Sunday, June 22, 2014

Could The City Attorney Be Wrong About A Two Year Legal Limitation On Building Moratoriums?

Teresa of Barstow
It has long been the suspicion of some in this community that the developers and Realtors in the area have an attorney working at City Hall that we pay for. Which would be quite a convenience for them, and something that could give them a bit of a leg up when it comes to things like controversial land use issues.

Now I am not going to say here that what follows is any proof of this contention. However, it also does not contradict this notion either. And that this rumored faithless attorney working at City Hall is actually our City Attorney, well, that would certainly be a bad thing if true. It is unfortunate enough that certain elected individuals are also suspected of being faithless as well. We just don't seem to be having much luck with the government officials we date. In the metaphorical sense, of course.

On the matter of any time limitations to a possible building moratorium here in Sierra Madre, one predicated on the rather undeniable fact that we have run out of water and what we are importing to replace it is not regarded by many as being pure or healthful (at least after it hits our decrepit and rather ancient city plumbing), Sierra Madre City Attorney Teresa Highsmith pronounces the following legal opinion. This is taken from the current staff report on this matter, written for Tuesday evening's City Council meeting. It is currently parked on the City of Sierra Madre website and can be easily linked to by clicking here.


If true, and that is how this Govt Code does appear to be written, it would certainly be convenient for those in the McMansion development community opposed to any building moratorium based on our locally non-existent water supplies. That Ms. Highsmith supplies no other opinion on this matter in her report to the City Council except to say that there is a maximum two year limitation on such moratoriums in California, certainly seems to indicate an unshakable belief that this interpretation of the moratorium question is not open to challenge.

So how do you explain this (link)?


Apparently the City of Cambria, which like Sierra Madre is in California and therefore subject to the same state laws, had in 2012 a water supply based building moratorium in place since 2001. Which math shows is far longer than two years.

So what's up with that, Teresa?

Et Cetera: Does anybody know anything about this?

That certainly must have been an interesting time for Ms. Highsmith.

Link here.

http://sierramadretattler.blogspot.com

79 comments:

  1. Under California Government Code section 65858
    California law on building moratoriums:
    "...An urgency ordinance may remain in effect for only 45 days, unless it is extended by another four-fifths vote. After notice and a hearing, a local government can extend the ordinance for either ten months and 15 days, with the option of an additional one-year extension, or 22 months and 15 days. In other words, an urgency ordinance can be extended so that its full duration is up to two years. Any extension requires a four-fifths vote of the local legislative body...."


    669.5. (a) Any ordinance enacted by the governing body of a city,
    county, or city and county which (1) directly limits, by number, the
    building permits that may be issued for residential construction or
    the buildable lots which may be developed for residential purposes,
    or (2) changes the standards of residential development on vacant
    land so that the governing body's zoning is rendered in violation of
    Section 65913.1 of the Government Code is presumed to have an impact
    on the supply of residential units available in an area which
    includes territory outside the jurisdiction of the city, county, or
    city and county.

    "...(d) This section shall not apply to a voter approved ordinance
    adopted by referendum or initiative prior to the effective date of
    this section which (1) requires the city, county, or city and county
    to establish a population growth limit which represents its fair
    share of each year's statewide population growth, or (2) which sets a
    growth rate of no more than the average population growth rate
    experienced by the state as a whole. Paragraph (2) of subdivision (a)
    does not apply to a voter-approved ordinance adopted by referendum
    or initiative which exempts housing affordable to persons and
    families of low or moderate income, as defined in Section 50093 of
    the Health and Safety Code, or which otherwise provides low- and
    moderate-income housing sites equivalent to such an exemption...."

    Neuroblast Films

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    1. I confess that I'm still confused about the 2-year limit. What happens if you need to go beyond two years because the water problem still exists.

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    2. Notice that the operative word in the phrase is "Urgency." What if an ordinance goes through the normal process? No one seems to be talking about that.

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    3. California Govt Code 65858 Section C http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=65001-66000&file=65850-65863.13 seems to state that a city can extend the time past those 2 extensions: (c) The legislative body shall not adopt or extend any interim
      ordinance pursuant to this section unless the ordinance contains
      legislative findings that there is a current and immediate threat to
      the public health, safety, or welfare, and that the approval of
      additional subdivisions, use permits, variances, building permits, or
      any other applicable entitlement for use which is required in order
      to comply with a zoning ordinance would result in that threat to
      public health, safety, or welfare.

      Perhaps Cambria has been shown their water to be a threat to health, safety, and welfare; if so, then Sierra Madre could do the same.

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  2. The two-year limit makes no sense whatsoever and simply can't be correct. The idea that you are allowed to call for a building moratorium when an emergency exists and yet, after two years, if you were not able to solve the emergency, you cannot continue the moratorium using the same reason or conditions for the emergency that was the basis for the building moratorium in the first place. The Tattler must have that wrong.

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    1. I was asking if the City Attorney had it wrong, or left something out. The question I have is how did Cambria put a water related moratorium in place for over 10 years when California Government Code section 65858 says there is a two year limit. There must be more to this than we have been told.

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    2. I'm sure that Cambria didn't have to keep inventing new reasons for the building moratorium in order to have it continue beyond Highsmith's two-year period. Either you have a water emergency or not, and if you do, the moratorium has to continue indefinately until you come up with a "reasonable" solution. Obviously, a city can't sit on their hands but I don't think a reasonable solution for Cambria would be that they can simply connect to an MWD-like supply and get yellow and more expensive water that kills fish. That's no solution and yet that is exactly what Sierra Madre has done. Why should the existing residents of Sierra Madre put up with yelllow, toxic water at higher rates for the benefit of developers and future residents. Tell me where I'm gong wrong in this.

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    3. HIghsmith is either legally correct or she isn't. Is there an expert out there that can tell us what the rules are about this 2-year limitation the Highsmith alleges.

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    4. If you look at the staff report, they also cite State Water Code350 which says "There is no time limit on the application as long as the water shortage emergency conditions remain." The City will have to prove that there is a water shortage emergency condition that would effect heath or safety.

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  3. Cambira will not be issuinig any new building permits in the near future. As a homeowner in Cambria, I was just penalized over $100 on my recent bill for going over my allotment. There is a popular place in town called the Main Street Grill. There is a sign on the bathroom that says you can't use it because of the water emergency. Those signs are all over town.
    We certainly don't want to get to that point in Sierra Madre. The MWD hookup does not seem to be an effective solution with the yellow chunky water that is unfit to drink. Even if we the prolonged drought improves, will over-development mean that we will still be unable to rely on our own water supply because projects like One Carter, The Kensington, Stonehouse and Mater Dolorosa insures that we will never be able to disconnect from the MWD.

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    1. Thank you for this post, 6:58!!

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  4. What about putting such a high fee/tax on building that it's just not profitable for developers?

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  5. If we don't have the water, how can they possibly be allowed to take what we have? We are on rationing. How can the city council even think of taking what little we have and giving it to developers?

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    Replies
    1. This is a trick question..yes!!!

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  6. Even a two-year limitation is of help to buy some time to make sure the General Plan is air-tight and figure out what the build-out numbers are for Sierra Madre. Until that is figured out, it is irresponsbile to give the green light to all these major developments.

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  7. Anybody know anyone in Alameda?

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  8. Even up until a year ago, I don't think anyone on the General Plan Commission or elsewhere, realized the extent of the development pressures that are coming to Sierra Madre. As the economy improves, as adjacent cities get built out, as a massive influx of immigrants comes to the San Gabriel Valley, Sierra Madre will be the focus of attention for developers. As residents, we are allowed to determine what our town should look like and control those standards. If we don't want McMansions like Arcadia, we need to make sure our building rules reflect that. If we don't want massive new projects like Mater Dolorosa, we need to make sure our zoning standards reflect that. Its really up to the residents and our representatvies to determine our future. Developers will never change. If they can exploit loopholes in our building codes they will do it. City Hall will also never change. Whatever they can do to bring in more revenues so that more monies are available to fund their salary increases and retirements, they will do so. If up to us. If we care enough about preserving Sierra Madre and the lifestyle we all enjoy, then we will be roused to action like a mother bear protecting its cubs. If we don't care, then we need to live with the consequences and not complain. Sierra Madre will become just another town like Arcadia.

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    1. My thoughts are, we should band together and force a 15-20% pay scale reduction on the highest paid employees. How is it that we're supposedly upside down in a fiscal crisis, but yet the water superintendent has a comp plan of $120k a year, the city manager $237k a year, and the library director $135k a year??? Oh, don't forget the director of public works @ $157k. They always fall back on the fact that these salaries are lower than surrounding communities, but those cities aren't in a crisis like we are! They also have much larger commercial areas than we do. Bottom line is that these listed salaries are not in alignment with the size and scope of this city.

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    2. Thank you....This sums it up nicely!!!!

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    3. the arguement that staff uses that our staff gets paid less than other cities in our area

      well, our city is 10,000 residents and just over 3 miles in size

      the comparison isn't remotely the same

      not only are we getting taken advantage of with payscales, the pension plans are outrageous

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  9. Look, the people of Sierra Madre outnumber the council, city staff and developers. We can stop them.
    Get involved and fight back. Yes, they can out spend us, but just as in Measure V fight, we can win regardless.
    Their position on building when we have not enough water is indefensible. They want greed over rights of our residents? This is just wrong.
    I see neighbors are in Kersting Court urging a building moratorium and urging folks to attend Tuesday night's council meeting to speak out and/or show their support for a moratorium. Please join together. We can win.

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    1. Thank you and 7.28 for this "Call to Arms". I shall certainly be there to support an attempt at a common sense Moratorium .
      It is encouraging to see talk of action and not just(understandable & reasonable) venting.
      Without decisive action Sierra Madre will be ruined .

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  10. City Attorney Highsmith could have been replaced in early 2013. Ask John Harabedian, Nancy Walsh & Josh Moran why they thought a bigger, better law firm wasn't a better idea.

    PS: at that time, the city had no idea about the Alameda / Barstow connection with Highsmith. Really smart hiring, huh?

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    1. That bigger better firm specialized in water issues, too.
      What a lost opportunity.

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    2. Current council could throw out the City Attorney. Only takes 3 votes.

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  11. What strikes me so strongly about this are the political skills of the development community. Is there any aspect of relevant law that they haven't dictated?

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    1. you aren't surprised are you?

      look at who we elect and their employment

      a commercial banker, two utility company lawyers, mortgage salesman, building industry lobbyist, construction company owner etc

      and we get those that are fixated on a political career or status like Harabedian and we almost screwed up and elected Noah Green - two more mouthpiece lawyers

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  12. Teresa has the ethical compass necessary for a Colantuono attorney.

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  13. If the building moratorium is passed tonight, when does it take effect? I am wondering if the city is introducing this because ultimately it will serve their purpose. I would think it could possibly take two years for the EIR, public hearings, etc. to be completed. By then, the moratorium will have ended. The developer will be able to build without any fear of a moratorium, due to the two year maximum.

    Are we shooting ourselves in the foot (ultimately) if we vote this moratorium in right now?

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    1. Harabedian and Capoccia are going dump this on the EENERs. No way those two sellouts are going to vote for a moratorium.

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    2. EENER has no water expertise. We should have hired the other attorneys and dump Coluntano.

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    3. The EENER gambit is a dodge cooked up by the mayor and city manager. It is a needless distraction.

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    4. You obviously didn't hear that they are experts. About everything.

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  14. The two year limit is due to Sacramento corruption. The development and realty lobbies hated that cities were using building moratoriums to save themselves from overdevelopment. So they paid the crooks in the legislature off.

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  15. If the city 'had no idea about Highsmith’s Alameda/Barstow connection' it begs the question: Why not? Didn't they do basic Google homework on her background? After all, the job of City Attorney is critically important if we want to control irresponsible over-building.

    OR, maybe they did know!

    Sierra Madre City Hall: "Highsmith makes up lies out of thin air? Good at shenanigans? No moral compass? Hired! Welcome to Sierra Madre! We need to bamboozle the townies so we can build like crazy all over this scenic village. "

    Highsmith: “Happy to be aboard. Wasting voters' time and money on bogus issues to sneak in big development is my specialty! Thanks for noticing."

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    1. I think I remember the Alameda situation was brought out at the council meeting where they decided on the city attorney. Teresa deftly side-stepped the issue. Or perhaps it was never considered because the fabulous three voted to keep her to spite Chris Koerber. Remember what Nancy Walsh said prior to the vote something like, I never wanted a change, and I don't want a change now.

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  16. A city attorney in Alameda is paid $202,000 a year with car allowance. From there Teresa fell all the way down to part time legal work in Sierra Madre. And she had to fight to hang on to that. Quite an accomplishment.

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    1. We hire the Best!!!

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  17. A building moratorium that goes on forever is a taking" under the constitution. It is government action that impairs that value of private property without compensation and is therefore illegal.

    What you should do is sponsor a Sierra Madre Growth Management Ordinance that caps new units at 1% growth a year (probably 50 units). Cambria limits water hookups because a) their only source of water are two rivers (and the state limits the amount they can take from the rivers and some wells that have limited capacity and b) the County of San Luis Obisbo has a Growth Management Ordinance that limits growth to 2.3% a year.

    You can't limit water hookups and impair property values because you have an outside water supply (and it doesn't matter what you think about the quality...no judge will ever rule that MWD water isn't adequate) and you can't have a building moratorium for more than 2 years.

    But you can pass a growth management ordinance. You are being told what you CAN'T DO by the City but of course they are lying to you by omission because you aren't being told what you CAN do. That plus the kooks always want zero building with no compromise and as usual the extremism of the kooks prevents and obscures the real solution.

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    1. It isn't a taking if there is a legitimate reason. Our water infrastructure is a health hazard and our supply is limited. Our understanding with the SGVMWD is tenuous at best. If our city government doesn't fight overdevelopment over this issue then they are useless to us.

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    2. I don't recall anyone calling for zero building, 11:09. So why ruin what was otherwise a good comment with stupid name calling? Mommy subject you to rough toilet training as a child?

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    3. How about if we put a two year building ratorium in place while we figure out a Growth Management Ordinance.

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    4. Having water hook-up restriction drives property values way up.

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    5. Yep. Nothing drives property values down like overdevelopment. Especially the kind the False Fathers are plotting.

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    6. I like the idea of a Moratorium followed by a Growth Management Ordinance that is in keeping with what the residents want.

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  18. These lines of argument always make me laugh because you never think about the consequences of your arguments.

    If you argue in front of a judge that your water infrastructure is a health hazard what do you think he then rules next under state/federal environmental law in order to solve that problem?

    How about a court order that forces Sierra Madre to fix its water system no matter the cost? Would you like that? How exactly would you defeat that when you just got through claiming it was a "health hazard"?

    How about a class action lawsuit by a group of residents that claims it is a "health hazard" and that the City should be forced to re-pipe no matter the cost.

    Your water infrastructure is not a health hazard (unless you want a federal court order bankrupting Sierra Madre) and supply is not limited because you are importing water from the MWD.

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    1. Good point. Perhaps we are only a year or two from a visit by the EPA. You must ask yourself this. How did the water infrastructure of Sierra Madre get this way? Maybe because the water enterprise was looted for decades? No wonder they fought Kurt Zimmerman's call for a forensic audit.

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    2. "Lying by omission." Correct.

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    3. The City Council needs to direct the City Staff to come up with all the options at our disposal to limit growth in our City. That should be the focus. Let's look at the menu and see what is best for the existing Sierra Madre residents - not what's best for the developers or for future residents.

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  19. fighting over-development does not mean imposing zero development and as long as you continue to claim that it is you will lose.

    A growth management ordinance set at growth of 0.5% should do the trick

    better to focus on a realistic and lawful solution then make these dishonest and emotional claims that ultimately will go nowhere (or worse lead to disaster).

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  20. How would you like Mater Dolorosa to file a federal lawsuit claiming that the City's water infrastructure is a "health hazard" and should be upgraded by charging each parcel owner $7,000? Of course they might drop their lawsuit if you stop pestering them about their project.

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    1. I might like it if those responsible for the destruction and looting of Sierra Madre's water enterprise were arrested and put on trial for illegal commingling of funds. Forensic audit? Anyone? I promise to throw a perp walk party.

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    2. I'll bring the potato salad.

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    3. 11:49, I see you are familiar with the SOP of the developers - threaten, sue, have nice meet and greets, threaten and sue again.
      Such immorality is not without consequences, no matter how rich it makes you.

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    4. There is no court that can make a city council change zoning.
      What are you going to sue over now?

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    5. When will you all stop fretting about a forensic audit? No matter when a forensic audit is done, it won't uncover any crime that we don't know about, and won't have anything to do with the current water shortage. The only thing it would do is cost the city precious money that we don't have, to prove....nothing.

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    6. The truth will set you free, 12:29. It is time it all came out.

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  21. Does talking about water enterprise conspiracy theories solve the problem?

    You have already wasted years on an obsolete General Plan update that doesn't solve the problem. If it had solved the problem we wouldn't be talking about it.

    If you want to limit and control growth then either have the Council pass (or place before the voters) a restrictive Sierra Madre Growth Management Ordinance or put one on the ballot yourselves a la Measure V.

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    1. Again, declare a building moratorium and then do what you suggest. It doesn't have to be one or the other.

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    2. Not a conspiracy theory pal, fact. Years of diverting water company funds to uses other than infrastructure maintenance led us to where we are now. It is as plainly obvious as a sunrise. This didn't just happen by magic. Let go of your denial.

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    3. No denial either. The misused funds were replaced by a loan which the City paid off, the persons involved no longer here, and nothing can be gained to go over the sameo, sameo. The books have since been audited thanks to MaryAnn who insisted the City be caught up to date.

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    4. And those responsible for looting the water department and running it into the ground got off scot free. A very Sierra Madre solution. MaryAnn was never perfect and she came up very short here.

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    5. MaryAnn was not on the Council by herself, but with 4 other members.

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  22. I think a pro-over development slick talker (lawyer?) has joined us today.

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  23. call it the Sierra Madre Sustainable Community Ordinance....that way you can pitch it as environmental protection...and make it so that all new projects 5 units or over have to have 40% senior affordable units....which would be a poison pill and make any project uneconomical but you can say you are trying to increase your affordable housing stock.

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  24. I must say that these comments demonstrate why the Tattler is serving such a great purpose. Maybe the Growth Management Ordinance is the way to go. I also like the idea of a building moratorium to catch our breath and give us some time to implement the best solution for Sierra Madre. I can't imagine there are too many people who want Sierra Madre to look like Arcadia and other cities. We just need to come up with the correct and legal solution.

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  25. If you predicate a Growth Management Ordinance initiative on first obtaining a building moratorium you are never going to get started. There isn't going to be a building moratorium because Harabedian isn;t going to allow it to be agendized before there is a "process" and I guarantee you that "process" isn't going to be complete before Mater Dolorasa et al file for their building permits. Government gets what it wants by grinding the opposition down slowly and lying by omission constantly and lying by commission if it has to.

    Stop whining for someone else to solve the problem. Democracy requires citizens who are willing to get into the arena and force a vote.

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  26. How in the world is 50 units a year 'Growth Management'? I suspect this GMO is hazardous to our health! Right now we're a small town with low density single family housing. We want to stay that way. Our goal is a moratorium. No building--it endangers the health and well-being of residents already here. It's not responsible to pile more people into a lifeboat that's already too full. Our water canteen is empty.

    Zero building is not kooky, or extreme, or indefensible, or any other insult you can find in the thesaurus to bolster your bullying and your threats. Nice try though.

    Opening the door to any allowable percentage of mansionizing will throw back the gates of a hellish development frenzy. It will only take a few months to trash the serenity of our beautiful village: they will certainly fast-track construction. Cardboard Condos spring up in weeks, the five bathroom shacks take only a little longer. They can throw up those cheesy Big Macs in no time at all.

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  27. We don't have enough water right now. The MWD solution is not a solution for Sierra Madre. The water is toxic. A moratorium followed by a Growth Management Ordinance. That is what needs to be done.

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  28. I think Sierra Madre is at the most important crossroads in its history. Its either going to go down the path that Arcadia and Pasadena have taken and allow unmitigated development with the resulting increased density, congestion, pollution, parking meters, traffic lights - that's where that road eventually ends. Or the residents are going to rise up to make sure we go down the road of very limited growth and preservation. We will see who cares enough to get involved. The fight against the housing project at Mater Dolorosa is only one battle in the war but an important one. If you want to get involved, send an email to savemonastery@gmail.com

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  29. I think we have our best chance of enacting something to preserve our City with Arizmendi, Delmar and Goss. Harabedian is in the developer's pocket. Capoccia is the wild card.

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    1. A moratorium takes 4 votes to pass. But I think that is immaterial in this case. Harabedian will do anything to keep this from going to a vote. There is no way he wants himself or his pals having to go down on record as favoring these development projects.

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    2. One rather wise former City Councilmember put it best. John Harabedian is Joe Mosca with brains. No less dishonest, and certainly just as ambitious. But a vastly more talented liar.

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  30. From the Cambria city FAQ. They have a VERY different set up.


    What is the Water Master Plan?

    In 2008, the CCSD completed a Water Master Plan (WMP) to determine Cambria’s water needs for the future. It includes the eventual “buildout” size of the community and the corresponding water, sewer, and fire protection needs of that size community. Desalination was determined to be the best long-term, stable water source for Cambria. The CCSD is currently working through permitting and funding issues.
    On July 24, 2003, the CCSD Board unanimously voted to confirm the use of desalination as a long-term water supply project with the capacity of serving a maximum of 4,650 water connections. This number includes the current CCSD water users plus those on the water wait list.

    Why is there a waiting list for permits?
    There has been a long-standing water shortage, and because the County has imposed a “growth management” ordinance that limits annual issuance of building permits.
    The CCSD will not issue water commitments beyond those for which the County will process building permits.This ensures there is not a backlog of customers unable to build. The "County" wait list is NOT for water and does not constitute a water commitment by the CCSD.
    If a real estate agent tells you a property has a “waiting list position,” be sure to confirm that it is a CCSD Water List position, and not a County Building Permit waiting list position. You must have the Assessor’s Parcel Number (APN) to access waiting list positions.

    What does a waiting list position mean?
    It entitles you to a new hookup for water and sewer service when your position number is eligible for issuance, and upon your completion of all Intent to Serve letter requirements.
    When can my project get water service?


    For the 10 years prior to the November 2001, between 27 and 65 single-family projects received water service per year, depending upon whether San Luis County allowed a growth rate of 1% or 2.3% respectively.
    For a rough idea of how many years you may have to wait, divide your position number by 27 (for 1%) or 65 (2.3%) and add the number 13.
    The County of San Luis Obispo sets the countywide growth limit annually through limitations on issuance of building permits.
    The County will not process a building permit for any project that does not have water. Although it appears that the County will continue to annually set aside a number of building permit allocations for Cambria (they set aside 1% for each yer from 2002 to 2004), that does not mean the entire number of building permit allocations will automatically be issued Intent to Serve letters. Only the CCSD Board of Directors can set the annual number of Intent letters for water service

    Accepting an Intent to Serve letter means the applicant must meet a number of requirements with considerable financial commitments and time deadlines.

    ·If the owner is not prepared to actively pursue a building permit, hire an architect and builder, acquire financing, and pay substantial fees, they should not accept an Intent to Serve.
    ·Failure to meet the requirements can result in a project being returned to the waiting list and forfeiture of certain fees. A project may "defer" one time without penalty. Subsequent deferrals send the project to the end of the list. If you would like to apply for an extension, please click on Intent to Serve Extension Application.

    What about properties with no water position?
    ·If a property has no water position, it is questionable whether a water permit could be obtained in the future.
    ·Currently, the only option is to “transfer” water from another parcel that already has a position. The conditions under which a transfer is allowed include: matching ownership on the sender and receiver parcels in the transfer, and “retirement” of either the sender parcel or an approved alternate parcel. Transfers are limited to parcels with single-family residential water meters that meet certain size and location requirements.

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  31. Thank you for the details about Cambria. I used to own land there. I figured I could build in 10 years based on my water meter waiting list.. Then it became an outright moratorium many years ago because they could not solve the water crises. I ended up selling my land to someone who was willing to wait longer than I was and bought a home there. I don't begrude Cambria for doing the prudent thing to protect themselves. If people want to live in Cambria now, then simply don't buy land, buy a home.

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  32. Everyone needs to spread the word. If it weren't for the Tattler, no one would know what's going on in this town. Whether its a building moratorium or some kind of Growth Management Ordinance, we can control our own destiny.

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  33. at every Council meeting there should be only tap water availlable for Council to drink

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  34. If the city doesn't start behaving itself we'll take away the rest of their UUT. See how they like that!

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  35. Should that Highsmith article have said "caught red-handed lying" or "caught red-headed lying." I'm confused.

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