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HomeMy WebLinkAbout01/03/16 Minutes - Regular MeetingMINUTES OF THE CITY COUNCIL REGULAR MEETING OF THE CITY OF DIAMOND BAR MAY 3, 2016 CALL TO ORDER: Mayor Lyons called the Regular City Council Meeting to order at 6:30 p.m. in the South Coast Air Quality Management District/Government Center Auditorium, 21865 Copley Drive, Diamond Bar, CA. PLEDGE OF ALLEGIANCE: The Pledge of Allegiance was led by Evergreen Elementary School Student Annie Chen. INVOCATION: Randy Lanthripe, Pastor, Church in the Valley provided the invocation. ROLL CALL: Council Members Herrera, Low, Tye, Mayor Pro Tem Lin and Mayor Lyons. Staff Present: James DeStefano, City Manager; David DeBerry, City Attorney; Ryan McLean, Deputy City Manager; Ken Desforges, IS Director; David Liu, Public Works Director; Bob Rose, Community Services Director; Dianna Honeywell, Finance Director; Greg Gubman, Community Development Director; Amy Haug, Human Resources Manager; Kimberly Young, Senior Civil Engineer; Anthony Santos, Senior Management Analyst; Grace Lee, Senior Planner; Cecilia Arellano, Public Information Coordinator; and Tommye Cribbins, City Clerk. APPROVAL OF AGENDA: Mayor Lyons announced that Consent Calendar Item 6.10 would be pulled for discussion. 1. SPECIAL PRESENTATIONS, CERTIFICATES, PROCLAMATIONS: 1.1 M/Lyons and Council Members presented Certificates of Recognition to the Evergreen Elementary School Odyssey of the Mind Team, for becoming the California State Champions. 2. CITY MANAGER REPORTS AND RECOMMENDATIONS: None 3. PUBLIC COMMENTS: Pui-Ching Ho, Diamond Bar Library Librarian spoke about library events that will be taking place during the month of May. Saturday, May 7 at 2:00 p.m. the library will offer a public speaking workshop for teens 13 to 17. Wednesday May 11th there will be a special story time featuring The Tale of the Lucky Cat by author and illustrator Sunny Seki for children ages 2-11 sponsored by the Diamond Bar Friends of the Library. Please check the library's website at colapublib.org for additional programs. Cynthia Smith stated that she believes that there is a lack of conservation of Diamond Bar's natural resources, particularly with respect to the Millennium project and asked City Council Members if they had ever received financial contributions from Millennium or others related to the project within the last 10 years? Have your friends or relatives benefited from such gifts. She addressed MAY 3, 2016 PAGE 2 CITY COUNCIL C/Tye, C/Low and M/Lyons and asked for their answers stating that concerned voters have a right to understand what is behind city management decisions, especially in light of glaring contradictions as shown in the Millennium project. 4. RESPONSE TO PUBLIC COMMENTS: MPT/Lin asked CM/DeStefano if he had any comments regarding the previous speaker's claim that Diamond Bar's Conservation Code is "fraud" and compares the code with Claremont, etc. CM/DeStefano stated that he cannot compare the City's code to what other cities do because he is not familiar with other city's codes. What he can say to respond differently is that each city manages its trees, its forestry, and its urban areas differently. Foothill cities tend to be more preservation oriented. Most of the foothill cities nearby Diamond Bar are pretty much already fully developed and they are infill cities. Cities in more of the flatland areas such as EI Monte which was mentioned will have different policies than environmentally rich cities such as Claremont which is nestled up against the national forest. Diamond Bar's policies, programs, regulations and philosophy about trees and development grew about 20 plus years ago when the City embarked on its very first General Plan. Diamond Bar is now in the process of commencing a complete rewrite of that General Plan which he has mentioned in prior Council meetings. From the General Plan came forth policy statements that then needed to be implemented regarding such things as the City's natural resources. From that policy document came the Zoning Code which included Tree Protection Ordinances, Zoning which included development rights, intensity, density, setbacks, the Subdivision Code, different plans for different parts of the area, and preservation comments for areas like Tonner Canyon which is basically the area between Diamond Bar and Brea. All of those policy statements grew out of a lot of public debate. There were about a hundred public meetings during the General Plan development process in the mid 90's. During an upcoming City Council meeting, staff will be bringing forward a recommendation to hire a General Plan Consultant to begin a three-year process which will initiate the discussion again about all of these issues and policy statements. The time is ripe to talk about it again and to MPT/tin's original question, he cannot speak to how Diamond Bar compares to other cities which is not necessarily an appropriate comparison because it should be what Diamond Bar wants versus what another city is doing. Other cities can serve as examples but it is what this community wants and how the preservation of trees may affect private property rights while providing other environmental benefits. The balance of all of that needs to be looked at very carefully. 5. SCHEDULE OF FUTURE EVENTS: 5.1 Planning Commission Meeting — May 10, 2016 — 7:00 p.m., Windmill Community Room, 21810 Copley Drive (canceled). MAY 3, 2016 PAGE 3 CITY COUNCIL 5.2 Traffic and Transportation Commission Meeting, May 12, 2016 — 7:00 p.m., Windmill Community Room, 21810 Copley Drive. 5.3 City Council Meeting — May 17, 2016 — 6:30 p.m., AQMD/Government Center Auditorium, 21865 Copley Drive. 6. CONSENT CALENDAR: C/Tye moved, C/Herrera seconded, to approve Consent Calendar Items 6.1 through 6.9 with Item 6.10 set aside for separate consideration. Motion carried by the following Roll Call vote: AYES: COUNCIL MEMBERS: Herrera, Low, Tye, MPT/Lin, M/Lyons NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None 6.1 WAIVE READING IN FULL OF ALL ORDINANCES AND RESOLUTIONS AND ADOPT THE CONSENT CALENDAR. 6.2 APPROVED CITY COUNCIL MINUTES — Regular Meeting of April 19, 2016 —As presented. 6.3 RATIFIED CHECK REGISTER — Dated April 14, 2016 through April 27, 2016 totaling $944,587.43. 6.4 APPROVED TREASURER'S STATEMENT — Month of March 2016. 6.5 AWARDED CONTRACT TO ARCHITERRA DESIGN GROUP, INC. FOR THE DESIGN OF CONSTRUCTION DOCUMENTS FOR PETERSON PARK TOT LOT FOR $21,020; APPROPRIATION OF $21,020 OF PARK DEVELOPMENT FUNDS FOR THIS WORK; PLUS, THE DESIGN OF FOURTEEN (14) INFORMATION PANELS FOR THE CITY'S TRAILS, FOR $8,000 FOR A TOTAL AUTHORIZATION OF $29,020; AMOUNT INCLUDES $2,000 FOR REIMBURSABLE& 6.6 AWARDED CONTRACT TO WESTERN AUDIO VISUAL, INC. FOR NEW PROJECTOR AND SCREEN AT THE DIAMOND BAR CENTER, IN AN AMOUNT NOT -TO -EXCEED $55,000 INCLUDING CONTINGENCY FUNDS. 6.7 a) ADOPTED RESOLUTION NO. 2016-12: DECLARING THE CITY'S INTENTION TO LEVY AND COLLECT ASSESSMENTS FOR LANDSCAPE DISTRICT NO. 38 AND DIRECTED THE CITY CLERK TO ADVERTISE THE PUBLIC HEARING TO BE SET FOR THE JUNE 21, 2016 REGULAR MEETING. - MAY 3, 2016 PAGE 4 CITY COUNCIL b) ADOPTED RESOLUTION NO. 2016-13: DECLARING THE CITY'S INTENTION TO LEVY AND COLLECT ASSESSMENTS FOR LANDSCAPE DISTRICT NO. 39 AND DIRECTED THE CITY CLERK TO ADVERTISE THE PUBLIC HEARING TO BE SET FOR THE JUNE 21, 2016 REGULAR MEETING. c) ADOPTED RESOLUTION NO. 2016-14: DECLARING THE CITY'S INTENTION TO LEVY AND COLLECT ASSESSMENTS FOR LANDSCAPE DISTRICT NO. 41 AND DIRECTED THE CITY CLERK TO ADVERTISE THE PUBLIC HEARING TO BE SET FOR THE JUNE 21, 2016 REGULAR MEETING. 6.8 APPROVED CONTRACT AMENDMENT NO. 2 WITH HARDY & HARPER, INC. FOR THREE (3) FISCAL YEARS (FY 2016-17; FY 2017- 18 AND FY 2018-19) FOR ON-CALL PUBLIC WORKS MAINTENANCE SERVICES SPECIFIC TO ASPHALT PAVEMENT, SIDEWALK, CURB & GUTTER AND STRIPING MAINTENANCE. 6.9 ADOPTED RESOLUTION NO. 2016-15: ACCEPTING A QUITCLAIM DEED AND IRREVOCABLE OFFER OF DEDICATION FROM THE WALNUT VALLEY UNIFIED SCHOOL DISTRICT FOR PUBLIC USES SPECIFIC TO LARKSTONE PARK AND LARKSTONE DRIVE. ITEMS WITHDRAWN FROM CONSENT CALENDAR: 6.10 ADOPT RESOLUTION NO. 2016-16: APPROVING FINAL TRACT MAP NO. 53430 FOR THE SUBDIVISION OF AN 80 ACRE SITE INTO 48 RESIDENTIAL LOTS, LOCATED DIRECTLY SOUTH OF ROCKY TRAIL ROAD AND ALAMO HEIGHTS DRIVE AND WEST OF HORIZON LANE, WITHIN THE GATED COMMUNITY OF THE COUNTRY ESTATES IN THE CITY OF DIAMOND BAR. CM/DeStefano stated that at the conclusion of this agenda item and Council deliberation, staff is recommending that the City Council adopt a Resolution approving the Final Tract Map for this project. This is a 48 home, multi-million dollar luxury residential community proposed inside the gates of The Country Estates. This is the result of a project that the City Council approved in 2006. A Tentative Tract Map was adopted and approved at that time and with that Tract Map there were three resolutions that identified the variety of permits that went with that development. One resolution was for an Environmental Impact Report (EIR; the second was the hillside development incorporating a tree removal request, a variance for wall heights and the development itself on the acreage; and, the third resolution was specific to the subdivision of the land to create the 48 - residential lots. Before the City Council tonight is the Final Map. Within the resolution that supports the Tentative Map were approximately 161 conditions. About 35 of those conditions were very specific to be MAY 3, 2016 PAGE 5 CITY COUNCIL accomplished by the developer prior to the City Council's consideration of the Final Map. It is principally those 35 conditions the developer has spent the last several years working toward completion of and has processed all of the requisite technical details that have been evaluated by the experts on staff or that have been employed as consultants to get the project to this final map stage. This is not uncommon; however, during the past couple of years this project has received more public attention within the area surrounding it than is experienced by most projects. This is the same process that has been utilized for other tentative maps whether they are subdivisions of land or a condominium style project, residential project or commercial office project. As SCE/Young proceeds through the details of this project she will remind the Council that it is limited by state law as well as, local ordinance, to consider whether or not the Final Map is found to be in substantial compliance with the Tentative Map and, have those approximate 35 conditions that were required prior to the final map, been completed. As a result of state law as well as, local law, the City Council cannot add or change the conditions that were imposed in 2006. The City Council is being asked to consider a couple of administrative modifications to a couple of the conditions which will be detailed in the presentation, but neither state law nor City Code allows the City Council to change those conditions or add new conditions. This project, approved in 2006 with three very detailed resolutions with many, many conditions of approval incorporating an Environmental Impact Report with many mitigations to the environmental impacts incorporated within the documents, with a Mitigation Monitoring Plan incorporated within the Environmental Impact Report, this project is now ready for the Council's Final Map consideration. SCE/Young provided staff's report stating that Item 6.10 is before the City Council tonight for adoption of Resolution No. 2016-16, approving Final Tract Map 53430 commonly referred to as The Millennium Development as the developer for the site is Millennium -Diamond Road Partners, LLC. This development subdivides an 80 -acre site into 48 residential lots and two common area or "lettered" lots that will be owned and maintained by a homeowner's association (HOA). The entire site is located inside the gates of a private community of The Country Estates and specifically is located directly south of Rocky Trail Road and Alamo Heights Drive and west of Horizon Lane. The Tentative Tract Map approval was recommended to the City Council by the Planning Commission on January 10, 2006 after duly noticed public hearings were held, and on February 21, 2006, the City Council adopted Resolution No. 2006-14, approving Tentative Tract Map 53430. The Resolution contained several conditions of approval that are required to be met at various stages of the project development with 35 conditions that are prerequisite to final map approval. MAY 3, 2016 PAGE 6 CITY COUNCIL The Tentative Tract Map was granted for an initial period of three years and due to the sudden downturn of the economy, the state legislature granted several automatic extensions, thereby extending the Tentative Tract Map to February 21, 2016. The developer filed for a time extension in December 2015 and pursuant to state law, was granted an automatic 60 -day extension further extending the Map to April 21, 2016. The developer filed the Final Tract Map with the City on April 19, 2016. The approval of the Tentative Tract Map is a ministerial decision by the City Council meaning, the Map must be approved if it conforms to the Subdivision Map Act, conforms to all provisions of Title XXI, the City's Municipal Code specific to subdivisions that were applicable at the time of Tentative Tract Map approval, and, is in substantial compliance with the approved Tentative Tract Map. Staff has determined that the conditions that are prerequisite to final map approval have been met. In accordance with the Subdivision Map Act, the City's Municipal Code and the Conditions of Approval in City Council Resolution No. 2006-14, the developer is prepared to enter into an agreement with the City Council to complete all public improvements such as grading, sanitary sewer, storm drain, street, and landscape improvements. The agreement provides for the completion of all improvements within three years from the effective date of the agreement and a guarantee has been posted by the developer in the form of Letters of Credit for each improvement, which totals $8,291,393. The Council is precluded from imposing new conditions or requiring any changes to the Final Tract Map. While staff has determined that all conditions prerequisite to final tract map approval have been met, the Council may determine that conditions have been met by alternative means if they substantially comply with the Tentative Tract Map conditions. The following conditions require further discussion and Council consideration. At the time the Tentative Tract Map was approved, the sewer lift station was designated as its own individual lot shown on the approved Tentative Tract Map as lettered lot "B". During the course of the sewer system plan check it was determined that the system would be entirely owned and maintained by the HOA. Since the lift station is already enclosed within the HOA lettered Lot "A", an individual lot designation was no longer required for the sewer lift station and lettered Lot "B" was assigned to the Emergency Access Road located at the terminus of Live Oak Drive on the Final Tract Map. The applicant was required to enter into a shared -cost reimbursement agreement with the owner of Tract Map No. 53670 (Horizon Pacific) for the future extension of Alamo Heights Drive and utilities which will serve both tracts. The applicant has attempted to negotiate such an agreement but has not been able to reach a consensus with the other party. Given that the intent of the condition was to guarantee the construction of Alamo Heights Drive, the applicant has posted a Letter of Credit guaranteeing completion of MAY 3, 2016 PAGE 7 CITY COUNCIL said improvements which therefore meets the intent and substance of the conditions. The conditions of approval require that the Sewer and Storm Drain Plans be designed to meet LA County's standards for maintenance purposes. The purpose of conditioning the Sewer and Storm Drain Plans to meet LA County standards is that the City follow said standards for all types of public improvements that will be owned and/or maintained by LA County. Since the storm drain, sewer and sewer lift station improvements for this development will be privately owned and maintained, they are not subject to LA County ownership or maintenance requirements and therefore are not required to meet LA County standards. While the plans were not designed to LA County standards in their entirety, they have been reviewed and deemed to meet all current engineering standards and the minimum standards of care and requirements required for storm drains and sewers. The developer has provided sufficient proof that the sewer and storm drains are appropriately designed for operation and maintenance and the City's Engineer has accepted and approved the improvement plans accordingly. The project was conditioned to comply with the 2001 Storm Water Permit requirements and a conceptual Standard Storm Water Mitigation Plan (SEWSUMP) was reviewed and approved and has been incorporated into the City Engineer approved Storm Drain and Grading Plans accordingly. Finally, the water system for the development has been entirely designed by the Walnut Valley Water District and will be constructed by the District as well. The Conditions of Approval require the Water System Plans to be reviewed and approved by the City's Engineer. However, since the District is a separate authority and will not only construct but will also maintain ownership and maintenance responsibilities of the water system, City Engineer approval of these plans is not warranted. The District has provided a Will -Serve Letter indicating the District's intent to serve the community and security has been posted by the developer guaranteeing completion of the water system. Staff has also confirmed that the Water District has completed the plans and they are ready for construction when the timing is appropriate. The Final Tract Map No. 53430 has been reviewed by the appropriate agencies and City departments and has been found to be technically correct, conforms substantially to the approved Tentative Tract Map and meets the requirements of the Conditions of Approval that are prerequisite to final tract map approval. The City Engineer recommends that the City Council approve Final Tract Map No. 53430 by adopting Resolution No. 2016-16, authorize the Mayor to execute the Subdivision Agreement and direct the City Clerk to Certify and Process the Final Tract Map for recordation. M/Lyons advised the speakers that the City Council's consideration of the Final Map is truly limited by state law. Council is limited by the law to MAY 3, 2016 PAGE 8 CITY COUNCIL consider whether the Final Map is in substantial compliance with the Tentative Map, which includes consideration of only those conditions which are required to be met before the Final Map approval. What this means is that there are additional conditions that have to be met, but those conditions would be before the grading permit is issued, for example which is part of another set of conditions the developer will need to meet as the project moves forward should this Map be approved. The City Council cannot impose any new conditions, the Council cannot review the adequacy of the Environmental document for the project, or consider conditions which are not a prerequisite for Final Map approval. For those who have been present for previous City Council meetings, there have been a number of comments regarding whether or not the applicant has access to the property. Evidence of such access is not a condition for final map approval and thus, is not relevant to tonight's discussion and decision. Another example is testimony regarding the applicant's financial status. Evidence of financial status is not a condition of final map approval and is not relevant to tonight's decision. For this reason, M/Lyons asked that speakers confine their comments under which the City Council may, by law, consider. Also, because the applicant has a property interest in the final map, she has been informed by the City Attorney that the applicant is entitled to a reasonable opportunity to hear and respond to all public comments. M/Lyons asked for public comments in compliance with the Brown Act and stated that there is a 5 minute maximum time limit per speaker. Cassandra Maclnnis said that the City of Diamond Bar and past and present City Councils, City Managers in local government have had many years to focus on developing the City of Diamond Bar and do a harmonious, beautiful productive City, a City that should be proactive and protective of its existing homeowners and residents. She felt the City should be concentrating on traffic concerns and upgrading its appearance instead of concentrating on developing a very close, long-term relationship with a toxic developer. Her fear was that the City would rubber-stamp the plans that were long ago agreed to by the current City Manager and will choose to continue on this reckless course by granting the Final Tract Map before all conditions have been met and completed. Chia Teng said "no" to the Final Tract Map and said he had a 1000 signature petition signed by people who say "no" to the project. He spoke about the matter of "access" and asked how the Council could approve such a large subdivision without access. Therina Lin also spoke about "access" which is being litigated and asked the Council if there is no access how can the developer come onto the site and work on the project. She also said that some of the City Council Members might have received campaign MAY 3, 2016 PAGE 9 CITY COUNCIL Contributions from Millennium and Hua Qing but it should not influence their decisions. She asked the City Council not to approve the Final Tract Map No. 53430 or approve with the condition that the developer must have proper adequate entry to the subject site. She mention to the Council Members that if they approve the final tract map without it being subject to the entry access condition they will lose their credibility and trust of the voters and they will know the consequences for making such a biased decision. The reason the project has been dragging on for 10 years is due to the financial hardship of the land owner. Even after forming a new alliance their financial strength is questionable. If Mr. Chung had not breached the annex agreement in 2007 and had made a payment in 2011 he would have become a member (of the HOA) and would have automatically been given entry access for this project and speakers would not be present this evening to speak against this project. In 2012 the Board of Directors were gracious to Mr. Chung and allowed Mr. Chung back in to pay for the annexation agreement but Mr. Chung's attorney wrote to the HOA's attorney that he still had financial hard times and could not make a payment until the grading permit was issued, at which time he would be able to refinance the project, sell the lots and begin making payments. She continued talking about the lawsuit and removal of protected trees without the proper permit from Fish and Wildlife and how other potential liabilities might pass on to the other 890 homeowners. Mae Liu talked about the access rights which she said was one of the key requirements for a grading permit and final map approval. On behalf of residents in yellow shirts and those who signed the petition, she demanded direct response from the City Council to whether they saw the legal agreement for access rights. She said she was not sure why Millennium did not want the City to know they had no access rights. She urged the City to wait until all of the documentation was thoroughly reviewed pending the court ruling in October. Amy Minteer, partner, Chatten-Brown & Carstens Law Firm, speaking on behalf of the Diamond Bar Preservation Foundation, a group of local residents seeking to protect the environment in Diamond Bar and enforce environmental laws and land use laws. She read from a prepared statement to wit: We are here tonight to urge the City Council to deny the Final Map for Tract No. 53430 because this is what state law requires. Government Code §66473 prohibits approval of a final map when the conditions of a tentative map remain unfulfilled. Numerous Courts of Appeal decisions have upheld this requirement finding a developer cannot record a Final Map if the conditions of a tentative map are not satisfied. She said she would respectfully disagree with the statement made earlier by the City Manager that only the conditions that specifically state that they must be complied with before the final map are the ones that need to be completed. It is actually the reverse of that. Only the conditions that MAY 3, 2016 PAGE 10 CITY COUNCIL state "another time period are the ones that do not need to be complied with before the final map is approved. Otherwise, if there are conditions with no timeframe identified in them, they may never be complied with. There are several mitigation measures and Conditions of Approval that remain unfulfilled and thus, the City is prohibited from approving the final map. The staff report incorrectly states that CEQA is not relevant to the City Council's decision this evening. The City Council must find that the Conditions of Approval have been met prior to the Final Map and site Development Condition #2 specifically requires the Mitigation Monitoring Program included in the EIR for the project to be implemented and complied with rigorously for this project. Thus, the project's compliance or (in this case) here, lack thereof, with CEQA mitigation measures is highly relevant to the City's decision this evening. Ms. Minteer further stated that "we" (her law firm) have reviewed the Mitigation Monitoring Program for this project and found that there were several mitigation measures with this project that this project is out of compliance with including mitigation measures 1 through 4 which require watering exposed surfaces three times a day, applying soil stabilizers to inactive areas, replacing vegetative ground cover in inactive areas and covering stockpiles with tarps. The developer stripped this project site of trees and vegetation eight years ago and in that timeframe has failed to comply with any of these mitigation measures to protect the community. Dust and particulate matter from this property site are a serious problem for area residents that must be addressed before a Final Map can be approved. Particulate matter pollution has been identified by the California and EPA of Environment Health and Hazard Assessment as a severe problem in the Diamond Bar area. This area is in the 93rd percentile for particulate matter 2.5 burden and this project should not be allowed to ignore mitigation measures and add to this burden. The project has also failed to comply with biological measures 1 and 2 which require preparation of Coastal Sage Scrub Mitigation Plan and development of a detailed Oak and Walnut Woodland Mitigation Plan that includes scheduled plantings, maintenance and monitoring plans and long-term preservation. Members of the Diamond Bar Preservation Foundation have reviewed the City's files for this project and these plans were not included in the files. In addition to the failure to comply with the identified CEQA Mitigation Measures, the development has also failed to comply with several other conditions of approval. The following are some of those conditions that the development has failed to fulfill. Engineering and Public Works Condition No. 1 requires submission of a detailed Trail Plan prior to Final Map approval —there is no evidence this has been submitted. Fire Department Condition No. 5 and Planning Division Condition No. E.2 requires submission of a Fuel Modification Plan prior to Final Map approval – again, her clients have reviewed the files and have not found MAY 3, 2016 PAGE 11 CITY COUNCIL this to be in the City's files for the project. Engineering Public Works Condition A.22 requires documentation that Diamond Bar Country Estates will allow proper adequate right -of -entry to this project site and as discussed earlier this is pending in litigation and thus, there is no documentation that they (the project) have access through Diamond Bar Country Estates. Engineer Public Works Condition B.3 and B.11 require dust control measures which as stated earlier, the developer has not complied with. Engineering Public Works Condition B.12 requires preparation of an Erosion Control plan which again, her clients have been unable to find. Because the developer has failed to fulfill these mitigation measures and Conditions of Approval, the City is required to deny Final Map approval — to do otherwise would be a clear violation of state law. If the Council does not want to deny the project's final map this evening they have the authority to extend the tract map until after a decision has been made on whether there is a right -of -access to this project site. Michelle Yi repeated that the access issue of Millennium through DBCA is in litigation as of today. The Court denied Millennium access rights which is all she knows and all the City Council should know. DBCA has presented their case over and over that this case is in litigation and there is no access. But CM/DeStefano and CA/DeBerry are insisting that Millennium has access rights through The Country to the point of offering this non-functional map for Council's final approval. Who are the City Council Members believing they have a right to go above the law of the United States? Please disclose, prior to any vote, any support to this issue with Millennium's Final Tract Map approval. If Council Members received any money from Millennium or any PAC involved with Millennium project, those Council Members should recuse themselves. M/Lyons should recuse herself as she is one of the members of the HOA that is in litigation with Millennium. It is a huge conflict of interest and M/Lyons is one of the defendants. She said that C/Tye should recuse himself as well because he took money from Millennium from the principals for his assembly campaign as per electiontrack.com. She asked C/Low if it was true that Kurt Nelson attended her fundraising event at M/Lyons house in 2015. If C/Low received any money from them she should recuse herself. C/Herrera, the same goes for her. If she received any money from them she should recuse herself. Prove to the citizens of Diamond Bar that these are elected officials who are looking out for their best interests and not for The Country but for all of Diamond Bar. And that the Council Members are not looking out just for developers and other special interest groups interests. Citizens are holding City Council Members accountable. Citizens are watching City Council Members. Charles Zhang said he attended the April 19 City Council meeting and was stunned and shocked and he feels very offended by the remarks from the City Council meeting that The Country homeowners were referred to as the people who live up the hill behind the gate as the comments from MAY 3, 2016 PAGE 12 CITY COUNCIL the majority of the homeowners against Millennium was referred to as "noise". The Country Estates was one of Diamond Bar's original developments and it was always part of the City of Diamond Bar long before the City incorporated in 1989. The Country maintains its streets and builds its own infrastructure using its own monthly dues, not tax dollars while still contributing the same tax to the City like other residents in the City. The Country Estates is not Area 51 in the City of Diamond Bar. Please do not treat its residents like aliens. For Millennium, residents of The Country have a lot of concerns about future impacts including the possibility of liability and financial burdens it may place on the community. The Country cares about its private roads and infrastructure that it has built over the years being taken advantage of by outside intruders like Millennium. Residents of The Country feel agitated by Millennium for breaking the generous annexation agreement The Country signed in 2007 for which residents spent more than $400,000 in geotechnical surveys to carry out the agreement for which the developer paid nothing. Instead, Millennium used the agreement to record the annexation for their own advantage. Now that annexation agreement expired because of the contractor's non-payment. According to the City's resolution there are many conditions and requirements that have to be met before the final tract map can be granted. The Court proceeding is still ongoing for the access rights. It will cause more disputes and conflicts if the Council grants approval of the Final Tract Map and he is asking the City and City Council to protect The Country from the intruder as The Country residents are part of Diamond Bar and vote "no" on the Final Tract Map. John Maloney stated that he has lived in The Country Estates for 30 years and in Diamond Bar for 52 years. The negative impact of the Millennium development on The Country Estates has been presented here tonight as well as in earlier Council meetings. His issue, he believes, is a concern for individual Council Members which is that there are about 800 home sites in The Country and each home typically has two voters and 90 percent of those voters are opposed to Millennium. Some of the others actually have financial interest in Millennium but they are clearly in the minority. So that accounts for about 1450 votes coming out of The Country by folks who would look unkindly to the Council Members if Millennium is allowed to proceed. M/Lyons stated that the Council is allowed to consider only certain things with respect to the Final Tract Map. To him, that sounds like the defendants of the Nuremburg Trial saying "I only did my job". Rai Marwah said that even after hearing all of these issues and reasons being given to the City Council Members, the developer has not met all of the conditions laid out in the Tentative Map approval — so much so, that now to cover up even more and make the issue even muddier, one of the items in the Subdivision Agreement that has been included in the decision MAY 3, 2016 PAGE 13 CITY COUNCIL packet, says that the sub -divider shall acquire and dedicate or pay the cost to the City of all rights of easement and other interests in real property for the construction or installation of the improvements free and clear of all liens and encumbrances. The sub -divider's obligation, with regard to their acquisition by the City of offsite right of easements and other interests in real property shall be subject to a separate agreement between the sub -divider and the City. So now, somebody, just to get this thing pushed through today, is now throwing in another piece of mud so that nobody can clearly see where this is going and now the developer is being given another special treatment that even though he has not met these conditions you can use the City to acquire these and develop, etc. at your cause — granted. But is this being now led toward using the powers of Eminent Domain by the City to acquire this piece of right to the real property for this particular developer? If so, why? Why such a preferential treatment to this developer. He suggested that the City Council at least postpone this vote to another day. David Leong said it was his understanding that the Millennium project, as proposed, would require using land that belongs to some Kicking Horse Drive residents' properties for the purpose of constructing a future street and storm drains. However, as he presented during a previous Council Meeting and to the City, the LA County Board of Supervisors specifically rejected those easements, easements in the back yards of Kicking Horse Drive residents for future street construction and storm drains. During a very lengthy meeting between the residents and the City's Planning Department the City indicated that they were aware of the rejection of easements and they failed to produce any proof that there are still any current and available easements. At the same time they indicated that they would push ahead with approval of the Final Map. It is difficult for the residents of The Country Estates to fathom the fact that the City knew that there were no easements and yet you intend to approve a project that would require easements. It is the belief of residents of The Country that approving this project without the proper easements would put the Kicking Horse residents in direct conflict with the developer. Residents would want to defend their property rights and the developer, with City approval, would provide the developer with a blank check to proceed. In fact, if the Council were to approve this project it would be emboldening the developer to grab land from the residents. He illustrated his point by talking about a similar situation Kicking Horse residents had with another developer. Approving such a project without proper easements is a disrespect and disregard for the rule of law which is against American values. He urged Council Members to please rule wisely, justly and fairly and reject the Final Map. Kimberly Yi lives on Kicking Horse Drive and Millennium does not have her permission to build a road using her land where a street easement was rejected by LA County. She has used her back yard and creek for 18 MAY 3, 2016 PAGE 14 CITY COUNCIL years while raising her children. Nobody including the City of Diamond Bar and Millennium has the right to her back yard. Hanson Yu lives on Kicking Horse Drive. Millennium Final Map request to use the back yards of Kicking Horse Drive was mentioned several times, that easement of the Kicking Horse properties is no longer available. In fact, the City Attorney, CDD/Gubman and SCE/Young were at their (HOA) meeting several months ago and at that time City officials were unable to refute the fact that the easement was abandoned. He has checked with the LA County Public Works Department and they agreed that no dedicated street easement was allowed on his property. This is absolutely illegal for the City to approve a map that takes away the property rights of the homeowners. Michael Akers was not present when called to speak. Ken Kreeble said he was hoping to speak after Kurt Nelson and knew he would have to speak before the City Manager which is never an easy position. He heard the City Manager's speech at the last City Council meeting and was wondering if he likes all developers or just this one in particular. When the City Manager referred to homeowners' comments as noise, misleading, misconceived and wondered why the City Manager always refers to The Country Estates as "that guarded community". We the citizens of Diamond Bar and of The Country Estates realize that the duty of the City Manager is to assist the City Council in managing its departments and also managing the amount of information that comes before it for making decisions. In other words, to a certain degree, "filtering" information that comes to the City Council, which makes him wonder if the City Manager or his department has filtered the Millennium information to the City Council. For example, has he given you all of the letters from Diamond Bar Country Estates, its board, its association and its lawyers? He referred to a letter (which he presented to staff) clearly showing there are other access problems as one of the prior speakers pointed out on the Alamo Heights access that seems to be taken for granted by Millennium and not only is it contested and mentioned in the City Engineer's report to the City Council, but it has been mentioned as to the problems with Kicking Horse as far as forming structures. Also, there have been numerous letters from attorneys and engineers submitted to the City. He hopes they reached the City Council members so they can decide with all of the information available to them and hopes they will decide as their conscience directs them. But if Council Members have not received everything submitted, please do not rush to judgement on this tract approval. Larry Smith has lived in Diamond Bar since 1979 and has been a member of the Diamond Bar Country Estates Association for 30 years, having moved into their home in 1987. He is also a past president of the MAY 3, 2016 PAGE 15 CITY COUNCIL Diamond Bar Country Estates Homeowners Association and in his 30 years he can think of at least six developments now that have been built behind the gates of The Country. The first four have been annexed into the association. As the president of the board, he personally negotiated annexation agreements with one or more of these developments and shared -cost use agreements prior to annexation. For some reason, these agreements have always been divisive and contentious. Obviously, this one is no different. There is an old joke that the definition of an "environmentalist" is someone who already owns their cabin in the woods. I can paraphrase and say that in this case, an environmentalist is someone who already- owns their mansion in The Country. He believes that personal property rights are one of the fundamental tenets of freedom in this country. Building and development is a cornerstone of capitalism. He understands that this project was approved 10 years ago, not only by the City's Planning Department and the City Council but it was also approved by The Diamond Bar Country Estates Board of Directors who served after him. He really appreciates the patience that the City Council Members have shown in listening to a small but vocal minority of his neighbors. He asked that they please understand that the majority of The Country residents believe in laws and democracy; and that he really likes the new landscaping and design at the entry intersections. Calvin Lin said he has resided in Diamond Bar for 26 years and has been living in The Country. None of the residents have enjoyed coming before the City Council to protest a development. He served on the board which followed Larry Smith in 2007 when the annexation agreement was negotiated with Millennium. However, this project was not really well thought out. The Association helped and pushed for the annexation but the project had just passed the adoption of the Tentative Map. So, the project was not approved, just the annexation agreement. He hoped the City would not ignore the majority of The Country residents. The City Council has a fiduciary responsibility to watch out for what will benefit all of the residents. He does not enjoy protesting but this matter is so close to their hearts and wondered if the City had really evaluated the financial impact to The Country homeowners. For the past 10 years there have been many issues that are of concern to the residents and he hoped the City Council would do the right thing. M/Lyons asked if the petitioner had any comments to which he responded no, unless there are specific questions from Council Members. M/Lyons closed public comments. M/Lyons asked if anyone serving on the City Council needed to recuse himself/herself. MAY 3, 2016 PAGE 16 CITY COUNCIL CA/DeBerry said he believed he heard two possible allegations of conflict, one was whether or not a Council Member had received a campaign contribution. Speaking to the issue, it has been made very clear in many cases in this state and across the country, that campaign contributions do not cause a conflict. The reason is because they are a form of First Amendment protected speech and by the same token, if a Council Member was required to conflict -out because a developer gave them a campaign contribution, anybody opposed to the developers' project who gave a campaign contribution to the Council Member could say the same thing. Campaign contributions do not constitute conflicts. The second allegation was that the Mayor was a defendant in the lawsuit so she has a conflict. He has a copy of the lawsuit which is against the association which is a separate legal entity and the lawsuit does not name any separate individuals. CA/DeBerry addressed additional issues voiced by the speakers. Many of the speakers asked the City Council to put off this decision. There was an accusation that the City Council rushed to get this matter on the agenda. Pursuant to state law, and in particular, Government Code § 66452.6, the City Council is required to hear and decide on this Final Map in the next regular meeting after the Final Map is submitted. If the Council did what the speakers are requesting (put it off), the Map could be deemed approved without any Council action, which is also in the City Code. There was a contention made by the attorney representing the association that the City Council could instead make a determination on the Final Map to grant an extension until after the Court ruling. That is not the case. The Council first has to act on the Final Map — it would have to disapprove the Final Map and then it could take action on the extension request. With respect to the matter of access, there was a great deal of testimony that addressed "access" again. The reality is that the Tentative Map does not require proof of access before Final Map approval. Whether or not the Council grants the Final Map tonight will have no impact on the access issue that is before the Court. While the Court did deny an injunction request by Millennium, Millennium had to make two showings in order to get an injunction — the first was that it would be irreparably harmed and the second was that it could establish clear and convincing evidence that it had access rights. As to the first condition, the Court found that it would not suffer irreparable harm because it could always sue the HOA for damages if its Final Map was not approved. As to the second condition, the Court decided that at this point in time of the litigation, they had not submitted clear and convincing evidence that they had access. So the Court will ultimately determine that access and of course while it is not relevant to the Final Map, it certainly is relevant to whether this project MAY 3, 2016 PAGE 17 CITY COUNCIL will ever be developed. Because if the Court decides Millennium does not have access obviously they cannot develop the project and the Final Map would be of no use to them and would expire. There was a reference to Alamo Heights Road and the need for access and easements there. Again, that may be another issue for the Court down the road. He looked at this issue about a year or so ago and the Title Report for Tract Map No. 53430 does evidence an easement for roadway purposes over the adjoining tract for the benefit of the project as a private street. While it is true that the County rejected the dedications of the public street, it would go without saying that they would do so because it is not a public street. The County does not have any dedicated public streets in or behind the gate of The Country Estates because they are all "private" streets. There was a contention made by the attorney again that the conditions do not have a timeframe on them, that they, by default, must be complied with, with the Final Map. That is a novel theory he has never heard before. Again, that would be the City Council imposing new conditions on the Tentative Map, for example, that the conditions now have to be complied with, with the Final Map. With the conditions that do not have a timeframe the Council will have to look at reasonableness, so for instance, the access which does not have a timeframe for when Millennium has to show access rights, probably prior to issuance of any grading permits or any construction activity permits, Millennium would have to show access. Otherwise, the permits are useless. He noticed that there were also several air quality conditions referenced by the attorney that Millennium has not complied with. Those conditions are mitigation measures that are required for construction activities. They do not apply yet because no construction has taken place. There were a number of allegations made about whether certain plans had been received. He knows that there was a Public Records request that was made by several people in The Country Estates probably a month or so ago and a number of plans have been received by Public Works within the last month. So with respect to whether some plans have or have not been received SCE/Young would be in a much better position to respond. M/Lyons asked if the Council should seek SCE/Young's response. CM/DeStefano recommended that the City Council discuss the matter to see if there are any additional questions staff might be able to bundle in the response and staff will come back to the specific areas the Council wants staff to respond to. MAY 3, 2016 PAGE 18 CITY COUNCIL M/Lyons stated that she has had multiple meetings with City staff to go over the project and the conditions required for the Final Map approval. As a matter of fact, she and one of the City Engineers looked at all 35 conditions yesterday that are required for the Final Map approval. Whenever something was unclear she asked questions and what she found out really was not a surprise. She found out that City staff had done their homework and everything she could see, all 35 conditions required for the Final Map approval, were satisfied. Again, there are many, many conditions for the project; but only a certain set of those conditions go for the Final Map approval. There is a whole other set of conditions for grading, etc. which are not required to be satisfied at this time. C/Tye said he wanted to share with his fellow residents that when one has the facts, one pounds the facts. And when you have the truth, you pound the truth. And when you have neither, you pound the table. And what we have listened to for meeting after meeting for months is the table being pounded. He believes the facts have been twisted and the truth has been stretched. Tonight he counted three people that made reference to donations as if a campaign contribution, a Supreme Court protected right that a campaign contribution could sway the way this Council votes is insulting to everybody on the dais and everybody who has ever served in any capacity. He wonders if he had not received more campaign contributions from people in yellow shirts than he had from anybody related to Millennium. It is insulting. It is insulting to sit here and listen to people impugn the character of our City Manager who he believes, subjectively speaking, is the finest City Manager in the industry today. And would not, for him or for anybody else or anybody that has served on this Council since 1989 withhold anything from the City Council. The amount of misinformation that has been disseminated is shameful. This is not a decision based on emotion. It is not a decision to be made on who fills this auditorium with the most people. It is not a popularity contest based on applause. This is a business decision based on facts and based on the law. It has to do with property rights. We, the Council, take advice from a City Attorney who is a graduate of Western State Law, who provides this Council with guidance. He keeps us on the right path. He keeps us considering what we ought to consider — not the threat of a recall would make him vote one way or the other. Not a contribution to a campaign would influence him one way or the other. It is the law and it is the law that our City Attorney interprets for us. What he wants to know from CA/DeBerry is, in the opinion of the City Attorney and staff, does this conform to the Map Act. CA/DeBerry responded that that particular opinion lies within the expertise of the City Engineer and the City Engineer has brought that forward. The City Engineer is charged with reviewing the Map and the City Engineer has found evidence of substantial compliance. MAY 3, 2016 PAGE 19 CITY COUNCIL C/Tye asked if the Final Map conforms to provisions of Title XXI that were approved when the Tentative Tract Map was approved. CA/DeBerry responded that again, the City Engineer has rendered his expert opinion on that and has found that it is in substantial compliance with the conditions in the City's Code. C/Tye said that one of his favorite quotes is from Abraham Lincoln which he believes is very appropriate tonight and maybe it could be modified to apply to the entire City Council. He read for himself "I do the very best I can, the very best I know how and I mean to keep on doing so to the very end. If the end brings me out okay, what is said against me won't matter. If the end brings me out wrong, 10,000 angels swearing I was right would make no difference. I expect to do the right thing — I expect to do the legal thing." C/Low asked if substantial compliance was the standard of compliance required by the state Map Act as well as, the City's Municipal Code. CA/DeBerry responded that C/Low was correct. C/Low asked if the modifications the Council was asked to look at conflict with the "substantial compliance" the Council is required to find. CA/DeBerry responded that in the opinion of the City Engineer which the Council is entitled to rely on, does not conflict. It does substantially comply with the conditions contained therein. C/Low said it seemed to her that one of the conditions regarding the fact that the Walnut Valley Water District will be building the facility is a condition that would be impossible for the developer to construct because it is in the jurisdiction of the Water District and asked if that was correct. CA/DeBerry responded that she was correct. The City does not have any authority or jurisdiction over approving the water system. C/Low thanked CA/DeBerry for his clarification of the comments from the Board's attorney as well as, the comments regarding the access. As CA/DeBerry stated, if the developer is unable to gain access, it would be detrimental to their project. However, it seems to her that the speeches and comments given this evening were directed toward asking the Council to deny the Final Map based on the lack of access, lack of easement from Kicking Horse. It seems to her that the people who are holding the easement and involved in the lawsuit, would be able to hold hostage the development and are really controlling the developer. It seems to her that they are using that to their advantage which does not seem fair to her and asked if CA/DeBerry would agree with her assumptions. MAY 3, 2016 PAGE 20 CITY COUNCIL CA/DeBerry said that everybody is entitled to his/her opinion and those opinions are being tested in the Superior Court of the State of California right now. It is true that they could hold the project hostage by denying access; however, the one access issue is being litigated and as he indicated before, it appeared to him that in reviewing the Title Report that there is an easement for a private street over the Kicking Horse property. But again, that may be another matter that may be litigated. However, those two issues have no role in the City Council's decision of whether or not to approve the Final Map. C/Low said that more than one speaker alluded to the fact that the Council's decision would somehow affect the way constituents would vote for them in a future election. C/Low stated that if Council Members were to solely base their votes on whether or not they would receive votes in future elections they would not be doing their jobs as City Council Members because it would politicize this project which she and her colleagues would not do. Council Members are here to do the right thing and follow the law. Some of the speakers have asked the Council to do the right thing, to be fair and look at all sides of this issue and she believes that she and her colleagues intend to do just that. C/Herrera said that she and C/Tye have been insulted by some of the comments and aspersions that others can buy their votes. By the same token, she is insulted that some seek to intimidate and unless Council Members vote "the right way" they will be recalled. She was elected to make decisions for the City of Diamond Bar, not just a small segment of people and right now there are about 300 people in this room but there 60,000 people in the City and their expectation is that the Council Members follow the law. The City Manager has said that this is a ministerial action tonight and that if all of the conditions have been complied with the Council "shall" approve this Final Map — not may or could, we "shall" which is a mandate if everything has been complied with and the City Engineer has said yes, everything has been complied with. CM/DeStefano heard other comments that he believed should be answered including comments from Council Members in the last few moments. The Public Works Director/City Engineer (wearing both hats) has not only reviewed the project but has recommended the City Council's approval of the project which is within his written staff report that is a part of the public record that was posted and presented in summary by SCE/Young. So as illustrated earlier by the City Attorney and expanded upon, the City Engineer has reviewed and has recommended approval. CM/DeStefano spoke to the comment regarding Parks Trails Plan. That matter came up as far back as September 2014 in a public meeting that was held at the Diamond Bar Center and staff spoke with the community regarding that matter and indicated that the City would be looking at that MAY 3, 2016 PAGE 21 CITY COUNCIL matter. That effort was undertaken and in December 2015 the County Board of Supervisors approved the Trail Map as it was revised through the City, through the County Parks and Recreation folks, as well as copies of those documents distributed to the previous general manager at The Country Estates. A question was asked whether that plan was detailed and approved and again, the plan was detailed and approved by the LA County Board of Supervisors who will actually operate and maintain the Trail System in December 2015. CM/DeStefano said he also heard a question about the Fuel Modification Plan and that plan was approved by the LA County Fire Department, the authority for the Fuel Modification Plan, on January 25, 2016. CM/DeStefano also heard a question regarding erosion control and the Erosion Control Plan is part of the Grading Plan which is not a part of the Final Map. Erosion Control is part of the Grading Plan which was just recently approved by the City Engineer. MPT/Lin said he has been on the City Council for about 16 months now and has spent a lot of his time studying this case and as an engineer it gives him an advantage. Both he and M/Lyons carefully studied the plan and talked with the Engineer and SCE/Young to make sure the applicant was in compliance with requirements of the Final Map. He sympathizes with the residents of The Country Estates who feel cheated by a developer they feel betrayed his promise. However, this is not an issue of a problem between two parties. This is an issue about granting a property owner a lawful right to develop his land. He served as a public servant in the Midwest and MacDonald's wanted to move into the city but the residents did not want MacDonald's because they believed MacDonald's was not good enough for their high-end city. The night of the approval 400 people showed up and the meeting went until 4:00 a.m. the next day and MacDonald's was approved. The public servants had to be escorted out by the police chief to their cars. The center issue is whether this individual or property owner has the lawful right to develop their land. Even today, if Millennium is denied that piece of land it will be developed by somebody else. MPT/Lin asked if the developer complied with one of the original 35 conditions if he did not have access. CA/DeBerry read the condition to wit: "Applicant shall submit documents from Diamond Bar Country Estates Association indicating the project will have proper adequate right of entry to the subject site" so at some point in time Millennium will have to evidence that. He believes there is a debate whether the first letter from the City Manager or the second letter from the City Manager was the right one but it is not a condition of Final Map approval and the Council would then look to reasonableness as to when MAY 3, 2016 PAGE 22 CITY COUNCIL they will have to have right of entry and probably at time of grading permit would be one of those times and the City may not issue grading permits until Millennium shows they have access. So while it was one of the original conditions, it is not a condition of Final Map approval. MPT/Lin said so in other words, The Country still holds the wild card to actual implementation of this development. CA/DeBerry said he believed the wild card would be decided by the Superior Court of California. Certainly access to the roads that it does not own means that Millennium, will probably at some point pay its fair -share to maintain those roads; however it will probably all be sifted out in the Courts. MPT/Lin asked about mitigation. The developer agreed to select a site to mitigate the oak trees, etc. He has not seen any document about that particular item. CDD/Gubman responded that the mitigation requirement for the oak trees, walnut habitat, Coastal Sage Scrub and the riparian areas are being mitigated in two locations. First, Bonelli Park has entered into a licensing agreement with the property owner to enhance habitat within Bonelli Park. This agreement was executed on September 25, 2014. The mitigation requirements, and there is a Performance Bond that goes along with this licensing agreement, requires tree mitigation acreage of 59 acres and Coastal Sage Scrub mitigation of 22 acres. Mitigation will have to also be satisfied within the boundaries of the Tract Map itself. The development requires, and has already executed, the removal of a total of 877 trees which is comprised of 279 walnuts, 348 Live Oak trees and 250 Scrub Oak trees. The replacement total is based on two formulas. One is the City's Tree Ordinance which the applicant obtained a Tree Permit that was one of the entitlements that was granted when the Tentative Tract Map was approved. The tree removals were authorized subject to conditions pursuant to that Tree Permit approval. The replacement ratios are based on what is mandated in the Municipal Code and also on their requirements going through the permitting process with the California Department of Fish and Wildlife. The total tree replacement number to satisfy both the City and the California Department of Fish and Wildlife is 3,502 trees. Many of those trees will be planted in Bonelli Park and the balance will be planted within the boundaries of the Tract Map. The Landscape Plan for this subdivision has been approved and the tree location, species and sizes have been approved as part of that Landscape Plan. The time at which those trees and the overall habitat restoration commence is tied to issuance of the Grading Permit so with the license agreement with Bonelli already in place, the developer is able to begin habitat restoration at Bonelli at any time. They have the Fish and Game Permit and the Licensing Agreement in place so upon obtainment of the Performance MAY 3, 2016 PAGE 23 CITY COUNCIL Bond they could begin work at Bonelli. The deadline for them to perform the habitat restoration would essentially be shortly after issuance of the grading permit. The reason for that is that there are certain seasons when planting may occur which is typically during the fall so if, for example, if the grading permit is issued and grading activity begins in July of a given year, the actual Habitat Restoration Project would commence the following fall. With Performance Bonds and other sureties that can be imposed by the City as well as, the developer being under the enforcement of the California Fish and Wildlife and Army Corps of Engineers and State Water Boards, there are significant enforcement tools that would ensure that that mitigation is implemented. MPT/Lin said that the Country Estates' Attorney mentioned that Article 66473 stipulated that new conditions can be introduced before the Final Map and asked CA/DeBerry to comment on that assertion. CA/DeBerry asked if MPT/Lin was referring to the comment from the attorney that if a condition does not have a timeframe then it is, by default, tied to the Final Map, he is not aware of that theory and he thinks if the Council at this point in time made these conditions subject to Final Map approval or they had to be complied with prior to Final Map approval when the Tentative Map does not say so, would be adding conditions to the Final Map which is not allowed by state law. MPT/Lin said he understood that the County abandoned or rejected the Alamo Heights Drive right-of-way so it falls back to the property owner. Say they have the final map approval and commence the grading. If the easement was not granted by the property owners, essentially, there will be no project and asked if that was a correct assumption. CA/DeBerry said it depends. He looked at this issue and the Title Report for the Millennium Tract evidences that there is a private street easement over Alamo Heights Road. So as he mentioned previously, the fact that the County did not accept the dedication of the road for a public street he thinks occurred naturally because it is a private street. To his knowledge, none of the roads behind The Country Estates gates have been dedicated to the County simply because they are "private" streets so the County would not be accepting any private streets. Again, that may be an issue that gets litigated again and whether or not they have an easement, obviously some people believe that because the County did not accept it as a public street that meant that even the private street easement went away. That is not what the Title Report says. Again, reasonable people can differ, and that may be a subject for future litigation. In the meantime, MPT/Lin is correct that if the developer does not have that access and essentially an access to the development, they will not be able to develop. MAY 3, 2016 PAGE 24 CITY COUNCIL MPT/Lin asked if this was irrelevant to approval of the Final Map this evening. CA/DeBerry said correct, because it is showing access or easement right is not a condition to Final Map approval. MPT/Lin said that the attorney representing The Country said that perhaps the City Council could "table" this issue. CA/DeBerry mentioned that the Council would have to consider the item at the first City Council meeting following the submittal of the Final Map. MPT/Lin asked if the City Council could "table" the item. CA/DeBerry responded No. The Subdivision Map Act state law requires that the City Council consider the Final Map at its next regular meeting after the Final Map has been submitted so it cannot be "tabled." The problem with tabling the item is that under state law and under the City's Code, if the City Council does not take action on the Final Map at its next regular meeting it could be deemed approved without any action by the City Council. The law is there so that the City Council does not table things and so that they do take action so that the developer can go forward with the development. The only way to extend this would be to disapprove the Final Map and the Council would, in that case, have to make Findings that it is not in substantial compliance and then after that decision the Council could consider Millennium's request for a Tentative Map extension. But there is no rule of law he is aware of that allows a City Council to say, for example, that they are going to "table' this until after the Court ruling. Even if that was done there could be an appeal and that appeal may not be decided for years and there could be an appeal on that appeal. C/Herrera said she believed most would agree that there has been a thorough discussion of this matter over the past two hours tonight as well as, every Council meeting in the last several months as many of the same issues were brought forward again, and again and again. The City Council has discussed the issues and the City Manager has discussed every item that has been brought up. This is a topic that the City has spent a great deal of time discussing. C/Herrera moved, C/Tye seconded to approve Consent Calendar Item 6.10 to Adopt Resolution No. 2016-16: Approving Final Tract Map No. 53430 for the Subdivision of an 80 -acre site into 48 residential lots, located directly south of Rocky Trail Road and Alamo Heights Drive and West of Horizon Lane, within the gated community of The Country Estates in the City of Diamond Bar. I MAY 3, 2016 PAGE 25 CITY COUNCIL MPT/Lin reiterated his comments and said he believed that this project had been thoroughly vetted by one of the best City staffs and Councils and that he believed that this will be a winner for the City and its residents. C/Low said that as C/Herrera said, the City Council has spent a lot of time on this matter which has been a very, very thoughtful and difficult learning experience. She acknowledged the speakers, said she recognized their passion and that they feel strongly about what has been said and about the residents of The Country. She is sorry that this conflict exists within the community and she hoped that they will resolve their differences with this or another developer and make The Country Estates a better place to live. M/Lyons called for the vote. Motion carried by the following Roll Call vote: AYES: COUNCIL MEMBERS: Herrera, Low, Tye, MPT/Lin, M/Lyons NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None 7. PUBLIC HEARINGS: None 8. COUNCIL CONSIDERATION: None 9. COUNCIL SUBCOMMITTEE REPORTS AND MEETING ATTENDANCE REPORTS/COUNCIL MEMBER COMMENTS: C/Herrera congratulated the Diamond Bar Friends of the Library for an outstanding and successful Wine Soiree on April 24. They earned thousands and thousands of dollars and she believed it was better attended than any past Wine Soiree. All proceeds go to benefit Diamond Bar's own library which is a very good thing. Thank -you to all of the volunteers and food vendors who participated. She thanked staff and the Sheriff's Department for their dinner thanking the Volunteers on Patrol participants who ride around throughout Diamond Bar keeping an eye on neighborhoods to make sure there are no suspicious individuals or activities taking place. They are a great asset to the Sheriffs Department. The Volunteers conduct vacation checks so if residents are out of town the Volunteers drive by the house to make sure all is okay: The Volunteers perform exceptional service to the City and donate thousands and thousands of hours annual for the benefit of the City and its residents. C/Low echoed C/Herrera's comments congratulating the Friends of the Library for a great fundraiser last Sunday. The Library does wonderful things for this community and it is a community jewel residents should take advantage of. Staff MAY 3, 2016 PAGE 26 CITY COUNCIL did a great job putting together the Volunteer Patrol Appreciation event. It is great that the City has volunteers who would provide hours of support to the Sheriff's Department and this City at no cost to the residents. Last week she participated in a read along session in the evening which was well attended by the kids. It was great fun and she thanks all of the community educators for what they do for the kids. Thank -you to the teachers and staff. C/Tye said that accolades are given to people who achieve once they leave Diamond Bar whether it is to Alex Morgan, Bryan Wendell or athletes who perform at a unique level. It was great tonight to recognize the kids from Evergreen Elementary School who are on their way to doing wonderful 'things with the Odyssey of the Mind Team and becoming California Champions and now heading for the World title. Thanks to the coaches and parents who make that possible. MPT/Lin said he and M/Lyons attended a Finance and Audit Committee meeting last Friday and he is very happy to report that the City is in great healthy status thanks to FD/Honeywell who is one of the best finance managers he has known and we appreciate her. M/Lyons said that tonight's meeting has been difficult. She understands that speakers were passionate and that they had a preferepce which was not the action taken by the City Council. Being a resident of The Country, she appreciates their point of view, but we need to remember that the law is the law and what the Council needs to do to protect the City of Diamond Bar from being sued and doing the right thing by following the law. Sometimes we have to follow the law whether or not we agree with it. She attended the Diamond Bar High School production of Les Miserables which was truly outstanding and at the level of a college production. She has been visiting restaurants in Diamond Bar and she and her husband enjoyed Delhiwala Restaurant last Friday night and the food and service was excellent. One day for lunch she went to Paper Pot and for those who haven't visited they are in for a treat. ADJOURNMENT: With no further business to conduct, M/Lyons adjourned the Regular City Council Meeting at 8:57 pm. aoz- TommyeOCribbins, City Clerk The foregoing minutes are hereby approved this 17 day of May 2016. z m1l;% A &--2 Nancy Lyons, ayor