HomeMy WebLinkAbout2020-09-25; UPDATED - Carlsbad Unified School District - Improvement Projects at Kelly Elementary School and Hope Elementary School; |Murphy, Jeff| Barberio, Gary|To the members of the:
,Jll); COUNCIL
Date ~CA _f_ CC j .
CM _j_ ACM~ DCM {3) i!._
Sept. 25, 2020
Council Memorandum
. . .
To: Honorable Mayor Hall and Members ofthe City Council
From: Jeff Murphy, Community Development Director
Via: Geoff Patnoe, Assistant City Manager: ·
{cityof
Carlsbad
· Memo ID #2020200
Gary Barberio, Deputy City Manager, &,unity Services
Re: · (UPDATED) Carlsbad Unified School · · t -Improvement Projects at Kelly
Elementary School and Hope Elementary School
This memorandum is an 1,1pdate on the city's latest enforcement actions against the Carlsbad
Unified School District (CUSD) and the contractors performing unpermitted grading .activities
occurring at the Kelly Elementary School (4885 Kelly Drive) and Hope Elementary School
(3010 Tamarack Avenue).
Background
On September 24, 2020, staff issued a Council Memorandum (Attachment 1) advising the
City Council of the unpermitted grading activities currently being conducted oil the Kelly
Elementary School and Hope Elementary School sites as well as background on our
interaction with the CUSD. This memo is intended to provide an update on our ongoing
enforcement actions.
Discussion
Around 1:00 pm yesterday, city staff issued a Notice of Violation (NOV) to the job
superintendent at the Kelly Elementary School site directing them again to cease grading
operations until a grading permit can be obtained. Note that this NOV was issued due to
non-compliance with the city's stop work order issued on September 23, 2020 . .The NOV
specified three separate municipal code.violations including: 1) unpermitted grading and
excavation, 2) unlawful grading and erosion control (lleasures (stormwater), and, 3) public .
nuisance based on the extensive and serious nature of the grading violations. The NOV gave
· the superintendent two hours to comply due to the gravity of the offense and the prior
notice via the stop work order. At around 3:30 pm yesterday, city inspectors confirmed that
grading operations were continuing in violation of the stop work order and NOV. In
response, staff issued the job superintendent an Administrative Citation in an amount of
$300 ($100 for each violation).
This morning, city inspectors again witnessed grading activities and issued another
Administrative Citation in the amount of $600 ($200 for .each violation). If grading
inspections are witnessed a third (and any subsequent) day, an Administrative Citation will
be issued in the amount of $1,500 ($500 for each violation, the maximum allowed per
Council Memo -CUSD Improvement Projects at Kelly and Hope Elementary Schools
Sept. 25, 2020 ·
Page 2
violation under the code). Staff intends to continue citing the violations until compliance is
achieved and/or until _other enforcement remedies prove effective.
Earlier today, staff received a timetable from the CUSD outlining their interactions with city
staff, which staff is currently reviewing. Upon cursory review, their timetable recognizes that
the need for a grading permit was an item of discussion dating back to January of this year.
Next Steps
Working with the City Attorney's Office, staff has also prepared an NOV that will be issued to
CUSD. While staff initially tried to avoid taking enforcement actidn against the district as the
property owner, it appears that this may be the only way to effectively draw attention to the
unpermitted activities of concern and immediately stop work pending a properly issued
grading permit. We will attempt to hand-serve the district later today with a short
compliance date. If the hand-service is unsuccessful, the alternative under our code is to post
and mail (via certified mail). If that is the case, we will have to allow some lag time before
issuing citations to the school district, until we can confirm it has in fact received notice of
the NOV. However, because the contractor is the one performing the unpermitted grading
activities and has already received notice of the violation (and subsequent citations), staff
will continue to issue frequent citafjons to. the job superintendent on a separate but parallel
time schedule.
Staff is also attempting to reach the CUSD Board and CA Division of the State Architect (DSA)
in an attempt to obtain compliance with our orders. The City Attorney's Office is still
researching the extent to which these entities might have official enforcement authority or
oversight over a school construction project involving local municipal code violations.
Our goal in this effort is not to be vindictive or punitive, but to ensure compliance with
established regulations that are in place to protect public health, safety and general welfare
of our residents.·
Attachment: A. Council Memo September 24, 2020
cc: Scott Chadwick, City Manager
Celia Brewer, City Attorney
Ron Kemp, Assistant City Attorney
Paz Gomez, Deputy City Manager, Public Works
Kristina Ray, Communication & Engagement Director
Mike Peterson, Assistant Community Development Director
Jason Geldert, Engineering Manager
Babaq Taj, Engineering Manager
Council Memo -CUSD Improvement Projects at Kelly and Hope Elementary Schools
Sept. 24, 2020
Page 2
requirements set forth under city code and the Regional Water Quality Control Board
(RWQCB).
City staff had subsequent meetings with the CUSD representative who disagreed with the
city's interpretation of the government code section. and felt that CUSD was not subject to
. local requirements. City staff made repeated requests that CUSD provide evidence
supporting their positipn. -In the meantime, in ~n effort to move the project forward, city
staff recommended that CUSD proceed with filing an application: City staff offered that
should there be any duplication with state. processes (i.e., construction bonding); we would
consider accepting state processing requirements to satisfy our submittal requirements, as
appropriate.
To date, after roughly seven months, neither the requested supporting documentation, nor a
grading permit application have been filed with the city.
On July 29, 2020, the city received a call from the Carlsbad Municipal Water District about
grading activities occurring at another school district site: Hope Elementary School. Upon
inspection, staff confirmed that unpermitted grading was occurring, and a Stop Work Order
was issued directing that air grading activities stop until proper permits were secured.
Following the Stop Work Order, on Sept. 17, 2020, representatives of the Kelly Elementary
School design team met with city staff where-they agreed to submit grading plans and a ·
grading permit application for the Kelly Elementary School project. Representatives
anticipatedthat a formalappljcation would he filed in November 2020. ltis the city's
understanding that the Hope Elementary School project is. being handled by another design
team. No date was identified for when a grading permit application would b·e filed for the
Hope Elementary School project.
On Sept. 23, 2020, the city received a complaint from a resident living near Kelly Elementary
School complaining of dust_ andnoise from grading operations being done on the property.
Upon inspection, citystaffconfirmed that the grading being conducteq required a grading
permit and subsequent,ly issued a Stop Work Order. City staff is consulting with the.City ·
Attorney's Office on enforcement options, :Should CUSD not respond to the city's Stop Work
Order.
Next Steps
. Once grading plans/applications are subrnittE!d, staffhas committed to an expedited review
and will accept state processing requirements to satisfy the city's local submittal
requirements, if determined appropriate ..
CUSD has requested that they be allowed to conduct limited grading operations while the
plans are being prepared: Unfortunately, the city's codes do not allow for grading to occur
without an _approved permit. Furthermore, should the city allow unpermitted grading to
occur, Carlsbad would be in Violatiori of the MS4 stormwater permit with the RWQCB,
exposing the city to a possible Notice of Violation and associc1ted fines; While CUSD has
Council Memo-CUSD Improvement Projects at Kelly and Hope Elementary Schools
Sept. 24, 2020
Page 3
indicated a willingness of indemnify_lng the city; because the MS4 permit is issued to the city,
the city is ultimately responsible for any violations of that permit.
Attachment: A. LCP Letter dated Nov.· 13_ 2013
· cc: Scott Chadwick, City Manager
Cefia Brewer, City Attorney
Ron Kemp,.Assistant City Attorney
Paz Gom.ez, Deputy City Manageri Public Works
Kristina Ray, Communication & Engagement Director
Mike Peterson, Asslstant Community Development Director
. Jason Geldert, Erigineerh:lg Manager
B~baq Taj; E.ngineering Manager
Honorable ScottWilk-Request #1327~58-:Page 2
distrkts from 1ocal regulation in certain situations, including the circumstances described •in
Govetru_nent Code section 53097}
Secticm 5$091: addresses the 4iity of the go:vernihg boarq. of a school clistrict to .
comply wii:h focal ordinanc¢sregard1ng.tlrajnage; roads, ~d gradmi .and prov:1des as follows:
· "Notwithsra,nding any other pr0vfs1ons oftlJis article, tbe.goveming board oj
·IJ · ,school district s1;aij co;,iply with anJ cifj or county· o.1·diitanc¢ (1) r~guliiting drainage
improv.emeiits .and tilndidons,-(2) regulating f()ad..imptpveinents ,md cqnditions, or
· (3),~rJquiri11g the review and approval of grading pl1:ms as these ordinance provisiofrs
relMe.to ihe, desigii and co~tru~tfo.11 of onsite improvements whic1, affect drainage, road
condiifo;,s, or grading; and shall give cori~id.eration to tbe specific requirements
ancl q;ii;i:d,itions · of city or,, coun,1;y ordinances relating to the qesign and
cotrsttucdon ofoff~ite im.ptov'ements. If a school district elec~ not to comply
with rhe reqiprements of city ot county ordinances relating to the design md
tonstructi~n of offsite improvements, the city or county-sha}l not be liable tot
any inji,itks or for any ~age fo property caused by the fail.tire of the school
di$trict i:o pon:i,ply wrth those ordinances:;" (Emphasis added)
As irtdicaced above, se1:;tio1,1: 53097 requ1res sc,b.ooldistfkts .fo cqmpiy ~ith, dry or
· courtt,y ,otd:inanceS of three sp.eclf;c .kmds: th:ose that regulate dta,fuage improvements .ind
co11ditions, those that:regulate road ltt).prC>vements and coiiditio:i:ls; and those that reqµ:ite ihe
te\riew :µid approval of grading plans so long as those ordinance provisions rdate t:o the design
and tonsttu<±ion of onsite improvements which affect dr:a,inage, toad conditions, or gr:a:d:ing .
. Section 53097 also reqinres school districts to give considetatiort t9 th,~ speqfic requirements:
.and conditions· of city or county ordinances relating to 1:he design and construction of offsite
irii.pt9v~e11t:s. . . . . . · · . J'.9 ascer~n tb.~ meariing q{ a stat:tit¢, we hegi.rt With the fahgu~ge in which the
stat4te,is framed; (Leroy T; v. Work~ien's Comp.:Appea4 BJ. {f974}1:ZJl;iiJd4j4; 438; Visalia
Sd,QoLbist. v. Workers' Comp, Appeals Bd. (1995} 40 C.t4;\pp.{th 121:1, l220.) J.\li:hough:
se~cion 53097 requires a. school district .to comply With dty'oi toun;tj 6tdinances ~r three
kii1ds, the pl:u-ase "as rh.~s~ p.rdinance provisions relate to the 4es1gh. and construction of
onsite improvements which affect drainage, road conditions, or gradint .qualffies that ·
requJtemerit by indicating that some provisions a:re rtot covered by th~t t~q11ii:'ement-'--'
name1y, those that do not ~t{~t~, to 1:msite improvements affecting. dr~inage, roa.cf c~nditions,
pr grading. However, .beiause that phrase (hereafter the qualifyi1;1g phrase) follows the
eritit:rt~ration of the three kirids of ot<iinances, neither the Structure of the sen tent¢ hot i¢
. 1 /ill further: section references are to the Government Code,· unless otherwise
indicated. Sectibhs 53:b91 artd53094 alsow;uve a school .district's iintnututy ftom local regulation
'under particular cittwnstances that aielie>tteley:i:nt to QUL" analysis. . .
Honorable Scott Wilk -Request #1327658 -Page 3
punctuation indicates whether the qualifying phrase refers to. only those ordinances requiring
the review and approval of grading plans or to ordinances of all three kinds. · ·
Because the language of section 53097 is ambiguous, we look to legislative intent to
determine the meaning of that section. (See Alexander v. Superior Court (1993) 5 Cal.4th 1218,
1226 [the primary task of statutory tonstruction is to ascertain the intent of the Legislature
so 3$ to effectuate the p:urpose ofthe la,w).) Section 53097 was added to the Government
Code by Senate Bill No, 1681 (i-983,1984 R.eg. Sess.; Stats. 1984, ch, 657, § 2) (hereafter
S.B.1681). This bill was enacted in response fo a specific incident when storm: water runoff
from a school site reportedly washed out part of a neighborhood 10 San Bernardino County.
(Sen. Com, on Local Government, Analysis of Sen. Bill No. 1681 (1983-1984 Reg. Sess.) as ·
amended February 9, 1984, p, 1.-) San Berna.rditio Co11i:lty officials contended that faulty
design and grading at the school site that allegedlyled to the runoff could have been avoided
had :the school district complied with 1ocal regulations. (Ibid;) In a separate arialysis of
S.B. 1681, the Legislative Analysr2 wrote as follows: ·
"This bill req#es school di~trkts to comply with city or coµnty
ordinap:q:s which ~eg\llate drai11age, road #nprovemeµts and gradfug for on-site
facilities, and to give consideration. to ordinances relating to the design and
construction of off,site improve!ll~nts," (Legis. Analyst, analy1>is of Sen. Bill
No.1681 (1983-1984 Reg, Sess.), p.1 (underscored emphasis in original).)
S4nilarly; when sectio.li 53097 was amended by Assembly Bill No. 2781
(1989-1990 Reg. Sess.; Stats.1990, ch. 275, § 2), the bill analysis bythe S~nate Co:nururtee on
Local Goverlllllerit provided as follows: .
''Assembly Bill 2781 permanently requires school districts to comply with
local ordinances regulating drainage improvements, road improvements, and
grading plans when tl,ey construct onsite improvements'. They must cortsi4er local
requirements when they construct offsite improvements," (Sen. Com. on Loc:al
Gov:eriun:ent, Analysis of Asseni. Bili No, 2781 (19S9-1990 Reg. Sess.) as
amended May 24; 1990; e1riphasis added,)
Thus, the legislative history of section 53097 shows that the st;atute is an
iruitr,uction regarding ohsite and offsite µnproveme11ts; it requites the governfug board of a
school district to comply with local ordinances relat¢d to onsite iinprovements and to
consider local ordinancei: related to offsite iniproveiperits; Be.cause the qualifying phr.ase
includes the reference to oru;ite improve1nents, ·thes.e materials indicate that the qualifying
2 Reports of the Legislative Amdyst are included in the list of legislative history
docutn~hts "that have been recognized by the California Supreme Court or [the Third District
C::ourt of App~al] as constiruting cognizable legislative history .... ." (Kaufman & Broad
Communities, Inc. v. Performan~e Plastering, Inc. (2005) 133 Cal.App.4th 26, 32,)
..
Honorahie ~ott Wilk-Request #1327658 -Page 4
phr;ise applies to any.ordinance regulating drainage improvement$ ;ind conditions, regulating
road improvements anti conqitions, or requiring review :md_ approvalotgrading plans.
As ~o which ordinance provisions are encompass~ by sectton 53097 under this
constru:ction; we do not address a specific local ohUnance in . thfu opinion. Whether a
parti~t fo~al -o:rdfu::Jnce constitutes one of those d!!Scribed in·section 53097 would be a
m~ttet fo:t-a court to det;ermi,ne in a spetjfic factual conrexr. However,· we think a court
worild take irito account the two consicletations described· below when detenri.ining whether
ah ordinance fulls wii:biri the onsiteiµiprovement ordinances described insec.tion 5~097!
· First, ,although sch~ol districts have immunity from focal re_gtilatjon, unless the
state has conse~te'd to waive that immunity (Laidlaw Waste Systems, Irie, v. Bay Citits: Services,
. Inc,; supra/at p. 6?.5), that 'Y'aiver of immunity must be dearly expressed; (.Bame v. City of Del
. Mar (2001) 8(i CalAppAth).346, 1358.) Moreover, laws that t:end tci limit sovereignty ate
. strictly construed in favor:ofthe state'. {Greene v .. Franchise Tax Bd. 097Z)i7 Ca.LApp.3d 38,:
42.) therefore, whifo secti<>n 53097 is a cl¢ly expressed ,vaivei: of unmuniiy, unless an
ordinance is of the ldn:cl c:fea,r1y covered by that section; we do not: think :j; cqurt wouldfind
that,im,rilunity ha:d been waived as totliai:ordin.ance, . . .
Second, we think a cc;rrit:t woul9-also consider · the effect ofµie reference iri the
qu,allfyingphrase to ordinances "which affect drainage, tQad conditionsi or :grading." .'Tfi.a,t
tefeterite woiµd be· :4rinei;:~sary unless it fu._rtber narrowed the thre~ kinds of ordinances ·
lfated iri section 53097. I11 determining vvfo:ther an ordinance affects dr;uj:lage, road
COP.editions, 6r grading,· it is our view that a .coti:rt w6uld look to the pttrj:>os~ underiying the
enactm,ent of the section. As disttr.$s~ above, setdon 53097 was adde:d:in response to dai;nage
to. ptopeicy caru;ec1. by stot'ni rtiriofffrom a school site. (See also 71 Ops,CalAtriy.Gen. 3'32,
34Z. (1988) {'!The putp<;ise of the spatqte [i~ to. avoid) a recurrence of cl.ama,ge &otn water
i"unoff from im imptoperiy g~aded or dra:ined scb.ool site'l) Based ¢n the purpose and
legislative history:ofsection53097,, we ~hink a court would likely conclude that secti.on53097
requires compllince with· 9:nly those local.ordinances.that help achjeve i:he goal ofavoi.dihg
damage to areas surtou11ding a school sit~ . .that results from water runoff or sunilan
<=ciliseqi.i¢nces df coi:istiuction activities, such a.,s a local ordip.ance requiring adherence to
specific physical parameter$ in order to ensute proper water tunoft
· Accordingly, it Js our opinion that, with respee1; to' a city or cbimi:y ordinance tltar
(i) reguiates draittage improvements an:d conditions, (2) regulates road improvements and
conditions, or (3) requires the review and appro:v~ of grading plans, the governing board of a
school district is required to t:bmply with that o,rdinan,,ce to the ~xtent that the otdinahCe
· Honorable Scott Wilk-Request#l327658 -Page 5
relates to the design and construction of onsite improvements that affect drainage, road
c:on:ditions, ot grading.
JKL1sjk
Very truly yours,
DfaneF. Boyer~Vine
Legislative Counsel
.,. /r6'·~ n ~
,.... ,' ...,_,,,'L_
By
J;u;oriKLee
Deputy Legislative Counsel