Thursday, June 5, 2014

Could Prescriptive Easements Derail the Mater Dolorosa Housing Project?

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(Mod: Today's post comes from a world famed legal expert on prescriptive easements. However, had I printed his name alongside this article it would have cost me a fortune in billable hours. Something that would radically cut into my new homeowner's nutritious diet of Top Ramen and Wonderbread with margarine toast. But here it is anyway.)

While there are a lot of challenges and obstacles to cramming a massive housing project over at Mater Dolorosa, they may face another obstacle.  Before the gates and fences were put up a couple of years ago, remember how everyone would take walks all over those grounds - criss-crossing the grounds to walk their dogs, picnic, or take a jog - in some cases the use of those trails were so frequent the resulting grooves etched into the dirt rivaled that of the old Roman roads that can be seen throughout Europe.

You even have all the neighbors along the western border who have little gates that gave them easy access to the Mater Dolorosa Monastery grounds.  Well, it appears that in California, if you have done that for 5 years let alone over 80 years, that the public can gain a "prescriptive easement" to continue to do so despite the objections of the owner of the property.  That's why it is so dangerous when people walk all over your land without permission.

There are four basic elements to gain a prescriptive easement:

1. Use that is actual and open (in other words did the property owner know about it and took no action)

2. Use that is adverse to the owner (in other words, was it done without permission)

3. Must be continuous use (doesn't have to be constant use - even periodic or seasonal use will quality)

4. Must be for a minimum of 5 years

A prescriptive easement can arise from something as simple as a pedestrian crossing a parking lot of a business once or twice a week to access an adjacent property.  While the activity may seem innocuous, after five (5) continuous years of crossing the parking lot, the pedestrian may successfully argue that it is his or her right to do so.

Should the pedestrian formalize the prescriptive easement by filing a lawsuit, it can cause complications when the property owner decides to sell.  Multiple the Mater Dolorosa situation by about a thousand and this scenario sounds a little familiar, doesn't it?  In the case of Mater Dolorosa, it wasn't 5 years that people were roaming their grounds, it was over eighty years.

Because there seems to be alot of people unhappy with the prospect of fifty or 60 (Danny?) over-sized wickiups blocking what used to be their "hunting grounds," its hard to know who is going to come out of the woodwork and assert prescriptive easement rights with a lawsuit.

The interesting thing for any developer is how much money they will have spent on their due diligence before they find out that their McMansions are blocking the path of Jane Doe and her dog Spot.

http://sierramadretattler.blogspot.com

94 comments:

  1. This is why the supposedly broke "brothers" spent a fortune turning their previously open worship center into a maximum security monetary. They have been planning this for years.

    We've come a long way from the day 8 years ago when Father Pat zoomed up to my newly arrived family in a golf cart, introduced himself, directed us to the Stations of the Cross, an told us to be sure to check in at St. Rita.

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    1. You are right. They have been planning this for seven years and counting. Just think if they had given us a heads up what we might have been able to do. They only gave lip service to the coalition. Perhaps they kept quiet because the 1 Carter disaster was happening.

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    2. I don't know why everyone is acting surprised, here. The eventual plan to develop the monestary was a strong possibility back when everyone was distracted by 1 Carter and the Hillside Management Zone. That was when the potential zoning change was discussed.

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    3. Times sure have changed. It makes you long for the old days. Wouldn't they attract more supporters and more people to Christ with more of an open arms philosophy. You can go to Sierra Retreat in Malibu almost any time you want. Is it any wonder why these latest Priests have lost their way.

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  2. That's going to be an interesting issue for any developer. God knows how many people walked their dogs and did other things over at the Monasterary grounds. I'm sure that's why they put up all those fences and gates. Somebody needs to lawyer up and assert their rights.

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    1. I walked with my children up there for years. Then suddenly one day we started being accosted by security. Then then new fence went up at Carter.

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    2. No good deed goes unpunished.

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    3. 50 yuppie mansions on what was once one of the most breathtakingly beautiful monasteries anywhere is no good deed.

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    4. I guess I consider myself the Jane Doe on the post because I used to walk my dog almost every morning on those grounds until they put the fence up a few years ago. I certainly never had their permission. I just did it. I'm sure they all knew about it too. For me, it wasn't five years. It was more like 15 years.

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    5. I am not in favor of massive development on the Monestary site. However, this is private property. Just think about that for a few minutes as if it was your property and your investment. All of this chatter about prescriptive easements is distracting. None of us has the kind of money it takes to win a battle like that. The focus should be on defeating or minimizing the impact of a zoning change. And everyone should be prepared to run this like a campaign, so be prepared to pony up some of your money and time to get the best possible outcome.

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    6. So is it Harwick or Hardwick? You are confusing, Bess.

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    7. Hardwick

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    8. Thats Mr. Bess for you.

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    9. 10:01 am is talking out of both sides of his/her mouth. "I am not in favor of a massive development," and "None of us has the money" - isn't that the primary propaganda all developers use? Let us develop or we'll sue you and you can't afford it. But in this case, 10:01, there would be no grounds for a suit. Try something else.

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    10. As far as 10:01 goes, all that's being brought up is a potential obstacle to the development along with all the other ones out there. You're right its private property. I own my property too. Does that mean I'm allowed to maximize my investment and build a 6-story hotel and block the views of my neighbors and all the other ramifications - of course not. That's what Mater Dolorosa is doing here. They can apply for a zoning change that nobody wants to see happen. We want to preserve Sierra Madre and prevent people from doing things that hurt their neighbors not to mention the impact this will have on the community as a whole.

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    11. I undestand the "private property" argument but you can do things for your own "investment" that cause a problem with your neighbors investment. That's why among all the other people that have concerns, the neighbors are probably most concerned. Its about being a good neighbor. That fact is that for a number of years now, Mater Dolorosa has not been a good neighbor and how they are willing to cause a bloodbath for their own financial windfall. They should ask themselves, "What would Jesus do?"

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  3. New Urban West is going to run into one problem after another up there. Whether its the zoning change, water crisis, wildlife corridors, affordable housing requirements, finding additional entry/exit points and now prescriptive easements. I just don't know how its going to be a viable project.

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    1. There is a Planning Commission meeting tonight. Although the Monastery is not on the agenda, this is an opportunity to voice your concerns and objections during public comment at the beginning of the meeting. That way the entire city and the developers who will be watching will hear your message.

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    2. Maybe it would be more useful to request that everyone come to the meeting on June 24th when the building moratorium will be on the agenda.

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    3. This is now crunch time. We know everybody is busy. Certainly if you can only come to one meeting this month, June 24th would be the one. If you have more time, try to come to the other meetings too. Make your voice heard!

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  4. This all comes down to a basic problem and it arises whenever you try to change the use of a property or significantly alter your property. People buy a home in a neighborhood based on the home itself and the conditions around it. When a property owner decides to change that use or alter things in some way, the neighbors understandablly have problems. If you put a second story on your house, now you've blocked the neighbors views and light coming in. There was a minor tempest recently in South Pasadena because a local church wanted to have an after-school program for kids at their faciility. Well, the neighbors were up in arms about that. They bought their home because it was next to a quiet church. Sure they new it would be more crowded on Sundays. They did not buy a home next to a noisy school. LIkewise, Mater Dolorosa wants to change what was an idyllic, pastoral setting over there and cram in 50 homes. Talk about changing a neighborhood. Do people realize how much additional people and noise and traffic that creates - and not just for the immediate neighbors but for a very wide area. It can literally change a community.

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    1. Here in Sierra Madre a similar thing happened. The neighbors on E Laurel bought on a quite street and knew there would be noise during school hours. Then came Little League and Girls Softballs 7 days a week. Noise and problems 7 days a week starting early on Sat and Sun mornings. Now the huge new school that will house 50% more kids. Neighbors in Sierra Madre have no rights.

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    2. In the age of the "me" generation, people and institutions seem to only look out for themselves. The heck with the neighbors or the impact changes have on other people.

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  5. The Brothers can easily raise money for their retirements without having to go through all this. Its crazy. The problem is they have some pro-development people on their board who are pushing this project.

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    1. Thornton owns an investment company for aging yuppies. He is trying to put a big win into the company portfolio. This project is cynical and ugly.

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    2. 6:10 Can you provide specific examples of how the priests at Mater Dolorosa can easily raise money?

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    3. This has been covered before, Socrates. But can you divide $20,000,000 by 63 and then give us your take on what a vow of poverty is?

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    4. 7:13, can you please off the sarcasm and let's debate the facts, ok?

      1. Where do you get the $20,000,000 figure from. Has money changed hands that we don't know about? If it has, please give details, I'm sure everyone wants to know.

      2. If you had 63 elderly relatives, would you want to personally guarantee to pay 100% (no Medicare, no Social Security) of their support, including unlimited medical, nursing, Alzheimers, (if needed) and all types of care for the rest of their lives? One extended hospital stay easily exceeds $100,000.

      Hint: #2 is a yes/no question.

      Thank you.

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    5. The $20,000,000 figure is what the property is being sold for. A pretty widely distributed figure in the local media. If you have a better number, why then you just let us know, OK? And to answer the question you don't care to deal with, $20M divided by 63 is $317,460.00. The answer to question #2 is I am not my brother's keeper. Nor they mine.

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    6. 11:46, I'm assuming you mean "sold for?"

      Here's some more discussion questions:

      1. Would you give up your retirement plan, savings, health insurance (if any), medicare, social security, etc. for $ 317,460 (the number you calculated). That means, from retirement onward, that is ALL you can use.

      I wouldn't take that offer myself, too much chance of outliving my money.

      2. Assuming you're not your brother's keeper, than why would your "brothers" aka the Passionists, owe you anything because they want to sell their own land?

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    7. For 7:10 and 10:12, you want some specific ways to raise money ok. Try the recent campaign to raise 5 million dollars for aging priests on Mater Dolorosa's which was on Mater Dolorosa's own website as recently as Nov. 2013. My understanding is that campaign was a success because people came to the table. If that money is not enough, do another campaign. Read the lastest issue of the Tidings, there is an add announcing a fundraising dinner for a foundation with the acronym SOAR which is also raising money for aging priests. What is different about this retiring generation of 63 priests who need so much money. Now if you want to admit to me that the money will be used for paying off legal judgments against pedophile priests, then there will never be enough money to do that. Raising money for retiring priests is no problem. Its being done right now.

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    8. The LA Diocese is raising money for LA Diocesan priests. Priests of a specific orger, e.g., The Passionists, are not included in that fund raising.

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    9. 11:55 - Just because the Passionists haven't seen to their retirement needs like the rest of us is no reason to give them license to destroy an important part of our community. I know that most development flacks hate to admit it, but homeowners have rights, too.

      I am sorry, but that awful development NUW and Cam Thornton is pushing is an awfully high price for Sierra Madre to pay to clean up somebody else's human resources failures.

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    10. I agree. If the Passionists had taken care of business they wouldn't have to be selling everything off. Why do we have to suffer the consequences of their incompetence?

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    11. Why did the Passionists have a successful campaign to raise 5 million dollars fairly recently. What was that money used for? Was it raised under false pretenses? If they needed a larger amount, why wasn't that the number to shoot for. People gave generouosly to that campaign. I'm sure that if people knew that if the Passionists did not raise additional money, Mater Dolorosa would be sold off, I'm sure people would have been even more energetic and generous. Let's hear from the one person whose responded at 7: 10, 10:12 and 11:55. Answer these questions for us. 1. Why was the campaign for aging priests only for 5 million if you needed more money? 2. Since the campaign was successful, why not do another campaign? 3. Where did that money go? 4. Why was the sale of the Monastery kept a secret from the donors to Mater Dolorosa itself? 5. Obviously people love Mater Dolorosa, don't you think it would have been good to mention it to your Century Club Donors (ie. your bigger donors like myself) so that we would know that the sale of the land was a possibility. Don't you think that would add a little more motivation to our donations. Why was it kept a secret?

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  6. This is precisely why you have to be careful if you own vacant land. You may not realize that someone is walking across your property every day to go to the store and after 5 years, you may have a problem with building your dream home.

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  7. All those dog walker and other users should get together. You folks may be able to preserve that land all by yourselves. Save Mater Dolorosa from themselves. The previous people up there would never have allowed the sale of this land. They loved that property too much to sell it off to a developer.

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  8. I'd like to hear a few lawyers weigh in on what the "world famed legal expert" has said.

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    1. As far as I can see he nailed it. Mater Dolorosa has a huge path straight across the south end. I used to ride my bike on it. Connected Sunnyside to Carter for me.

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    2. People used to walk all over that property and not just along the edges.

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    3. key words are "used to" - when did the security and lockdown take place and start the calendar

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    4. Will the new public streets be considered public access? Just wondering.

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    5. 7:57 - it hasn't been 5 years and Thornton has made his development intentions more than clear. A massive screw up.

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    6. I used to go on long walks in the evening all over those grounds for years. I followed a path that went form the bottom right through the middle and up to Bailey Canyon where i would head up to Jones Peak.

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  9. Wait until the environmental impact report is done. You think you see problems with this housing project now, its only going to get worse.

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    1. Danny was trying to help them out by putting 60 houses into our General Plan.
      Sorry Danny you loose.

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    2. Maybe they'll find some Native American bones when they start digging. That will put a halt to the development real quick. Maybe its an Indian burial ground. Someone should alert the local tribe that resided in this area.

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  10. Remember the old days up at the Monastery grounds. Everything came to a halt when they stopped the annual Fiesta. They kind of shut themselves off from the community and now only care about funding the retirements of 63 priests. There has to be a better way than selling off land that you can never get back. The Huntington Library went through some tough financial times and because they didn't sell off their "excess" land, you now have the beautiful Chinese gardens almost completed. But of course, the Huntington Library had solid people on their Board who had the vision to hang onto that land. Even if Mater Dolorosa can't think of any use for it right now, although it was certainly nice to have to handle all the people there for the Stations of the Cross on Good Firday, they may think of some great use down the line. But then it will be too late.

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  11. Let New Urban West spend alot of money first and then spring the prescriptive easements on them. That will serve them right.

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    1. they already knew this, that is why they are counting the clock when they blocked off all access after all the years - they were told they need 5 years of control of the property stopping any pedestrians

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    2. Can't spring it on them now, the blog told everyone. I am sure that they are looking into this as you read the Tattler. Sometimes it's better not to let the opposition know your secrets.

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    3. It is only a secret if you're dirt dumb.

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    4. It not a secret to the team of experts Father HIggens said that Mater Dolorosa has access to on their pro-development Board of Directors. They knew what they were doing when the fence and gates went up and when they would accost you when you tried to walk on the property. The only people who didn't know were the poor residents who suddenly found they couldn't walk their dog anymore.

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    5. Mater Dolorsa has kept this a secret for years. Even some of their biggest donors were surprised by the announcement. We should have been tipped off when Jerry Pierson was attending every meeting out there trying to make sure they were positioned to go forward.

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  12. Does this re-zone and project require an environmental impact report?

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    1. from what I"ve heard it's not zoned for housing but all it takes is a Council vote and it's done

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    2. You're right 7:54.
      The council should not have that power.

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    3. Any councilmember who votes to change the zoning at Mater Dolorosa needs to face a recall.

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    4. Any project over 1 acre in SM needs a master plan which includes an EIR (or waiver of same). 7:54 is incorrect.

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    5. 7:54 was referring to the zoning part, and is correct that a council can change it.

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    6. I do not see this Council ever approving this zoning change. At least 3 new members campaigned on preserving Sierra Madre. How could they go back on that promise and approve one of the largest housing projects Sierra Madre has seen in decades particularly under the circumstances we have now.

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  13. 6:30 - Yes, of course it requires an emvironmental impact report, but...don't trust City Hall to get a company that will get an impartial one, and not slant the impact (or non-impact) their way. I talked to a friend of mine who said she had heard that it is a done deal - there are 50 houses going up. Please, everyone, talk to your neighbors, and get them involved, and ask them to talk to their neighbors. Planning Commission will be meeting tonight and discussing the General Plan Update. We need people to speak up and ask them to pass this asap..not the same three people who usually speak. PC and City Council need to know that there are people out there who care.

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    1. The parts of the general plan on the agenda tonight are not connected to this.

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    2. Speak up anyway during the public comments section for non-agenda items. This is our town. Let them know that we don't like this.

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    3. I hope that works, but my experience has been that it is very difficult to get people to come to meetings, and even more difficult to get them to speak. Targeted meetings will get more support - random come to all meetings will dissipate it. Most people will come to one or two a year.

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    4. The parts in the general plan update has a lot to do with this. Tonight deals with fire, earthquake, flood/landslides and noise. The fire safety portion is the most important, for example: "Consider water availability in terms of quantity and water pressure for safety purposes when considering the size and location of new residential construction."

      Also some portions deal with density, traffic congestion, etc. in terms of fire safety.

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    5. I agree with 1:55. Pick your best battlefield.

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    6. There is an organization out there called the Center for Biological Diversity. You can google them to find out what they do and how effective they are. They are experts at scrutinizing EIR Reports. They have been very successful in stopping development throughout California. They will be able to review any EIR report and point out the issues. Even though the developer has deep pockets, there are alot of resources at our disposal. There are a number of group that will be looking at any project at Mater Dolorosa.

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  14. I've heard rumors that the developer wants this to be a gated community. Is that true?

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    1. As bad as this project would be, that would be even worse.

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    2. As a fitness buff, the Monastery was one of my main workouts. Going up the hill and down was great training.
      Going on the path and off the path worked up a pretty good sweat. While I didn't do it every day, I was fairly consistent if that meets the requirement for a prescriptive easement.

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    3. Sierra Madre does not allow gated communities. Curious about 1 Carter.

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    4. The rules change all the time in this town. Money speaks louder than laws.

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    5. I think the chain across the road to the upper part of One Carter is for fire safety. Apparently kids were going up there and having parties - including throwing cigarettes and bottles in the bushes. People can just duck under the chain and keep going up. It just stops cars.

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    6. Yes, this is exactly what the chain across the road to the West Ridge is meant to do. Walkers with or without dogs have access. On the 4th last year there were 30 cars up there and the next morning I found spent bottle rockets, "safe and sane" fireworks and cigar and cigarette garbage all over the place while on fire patrol for CERT.

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  15. God is money - money is God

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    1. Not in my church, 7:53. Project much?

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  16. This comment has been removed by a blog administrator.

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    1. Somebody is not happy with the way the conversation is going this morning.

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  17. The holy men of my church don't touch children inappropriately so my God doesn't need millions to exist, and they don't retire or spend money to stay alive as long as possible. They do not fear death as so many Catholic Priests seem to.

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  18. Moderator: my posts don't seem to be posting if I include my name. How can I post under my name and not "anonymous?"

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    1. Works for me. Click on the "Reply As" function and then scroll down to "Name/URL." Type your name in there. Either that or find a teenager to help you.

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    2. How aged of me Batman, not to realize that I don't need a URL.

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    3. I'm here all week.

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  19. If they had done a mass mailing to everyone in Sierra Madre seven years ago when they started discussing their financial woes, perhaps a solution could have been found. Contact the people below and let them know how you feel. Call, write, email. The more input that the City Council and the Planning Commission get, the better. I’m sure that you’re already doing this but it doesn’t hurt to repeat. .

    City Hall: 626.355.7135
    Mayor John Harabedian JHarabedian@cityofsierramadre.com
    Council Member Denise DelMar ddelmar@cityofsierramadre.com
    Council Member Rachelle Arizmendi rarizmendi@cityofsierramadre.com
    Council Member Gene Goss ggoss@cityofsierramadre.com
    Development Services Director Danny Castro dcastro@cityofsierramadre.com
    Planning Commission http://cityofsierramadre.com/planning-commission
    Cameron Thornton, Board Chair, Board of Directors, Mater Dolorosa. Does not live in Sierra Madre Cameron@cameronthornton.com
    Retreat Director Michael Higgins, 355.7188, materdolorosa@materdolorosa.org

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  20. At the very least it could be a great delay. The more money a project like this bleeds, the better are the chances of defeating it. With gates opening into the open space, it would be hard to deny use. Could be a fun ride. Don't forget to add the water problems and this project should be on the ropes.

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  21. At the very least it could be a great delay. The more money a project like this bleeds, the better are the chances of defeating it. With gates opening into the open space, it would be hard to deny use. Could be a fun ride. Don't forget to add the water problems and this project should be on the ropes.

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    1. Dr. Staccato's remarks are so good, and so welcome, they get posted twice.
      Thanks Doc

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    2. Hey Bart!
      DOC STACCATO is back, bet your dinner isn't going to taste good tonight.
      LOL

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    3. If enough people send an email to the elected representatives mentioned in the previous posting telling how you feel about this, it can be defeated. Everyone just has to send one email blast to all those people.

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  22. We bought our house over 35 years ago not only to raise our family in but as an investment toward our retirement. We are now ready to retire and were so happy that real estate is up again and now we're faced with this. Of course, the bigger picture of losing the glorious property is paramount. When we lost the actual monastery I cried for months and this is far, far worse. Selling a house on North Sunnyside now is going to cost us at least a couple hundred thousand dollars. IF we can even sell it. I sure wouldn't buy a house that's going to have 50-60 houses going up practically next door with all that commotion for the next 5 years. I'm so angry. Just glad I won't be living here...even if I have to walk away, I will not live here with houses on that property.

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    1. Thank you for posting.
      Don't give up yet.

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    2. It is sad to see this happen. And its more than just the houses. It is showing the hypocracy of a supposedly religous organizaton. That hurts just as much. It didn't need to be sold for almost 90 years during ups and downs I'm sure. Why now? Why for these 63 priests? If they are able to push this through, it will be the last time I ever set foot on those grounds. I want to remember it the way it was. I will certainly not make any more donations to the retirement fund like the recent 5 million dollar campaign for that very purpose. While that campaign was going on, the Passionists kept the sale of the land a secret. Why? Why? Why?
      I'm so upset I can't even write any more.

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