CityVenturesHomebuildingCCmtg10-7-24(klk)
CITY OF SIMI VALLEY
MEMORANDUM
October 7, 2024
TO: City Council
FROM: Department of Environmental Services
SUBJECT: A PUBLIC HEARING TO CONSIDER A REQUEST FROM CITY
VENTURES HOMEBUILDING, LLC, FOR A GENERAL PLAN
AMENDMENT (GPA- 2022-0001) TO CHANGE THE LAND USE
DESIGNATION FROM GENERAL COMMERCIAL AND MEDIUM
DENSITY RESIDENTIAL TO HIGH DENSITY RESIDENTIAL; A ZONE CHANGE (Z -S-2022-0003) FROM COMMERCIAL PLANNED
DEVELOPMENT (CPD) AND RESIDENTIAL MEDIUM DENSITY (RM) TO RESIDENTIAL HIGH DENSITY (RH); A PLANNED DEVELOPMENT
PERMIT (PD -S-2022-0012); A VESTING TENTATIVE MAP (VTT -2024- 0001); AND AN AFFORDABLE HOUSING AGREEMENT (AHA -2022-
0002),; TO CONSTRUCT A NEW 70 -UNIT, THREE -STORY MULTI -
FAMILY RESIDENTIAL CONDO MINIUM DEVELOPMENT WITH TEN
AFFORDABLE UNITS LOCATED AT 1845 OAK ROAD; AND THE
ADOPTION OF A MITIGATED NEGATIVE DECLARATION AND
MITIGATION MONITORING AND REPORTING PROGRAM,
INTRODUCTION OF AN ORDINANCE, AND ADOPTION OF
RESOLUTIONS
Subsequent to the preparation of the staff report, correspondence was received from Morgan L. Gallagher of Cox Castle, who is the applicant’s attorney (Attachment A).
____________________________________
Stratis Perros
Environmental Services Director
INDEX Page
Correspondence from Morgan L. Gallagher ....................................................... 2
SUPPLEMENTAL
AGENDA ITEM NO.
5A
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www.coxcastle.com Los Angeles | Orange County | San Francisco Cox, Castle & Nicholson LLP
3121 Michelson Drive, Suite 200
Irvine, California 92612-5678
P: 949.260.4600 F: 949.260.4699
Morgan L. Gallagher
949.260.4674
[email protected]
October 7, 2024
Honorable Members of the Simi Valley City Council
City of Simi Valley
2929 Tapo Canyon Road
Simi Valley, CA 93063
Re: City Council Agenda Item 5A – 1845 Oak Road Project Drainage Mayor Thomas, Mayor Pro Tem Rhodes, and Members of the City Council:
We represent City Ventures Homebuilding, LLC (“City Ventures”), the applicant of the proposed 70-unit residential project (“Project”) at 1845 Oak Road in the City of Simi Valley (“Property”). The Project is on tonight’s agenda and was recommended for approval by Planning Commission. The purpose of this letter is to urge you to approve the Project with the following underlined addition to Public Works Condition B-13:
Before the City Engineer issues a Grading Permit, Permittee must provide to the Public Works Director, or designee, a storm water acceptance deed or easement if no adequate downstream drainage facility exists to receive runoff from the project. The deed or easement must comply with Chapter 6 of the Ventura County Land Development Manual as adopted by City of Simi Valley Resolution No. 69-8. Drainage improvements on private property must be continually maintained, repaired, and replaced by the property owner(s) or Homeowners Association(s). Alternatively, Permittee may provide to the City a storm drain design that includes an underground storm drainpipe stub out at both the southwest and southeast property line to allow for future connection for any future development of properties to the south.
The currently proposed Public Works Condition B-13 requires City Ventures to provide a stormwater acceptance deed or easement for stormwater flowing to the south of the Property.
The Staff Report states that staff does not support City Ventures’ requested modification to Condition B-13 because requiring a drainage acceptance deed from downstream property owner(s) where historic drainage flows are altered is a standard condition that helps reduce the City’s liability. However, as discussed below, California law does not require a storm water acceptance deed or easement for downstream drainage. Further, the City would not be liable for any potential future damage to downstream property and City Ventures would indemnify the City in the event there was any potential future damage to downstream property. 2 104900\18070259v1
October 7, 2024
By way of background, stormwater on the Property naturally and historically flows to the southwest. The proposed Project would not direct all stormwater onto the southernly adjacent property or intensify drainage flow to the southernly property. Rather, water will only be directed to the southernly property in an emergency (less than 1% chance) scenario. The water under the proposed emergency scenario would be reduced compared to the amount of water that flows to the south currently (18.85 CFS compared to 19.32 CFS currently). City Ventures’ engineer has determined that the design is a sound engineering design and incorporates reasonable measures to prevent downstream property damage.
Under California law, the owner of a lower parcel of land is required to accept natural drainage from an upper parcel. ((Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 348-349.) In other words, no express easement or other agreement is necessary for an upper property owner to discharge stormwater to a lower property owner. Over a century ago, California law granted an automatic easement to upper property owners over lower properties for stormwater flow. (Los Angeles C. Assn. v. Los Angeles (1894) 103 Cal. 157.) The law was modified by subsequent cases that established the “rule of reasonableness.” Pursuant to the rule of reasonableness, both the upper owner and the lower owner must exercise reasonable care and if the upper parcel owner changes the drainage pattern, the upper owner must exercise reasonable care in changing the drainage pattern to minimize damage to the lower owner’s property. (Locklin, supra, at 351- 352.)
Reasonableness is fact specific and depends on a number of factors, including the purpose of the improvements, the amount of runoff, and the cost of available mitigation measures, weighed against the potential downstream damage. Here, City Ventures’ design is reasonable and incorporates reasonable measures to prevent downstream damage. First, water will not be directed to the lower properties except in an emergency (less than 1% chance) scenario. In other words, there is less than a 1% chance that drainage would sheet flow to the south under the proposed design. Even if that less than 1% chance event occurred, no damage to the property to the south is anticipated by City Ventures’ engineer. Second, the water under the emergency scenario will be reduced compared to the amount of water that naturally flows to the south. For these reasons, the design is reasonable considering the Locklin factors above.
Th
e court has made clear since the 1800’s that an express easement is not required for natural and reasonable flow to be discharged onto a lower property. There is also no requirement in California law for an “acceptance deed.” Note that the Housing Accountability Act (Government Code §65589.5) (“HAA”) only allows the City to impose applicable, objective standards on a housing project like this Project, and the City does not have an objective standard that requires an express downstream acceptance deed or easement.
For the reasons above, no downstream acceptance deed or easement is required for the proposed Project’s drainage design.
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In the unlikely event that there is liability for downstream drainage from the Project, the City would not be liable. (Ruiz v. County of San Diego (2020) 47 Cal.App.5th 504; Biron v. City of Redding (2014) 225 Cal.App.4th 1264.) Public entities are only liable for drainage damage if the entity’s conduct on its own property or from a public works improvement poses an unreasonable risk of harm to a property owner and that unreasonable conduct substantially caused damage to property. (Id.) In Shenson v. County of Contra Costa (2023) 89 Cal.App.5th 1144, a developer designed and constructed improvements, submitted plans for review to the County, accepted County conditions of approval, and even ultimately offered easements to the County itself for drainage purposes. The court found that none of these actions converted the private improvement into a public work and thus, the County was not liable. Similarly here, if the City adopts Condition B-13 as modified by City Ventures, the City would not be liable for unanticipated downstream drainage issues.
Finally, City Ventures has agreed to indemnify the City in the event that any downstream drainage occurs (see Condition B-13a).
We appreciate your consideration of this matter.
Sincerely,
Cox, Castle & Nicholson LLP
Morgan L. Gallagher
Cc: Eric Miller, City Ventures
Michelle Thrakulchavee, City Ventures
Philip Kerr, City Ventures
Sean Gibson, City of Simi Valley
Al Ford, City Attorney ([email protected])
Karl Berger, City Attorney’s Office ([email protected]) 4