10/8/07

1050 Acacia, Montara - San Mateo County, CA

Planning & Building Issues

Summary and Violation Details

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Information related to this case may be found at: http://1050Acacia.info

Brief Summary and Key County Personnel:

In September 2005 the Contractor (Ronald Nelson – Nelson Builders, Burlingame) who owned the lot at 1050 Acacia in Montara, submitted a proposal for a single-family home development to the San Mateo County Planning Department. Construction began approximately June 2006. The Contractor committed a number of serious zoning violations and did not construct the project in compliance with the approved plans. These violations and non-compliance issues were obvious and they were brought to the attention of the County Planning Department, with calls, emails and certified letters beginning in August of 2006. The County failed to enforce the County Code at the 1050 Acacia project. The County issued false information to cover up both the Code violations, and their failure to enforce the law. Most of the correspondence and links to many relevant documents can be found on-line at http://1050Acacia.info.

The County Planning Department, and in particular Lisa Grote – the Planning Director, failed to enforce the County Code (Zoning Regulations and Grading Ordinance) at the 1050 Acacia development. The Planning Department, and in particular Lisa Grote, covered up the Planning Department’s failure to enforce the law, with false and misleading written documentation (a letter dated 12/15/06 : Exhibit [C8]). Planning Department staff, apparently at the direction of Lisa Grote, also covered up the violations with false and misleading postings on the County website. In addition, the County Planning Department failed to respond in any manner to some of the violations and non-compliance issues. The Planning Director’s failure to enforce the Grading Ordinance is itself a violation of the County Code (Section 8607.1). Robert Carey responded to the 12/15/06 County letter with a letter dated 2/2/07 (Exhibit [C9]), showing that the County letter included false and/or misleading information on all issues addressed. In addition Robert Carey presented evidence at Planning Commission meetings, with Lisa Grote present, which showed that zoning violations existed at 1050 Acacia and that the County had promoted false evidence. Lisa Grote’s failure to correct the County’s position in the face of this evidence constitutes fraud {1}.

The Deputy Director of Public Works, Douglas Koenig conducted an investigation of two of the issues at 1050 Acacia and issued a report on 6/12/07 (Exhibit [C28]). This investigation was made at the request of the County Manager. Robert Carey, a licensed civil engineer, reviewed Mr. Koenig’s report and issued a detailed analysis in a letter to the County dated 6/28/07 (Exhibit [C30a] - analysis begins on page 7). Mr. Carey’s analysis showed that Mr. Koenig did not conduct a proper investigation and Mr. Koenig’s report was filled with errors; the report selectively used data that appeared to support the Planning Department’s position, while ignoring data that would have shown the Planning Department’s errors. Most of the evidence and analysis presented by the 6/12/07 Koenig report was false or incorrectly interpreted. Even after receiving Mr. Carey’s analysis, Mr. Koenig failed to retract or correct his work – this failure was a breach of professional ethics and constitutes fraud {1}. In 6/28/07 Mr. Carey transmitted an email to Mr. Koenig requesting retraction of his 6/12/07 memo; Mr. Koenig did not respond (Exhibit [C31]).

The Deputy County Manager, Peggy Jensen, signed a letter dated 6/12/07 (Exhibit [C27]), addressed to Robert Carey, which included the 6/12/07 Koenig report. Ms. Jensen’s letter claimed that the County had “thoroughly reviewed” all of Mr. Carey’s concerns; this claim was unsubstantiated as some of the issues were not addressed in any form. The Jensen letter claimed that the 6/12/07 Koenig report “addresses all your questions related to the surveys and the height of the structure”; on the contrary, this claim is false, as all questions related to the surveys and height of structure have not been addressed (refer to Mr. Carey’s response to the Koenig report in Exhibit [C30a] - begin on page 7). Ms. Jensen used the Koenig report as the main basis to close the case – a report that was shown to be incomplete in its investigation as well as error-ridden. The Jensen letter did address several specific issues, but with false information, regarding changes to both drainage and landscaping – changes that were not indicated on the approved plans, and therefore never reviewed by the Design Review Committee or the public. A review of Ms. Jensen’s letter, by Robert Carey, was detailed in a letter to the County dated 6/28/07 (Exhibit [C30a]). Mr. Carey’s review showed that Ms. Jensen’s letter included false and misleading information. Ms. Jensen’s failure to retract or correct her work constitutes fraud {1}.

Robert Carey requested a meeting with the County to review the 6/12/07 Koenig report, however the County refused. The County Manager's office issued a letter on 7/3/07 stating that they considered the matter closed (Exhibit [C32]). The County has not provided any substantial response to Mr. Carey's analysis of the Koenig report. The County Planning Department issued its final approval of the 1050 Acacia project in July 2007.

All early correspondence regarding 1050 Acacia was sent to both the Planning Department and to Supervisor Richard Gordon. Most later correspondence included Supervisor Gordon in the distribution. On 2/26/07 Supervisor Gordon sent a letter to Mr. Carey which referred to the “extensive research” conducted by the Planning Department and concluded “We now consider this matter closed.” [10]. Neither Supervisor Gordon, or any of his staff, ever met with Mr. Carey or discussed with him any of the details regarding the 1050 Acacia issue. In a Spring 2007 meeting, the Planning Commission referred to Supervisor Gordon’s position as a reason for the Commission not to consider any action related to the 1050 Acacia issue.

Background Data, Facts & Correspondence:

Most of the key correspondence, documents and photos for the 1050 Acacia case can be found at this website: http://1050Acacia.info

Included on the 1050Acacia.info website are:

- Annotated photos: [“A” Exhibits Photo Gallery]

- Annotated design drawings: [“B” Exhibits Photo Gallery]

- Height analysis illustration: [H2]

- Brief narrative summary of the issues: http://1050Acacia.info/brief

- Detailed alternate summary: http://1050Acacia.info/summary

Author of this Document

Robert Carey is a California licensed Civil Engineer with a bachelor’s degree in Civil Engineering and master’s degree in Construction Engineering and Management. He worked for 15 years with an Engineering Contractor based in the Bay Area, managing the construction of Public Works projects.

COMMENTS

This case involves concepts related to construction that may be unfamiliar to some people. There are also many different violations and significant inappropriate actions committed by the County, such that the overall case may seem rather overwhelming. However the concepts and the relevant County Codes are relatively simple to understand. The individual issues stand on their own (and are presented as such in the following Summary of Violations) and can be explained fairly easily. Also note that almost all of the violations can be verified from observations made from outside the 1050 Acacia property, either from the street or from Mr. Carey’s property to the west. If the appropriate questions are asked of the key County personnel, it will become rapidly apparent that there are very serious and unresolved issues involved in the 1050 Acacia case.

* * * * * * * * * * * *

Summary of Violations and Other Issues at 1050 Acacia

Exhibits: Most exhibits referenced below can be found on-line at http://1050Acacia.info/exhibits

Synopsis of the 1050 Acacia Case

A proposal to build a single-family home was submitted to the County In September 2005 and subsequently approved In November 2005, with construction beginning about June 2006. The approved plans showed a house built low to the ground. However, there was a problem: the ground elevations shown on the plans were inaccurate (up to three feet at the back of the lot). The defective plans showed the ground to be higher than actual. This means that the house would sit about three feet higher above the ground than originally planned and approved. This situation would've been obvious once construction commenced. An updated survey was performed by the Developer’s surveyor in Oct/Nov 2006 - this updated survey confirmed and proved what was obvious by site observation - that the ground elevations shown on the original plans were grossly in error.

The appropriate action by the developer would have been to return to the Design Review process. However this was not done, and the developer continued construction. The Developer constructed high foundation walls so that the first floor would still sit at the elevation shown on the approved plans. However, the high foundation walls were not shown on the approved plans and the high foundation protruded way up above the ground. So, the Developer added a large amount of dirt fill around the house, giving the appearance of a house that still had been built low to the ground, but now low to the ‘new ground’. In the process of building the 1050 Acacia project, the developer violated numerous County codes, both Zoning Regulations and the Grading Ordinance, the Conditions of Approval from the Planning Department, and the terms of the certified Design Review Application. The project was not built in compliance with the approved plans. These violations and non-compliance issues are detailed further in subsequent sections of this document.

The building height and dirt fill issue is illustrated in Exhibit [H2]. The project is shown from pre-construction to completion in this set of annotated photos : [“A” Exhibits Photo Gallery]. Several of the approved design drawings are annotated to clarify the issues in this set : [“B” Exhibits Photo Gallery]. The “A” and “B” sets are available in higher resolution PDF format on the website.

The County was fully informed of these issues by neighboring property owners. Extensive detail and evidence was provided by one of the neighbors, Robert Carey, who is a licensed civil engineer with construction experience. The County failed to require that the project be constructed in accordance with the approved plans and failed to enforce the County Codes. The County published three significant letters regarding the 1050 Acacia issues. Mr. Carey provided detailed responses to these three County letters showing that they contained numerous errors and false, or misleading statements. The County correspondence attempts to cover up both the Contractor’s violations and the County’s failure to enforce the laws for which they are responsible. The County has never replied to any of the specific issues presented in Mr. Carey's responses to their correspondence. The County letters and Mr. Carey’s responses can be found at http://1050Acacia.info/exhibits and are as follows:

1) Exhibit [C8]: 12/15/06 Letter from Lisa Grote - Director of Planning to Robert Carey
Response: Exhibit [C9]: 2/2/07 letter from Robert Carey to County of San Mateo

2) Exhibit [C27]: 6/12/07 County letter from Peggy Jensen - Deputy County Manager
Response: Exhibit [C30a] see pages 1-7: 6/28/07 letter from Robert Carey to County
of San Mateo

3) Exhibit [C28]: 6/12/07 County ‘Memo’ Inter-Departmental Correspondence from
Doug Koenig - Deputy Director of Public Works to Peggy Jensen
(included as an attachment in Jensen’s 6/12/07 letter to Robert Carey)
Response: Exhibit [C30a] see pages 7-16: 6/28/07 letter from Robert Carey to
County of San Mateo

Definition of the term ‘Elevation’: In order to understand much of the correspondence and exhibits it is helpful to understand the concept of ‘elevation’, as it is used in construction, e.g. as used in “ First Floor Elev = 193.0 ”. This is a height above a fixed datum (mean sea level – essentially the average ocean elevation), expressed in feet. So if the First Floor Elev = 193.0 and the Roof Peak Elev = 218.7, then the distance from the roof peak to first floor is 218.7 - 193.0 = 25.7 feet.

Definition of the term ‘Natural Grade’ and building ‘Height’: The term ‘Natural Grade’ refers to the original ground elevation before the start of construction. Zoning Regulation 6300.2.6 (page 20.5) (Exhibit [R2]) defines the height of a building as the “vertical distance from any point on the natural grade to the topmost point of the building immediately above”. Therefore the height of a building is determined at the location where the distance between the roof peak and the original ground below is maximum.

County ‘Decision Letter’: On 11/14/05 the County Planning Department issued a document to the Contractor with the Design Review ‘FINDINGS’ and the ‘CONDITIONS’ of approval from the various departments in the County (Exhibit [E-2]). This document is apparently known as the ‘Decision Letter’. Condition #1 from the Planning Division states: “The project shall be constructed in compliance with the plans approved by the Coastside Design Review Committee. Any changes or revision to the approved plans shall be reviewed by the Design Review Officer if compatible with Design Review Standards or, where necessary, the Coastside Design Review Committee with applicable fees paid, for approval.” The Contractor failed to construct the project in compliance with the approved plans, making numerous major changes. None of these changes were approved in a design review process as required by the Decision Letter. Additionally the Planning Department has failed to enforce the Decision Letter provisions prescribed in Conditions No.1, 5c and 14d.

Description of the Property:

A) The lot at 1050 Acacia is about 105’ x 50’. Acacia Street is considered to be the East side of the lot. The West side is the ‘back’ or ‘rear’ of the lot and there is an existing fence shared with Mr. Carey’s property. To the South is a single-level house; prior to construction there was an old low fence along the South boundary. To the North is an undeveloped lot owned by the same Contractor (a proposed development on this adjacent lot is scheduled for a second session with the Coastside Design Review Committee in October 2007).

B) The original ground at 1050 Acacia was relatively flat with a slight slope upward to the North-Northeast. The ground was level between the 1050 Acacia lot and the property to the South, i.e. there was no change in grade at the South property line. Refer to Photo Exhibits A2 through A6 [“A” Exhibits Photo Gallery]

Specific Violations & Non-Compliance Issues:

1) Building Height

a) Violation: Zoning Regulation 6300.2.6a (Exhibit [R2]) limits the maximum building height to 28 feet above natural grade. The house at 1050 Acacia has been constructed to a height of approximately 30’ above natural grade, i.e. 2’ higher than allowed by the Zoning Regulation.

b) Non-Compliance with Approved Plans: Condition #1 of Planning Department 11/14/05 Decision Letter (Exhibit [E2]). The approved plans show a building height of 27’-1”. The building was constructed to a height of approximately 30’ above natural grade, an increase of approximately three feet in building height. This major change to the approved plans was never approved by the County as required by Condition #1 of the 11/14/05 Decision Letter.

Background: The submitted and approved plans for 1050 Acacia indicate a building height of 27’-1”. The building height is the difference between the rear roof peak and the natural grade below it. Natural grade is the original dirt grade. The approved plans show a roof peak elevation of 218.67 (and a first floor elevation = 193.0). This means that the approved building height was based on a natural grade elevation of 191.6 (i.e. 218.67 minus 27’-1”) – however, information from the best available survey, site observations and photographic evidence, all clearly show that the actual natural grade was about three feet below elevation 191.6, e.g. reference Exhibits A8 through A12 [“A” Exhibits Photo Gallery]. In other words, the height of the house above natural grade is actually three feet higher than shown on the approved plans.

The Planning Department’s only significant written statement on the height issue is in the 12/15/06 letter signed by Lisa Grote which claims that the natural grade is 191.7 (Exhibit [C8] - para 4). The 6/12/07 report by Douglas Koenig (a Deputy Director of Public Works) estimates that the natural grade was 191.4 and concludes that the County value of 191.7 is reasonable (Exhibit [C28]). Both the Grote and Koenig documents were analyzed by Robert Carey and found to be error-ridden, with conclusions based on false information – reference Exhibit [C9] dated 2/2/07 and Exhibit [C30a] dated 6/28/07. The County’s height estimate is incorrect – this is demonstrated in the following verification of building height.

Simple Verification of Actual Building Height: A simple site observation verifies that the County estimate of natural grade (and thus building height) is grossly in error. Refer to Photo Exhibits [A10], [A11] & [A12]. The first floor is at a known elevation of 193.0. Therefore the County’s claim of natural grade elevation of 191.7 corresponds to 16” below the first floor (193.0 minus 191.7 = 1.3’ = 16”). A point 16” below the first floor would be just a few inches below the bottom of the siding, i.e. about 8” below the bottom of the foundation vents. As can be seen from observations at the site, a point that is 4” below the siding (corresponding to Elevation 191.7) is above the top of the imported fill. This means that the County is claiming that the original (natural) grade was higher than the current grade – an absurd and fraudulent claim, as the Contractor did not excavate dirt from the site, and in fact, quite the opposite was done. It is obvious from a site observation that between two and three feet of fill have been placed on the South and West sides of the building; therefore by observation the actual building height is about three feet higher than claimed by the County.

Robert Carey prepared an analysis of the actual building height (Exhibit [C19], dated 4/18/07) based on the most current and accurate survey data provided by the Contractor (the Nov 2006 survey). Mr. Carey certified his analysis as a registered Professional Engineer. This analysis shows that the actual building height above natural grade is approximately 30’. This result is consistent with all available photographic evidence and site observation. Mr. Carey’s height analysis was included in a letter to the County dated 4/25/07 (Exhibit [C20]).

On 9/13/07 the Developer of the 1050 Acacia project presented to the Coastside Design Review Committee, plans for the adjacent property at 1040 Acacia. Drawing No. A2.1 from these new 1040 Acacia plans show a ground elevation of 192 near the midpoint of the lot. The original ground (natural grade) slopes upward at least two feet from the midpoint of the 1050 lot to the midpoint of the 1040 lot, as can be seen in photo exhibits [A2] and [A4]. In addition, the ground level at the midpoint of the 1040 Acacia lot has been raised above the natural grade by fill dirt added by the Developer. Clearly if the ground elevation is 192 at the center of the 1040 lot per the current submittal (which is on top of fill), then the natural grade at the center of the 1050 lot cannot be 191.7 as claimed by the County. By accepting the ground elevation of 192 on the new submittal for 1040 Acacia, the County is essentially admitting that they have committed fraud regarding the natural grade elevation and house height at 1050 Acacia. This new evidence confirms all other analysis presented here.

The building height zoning violation issue was addressed in numerous correspondence to the County including: Email dated 11/6/06 (Exhibit [C3]); Letter dated 11/27/06 (Exhibit [C4]) and Letter dated 2/2/07 (Exhibit [C9]). The height violation was documented on a ‘Violation Complaint Form’ submitted to the County on 2/7/07 [V2] - the County dismissed the issue on the County website under [VIO2007-00028 screenshot 7/12/07].

The height violation issue was presented to the Planning Commission at their 3/14/07 and 3/28/07 meetings and to the Board of Supervisors at their 5/1/07 meeting. Neither governmental body took any substantial action to investigate the issues.

2) Height of First Floor Above Natural Grade

a) Non-Compliance with Approved Plans: Condition #1 of Planning Department 11/14/05 Decision Letter (Exhibit [E2]). The approved design drawings depict the first floor about two feet above the ground at the west end of the house, however it was constructed about five feet above the ground. This major change to the approved plans was never approved by the County as required by Condition #1 of the 11/14/05 Decision Letter.

Background: This major change to the design, i.e. the height of the first floor relative to the natural grade, can be easily verified by observation at the site. Approved Drawing A6.2 (Exhibit [D6]) shows the first floor at the back of the building to be about two feet above the ground and at a level near the bottom of the West (rear) fence. Site observations find the first floor about five feet above the natural grade, at a level near the top of the existing West (rear) fence. The Contractor did not construct the project in compliance with the plans approved by the Coastside Design Review Committee.

The unapproved increase in the height of the first floor above the natural grade results in a degradation of privacy for the surrounding properties. This change has also resulted in the ‘patio’ at the rear entrance being raised approximately three feet higher above the natural grade than was shown on the approved plans.

This issue was addressed in numerous correspondence to the County including: Email dated 9/8/06 (Exhibit [C1]); Letter dated 10/9/06 (Exhibit [C2] issue No.1); Letter dated 11/27/06 (Exhibit [C4] item #4) and Letter dated 2/2/07 (Exhibit [C9] pages 8 & 9).

The only County response to this height issue is found in their letter of 12/15/06 (Exhibit [C8] - para 12), wherein the County states they do not agree but offer no factual or rational reason - a response to the County position was submitted in a letter from Robert Carey dated 2/2/07 (Exhibit [C9] page 8-9).

3) Fill Dirt

a) Violation: Zoning Regulation 6300.2.6 (Exhibit [R2]), states: "Finished grade, measured at the outside face of exterior perimeter walls, shall not significantly deviate from the natural grade, to the satisfaction of the Design Review Committee." The finished grade constructed by the Contractor does significantly deviate from the natural grade (two to three feet higher at the rear of building) and this change has not been reviewed by the Design Review Committee.

b) Violation: Grading Ordinance Section 8602.1 (Exhibit [R5]) requires a grading permit for fill depths over 2’. There are no exceptions in the Grading Ordinance that apply to 1050 Acacia. The fill is over 2’ deep therefore a permit was required; however, the Contractor did not obtain a permit, and the Planning Department never enforced this requirement despite numerous alerts by the neighboring property owners.

c) Violation: Grading Ordinance Section 8607.1 (Exhibit [R5]) requires the Planning Director to issue a stop work notice if grading requiring a permit is performed without a permit - as in this case. A stop work notice has not been issued for this violation, thus the Planning Director is in violation of County Code 8607.1.

d) Violation: Zoning Regulation 6565.6 (Exhibit [R3]) states: “The application submitted for review by the Design Review Administrator shall contain the following information: 1. Site Plan Showing: ... b. Existing and proposed ground contours. ” The submitted application did not accurately show the existing contours and did not show any of the fill dirt as proposed ground contours (except for a few inches of fill adjacent to the foundation at some locations).

e) Non-Compliance with Approved Plans: Condition #1 of Planning Department 11/14/05 Decision Letter (Exhibit [E2]). The approved plans show no dirt fill on the site. The Contractor placed a deep dirt fill across a large portion of the site; fill depths are over 3’ deep at the Southwest corner of the lot. This major change to the approved plans was never approved by the County as required by Condition #1 of the 11/14/05 Decision Letter.

f) Non-Compliance with the Midcoast Design Review Standards: Section 5b of the Midcoast Design Review Standards (Exhibit [R7]) - items (1), (2) & (4) call for minimizing filling and grading on new building sites. Item (4) states: “Result in a finished grade beyond the structure and in its immediate vicinity that is similar to the existing grade, unless otherwise required for technical or engineering reasons ...” . The large amount of fill dirt added by the Contractor and the re-grading of the site is a direct conflict with these Design Review Standards.

Background: The Contractor placed a large amount of fill dirt over the entire lot around the building foundation. The approved plans did not show fill except for a few inches next to the foundation. Drawing A2.1 of the approved plans included an explicit note stating that no fill dirt was required. (Exhibit [B1]) The submitted certified Design Review Application (Exhibit [E1] -page 1), and a letter submitted by the project Architect with the the Design Review Application (Exhibit [E1.17]), both explicitly stated that only minimal grading was required. In actuality, the fill depth is over two feet (2’) at the Northwest corner of the building, as can be seen by site observation, and as measured by Planning Department personnel on 12/1/06. Adjacent to the Southwest corner of the building the fill depth is approximately three feet (3’). The fill dirt can be seen in photo exhibits [A1], [A5], [A8], [A10], [A11], & [A12]; (all “A” exhibits can be seen here: [“A” Exhibits Photo Gallery])

The depth of fill dirt at the Southwest corner of the new house can be accurately verified to be over three feet (3’) by the following simple site measurement: A fence was built on top of a retaining wall at the South boundary. At the highest point of the new fence (near the west end of the house), on the side of the fence facing away from the new house, the fence measures 9'-6" high above the original ground (this is the south side of the South fence). At this same location, on the other side of the fence, the fence measures 6’-3” high above the fill dirt (the side facing the new house). Therefore the difference in these two measurements is the depth of the fill dirt, approximately 3’-3”, on the north side of the new fence/wall (near the Southwest corner of the new house). Note that the ground between the two properties at the South boundary (where the new fence/wall was built) was originally level as shown in photo exhibits [A2], [A3], [A4] & [A6] and confirmed by survey results – therefore the entire 3’-3” is new fill dirt added by the Contractor. Calculation of the dirt fill depth on the South side, by measuring the fence height, is illustrated in the annotated photo exhibits [A5], [A6], [A7] & [A8].

The fill dirt issue was brought to the County’s attention in a phone call on 8/9/06 and in an email dated 9/8/06 (Exhibit [C1]), a letter dated 10/9/06 (Exhibit [C2]), an email dated 11/6/06 (Exhibit [C3]), and a letter dated 11/27/06 (Exhibit [C4]. The County response to these notifications of zoning violations was not provided until 12/15/06 (Exhibit [C8]) - this County letter contains numerous false and misleading statements regarding this issue as detailed in Robert Carey’s 2/2/07 response (Exhibit [C9]).

The violation of Section 6300.2 (finish grade at perimeter wall) was documented on a ‘Violation Complaint Form’ submitted to the County on 2/7/07 [V3] - the County dismissed the issue on the County website under [VIO2007-00028 screenshot 7/12/07]. The violation of Section 8602.1 (Grading Ordinance - grading without a permit) was documented on a ‘Violation Complaint Form’ submitted to the County on 2/23/07 [V5] - the County dismissed the issue on the County website under [VIO2007-00028].

An Email dated 5/18/07 (Exhibit [C23]) requested that the County issue a ‘Stop Work’ order and require removal of the unapproved fill dirt; this email also included a summary of the history of the issue and a listing of relevant County Codes.

4) Lack of Drainage Plan / Change to Site Drainage

a) Non-Compliance with Approved Plans: Condition #14d of the Planning Department 11/14/05 Decision Letter (Exhibit [E2]) states “A site drainage plan will be required that will demonstrate how roof drainage and site runoff will be directed to an approved location ...” The Contractor has not provided any drainage plan that shows site runoff. The Contractor has changed the site drainage pattern so as to force water that previously flowed to the South boundary to now flow to the West boundary. The Planning Department has not enforced the requirements of their Decision letter regarding a site drainage plan.

Background: The unapproved fill dirt placed by the Contractor significantly altered the stormwater drainage pattern on the site, resulting in drainage that previously flowed across the southern property line, to now flow to the West. This change also forces a large portion of the drainage coming from the adjacent lot to the north (also owned by the Contractor), that previously flowed to the adjacent lot to the south, to now flow onto the adjacent lot to the west. This change to the drainage pattern can be easily verified by observations at the site and comparison to pre-construction site photos.

This drainage plan issue was brought to the attention of the County in emails dated 5/14/07 (Exhibit [C22]) and 5/23/07 (Exhibit [C25]). The County responded to this issue in a letter from Peggy Jensen at the County Manager’s Office dated 6/12/07 (Exhibit [C27] - paragraph 3). This County letter falsely claims that the Contractor submitted a ‘site drainage plan’; the drawing Ms. Jensen refers to (sheet A2.1 - Exhibit [B1]) does not show the dirt fill and revised site grading, therefore sheet A2.1 is not a ‘site drainage plan’.

A ‘Violation Complaint Form’ was submitted regarding the drainage plan issue, however it appears to have disappeared from the County system and was never logged onto the County website.

5) Fence Height

a) Violation: Zoning Regulation 6412 (Exhibit [R6]) limits fence heights to 6' on side yards, but the constructed fence is up to 9’-6” high. There are no exceptions in the Zoning Regulations that apply to 1050 Acacia that would allow a fence over 6’ high.

b) Violation: Zoning Regulation 6412 (Exhibit [R6]) requires a building permit for any type of fence exceeding 6'; a building permit was not obtained for the new 9'-6" fence/wall - the fence/wall is not shown on the plans reviewed and approved by the County and therefore the structure is not included in any building permit for the project.

c) Non-Compliance with Approved Plans: Condition #1 of Planning Department 11/14/05 Decision Letter (Exhibit [E2]). The approved plans show a 6’ fence. The Contractor constructed a fence up to 9’-6” high. This major change to the approved plans was never approved by the County as required by Condition #1 of the 11/14/05 Decision Letter.

Background: The Contractor constructed a fence along the South boundary, consisting of two sections: an upper section using typical fence material and a lower section constructed with retaining wall materials. Adjacent to the Southwest corner of the building, the fence measures 9'-6" high on its south side and 6’-3” high on its north side. This means that the Contractor placed approximately 3’-3” of fill dirt on the north side of the fence (next to the new building). The approved plans show no fill dirt and only a 6' high fence at this location.

The fence height issue was submitted to the County on a Violation Complaint Form on 2/14/07 (Exhibit [V4]). The County response to this complaint was on the County website as VIO2007-00038 (VIO2007-00038 screenshot 7/12/07). The County website entry for VIO2007-00038 referenced VIO2007-00028 (VIO2007-00028 screenshot 7/12/07) and Case status BLD2006-00059 - (see **FINAL** section) (BLD2006-00059 screenshot 7/12/07). Links to screenshots are provided above because the County has apparently removed all website entries to the 1050 Acacia project.

The County website for violation VIO2007-00028 (VIO2007-00028 screenshot 7/12/07), as of 7/12/07, stated the fence issue was ‘reconciled’ with a letter from neighbor - this is a deceptive statement and an inaccurate interpretation of the Code, since a letter from a neighbor does not apply as an exception to the Code requirement of a maximum 6’-high side yard fence; nor does a letter from a neighbor provide an exception to the requirement for a building permit for a fence over 6’ high.

6) Natural Grade Elevations Not Indicated on Plans

a) Non-Compliance with Approved Plans: Condition #5c of the Planning Department 11/14/05 Decision Letter (Exhibit [E2]) states: “Prior to Planning approval of the building permit application, the applicant shall also have the licensed land surveyor or engineer indicate on the construction plans: (1) the natural grade elevations at the significant corners (at least four) of the footprint of the proposed structure on the submitted site plan, and (2) the elevations of proposed finished grades.”

The plans available in the Planning and Building files as of May 2007 do not indicate natural grade elevations at the significant corners of the footprint as required by Decision Letter Condition #5c.

This issue was the subject of multiple correspondence to the County, including: Letter dated 10/9/06 (Exhibit [C2] additional item No. 2, page 6) and Email dated 11/6/06 (Exhibit [C3] item 6).

The County has never responded to this issue in any manner. Note that if the County had enforced this requirement it would have made it obvious that the Contractor had violated the Zoning Regulations regarding allowable building height.

7) Low Retaining Wall at West Fence

a) Non-Compliance with Approved Plans: Condition #1 of Planning Department 11/14/05 Decision Letter (Exhibit [E2]). The Contractor constructed a low (approximately one foot high) retaining wall about a foot away from the existing West fence. This wall is not shown on the approved plans. This deviation from the approved plans was never approved by the County as required by Condition #1 of the 11/14/05 Decision Letter.

b) Violation: Zoning Regulation 6565.6 (page 28.1.4) (Exhibit [R3] ) states: “The application submitted for review by the Design Review Administrator shall contain the following information: 1. Site Plan Showing: ... e. All proposed improvements, including paving, fences, etc.” The site plan submitted with the application did not show the low retaining wall at the West fence, yet a wall was built.

Background: About February 2007 the Contractor constructed a one-foot high retaining wall about one foot away from, and parallel to, the existing West fence. The Contractor placed dirt fill to the top of this retaining wall. The retaining wall is shown on Photo Exhibit [A-12] . Neither the wall or the dirt fill are shown on the approved plans. This retaining wall raises the ground level up to within 4’ from the top of the existing fence, thus resulting in a significant degradation to privacy of the adjacent property. This retaining wall effectively creates a channel between it and the existing West fence, which will channel drainage along the existing West fence as well as collect debris and dirt against the existing fence, resulting in pre-mature degradation of the existing fence.

This issue was presented to the County in emails dated 5/14/07 (Exhibit [C22]) and 5/23/07 (Exhibit [C25]). The County responded in a 6/12/07 letter from the Deputy County Manager, Peggy Jensen (Exhibit [C27]). The County Letter (paragraph #5 - pg 2) states: "Regarding the low wall near the western fence, it does not require a permit or plan because it is wood, only retains landscaping and is not higher than 18 inches. Also interlocking block retaining wall up to three feet tall do not require building permits either. Therefore both the wood landscaping wall and the block retaining wall may remain". This County response is misleading since the requirement for a building permit is not the issue in this case. The low retaining is a violation of Condition #1 of the 11/14/05 County Planning Department Decision Letter, which requires the project to be built in compliance with the approved plans. The low retaining wall and the fill placed behind it were not shown on the plans reviewed and approved by the CDRC.

This low wall is a major change to the landscaping and a clear violation of the Midcoast Design Review Standards regarding grading (Exhibit [R7] page 5b). In addition the wall seriously degrades the privacy of the adjacent property, and will result in accelerated deterioration of the existing fence at the property line. The CDRC would never have approved of this work if it had been shown on the plans submitted for review.

8) County Cover-up of Illegal Tree Cutting and Misrepresentation

Issue: The Contractor removed ‘significant’ trees without the required permit and then misrepresented the situation to the County Code Compliance Officer. The County published false information regarding this case, ‘covered-up’ the issue, and failed to pursue the violation and permit fees.

Background: On 9/12/05 a landscape contractor hired by the 1050 Acacia Developer, removed significant trees on the site without the required permit. The trees and stumps were completely removed from the site. Neighbors took pictures of the event (photo gallery [P1] ), and reported the violation to the County. County Code Compliance Officer, Gary Warren opened VIO2005-00185 (VIO2005-00185 screenshot 2/27/07) on 9/20/05. On 10/24/05 the Contractor submitted an arborist report to the County dated 10/22/05 (Exhibit [C2] - attachment #6) – this arborist report was based on the trees and stumps found on the property after the illegal cutting event; the report did not consider the trees that were the subject of the violation because those large healthy trees had been completely removed from the site (stumps and all) before the arborist visited the site. However, the Contractor presented this arborist report to the Code Compliance Officer as evidence for the investigation into the removed trees. The County website also refers to a photo of a ‘dead tree’ provided to the Compliance Officer by the Contractor. The County website refers to a field investigation finding: “two stumps on site”. It is clear from the documentation that the Code Compliance Officer closed this violation based on false evidence - i.e. the ‘significant trees’ that were actually cut were never acknowledged by the Contractor or the Compliance Officer. The County Code Compliance Officer closed violation VIO2005-00185 on 10/26/05; only by closing this violation was the CDRC Design Review meeting for the project able to go forward on 11/10/05. The Code Compliance Officer never met with, or discussed the issue, with either of the neighbors who had witnessed the tree cutting, or the neighbor who had called in the violation.

On 6/23/06 a Violation Complaint Form (Exhibit [V1]) was submitted which informed the County that the illegally cut trees had been completely removed and thus were not included on the arborist report that was used as a basis to close the original violation. The County opened VIO2006-00079 (VIO2006-00079 screenshot 2/27/07) and then closed it claiming the issue had been previously addressed in VIO2005-00185.

In a letter dated 10/9/06 to the County, the illegal tree cutting issue was fully detailed with a timeline and exhibits (Exhibit [C2] pages 3 to 6); this information clearly showed that the case had been closed based on false evidence and that it was the County Code Compliance Officer who had closed the case prior to the Coastside Design Review Committee (CDRC) meeting.

In a letter from the County dated 12/15/06 (Exhibit [C8] - para 15-16), signed by Lisa Grote, addressing the allegation that the code violation had been improperly closed, the County states: "... a tree removal violation is typically closed when a larger discretionary application is made, in this case a Design Review application, that gives the County purview over the entire proposed project including tree removal and replacement. In this case, the Coastside Design Review Committee has reviewed the proposed tree removal ...”

The 12/15/06 County letter is misleading and fails to respond to the main issue, i.e. the Code Compliance Officer closing the case based on false evidence provided by the Contractor. The Grote letter misleadingly implies that the case was closed as a part of the Design Review process, which is clearly false – the County Code Compliance Officer closed the violation outside of the Design Review process. The CDRC had no involvement in reviewing the violation. The case was closed by the Compliance Officer prior to the CDRC meeting – only by closing the case, was the Design Review Application able to proceed to the CDRC. This mishandling of the violation was clarified in a 2/2/07 response (Exhibit [C9] - page 10) to the 12/15/06 County letter, however the County has not responded with any action.

9) False information on Application For Design Review

On 9/13/05 the Contractor submitted an ‘Application for Design Review’ (Exhibit [E1]). This was submitted on the day immediately following the illegal tree cutting activity outlined above. The application, certified by the Contractor, claimed that no trees were to be cut. A letter from the architect (Michael Froehlich) dated 9/12/05 (Exhibit [E1.17] ), was submitted with the application (attached to the end of the 16 page application form); this letter states that the site “has no trees” despite there being approximately ten or more large trees on site (a number of which were cut on 9/12/05).

In the 9/13/05 ‘Application for Design Review’ (Exhibit [E1] - page 1) under the section ‘Site Description - Grading’, the Contractor explicitly certified: “LEVEL LOT, MINIMAL GRADING FOR POSITIVE DRAINAGE AROUND THE HOUSE”. As noted in previous sections of this document, the Contractor placed a large amount of deep fill dirt on the site and performed a large amount of grading.

There has been no apparent response from the County addressing these issues.

* * * * * * * * * * *

{1} Fraud:

“Anything calculated to deceive, whether by a single act or combination, or by suppression of truth, or suggestion of what is false whether it be direct falsehood or innuendo, by speech or silence, word of mouth, or look or gesture.”

Delahanty v. First National Bank, NA, 318 Pa. Super. 90, 464 A.2d 1243,1251

END OF 1050 ACACIA DOCUMENT

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