sheriff's Department has reviewed and approved the proposed Ordinance.
The proposed Ordinance would allow the City to ensure these public areas within the City are maintained in a clean, sanitary, safe, and accessible condition, to adequately protect the health, safety, environment and general welfare of the community, and to ensure public property is used for its intended purpose and remains accessible to all citizens, businesses and visitors in the City. Nothing in the proposed Ordinance is intended to interfere with otherwise lawful and ordinary uses of public property.
Enforcement of camping regulations in California and other western states materially changed on April 1, 2019, when the Ninth Circuit Court of Appeals issued its decision in the Boise case, referenced above. This case involved multiple homeless individuals who had been cited for camping on public property or sleeping in public buildings or places, in violation of the city's ordinance. The court concluded it is a violation of the Eighth Amendment, which prohibits cruel and unusual punishment, for a municipality to criminalize the act of sleeping outside where no sleeping space is practically available in any shelter. As a result, ordinances completely prohibiting the act of sleeping on public property when an individual has no other option have been deemed unconstitutional, as are those that ban camping in public where there is not a clear distinction between the act of simply sleeping and the act of camping.
Although the Boise decision limited how municipalities may regulate their own property as it relates to sleeping in public, the decision does not amount to a total ban on a city's right to regulate the acts of camping or sleeping in public. As noted in the concurring opinion, "[o]n the merits, the opinion holds only that municipal ordinances that criminalize sleeping, sitting, or lying in all public spaces, when no alternative sleeping space is available, violate the Eighth Amendment." The opinion does not require cities to allow camping or sleeping at any time and in every publicly owned location.
The Ordinance will allow the Sheriffs Department to abate unlawful encampments in the City with 48 hours' notice, thereby minimizing risks to public health and safety and adverse impacts to protected habitat and other open spaces. Prior to abating an illegal encampment on public or private property, the enforcing authorized employee will offer the owner of the encampment facilities or paraphernalia, if any, an available shelter space. Furthermore, the ordinance contains detailed provisions pertaining to the notice required before an abatement is initiated, and how impounded property must be inventoried by City staff and recovered by the owner or disposed of. This will allow the City to regulate its property and other public or private property related to camping more effectively and within the confines of the law as announced in Boise. The proposed Ordinance also prohibits the act of sitting or lying on public sidewalks in a manner that obstructs pedestrians or blocks vehicular traffic.
Offering resources will always take priority over enforcement. However, this ordinance will enable the Sheriffs Department to abate public nuisance camping when the encampments are either unoccupied or involve person(s) who refuse offered resources.
Environmental Review:
The proposed ordinance adding Chapter 8.26 to the PMC is not a "project" subject to California Environmental Quality Act (CEQA).
Fiscal Impact:
There is no fiscal impact associated with the recommended action. 2 of 11
June 6, 2023, Item #14
Public Notification:
None.
Attachments:
A. Proposed Ordinance - Camping & Storage of Personal Property Reviewed/Approved By:
Assistant City Manager
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Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
Chrfi!r;;;
City Manager
June 6, 2023, Item #14
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
POWAY, CALIFORNIA, ADDING CHAPTER 8.26 TO TITLE 8
(HEALTH AND SAFETY) OF THE POWAY MUNICIPAL CODE
ESTABLISHING REGULATIONS FOR CAMPING AND STORAGE
OF PERSONAL PROPERTY IN PUBLIC AREAS
WHEREAS, City staff and the City Attorney's Office have been progressively analyzing the Poway Municipal Code ("PMC") and recommending updates where appropriate; WHEREAS, the City of Poway desires to keep all public parks, public streets and alleys, public rights-of-way, parkways, public sidewalks, recreational areas, and other publicly owned or controlled property within the City readily accessible and available to the residents, businesses, and the public at large for their intended uses;
WHEREAS, the use of public property for camping purposes and/or for the storage of personal property interferes with the rights of others to use and enjoy these public areas as they are intended and can constitute a public health and safety hazard which adversely impacts neighborhoods and commercial areas;
WHEREAS, the City of Poway wants to maintain all public areas within the City in a clean, sanitary, safe, and accessible condition to ensure public property is used for its intended purpose and remains accessible to citizens, businesses, and visitors in the City; and WHEREAS, the City Council desires to adopt Chapter 8.26 of the Poway Municipal Code, establishing regulations for camping and the storage of personal property including violations, penalties, and enforcement.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN AS FOLLOWS:
SECTION 1: The above recitations are true and correct.
SECTION 2: The new Chapter 8.26 is hereby added to Title 8 of the Poway Municipal Code to read as set forth on Exhibit 1 hereto.
SECTION 3: If any provisions of this Ordinance or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.
SECTION 4: This Ordinance shall be codified.
EFFECTIVE DATE: This Ordinance shall take effect and be in force thirty (30) days after its adoption.
CERTIFICATION/PUBLICATION: The City Clerk shall certify the adoption of this Ordinance and cause it or a summary of it, to be published with the names of the City Council members voting for and against the same in the Poway News Chieftain, a newspaper of general circulation in the 4 of 11
June 6, 2023, Item #14
City of Poway within fifteen (15) days after its adoption and shall post a certified copy of this Ordinance in the Office of the City Clerk in accordance with Government Code § 36933.
INTRODUCED AND FIRST READ at a Regular Meeting of the City Council of the City of Poway, California, held the 6th day of June, 2023, and thereafter.
PASSED AND ADOPTED at a Regular Meeting of said City Council held the 18th day of July, 2023, by the following vote, to wit:
AYES:
NOES:
ABSTAINED:
ABSENT:
DI SQUALi Fl ED:
Steve Vaus, Mayor
ATTEST:
Carrie Gallagher, CMC, City Clerk
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June 6, 2023, Item #14
Exhibit 1
CHAPTER 8.26: CAMPING AND STORAGE OF PERSONAL PROPERTY IN PUBLIC AREAS
8.26.010 Purpose and intent
8.26.020 Definitions
8.26.030 Unlawful camping
8.26.040 Permitted camping
8.26.050 Unlawful storage of personal property in public areas
8.26.060 Parking on private or public property - consent required
8.26.070 Notice and removal of personal property in public areas
8.26.080 Public nuisance declared
8.26.090 City Manager administrative authority
8.26.100 Violations, penalties, and enforcement
§ 8.26.010 PURPOSE AND INTENT.
The public parks, public streets and alleys, public parking lots, public rights-of-way, parkways, public sidewalks, recreational areas and other publicly owned or controlled property within the city (collectively "public property") should be readily accessible and available to residents, businesses and the public at large for their intended purposes. The use of public property for camping purposes and/or for the storage of personal property interferes with the rights of others to use and enjoy these public areas as they are intended. Such activity can constitute a public health and safety hazard which adversely impacts neighborhoods and commercial areas. The purpose of this chapter is to maintain these public areas within the city in a clean, sanitary, safe, and accessible condition, to adequately protect the health, safety, environment and general welfare of the community, and to ensure that public property is used for its intended purpose and remains accessible to all citizens, businesses and visitors in the city. Nothing in this chapter is intended to interfere with otherwise lawful and ordinary uses of public property. This chapter shall be interpreted in a manner that is consistent with applicable state and federal law. § 8.26.020 DEFINITIONS.
For purposes of this chapter, the words and phrases in this chapter shall have the following meanings, except where the context clearly indicates a different meaning.
CAMP or CAMPING.
(1) Residing in or using any public area or private property for living accommodation or habitation purposes with one's personal property, or within one's personal property (e.g., vehicle of any kind, specifically including but not limited to a camper, trailer, coach, fifth wheel or any other trailer or recreational vehicle, whether or not the vehicle is operatable), or while storing one's personal property (including unauthorized parking of any vehicle); and/or 6 of 11
June 6, 2023, Item #14
(2) Constructing, maintaining, occupying, inhabiting or using camping facilities and/or constructing, using or maintaining camping paraphernalia for living accommodation or habitation purposes, but is not limited to sitting, lying, or sleeping within such camp facilities and/or upon such CAMP paraphernalia for living accommodation or habitation purposes. For purposes of this chapter, CAMPING shall not include merely sleeping outside in a city or valley-wide park or the use of a blanket, towel or mat in a park during the time the park is open to the public.
CAMPING FACILITY or CAMPING FACILITIES . Includes, but is not limited to, tents, huts, or other temporary physical shelters.
CAMPING PARAPHERNALIA . Includes, but is not limited to, tarpaulins, cots, beds, sleeping bags, bedrolls, bedding, luggage, hammocks, cooking equipment and/or other similar articles of equipment or items that are accessory to camping facilities.
PUBLIC AREA. All property that is owned, managed or maintained by the city, and shall include, but not be limited to any public street, building, grounds, lot, parcel park, plaza or parking lot dedicated to the authorized use and enjoyment of the public, and any other public property owned, maintained or controlled by another government agency within the city where the city is authorized to enforce its police powers as described herein.
PUBLIC STREET. Includes but is not limited to any city right-of-way, street, road, highway, alley, sidewalk, parkway, bridge, culvert, drain, and all other facilities or areas necessary for the construction, improvement, and maintenance of streets and roads.
PERSONAL PROPERTY . Tangible personal belongings or possessions, which shall include any movable or tangible thing that is subject to ownership; property or chattels that can be seen, weighed, measured, felt, or touched, including, but not limited to, furniture, appliances, camping facilities, camping paraphernalia, money, books, vehicles of any kind and shopping carts .
SIDEWALK . That portion of the public right-of-way provided for the primary use of pedestrians along or adjacent to a street.
STORE or STORING or STORAGE. To put aside or accumulate for use when needed, to put for safekeeping, and/or to place or leave in a location; which does not include any personal property that clearly has been abandoned or discarded and which clearly has no value.
TENT. Any tarp, cover, structure or shelter, made of any material that is not open on all sides and which hinders an unobstructed view behind or into the area surrounded by the tarp, cover, structure or shelter.
UNATTENDED PERSONAL PROPERTY . Personal property that has been turned in to the City or the County of San Diego Sheriff's Department pursuant to §§ 8.26.050 and 8.26.070, and that has not been claimed within a period of 90 days by its owner. § 8.26.030 UNLAWFUL CAMPING.
(A) Unlawful camping. It shall be unlawful and a public nuisance for any person to camp, occupy camp facilities or use camp paraphernalia in the city, whether on public or private property, or in any public area, whether paved or unpaved, except as expressly permitted by this chapter, or as mandated by applicable law. It shall also be unlawful and a public nuisance for any landowner or occupant of private property to willfully allow, authorize or permit another person to occupy camp facilities or use camp paraphernalia on such private property in the city, whether paved or unpaved, except as expressly permitted by this chapter, or as mandated by applicable law.
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(B) Exceptions.
(1) This section shall not apply to any person camping, occupying camp facilities or using camp paraphernalia, or to any person storing personal property, including camp facilities and camp paraphernalia, in any public area designated by the city for such purposes . The City Council may, by resolution or ordinance, establish specified public areas for such purposes. (2) Absent exigent circumstances relating to immediate threats to the public health, safety, or welfare , the provisions of this section will not be enforced against homeless persons sitting, lying, or sleeping on public property when no alternative shelter is available in accordance with the holding in Martin v. City of Boise 902 F.3d 1031 (9th Cir. 2018), and only during the timeframe that the case of Martin v. City of Boise 902 F .3d 1031 (9th Cir. 2018) is applicable law within the jurisdiction of the Ninth Circuit, unless the following procedures are followed:
(a) Definition. For the purpose of this § 8.26.030 (B)(2), the following definition applies:
OUTREACH AND ENGAGEMENT (O&E) PERSONNEL . Includes, but is not limited to, any organization that the city has contracted with for homeless outreach and engagement services. OUTREACH AND ENGAGEMENT PERSONNEL may include city employees, homeless liaisons and members of the County of San Diego Sheriffs Department. (b) Procedures. Prior to any citation or arrest for unlawfully camping, occupying camp facilities or using camp paraphernalia, storing personal property in public areas, a person shall be referred to O&E personnel to determine potential shelter placement or available services.
1. If the homeless person declines the offered placement, or available services, then this exception under§ 8.26.030(B)(2) shall not apply and the city may proceed with enforcement of this section after giving such person a warning and an opportunity to immediately leave the location where unauthorized camping is occurring, or an opportunity to voluntarily decide to relocate outside of the jurisdiction of the city, before engaging in citation and/or arrest. If such person relocates upon warning, he or she will not be cited or arrested for violating this section. If the homeless person fails to relocate as directed, then he or she may be issued a citation, or placed under custodial arrest for such violations.
2. If any alleged violation arises from the homeless person's presence in a city or valley-wide park outside of the established operational hours of the park and there is no appropriate and immediately available shelter placement for such person, then such person will be advised to move and referred to O&E personnel so that he or she may avoid citation or arrest for a violation of this section until an appropriate and immediately available bed is made available to such person.
3. These procedures under§ 8.26.030(B)(2) are only mandatory during the timeframe that the case of Martin v. City of Boise 902 F.3d 1031 (9th Cir. 2018) is applicable law within the jurisdiction of the Ninth Circuit.
(c) This exception shall not apply where a homeless person and/or their personal property obstructs and actually interferes with a public area or the intended use of the public area, provided that, absent exigent circumstances relating to immediate threats to the public health, safety, or welfare, the homeless person is first advised to cease the interference and/or to move the personal property causing the obstruction and they decline to do so. However, this § 8.26.030(B)(2)(c) shall not apply if such personal property is unattended. 8 of 11
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§ 8.26.040 PERMITTED CAMPING.
Camping is permitted in the city under the following circumstances:
(A) On public property specifically set aside and clearly marked for public camping purposes as designated by the City Council.
(B) In the rear or side yard of a residential structure with the consent of the owner or occupant, as long as the camping facility is separated from the street by a fence, hedge or other permanent obstruction, and is not visible from the public right-of-way. This subsection is not intended to allow the owner to give permission for someone to utilize the camping facility for living purposes, specifically for a period longer than 48 hours in any given 30-day period. (C) In conjunction with events authorized and expressly provided for in a special event or temporary use permit issued by the city.
(D) In the manner permitted by, and in full compliance with, Chapter 8.24 of the PMC. § 8.26.050 UNLAWFUL STORAGE OF PERSONAL PROPERTY IN PUBLIC AREAS . (A) Unlawful storage of personal property in public areas. It shall be unlawful for any person to store or leave unattended personal property, including camp facilities and camp paraphernalia in any public area, unless such storage is expressly authorized and in conjunction with a permitted camping activity under this chapter, or as mandated by applicable law. (B) City and/or Sheriff's Department to receive stored/unattended personal property . Except as provided in § 8.26.070(0), the city and/or Sheriff's Department shall make provisions for receiving and safekeeping of personal property found unattended in any public area and coming into their possession by an employee of the city in the course of employment pursuant to §
8.26.070(A). The city and/or Sheriff's Department shall notify the owner, if their identity is reasonably ascertainable, that it possesses the personal property and where it may be claimed.
The City' and/or Sheriff's Department may require the owner to pay a reasonable charge to defray the costs of storage and care of the personal property. § 8.26.060 PARKING ON PRIVATE OR PUBLIC PROPERTY - CONSENT REQUIRED .
It is unlawful for any person to park or cause to be parked or to leave parked any vehicle upon private or public property, parking lot, or parking space without consent of the owner, the property manager, or person or tenant entitled to the possession thereof. § 8.26.070 NOTICE AND REMOVAL OF PERSONAL PROPERTY IN PUBLIC AREAS. (A) Notice and removal. In the event that personal property is found in the course of employment by an authorized employee or contractor of the city in any public area without authorization from the city (examples of authorized employees include, but are not limited to, employees of the County of San Diego Sheriff's Department, city code enforcement, employees or contractors of City Public Works Department, and other city employees properly trained to carry out this section), such employee or contractor shall leave notice with the owner of the personal property or in a prominent place and which notice shall contain all of the following information:
(1) The personal property needs to be relocated;
(2) The timeframe that the property owner has to relocate the personal property. Such timeframe shall not be less than 24 hours unless there is an immediate threat to the public 9 of 11
June 6, 2023, Item #14
health, safety, or welfare. Further, if the personal property obstructs and actually interferes with a public area or the intended use of the public area, then this timeframe may be shorter than 24 hours, provided that, if the property owner is present, they are first advised to cease the interference and/or to move the personal property causing the obstruction and they decline to do so;
(3) A statement that, if the personal property is not removed within the timeframe, then the city will remove and store the personal property consistent with this section. This statement shall also provide the location that the personal property will be stored; (4) If applicable, the nature and purpose of the clean-up; (5) The date, time, and locations of the scheduled cleanup and/or removal of the personal property;
(6) A citation to the applicable section of the Municipal Code or any other applicable law; (7) A statement of how the personal property may be reclaimed; (8) A statement that, if personal property is removed pursuant to this section, then such personal property may be subject to disposal by the city pursuant to this section after 90 days from the date of removal;
(9) A phone number that the person may call for more information; (10) Any other additional information as determined by the city and/or Sheriff's Department; (11) After the timeframe in the notice provided pursuant to § 8.26.070(A), the personal property in the public area may be removed, inventoried, stored, and disposed of by the city pursuant to this section. To the extent possible, the inventory list shall be provided to the property owner(s). For any personal property removed, a notice shall be provided in a prominent place in the removal area advising where the personal property is being kept and when it may be claimed by its rightful owner; containing the information pursuant to§§ 8.26.070(A)(1) to (9) and containing any other additional information as determined by the city and/or Sheriff's Department. This notice shall include the date that the removed personal property will be disposed of by the city pursuant to this section.
(B) Additional signage for removal of personal property. The city may determine what, if any, areas of the city suffer from blight due to storage of personal property in any public area, and erect signs in those areas containing the applicable information specified in§§ 8.26.070 (A)(1) to (10) so as to provide additional notice.
(C) Holding and disposal of stored personal property. Except as provided in § 8.26.070 (A), found personal property shall be deposited and inventoried in a safe place for a period of at least 90 days and found money shall be deposited with the director of finance for a period of not less than 90 days, unless sooner claimed by the true owner. In the event the property or money is not claimed within 90 days, it shall be deemed to be unclaimed personal property and subject to disposal as provided in this section. Additionally, the city shall not be obligated to store personal property in excess of the city's current overall storage capacity. (D) Trash, dangerous, or perishable personal property. Any personal property coming into the possession of the city and/or Sheriff's Department may be immediately disposed of without notice, in a manner that the city and/or Sheriff's Department determines to be in the public 10 of 11
June 6, 2023, Item #14
interest, when such personal property is trash, perishable, contraband pursuant to state or federal law, or constitutes an immediate threat to the public health, safety, or welfare. (E) Applicability. To the extent known by the city or the Sheriff's Department, the provisions of this § 8.26.070 shall not apply to the following:
(1) Real or personal property or money subject to confiscation pursuant to state or federal law;
(2) Personal property that constitutes evidence in an ongoing criminal investigation and/or civil proceeding pursuant to state or federal law;
(3) Personal property that has been abandoned by its owner. Abandoned personal property may be disposed of forthwith.
§ 8.26.080 PUBLIC NUISANCE DECLARED.
Any camping facility established in violation of this chapter is declared to be a public nuisance, and the city is authorized to abate the nuisance and remove camp facilities and camp paraphernalia as authorized by law.
§ 8.26.090 CITY MANAGER ADMINISTRATIVE AUTHORITY.
The City Manager or his or her designee may develop and adopt administrative regulations that are consistent with the terms and prohibitions of this chapter. This shall include all policies and procedures for the abatement of unlawful camping, including the policies and procedures for ensuring safe and prompt removal of the nuisance while meeting procedural safeguards required by city, state or federal law.
§ 8.26.100 VIOLATIONS, PENALTIES, AND ENFORCEMENT.
Any person who violates this chapter is guilty of a misdemeanor and punishable by a fine of not more than $1,000 and/or imprisonment not to exceed six months. This chapter may also be enforced via administrative or civil actions as authorized by the Municipal Code. 11 of 11
June 6, 2023, Item #14
AG EN DA REPORT City of Poway
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
summary:
June 6, 2023
Honorab le Mayor and Members of the City Council
Alan Fenstermacher, City Attorney
[email protected]
Alan Fenstermacher, City Attorney
[email protected]
Discussion and Possible Action to Fill City Council vacancy
CITY COUNC IL
Effective June 2, 2023, District 2 Councilmember Barry Leonard resigned (Attachment A) from his position on the City Council. As a result, the City Council must discuss and provide direction regarding filling the vacancy. The term of office for this City Council seat concludes following the November 2024 General Municipal Election. The Council has two options available for filling the vacancy: calling a special election or appointment.
Recomm ended Actio n:
It is recommended the City Council consider the alternatives available for filling the City Council vacancy and provide direction to staff.
Discussi on:
As of June 2, 2023, a vacancy on the City Council exists. Governme nt Code section 36512(b) obligates the City Council to take action with in 60 days of the commencement of the vacancy and sets forth the options which the Council may choose to fill the vacancy. Accordingly, the Council has unti l August 1, 2023, to either (1) call a special election to fill the seat for the remainder of the term, which wou ld be set for November 7, 2023 or March 5, 2024, depending on timing of the City Council's action, or (2) appoint a replacement for the remainder of Council member Leonard's term.
Options to Fill the vacancy:
Option 1 - Special Election: City Council may, on or before August 1, 2023, call a special election to fill the office for a term to expire following the November 2024 General Municipal election. The special election must be held on the next regular ly established election date not less than 114 days from the call of the special election. (Gov. Code§ 36512(b)(1 )) As a result, any special election called by the City Council after July 14, 2023 wou ld fall on March 5, 2024. (Elec. Code § 1000.) Under this option, the vacated seat would remain vacant for at least 4 months, but likely as long as 9 months, meaning the seat would be vacant longer than it would filled prior to the November 2024 election. While the City is still waiting for a more precise estimate from the County Registrar of Voters, the Registrar provided a "rough" estimate between $175,000 - $300,000.
1 of 10 June 6, 2023, Item #15
Option 2 -Appointment: City Council may, on or before August 1, 2023, make an appo intm ent to fill the vacancy. Because the vacancy occurred within the second half of Mr. Leonard's term, the appointment would be for the remainder of the term. (Gov. Code§ 36512(b)(2)(B).) An appointment may be made at the June 6, 2023 City Council meeting or at any regular or special meeting held before or on August 1, 2023. The appointee must be a resident of Poway's District 2 (Attachment B Map), and a registered voter therein. The appointment must be made by a majority vote.
Appointment Options:
• Imm ediate Appointment: If the Council appoints an individual to fill the vacant seat immediately, the oath of office can be admini stered by the City Clerk and the newly appointed Council Memb er could be seated immediat ely.
• Make an Appointment by August 1, 2023. If the Council decides to have interested parties apply for the vacant seat, with the appointment to take place at a subsequent meeting, app lications would be made available in the City Clerk's office and on the City's website for that purpose. If the Council pursues this alternative, it may also wish to take the following actions at this meeting:
1. Announce the vacancy and solicit applications;
2. Set a filing deadline for the submittal of applications; and
3. Conduct a publ ic meeti ng to hold interviews and make a selection.
If the appli cation and interview pro cess is selected, the City Council should decide on procedures for conducting the applicat ion and interview proces s. Keeping in mind the August 1, 2023 deadline, staff has prepared a draft Notice of Intention to Fill the Vacancy by Appointment (Atta chment C) and a draft Council app lication form (Atta chment D) for Council consideration. Staff has also prepared a potent ial timeline for an interview process. K ey dates are as follow s:
June 6, 2023:
June 7, 2023:
June 7, 2023:
June 30, 2023:
July 18, 2023:
August 1, 2023:
July 18 or August 1, 2023:
Environmental Review:
City Council considers calling special election or whether to appo int a member to the City Council
Issue Notice of Inte ntion to Fill Vacancy by Appointment and post application
Application Period Opens
Applicat ion Period Closes at 5:00 p.m.
Applicant Presentation and Interview; Potent ial Selection of City Council Appointee;
IF NECESSARY/DESIRED, second round of App licant Presentation and Interview; Selection of City Counci l Appointee
Swearing in of new Counci l Member at end of appointment agenda Item .
This informational rep ort and potential action regarding filling a vacancy is not a "project" subject to California Environmen tal Quality Act (CEQA).
2 of 10 June 6, 2023, Item #15
Fiscal Impact:
The City has received a " rough" estimate of $175,000 - $300,000 for a special election from the Registrar of Voters. The Registrar noted multiple qualifiers that could impact cost. There is no fiscal impact for filling the vacancy by appoin tment to serve the remainder of Councilmember Leonard's term.
Public Notifica t ion:
None.
Attachments :
A. Resignation Letter fro m Council member Leonard
B. District Map
C. Draft Notice of Intention to Fill Vacancy by Appointmen t D. Draft Council Application
Reviewed/Ap proved By:
Assistant City Manager
3 of 10
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
Chr~
City Manager
June 6, 2023, Item #15
From:
To:
Bee:
Subject:
Date:
Chris
Barry Leonard
Chas Hazeltrne
eacrv Leonard
My resignation from the Qty Council
Tuesday, May 9, 2023 'l:09:14 PM
Pleas accept th is letter as my offi cial resignation notice. I have thoroughly enjoyed being a small part of a great organization. My last day with the ity of Poway will be riday June 2, 2023. I wish you well.
With regrets,
Barry
Barry Leonard
Council member
4 of 10 June 6, 2023, Item #15 Attachment A
City of Poway
District Map
Ordinance No. 852
Adopted Feb. 15, 2022
Espola
s of 10
2020 Elections
District 2
District 4
2022 Elections
Mayor - At Large
District 1
District 3
---
Po ayRd
Map layers
Water Area
Streets
Landmark Area
River
June 6, 2023, Item #15 Attachment B
VACANCY
NOTICE OF INTENTION TO FILL A VACANCY
FOR MEMBER OF THE CITY COUNCIL
BY APPOINTMENT
Notice is hereby given that the City of Poway is accepting applications for appointment to the City Council to fill the vacancy created by the resignation of Councilmember Leonard, effective June 2, 2023.
The term of this Council seat is from the date of appointment to the certification of the next general municipal election of November 5, 2024.
Candidates must be 18 years of age, reside within the limits of District 2 in the City of Poway, and be registered to vote in District 2 in the City of Poway at the time their application is submitted. The district map is available on the City's website at
https://poway.maps.arcgis.com/apps/webappviewer/index.html?id=d424f39dd4384452ae82385754ac0 d11
The City Council may interview candidates separately and each applicant may have the opportunity to present their qualifications and discuss their candidacy with the City Council.
Applications must be received by 5:00 p.m., Friday, June 30, 2023. Applicants may be invited for an oral interview before the City Council.
At a regular meeting of the City Council to be held July 18, 2023, at 7:00 p.m., each approved applicant may be asked to make an oral presentation to the City Council. The applicant may then be asked to respond to questions the City Council may have regarding their presentation or application.
Council may choose to interview all applicants, or a limited number of applicants.
The City Council may make a decision at this meeting or may direct staff to place the matter on a future agenda for action.
Application Period:
Applications are available from:
Wednesday, June 7, 2023 through
Friday, June 30, 2023
City Clerk's Office at City Hall
13325 Civic Center Drive, Poway, CA 92064
and on the City website: www.Poway.org
Signed Original Applications must be returned to:
City Clerk's Office at City Hall
13325 Civic Center Drive, Poway, CA 92064
Application Deadline: 5:00 p.m., Thursday, June 30, 2023 Applications must be received in the City Clerk's Office by the above deadline. Postmarks will not be accepted to meet the deadline. Applications must be a signed original. Electronic versions will not be accepted.
POSTING DATE: June 7, 2023
6 of 10 June 6, 2023, Item #15 Attachment C
State of California
County of San Diego
ss.
I, Carrie Gallagher , CMC, City Clerk of the City of Poway, hereby declare under penalty of perjury this Notice was posted on the City's website and on the Bulletin Board in front of City Hall on June 7, 2023.
Carrie Gallagher, CMC, City Clerk
7 of 10 June 6, 2023, Item #15
Name:
Application for Appointment to Fill District2Vacancy
POWAY CITY COUNCIL
DEADLINE DATE: FRIDAY, JUNE 30, 2023 AT 5:00 PM
Candidates must be 18 years of age, reside within the limits of Distri ct 2 in the City of Po way, and be registered to vote in District 2. The interactive district map is avai lable on the C ity's website at:
https://poway.maps.arcqis.com/apps/webappviewer/index.html?id=d424f39dd4384452ae823 85754ac0d11 For City Clerk', Use Only;
Ovos
Roa1stcred \iotcr In District 2
□ No
Home Address: ---------------------------------------
Street
Applicant must reside within District 2 (see above)
Number of Years a District 2 Resident:
Home Phone:
Arca Code Number
Work:
Area Code Number
City
Cell:
Zip Code
Area Code Number
Please feel free to attach any additional information which may be of use to the City Council for determination of appointment.
Employment Information
Organization:
Address:
Dates: _______________ _
Resoonsibilities:
Organization:
Address:
Dates: _______________ _
Resoonslbilities:
Organization:
Address:
Dates: _______________ _
Responsibilities:
8 of 10 June 6, 2023, Item #15 Attachment D
Education/ Training/ Certification :
Please explain why you want to be appointed to City Council; a separate sheet may be attached.
Additiona l Information: Please provide any addit ional info rmation you wish covering your qualifications, intere sts, community/ professional organizations or training related to thi s appointment . 9 of 10 June 6, 2023, Item #15
I HAVE SUFFICIENT TIME TO DEVOTE TO THIS RESPONSIBILITY ANO WILL ATTEND THE REQUIRED MEETING(S) IF I AM APPOINTED. I AM ALSO AWARE THAT THIS APPLICATION IS A PUBLIC DOCUMENT. IF APPOINTED, I WILL FILE THE NECESSARY DISCLOSURE DOCUMENTS AS REQUIRED UNDER THE POLITICAL REFORM ACT. APPLICATIONS MUST BE A SIGNED ORIGINAL. ELECTRONIC VERSIONS WILL NOT BE ACCEPTED.
SIGNATURE:
10 of 10
DATE:
Please return by 5:00 PM, Friday, June 30, 2023
City Clerk's Office, City Hall, 13325 Civic Center Drive, Poway, CA92064 (858) 668-4530
June 6, 2023, Item #15
AGENDA REPORT CityofPoway
DATE:
TO:
FROM:
SUBJECT:
Summary:
June 6, 2023
Honorable Mayor and Members of the City Council
Carrie Gallagher, City Clerk
(858) 668-4535 or [email protected]
Appointment of Deputy Mayor for 2023
CITY COUNCIL
Due to a resignation on the City Council, the Deputy Mayor position is currently vacant. The current appointment runs through December 2023.
Recommended Action:
It is recommended the Mayor appoint a Council member to serve as Deputy Mayor for the remainder of the current term commencing June 6, 2023.
Environmental Review:
This action is not subject to review under the California Environmental Quality Act (CEQA).
Fiscal Impact:
None.
Public Notification:
None.
Attachments:
None.
1 of 2
June 6, 2023, Item #16
Reviewed/Approved By:
Assistant City Manager
2of 2
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
c~
City Manager
June 6, 2023, Item #16
AGENDA REPORT CityofPoway
DATE:
TO:
FROM:
CONTACT:
CITY COUNCIL
SUBJECT:
June 6, 2023
Honorable Mayor and Members of the City Council
Alan Fenstermacher, City Attorney
[email protected]
Alan Fenstermacher, City Attorney
[email protected]
Closed Session - Anticipated Litigation Based on Written Threat The Brown Act allows the City Council to discuss matters in closed session if, "based on existing facts and circumstances, there is a significant exposure to litigation against the [City]." (Gov. Code § 54956. 9(d)(2).) If the basis for the potential exposure to litigation is a statement threatening litigation, the Brown Act requires the threatening statement to be disclosed as part of the City Council agenda. (Id., subdiv. (e)(5).)
For one of the two closed session items, such a statement exists, and has been attached hereto as Exhibit A.
Attachments:
A. April 26, 2023 Letter from William J. White
Reviewed/Approved By:
We�ta;;;;--
Assistant City Manager
1 of 6
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
Ch�
City Manager
June 6, 2023, Item #17
S1-IUT ~ MIHALY
L ']'---J w E I N B E R C E R LLP
396 HAYES STREET, SAN FRANCISCO, CA 94102
T: (415) 552-7272 F: (415) 552-5816
www.smwlaw.com
Via Electronic Mail
Robert Manis
Director of Development Services
City of Poway
13325 Civic Center Drive
Poway, CA 92064
BManis @poway .org
April 26, 2023
WILLIAM J. WHITE
Attorney
[email protected]
Re: Conservation Easements over the Scripps Poway Parkway Extension Mitigation Parcels
Dear Mr. Manis:
On behalf of the Endangered Habitats League (EHL), we write to express our concerns with the City of Poway's (City) ongoing failure to record conservation easements over the 650 acres of mitigation parcels associated with the Scripps Poway Parkway Extension (SPPE). For your reference, EHL is a conservation group dedicated to ecosystem protection and sustainable land use for the benefit of all the region's inhabitants. EHL served on the original stakeholder advisory committee for the San Diego Multiple Species Conservation Program (MSCP) and supported Poway's development of its subarea plan.
The focus of this letter is a subset of the mitigation acreage obligation for the SPPE, specifically the 179 acres of mitigation parcels surrounding the wildlife tunnel within unincorporated County of San Diego. Due to the City's inaction, the mitigation parcels and the wildlife tunnel that connects them are experiencing a proliferation of unauthorized uses. These illicit uses pose a grave threat to the plant and animal species that the parcels and tunnel were meant to protect. As you are aware, our concerns are shared by the intended co-beneficiaries of the conservation easements, the U.S. Fish and 2 of6 Attachment A
June 6, 2023, Item #17
Robert Manis
April 26, 2023
Page2
Wildlife Service (USFWS) and California Department of Fish and Wildlife (CDFW). 1 We join these agencies in urging the City to promptly comply with its legal obligations to record and enforce the conservation easements. 2
For nearly thirty years, the City has known that the development of the SPPE Project would have a significant adverse impact on the region's sensitive habitats and species. In particular, it understood that the parkway extension would severely impede the north-south movement of wildlife across a five-mile-long stretch of highly valuable habitat. See, e.g., SPPE Project Environmental EIR Biological Resources Technical Report (1994) pp. 87-88, 99-100 ; City Res. No. 94-013 (Feb. 8, 1994) pp. 16- 17, 19. The City has also recognized that mitigation of such impacts requires ( 1) developing a wildlife tunnel to allow species to safely and freely cross under the SPPE corridor and (2) recording conservation easements over the City-owned mitigation parcels that adjoin the SPPE and are linked by the wildlife tunnel. See id.
Unfortunately, while a wildlife tunnel was built as part of the SPPE Project and the City acquired fee title to the mitigation parcels surrounding the SPPE corridor, the City did not record conservation easements over those parcels and has made no effort to restrict unauthorized use of the tunnel. The consequences of these failings have been disastrous. Recent monitoring shows that prohibited uses of the tunnel--especially mountain biking-are steadily increasing, and are occurring at all hours of the day and night. CDFW Letter p. 2; Letter from Libby Lucas, Wildlife and Habitat Conservation Coalition, to Bob Manis, Director of Development Services, City of Poway (May 13, 2019) pp. 7-8. The parcels adjoining the tunnel have experienced a proliferation of unsanctioned recreational trails. Id. As more people use the tunnel and surrounding areas, the wildlife species for which the tunnel was built are using it less and less. CDFW Letter p. 2. Consequently, sensitive species are being deprived of their only protected route across the SPPE corridor, and the conservation value of the mitigation parcels has been greatly diminished.
In short, unauthorized access to the mitigation parcels and the wildlife tunnel is actively jeopardizing the existence of the sensitive species that rely on these 1 See Letter from Jonathan Snyder, Assistant Field Supervisor, USFWS, to David De Vries, City Planner, City of Poway (Dec. 16, 2022) ("USFWS Letter"); Letter from David Mayer, Environmental Program Manager, South Coast Region, CDFW, to David De Vries, City Planner, City of Poway (June 28, 2022) ("CDFW Letter"). 2 Though the focus of this letter is the mitigation parcels adjoining the SPPE corridor itself, EHL urges the City to fulfill its legal obligation to record conservation easements over all 650 acres of mitigation parcels associated with the SPPE Project.
S 1-1 UT E1 i\11 I 1-1 ;\ LY
(:'---w EI NB ERGE R UY
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June 6, 2023, Item #17
Robert Manis
April 26, 2023
areas. The City's failure to record the required conservation easements violates its legal obligations under federal Endangered Species Act (ESA), the California Endangered Species Act (CESA), the California Natural Community Conservation Planning Act (NCCP Act), and the California Environmental Quality Act (CEQA) .
Both the Incidental Take Permit and the Management Authorization that USFWS and CDFW, respectively, issued to the City in connection with the SPPE Project and the Poway Subarea Habitat Conservation Plan (PSHCP) are conditioned on the City recording conservation easements over the 650 acres of mitigation parcels. These authorizations are required for the City to comply with the ESA, the CESA, and the NCCP Act because implementation of the SPPE Project would result in the take of certain endangered, sensitive and other NCCP-covered species, including the coastal California gnatcatcher. See PSCHP IA§§ 2.6, 2.7, 3.0(A).
Condition F of the USFWS Incidental Take Permit for the PSHCP (ITP No.
PRT-803743) expressly conditions the permit's validity on the City's compliance with all terms of the PSHCP's Implementing Agreement. See USFWS Letter p. 2; see also PSHCP IA§ 17.3 (same, as to the CDFW-issued Management Authorization). The Implementing Agreement, in tum, requires the City to "initiate the establishment of a permanent biological open space easement over 650 acres of land acquired as habitat mitigation in connection with the" SPPE Project, with "[CDFW] and USFWS as co beneficiaries of the easement with authority to enforce each of its provisions." PSHCP IA § 6. l(A)(2); see also id. § 5.1 ("USFWS agrees that . . . [i]mplementation of the PSHCP, and dedication of conservation easements on lands specified for mitigation, fulfills the regional biological resource impact mitigation identified for the approved [SPPE] Project, and that additional mitigation is not required for impacts to Covered Species.") ( emphasis added); id. § 5.2 (same, as to CDFW). 3
Thus, in failing to record the conservation easements, the City is violating a mandatory duty under the Implementing Agreement, the take authorizations themselves, and the state and federal laws under which they were issued. Failure to comply with a 3 See also PSHCP IA§ 5.l(B) (USFWS's agreement that "[c]ompliance with the terms of this Agreement and the PSHCP constitutes compliance with the provisions of the ESA"); id. § 5.2(B) (CDFW's agreement that "[c]ompliance with the terms of this Agreement and the PSCHP constitutes compliance with the provisions of the CESA, the Natural Community Conservation Planning (NCCP) Act, and the California Native Plant Protection Act").
SH UT E1 M IH A LY
(:'--- \'<l E I N BE R CE R uy
4 of6
June 6, 2023, Item #17
Robert Manis
April 26, 2023
Page4
mandatory duty is grounds for a writ of mandate action to compel performance of the unlawfully withheld action. See Cal. Civ. Proc. Code§ 1085.
In addition , the City has an independent obligation to record the conservation easements under CEQA. The Final EIR (FEIR) prepared for the SPPE Project acknowledged that the Project's impacts on biological resources-and specifically wildlife corridors-would be significant absent mitigation. See SPPE Project EIR Biological Resources Technical Report pp. 99-100; SPPE Project Mitigation Monitoring Program Checklist p. 47. To comply with CEQA's mandate to implement feasible mitigation measures to reduce these impacts,4 the FEIR and the City's resolution certifying it stated that the City would prepare and abide by the PS HCP. See id.; City Res. No. 94-013 pp. 16-17, 19. The PSHCP itself makes clear it was prepared for the express purpose of "satisfy[ing] the regional biological resource impact mitigation measures required for the approved" SPPE Project, "as identified in the [FEIR] . . . for the Project." PSHCP IA§ 2.8, p. 11; see also id. §§ 5.l(A), 5.2(A).
Accordingly, the City's refusal to record the conservation easements as required under section 6.1 (A)(2) of the Implementing Agreement constitutes a failure to implement a required mitigation measure adopted in the SPPE Project's FEIR. This is a plain violation of CEQA. See Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152, 1167 ("Once incorporated, mitigation measures cannot be defeated by ignoring them or by attempting to render them meaningless by moving ahead with the project in spite of them"). A public agency "may not authorize destruction or cancellation of' a mitigation measure "without reviewing the continuing need for the mitigation, stating a reason for its actions, and supporting it with substantial evidence." Katzeff v.
Cal. Dep 't of Forestry & Fire Protection (2010) 181 Cal.App.4th 601, 614. The City has never made findings that the easements are no longer necessary, and such findings could not be supported in light of the ongoing impacts of unauthorized uses on the mitigation parcels and wildlife tunnel. Nor does the passage oftime excuse the City's obligation to implement required mitigation measures; CEQA permits an action to enforce mitigation conditions against an agency's ongoing failure to comply with those conditions. Lincoln Place Tenants Ass 'n v. City of Los Angeles (2007) 155 Cal.App.4th 425,453 n.23.
It is critical that the City take immediate action to prevent the serious and worsening harm to sensitive species and their habitats caused by unauthorized access to the mitigation parcels and wildlife tunnel. EHL strongly prefers to resolve this issue without resort to litigation and believes there is a clear path for doing so. Recording the conservation easements required by USFWS's ITP, CDFW's Management Authorization, 4 See Public Resources Code§§ 21002.l(b), 21081, 21100(b)(3).
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June 6, 2023, Item #17
Robert Manis
April 26, 2023
the PSHCP's Implementing Agreement, and CEQA requires minimal effort. We would welcome the opportunity to discuss with the City how EHL can assist in this process and work with the City on strategies for ensuring enforcement of the mandatory use restrictions on the properties adjacent to the wildlife tunnel. Via separate e-mail, EHL will request a meeting with you to ascertain the City's interest in pursuing this approach.
We look forward to collaborating with the City, USFWS, and CDFW to bring the City into compliance with its mandatory obligations and ensuring that the SPPE's impacts to sensitive species are minimized.
Very truly yours,
SHUTE, MIHALY & WEINBERGER LLP
William J. White
cc: Dan Silver, EHL: dsilverla@me .com
6 of6
Michael Beck, EHL: [email protected]
Libby Lucas, WHCC: [email protected]
Scott Sobiech, USFWS: scott [email protected]
Jonathan Snyder, USFWS: Jonathan D [email protected]
David Zoutendyk, USFWS: David [email protected]
David Mayer, CDFW: [email protected]
Karen Drewe, CDFW: [email protected]
David De Vries, City of Poway: [email protected]
Austin Silva, City of Poway: [email protected]
Chris Hazeltine, City of Poway: [email protected]
SH UT ~; M IH A LY _ _
L,7'- -- w E I N B I::. R G E R I.LP
June 6, 2023, Item #17