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HomeMy WebLinkAbout1982-05-18; City Council; 7018; Request to abate weed nuisance in Buena VistaOg oz3 Oo GIT. JF CARLSBAD — AGENDA JILL AR« 70 liT MTG. S-18-82 DEPT. CM TITLE: REQUEST TO ABATE WEED NUISANCE IN BUENA VISTA LAGOON OEPT HD. CITY ATTY Tfr/^ CITY MGR. ^tt- RECOMMENDED ACTION: The City has received a request to abate a weed nuisance at Buena Vista Lagoon near the weir. Council Member Kulchin has asked that the matter be placed on the agenda for a response to the request. EXHIBITS: Letter to Roland E. Bye, Esq. from Goebel & Monaghan, 7-31-81 Letter to Vincent F. Biondo, Jr. from Louis E. Goebel, 8-18-81 Letter to Earl M. Lauppe from Frank Aleshire, 8-21-81 Letter to Frank Aleshire from Earl M. Lauppe, 10-9-81 Letter to Nicholas Banche from Charles R. Revlett, 12-7-81 Letter to Nicholas C. Banche from Louis E. Goebel, 2-1-82 Letter to Daniel Hentschke from Henry J. Tenaglia, 4-30-82 Memo to Mayor and Council from City Attorney, 4-27-82 GOEBEL & MONAG'-'AN ATTCFJJEYi AT EJUAN D MONACHAN. 1.OUI5 E &OE JOHN H METZ IAMES E.RL'BNITZ f-ACIflC 12DC THIRI) AV1MUE. iUITE 1700 SAN' DltGO. CALIf ORNIA Q2IOI (7WJ23I-OO59 July 31, 1981 Roland E. Bye, Esq. 4000 MacArthur Boulevard, Suite 5200 Newport Beach CA 92660 Dear Mr. Bye: Ordinarily this matter might be handled directly between the clients, but since we are in litigation, it is probably more appropriate that it go through the attorneys. This is in regard to a continuing and now urgent problem regarding the growth of cattails and tules on the water edge of your client's property. Enclosed are some photo- graphs which graphically demonstrate the problem. It should be apparent that unless action is taken, the growth will continue to the point that it will adversely affect the entire lagoon and the operation of the weir. This has been a problem in the past and Mr. Tenaglia has used the services of a company called Aqua-Tek to spray the growth and halt its expansion. He has been in contact with that company again and has obtained an estimate for spraying in several locations in the lagoon. Based upon that estimate, your client's share of the cost would be approximately $450, if done in conjunction with other work. Please advise if your client is willing to participate in this undertaking. If not, appropriate action will of necessity be re- quired through the appropriate governmental agency or in court. Thank you for your anticipated cooperation^ in this matter. Very truly yours, GOEBEL & MONAGHAN By: Louis E. Goebel LEG/mj Enclosure cc Mr. and Mrs. Henry J. Tenaglia GOH3EL £r MONAGHAN ATTORNEYS AT LA* BRIAN D.MOKACHAN. f^r.c. iOUli E GOLBELA.PC JOHN H METZ lAWEi E. RUBWITZ StCUfUTY FACIfIC PLAZA I2OO THIRD AVlKUl.iUm. 1700 iAN DIEGO. CALIfOfU.'LA 92)01 (714)221-0059 August IB, 1981 Vincent F. Biondo, Jr., Esq. City Attorney City of Carlsbad 1200 Elm Avenue . Carlsbad CA 92008 Frank Aleshire City Manager City of Carlsbad 1200 Elm Avenue Carlsbad CA 92008 Re: Buena Vista Lagoon Growth 0*=" tleinen: We represent Mr. and Mrs. Henry J. Tenaglia, residents and property owners in the St. Malo community on the Buena Vista Lagoon in Oceanside. We are writing to advise you of a serious public problem which is developing in regard to the Buena Vista Lagoon. There is a very sub- stantial growth of tules and cattails growing from the property owned by Native Sun Investment Company on the Carlsbad side of the Buena Vista Lagoon. The growth is increasing at a rapid rate daily. Unless checked in the near future, it appears that the growth will choke off the entrance to the weir and create serious problems, both for Carlsbad and Oceanside and all surrounding residents. I have discussed the matter briefly with Les Evans and he suggested that I give the City formal notice of the problem. Whether you decide to proce'ed under your weed abatement"ordinance, against a public nuisance, or upon soirie other ground, immediate action is required in the pub'lic interest. Please advise if we may be of any further assistance in providing you with information regarding this serious problem. We look forward to your prompt action. Very truly yours, GOEBEL & MONAGHAN By; Louis E. LEG/mj Mayor Ronald Packard Mr. and Mrs. Henry J. Tenaglia Goebel cc A/ ''.*i V'\ CALIFORNIA S?DOB ELM A'.'ENL'E ~ .-. • TELEPHONE: ily Manager Citp of August 21, 1981 Earl K. Lauppe Associate Wildlife Manager-Biologist State of California Department of Fish and Game 350 Golden Shore Long Beach, CA. 90802 • BUENA VISTA LAGOON The City has received a complaint concerning the growth of tules and cattails in Buena Vista Lagoon." Since the lagoon is state property and lies under your jurisdiction, I am sending the August 18, 1981 letter from Louis E. Gocbel to you. FRANK ALESHIRE ' City Manager FA:gb cc: I.. E. Goebel Enclosure Or FISH AND GAME >Shr-re n =h, CA S.-DED2 '.13) 390-51 58 October 9, -1981 FrznV. Aleshire Ciry Hsr.aper Civy f'f Carlsbad ]20D F.ITB Avenue Carlsbad, CA 92008^ Dt-ar Mr. Aler-ljire: Thif is in reply to the Louis F. Goebel letter that you forwarded to me concerning the vegetative growth in Buena Vista Lagoon's western basin. The Department has no Innd ovTncr^hip in the western basin. I believe vegetative control would be the responsibility of the private land owners. If it is necessary to remove vt-^etation for flood control purposes, v;e suggest that it be done mechanically snd the use of chemical control as the last resort. The lagoon channel may have- to be dredf,cd_r_o at least..a four foot depth~to prevent cattail grov.-th. The County Agricultural Commission should be consulted for a list of approved chemicals to be used for vegetative control. Our Ecological Preserve lands begin cast of the railroad tracks. If I cp.n be of further assistance, please contact me. Sincerely, Earl M. Lauppe Associate Wildlife Biologist 5 : re: Steve~"~):iHFLE Greg Larct Attachment iGUTY 01- CHARLES R°REVLETT December 7, 1981 WARREN B. DIVEN DAVID N. CLYDE Mr. Nicholas Banche Attorney at Law 702 Fourth Street - Oceanside, CA 92054 Dear Mr. Banche: I air, writing to you concerning a potential hazard on property owned by Native Sun Investment who I understand, are clients ot vours It has come to our attention that there is a large growth- of tules on the Native Sun Investment Company's property on the Carlsbad side of the Buena Vista Lagoon. We have received com- plaints from Oceanside residents who fear that this growth will block the weir at the mouth of Buena Vista_Lagoon, thereby creat- ing a flood hazard for surrounding properties. I understand that the Department of Fish and Game has no 3u£isr dicti6n in this matter, and that it is the-responsibility of the property owner to control the vegetative growth. I d^urge your client to cooperate with the City of Carlsbad in solving this problem Sincerely, CHARLES R. BEVLETT City Attorney CKR/gfd cc: Mr. Frank Aleshire, City Manager City of Carlsbad 1200 Elm Avenue Carlsbad, CA 92008 OVIC CENTER ' 32-1 NORTH NEVADA • OCEANJSOE. CA 9SO54 • TELEPHONE . 6s GO.EBEL <Sr MONAGH-AN ATTORNEYS AT BP.1AN D. MONACHAK.A.J-.C LOUISl.COEBELA-f.C IOHNH. WETZ 1AMES E. RL'BNITZ SECURITY PACIFIC P1AZA 1200 THIRD AVINL'E. iUFTl 1700 SA).' DIEGO. CALIFORNIA 9210) (714) 231-0059 February 1, 1982 Nicholas C. Banche, Esq. 702 Fourth Avenue P.O. Box 390 Oceanside CA 92054 Re: Native Sun Investment Group Tule-Growth —Buena Vista Lagoon Dear Mr. Eanche: I am writing to you as one of the attorneys of record for Native Sun Investment Group in pending litigation regarding certain property located near the Buena Vista Lagoon in Carlsbad, California. This concerns the continued growth of tules on and near the property in the existing water area of the lagoon. We have raised this issue before with Mr. Bye without receiving any response, but now, the problem has reached crisis proportions in that approximately one-half of the channel has already been closed off. Unless corrective action is taken promptly, severe flooding may occur affecting the cities of Oceanside and Carlsbad, Hill Street in Oceanside, the Carlsbad sewer system, and individual homeowners adjacent to the lagoon. All that has resulted so far is a classic case of buck-passing and finger-pointing (which, if the situation were not so serious, would almost be humorous). Attached are copies of some of the circular correspondence. You-have stated that Title Insurance- an-d Trust Company "would take care of it." In fact, the responsible people. . there denied any knowledge of the problem until we raised it. Further, they deny that they "own" the property, and state that they are merely mortgagees. The time for further avoidance of responsibility is past. It is clear that the major part of the growth is on your client's property. To say, as you or others have, that your client does not own the property, is - to put it kindly - disingenuous, when your client is actively pursuing litigation to have its record title confirmed in it, free and clear of adverse claims. 1 C. Banche, Esq.- February 1, 1982 Page 2 We do not care who pays for the solution, so long as it is implemented before disastrous consequences result. It is obvious (or should be) that your client holds the key in that, • Your client holds record (and asserts legal) title to the property; - * The growth is in large part physically on your client's property; and • Access on to and through your client's property will be required. If the necessary steps are not taken before it is too late, we must assume that the affected cities and property owners will be fully aware that your client was on clear notice of the situation and chose not to act with -faalL-knowledge-of the probable consequences - of inaction.- Very truly yours, GOE3EL & MONAGHAN By: Louis E. Goebel LEG/mj Enclosures cc Charles R. Revlett, Esq. City Attorney, Oceanside Vincent F. Biondo, Jr., Esq. City Attorney, Carlsbad Kenneth Dyer, Esq. Title Insurance & Trust Company Alan R. Jampol, Esq. Foonberg, Jair.pol & Gardner James R. Sternberg, Esq. Jenkins & Perry Roland Bye, Esq. bcc Henry J. Tenaglia $ HENRY J. TENAGLIA PACIFIC MUTUAL BUILDING. SUITE OIO S23 WEST SIXTH STREET LOS ANGELES. CALIFORNIA 9O014 (213) 626.0235 April 30,1982 Mr. Daniel Hentschke Assistant City Attorney City Of Carlsbad 1200 Elm Avenue Carlsbad,California,92008 Dear Mr. Hentschke: It has come to my attention that Native Sun Investments of Tustin does not wish to remove the reeds on their property because they claim they do not own it now because State Lands has made a claim. Enclosed is a copy of a letter dated December 3, 1980 from John Lyttle, a general partner of that fir™ and a copy of a complaint filed on November 6,1981 by Native Sun against State Lands in the Superior Court of California, County of San Diego. Please note in the letter by Mr. Lyttle that they refer to "their" reeds and the admission of a potential problem. Also please note in the Complaint on page 2, item 2 that they claim ownership of that property. The foregoing certainly contradicts their present position. In addition, they are insured against the State Lands claim by Title Insurance and Trust Company. Sincerely, ^£-i. Henry cf. Tenaglia CC: Louis E. Goebel Encl. -fj- : December 3, 1980 12E31 Ne«>por1 Avenue "iustin. Colitornia 92680 7W 731-1156 Mr. Henry J. Tenaglia Pacific Mutual Building, Suite 610 523 West Sixth Street Los Angeles, California 90014 Dear Henry: I very much appreciate receiving the copy of the _"Buena Vista Lagoon Storm Water Overflow" report. I will forward this to our engineer for his review and comments. I don't know why Mr. Hinkley did not remember talking to me because I did get a price from him months ago. The price he quoted must have been for the aritir_ lagoon, since it was a great deal higher than the price on his current estimate. I hesitate to give the go ahead on all our reeds, but do agree with you that the mouth of the lagoon should be kept open in preparation for winter rains. Therefore, if you want us to participate in our one-half of that portion of narrow passageway, we would be happy to help pay our share there. I am sorry you got the "run around" when calling Nick Banche and Rick Engineering, but they have been warned that we do not pay for extra time. This is the only way we can keep any kind of check on costs. As you know, you can't talk to any lawyer or engineer free of charge, someone has to be billed. The City of Carlsbad has all the plans to date and will be happy to show it all to you, if you haven't already done so. Again, thanks for sending me a copy of the storm drain report.' ( Very truly yours, , HOMES- BY JOHXL LITTLE B. Lyttle Chairman of the Board JBL:jas 2 _ 3 4 '" 5 - Attorneys for. L*V*L OF rices FOONBERG. 1POL & GARDNER A rAmn. .HI*- IHCLUOINC PROTLLt'OWAL C Ottr'DW AT IONP BSOO Wii_kMiHL DooLtv»na. SUITE BOO BEVE.RLY HILLS. CALIFORNIA 9OZH (213) CS2.SOIO Plaintiff Robfrt D. Jt:ri»ll|. Clwk NOV b - 1981 BY M. HOLBROOK SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN DIEGO 7 8 9 10 11 12 13 n,! )14 ii THE STATE OF CALIFORNIA; ) !; STATE LANDS COMMISSION and ) 15 DOES 1 through 1000, inclusive, ) 16 '! Defendants. ) j. X 17 !; NATIVE SUN INVESTMENT GROUP, a limited partnership, Plaintiff, CASE NO. COMPLAINT N18496 vs .1. Declaratory Relief; 2. Quiet Title 18 j, i 19 20 21 22 23 24 25 26 27 28 Plaintiff alleges: "GENERAL ALLEGATIONS 1- The real property -which i-s the subjeat of this I ' action (hereinafter "the subject property") is located within the County of San Diego, State of California, and is legally described as set forth on Exhibit "1" attached hereto and incorporated herein by reference. A plat of the subject property is attached hereto as Exhibit "2" pursuant to Public Resources Code §6465. ' • : ' " o - o=2- 1 •2 3 4 5 6 ' 7 8 9 10 11 12 13 O UO >n ua m 6 t p oL < **• inE > -, • "I /Ic, w J « 141u -* < in-, g"« !S.3« 15 16 17 18 19 20 21 22 23 84 as! 27 28 2. "'laintiff Native Sun Inv*. _ment Group is a limited i,partnership, and is the owner of the subject property. 3. The Defendant State of California is a sovereign state and the purported holder of the claims described herein below. 4. The Defendant State Lands Commission is an administrative organ of the State of California responsible for, among other things, identifying, holding and managing .lands owned by the State or in which the State of California claims an interest, including, without limitation, tidelands as defined hereinbelow. 5. Plaintiff is unsure as to the true names and capacities of the Defendants named herein as Does -1 through 1000 inclusive. When the true names and capacities of said Defendants havex been ascertained, this Complaint will be amended accordingly. Plaintiff is informed and believes, and thereupon alleges, -that each said Defendant claims some right, title or interest in or to the subject property or some portion thereof, and" is a "party necessary to the adjudication of Plaintiffs' rights in said property. -2- oo j 2 3 4 5 ' 6 "7 8 9 10 11 12i; •13 FIRST CAUSE OF AC'. JN t [^Declaratory Relief] 6. Plaintiff incorporates "herein by reference each allegation contained in paragraphs 1 through 5 hereinabove. #f7. An actual controversy has arisen between Plaintiff, on one hand, and the Defendants, on the other hand, concerning the nature and extent of the parties' rights in the subject property. 8. Plaintiff is informed -and- believes,-- and thereon « 14 O HIO > 16 17 18 19 20 21 22 23 24 25 26 27 28 i ,1 alleges, that Defendants and each of them herein contend that |; ji they have some right, title or interest in or to the subject i]i property, or a portion thereof, in that some portion of said property was purportedly, in its last natural state, covered and uncovered by the daily influx and reflux of the tide, which type of land is known as "tideland," and said land was thereby either acquired and is owned by the State as an incident of its sovereignty, or the State is an owner of an easement encumbering i said property for commerce, navigation and fishery. 9. Plaintiff disputes and rejects the aforesaid contention of Defendants, and contends that no portion if the subject property was ever subject to tidal action, and that Defendants have no right or interest of any kind whatever in or." ' • to any portion of said property. -3-/3 - 1 . . 2j 3 4 5 '6 V ~8 9 10 11 10. judicial declaration of the rights of. the parties under Plaintiff's deed is essential so that the parties will Xnow the right.5 and obligations in the said property, and so that Plaintiff may develop, improve, or otherwise utilize the property without interference by the Defendants other than by exercise by Defendants of whatever police powers they may be entitled to t exercise. SECOND CAUSE OF ACTION [Quiet Title To Real Property] D —O ~ ° g ?lli I S " - 2 12 ! j« 14 ; Oo ;c m" - -ii £Ei= -' 16 17 18 19 20 21 22 23 24 25 ! 26 27 28 11. Plaintiff incorporates herein by reference each and ! every allegation set forth in paragraphs 1 through 5 and 7 through 10 hereinabove. 12. Plaintiff is, entitled to exclusive and sole ownership, use and possession of the subject property. r 13. Defendants and each of them claim some right, title or interest in or to the subject property adverse to Plaintiffs. and in derogation of Plaintiff s rights therein. 14. The claims of said Defendants and each of them in or to the subject property are without substance, merit or validity. « . * - WHEREFORE, Plaintiff prays for judgment against Defendants and each of them, jointly and severally as follows: -4- AID! MO_j U Z V.cw2 C t ' 1. i 2 3 4 5 6 7 8 9 10 11 io -2* i ? 'O j~ *w 1 1< ' :njo 13 1 i £53 14 ! D ^ < ID ; ? ° u - -ic '. 0 U J D J. J ; ! » - J N r 3 ^ ^ MS 16 O USS 17oo •*• ' 18 19 20 21 22 ' 23 24 25 i 26 27 j i 28 i 1. For a declaration' that Defendants and' each of them have no right, title of interest to- any portion of the subject property, and that Plaintiff's title is not subject to any i claims, whether of title, an easement or otherwise, on the part of Defendants or any of them; 2. That Defendants and each of them be required to present such claims to any right, title or interest in or to the subject property as they may have, that such claims be adjudged null, void and of no effect, that Plaintiff's title in the subject property be quieted as of the date of filing of the Complaint, and that Defendants be forever barred from asserting any right, title or interest in or to the subject property; 3. The Plaintiff has and recover the costs of suit herein incurred; and 4. For all and further relief to which the Court may find Plaintiff justly entitled. Dated: September 10, 1981 ALAN R. JAMPOL ~ ' . . FOONBERG, JAMPOL & GARDNER ' ! -J? By Alain( R. Jampol Attorneys for Plaintiff -5- SCHEDULE C . JHE LAND REFERRED TO IN THIS POLICY IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO', AND IS DESCRIBED AS FOLLOWS: PARCEL 1: * ALL THAT PORTION OF LOT 2 IN SECTION 1, TOWNSHIP 12 SOUTH RANGE 5 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, LYING SOUTHWESTERLY OF THE RIGHT OF WAY OF THE ATCHlSON, TOPEKA AND SANTA FE RAILWAY, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF. SAID LOT 2, SAID POINT OF BEGINNir BEING ALSO THE NORTHEASTERLY CORNER OF LOT 4 OF SAID SECTION 1 AS SHQWf THE HAP OF GRANVILLE PARK NO. 1762, RECORDS OF SAN DIEGO COUNTY; THENC1 ALONG THE WESTERLY L.INE OF SAID LOT 2, NORTH 0°10' EAST TO ITS INTERSECTION WITH THE WESTERLY-RIGHT-OF WAY -|_ I NE OF' THE "ATCHI SON," TOPEI AND SANTA FE RAILWAY; THENCE ALONG SAID RAILWAY RIGHT OF WAY, SOUTH 41°40*40" EAST (RECORD SOUTH 4l°l6» EAST) A DISTANCE OF 353.20 FEET TO BEGINNING 0^ A CURVE CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 15^. 69 F-EET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGI OF loig'SO" A DISTANCE OF 35-45 FEET (RECORD 31-73 FEET) TO ITS INTERSECTION WITH THE SOUTHERLY LINE OF SAID LOT 2; THENCE ALONG SAID SOUTHERLY LINE OF LOT 2, NORTH B9°50« WEST A DISTANCE OF 257.04 FEET (RECORD 256.21 FEET) TO THE POINT OF BEGINNING. PARCEL 2: THAT PORTION OF LOT 3, SECTION 1, TOWNSHIP 12 SOUTH, RANGE 5 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD IN THE COUNTY OF SAN DIEGC STATE OF CALIFORNIA, 'ACCORDING TO OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS: . BEGINNING AT THE SOUTHEAST .CORNER OF SAID LOT 3. SECTION 1; THENCE ALOI THE EAST LINE OF SAID LOT 3, NORTH 0°04*30" WESI^\17.fl3\ Fg'ET JO THE ^SOUTHWESTERLY RIGHT OF WAY LINE OF THE ATCHISON, TOPEKA AND SANTA FE "RAILWAY; THENCE ALONG SAID LINE NORTH 4i°i&- WEST TO THE SOUTHEASTERLY BOUNDARY OF PARC5L HAP NO. 1O33 FILED IN THE OFFICE OF COUNTY RECORDER SAN DIEGO COUNTY; THENCE IN A SOUTHWESTERLY DIRECTION ALONG SAID SOUTHEASTERLY BOUNDARY TO THE SOUTHERLY LINE OF SAID LOT 3; THENCE SOU 89°55'30n EAST ALONG SAID SOUTH-LINE TO THE POINT OF BEGINNING. 0984413 PAGE • - VERIFICATION STATE OF CALIFORNIA. COUNTY OF. „ , • , j"« • *. m-*.tI have read the fn,-Cninr Complaint for Declaratory Relief and Quiet Title _____ and know us contents. CHECK APPLICABLE PARAGRAPH D l am a party lo this action. The mailers slated in it are irue of my own knowledge except as lo those mailers which are staled on informalion and belief, and as to those mailers I believe them to be true. Q l am Dan officer Da partner D«i °f Plaintiff/ Native Sun Investment Group D j party to lh'« action, and am authorized lo make this verification for and on its behalf, and I make this verification for that reason.-1 am informed and believe and on that ground allege thai ihe mailers slated in il are true. I am one of the attorneys foe , a party lo this action. Such parly is absent from the county of aforesaid where such atiorneys have iheir offices, anfj 1 make this verificalion for and on behalf of lhai party for that reason. 1 am informed and believe and on that ground allege that ihe matters staled in it are true. ' ^~ Executed ™ October 30 . 10 81 ,1 Tustin S / I declare under penalty of perjury that the foregoing is true and correct. (NOTARIZATION NEEDED ONLY WHEN EXECUTED OUTSIDE CALIFORNIA) rnu. Subscribed and sworn to before me this day of_ / (Sij;n;)luro5 Notary Public in and for said County and Slate ACKNOWLEDGMENT OF RECEIPT OF DOCUMENT (other than summons and complaint) Received copy of document described as_ on- (Signature) PROOF OF SERVICE BY MAIL STATE OF CALIFORNIA, COUNTY OF I am employed in the county of _—— , State of California. 1 am over the age of 18 and not a party to the wilhin action; my business address is: On 1 19 . I served the foregoing document described as _on_ in this action by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United Stales mail at: . — :—! addressed as follows: I I (BY MAIL) I caused such envelope with postage thereon fully prepaid to be placed in the -United Slates mail at , California. | ] (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the offices of ihe addressee. Executed on . 19 , at . , California. [ I (State) I 1 (Federal) I declare under penalty of perjury that the above is true and correct. J»RI 5 EKBHOO* HUESiVER rBEViSED 10 B0| ~(Signature)r D* tiled in CiMoinn Suit DI feot'ci Count) c c c • MEMORANDUM DATE: April 27, 1982 TO: Mayor and City Council FROM: City Attorney SUBJECT: ABATEMENT OF WEED NUISANCE AT BUENA VISTA LAGOON Recently we have been asked by Council Member Lewis to look into the City's ability to deal with tules growing in the Buena Vista Lagoon near the weir. The tules are apparently encroaching on the channel and creating a potential flooding hazard. Because other council members have expressed a similar concern over the situation, we are preparing this memorandum to the entire City Council. The purpose of this memorandum will be to outline the legal procedures which the City may employ to eliminate the tules . Because there are a number of factual issues which must be resolved, the decision of whether or not the City should take action will require input from other city departments, particularly Engineering and Parks and Recreation. Briefly, it is our understanding that tules which originate on property located within the City of Carlsbad are growing out into the channel of the Buena Vista Lagoon in the vicinity of the weir and because of their density cause a risk of flooding if the level of the lagoon reaches a certain point. Generally the flooding hazard is to property located within the City of Oceanside. The state claims public trust over certain lands abutting the lagoon, possibly including the land where the tules originate. The record owners dispute this claim. The State Department of Fish and Game owns the lagoon itself. Visual examination of the lagoon revealed that there are tules growing from both the . Carlsbad and Oceanside sides of the Buena Vista Lagoon and that the tules do extend some distance into the channel in the vicinity of the weir. One of the questions we were asked was whether the weed abatement procedure could be utilized to require the property owner in Carlsbad to remove the tules growing on his property. After evaluation of the Government Code provisions on weed abatement, we have determined that the weed abatement procedure would be inappropriate for the abatement of the tules. Our determination is based in large part on the definition of weeds contained in Government Code Section 39561.5. Weeds include any of the following: Weeds which bear seeds of a downy or wingy nature; sagebrush, chaparral, and any other brush or weeds which attain Mayor and City Council Page 2 April 21, 1982 such large growth as to become, when dry, a fire menace to adjacent improved property; weeds that are otherwise noxious or dangerous; poison oak or poison ivy; or other flamable weeds. We have been informed by the Parks and Recreation Department that tules are not weeds which bear seeds of a downy or weedy nature and it is our opinion that they are not weeds which are otherwise noxious or dangerous. The definition of a noxious weed can be found in Section 5004 of the Agriculture Code. That section defines a noxious weed as any species of plant which is or is liable to be detrimental or distructive, and difficult to control or eradicate. The plant must also be designated by the Director of Department of Pood and Agriculture as a noxious weed. According to the Parks and Recreation Department, tules are not noxious weeds. Our investigation confirms that determination. However, because the weed abatement procedure cannot be used does not mean that the City is without power to abate the weeds as a nuisance. C C. The City has the power at both common law and by statute to abate nuisances. A nuisance is anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property, or lawfully obstruct the free passage or use in the customary manner of any navigable lake or river, bay, stream, canal, or basin or any public parks, square, street, or highway. (California Civil Code Section 3479.) A condition of property which causes water to flood over the property of adjacent owners is a nuisance. A public nuisance is one which affects at the same time an entire community, or neighborhood, or any considerable number of persons. (California Civil Code Section 3480.) The City Council has the right to bring a lawsuit to abate or enjoin a public nuisance and City Attorney is empowered to and must file such action whenever so directed by the City Council. (California Code Civil Procedure Section 731.) In addition, the City Council has established its own procedure for the abatement of certain nuisances within the City limits. Chapter 6.16 of the Carlsbad Municipal Code addresses the abatement of nuisances. That chapter is divided into two separate parts, one dealing with nuisances generally and the other dealing with obstructing drainage courses. The chapter establishes the procedure which the council must follow to abate a nuisance. First the council must adopt a resolution of intention. The resolution of intention sets the date for a public hearing on whether or not the condition constitutes a C Mayor and City Council Page 3 April 27, 1982 public nuisance. Once the resolution is adopted it must be posted on the property and notice must be sent to the property owner that the City Council is going to hold a public hearing to determine whether or not the weeds constituted a public nuisance. At the time set for the public hearing, the City Council must take testimony concerning the condition of the property and the hazard created. Based on the facts presented at the hearing, the council must determine whether or not a public nuisance exists. If the council finds that there is a public nuisance, the council could abate th'e nuisance and charge the cost of the abatement to the property owner. Payment can be secured by imposition of a lien or assessment on the property. Council could also order the City Attorney to file a lawsuit to get a court order to require the owner to abate the nuisance. The question of the existence of a nuisance is largely factual, and would require the imput of the City Engineer, the Parks and Recreation Department, neighbors living in the vicinity of the problem and perhaps outside experts. Until we had an opportunity to review that data as presented at the public hearing, we would not be able to make a legal determination on the sufficiency of the facts to support a finding that a public nuisance exists. If the council, after a public hearing, finds that the condition does not constitute a public nuisance, that does not preclude the individual property owners from bringing their own lawsuit to enjoin the activity as a private nuisance. In conclusion, the City does have the power to abate the tules as a public nuisance. Because of the peculiar nature of this problem and the various ownership interests involved, the participation of the City of Oceanside and the State Department of Fish and Game may be required to eliminate the alleged hazard. If the council is seriously contemplating City involvement in the abatement of this alleged nuisance, then it should direct the City Manager to have his departments prepare the necessary reports and documents to start the abatement procedure pursuant our Municipal Code. ,-*****—> VINCEffa F. BIONDO, JR. CLty Attorney By DANIEL' S^' HENTSCHKE Assistant City Attorney C DSHtdv 1 RESOLUTION NO. 6882 2 A RESOLUTION OF INTENTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, DECLARING 3 INTENTION TO HOLD A PUBLIC HEARING ON THE ABATEMENT OF NUISANCE: TULES NEAR THE BUENA 4 ' VISTA LAGOON WEIR 5 The City Council of the City of Carlsbad, California, does hereby 6 resolve as follows: 7 1. That the City has the power at both common law and by statute to 8 abate nuisances. ' . 9 2. That the City Council has established its own procedures for the 10 abatement of certain nuisances within the City limits. 11 " 3. That a potential nuisance exists due to the growth of tules near 12 the Buena Vista Lagoon Weir. 13 4. That the City Council will hold a public hearing on June 15, 1982 .14 at 6:00 p.m. in the City Council Chambers at 1200 Elm Avenue, Carlsbad, 15 California, to consider whether or not the condition constitutes a public 16 nuisance. IV 5. That the City Engineer of the City of Carlsbad will cause this 18 resolution to be posted according to law, and also cause notice to be sent 19 to the property owners that the City Council will hold a public hearing on 20 June 15, 1982 to determine whether or not the condition constitutes a public 21 nuisance. Said notice shall be mailed at least five days prior to the 22 hearing. 23 6. That, based on the facts presented at the public hearing, the 24 City Council will determine whether or not a public nuisance exists, and 25 if it finds that a public nuisance does exist, that the City Council will 26 order that it be abated at the expense of the person creating it and will 27 / / / 1 determine how the cost of the abatement will be collected according to | 2 applicable laws. 3 7. That the City Engineer and the Parks and Recreation Director will 4 provide appropriate testimony at the public hearing. 5 PASSED, APPROVED AND ADOPTED by the City Council at a regular meeting 6 held on the 18th day of May , 1982, by the following vote, to wit: 7 AYES: Council Members Packard, Casler, Anear, Lewis and Kulchin 8 NOES: None 9 ABSENT: None 10 " RONALD C. PACKARD, MAYOR 11 ATTEST: 12 13 ALETHA L. RAUTENKRANZ, CITY CLERK \ 14 V .15 (SEAL) 16 17 18 19 20 21 22 23 24 25 26 27 28 iSlfyHS1-''."' :,.: • . ,j?;";:j Sf#^«t;«-!«€>#*5;;: 31£*:-.:,i«*-«*v X .I,1*if;