HomeMy WebLinkAbout1991-03-14MINUTES
REGULAR PALM DESERT CITY COUNCIL MEETING
THURSDAY, MARCH 14, 1991
CIVIC r..r.w i net COUNCIL CHAMBER
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I. CALL TO ORDER
Mayor Snyder convened the meeting at 4:00 p.m.
II. PLEDGE OF ALLEGIANCE - Councilman S. Roy Wilson
III. INVOCATION - Mayor Walter H. Snyder
IV. ROLL CALL
Present:
Councilmember Jean M. Benson
Councilman Buford A. Crites
Mayor Pro-Tempore Richard S. Kelly
Councilman S. Roy Wilson
Mayor Walter H. Snyder
Also Present:
Bruce A. Altman, City Manager
David J. Erwin, City Attorney
Sheila R. Gilligan, City Clerk/P.I.O.
Carlos L. Ortega, ACM/RDA Executive Director
Paul Shillcock, ACM/Director of Economic Development
Richard S. Folkers, Director of Public Works/ACM
Ramon A. Diaz, ACM/Director of Community Development/Planning
V. CONSENT CALENDAR
A. MINUTES of the Regular City Council Meeting of February 28, 1991.
Rec: Approve as presented.
B. CLAIMS AND DEMANDS AGAINST THE CITY TREASURY - Warrant Nos.
WR0210 and WR0213.
Rec: Approve as presented.
MINUTES
REGULAR PALM DESERT CITY COUNCIL MEETING MARCH 14, 1991
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C. APPLICATION FOR ALCOHOLIC BEVERAGE LICENSE by BoBo's, Inc. for Cucina
Pasta, 73-540 Highway 111, Palm Desert.
Rec: Receive and file.
D. CLAIM NO. 163 AGAINST THE CITY by Marc S.Homme and Suzanne S. Homme in
the Amount of $2,608.10.
Rec: By Minute Motion, deny the Claim and instruct the City Clerk to so advise the
Claimant.
E. LETTER FROM THE PALM DESERT CHAMBER OF COMMERCE Requesting
Support of the Change in the State's Initiative Process.
Rec: Refer to staff for report and recommendation.
F. REQUEST FOR APPROVAL of Law Enforcement Museum.
Rec: Waive further reading and adopt Resolution No. 91-31, designating the Law
Enforcement Museum as the official repository for artifacts, records, and goods
from County Public Safety Departments.
G. REQUEST FOR ACCEPTANCE OF WORK for Contract No. 00-355 for Striping and
Lane Line/Legend Removal and Pavement Marking Installation on Various Streets.
Rec: By Minute Motion, authorize the City Clerk to file a Notice of Completion for
the subject contract.
H. RESOLUTION NO. 91-34 - A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF PALM DESERT, CALIFORNIA, SETTING FORTH ITS FINDINGS AND
AUTHORIZING THE DESTRUCTION OF FILES FROM THE CITY MANAGER'S
OFFICE THAT HAVE BEEN MICROFILMED.
Rec: Waive further reading and adopt.
I. RESOLUTION NQ. 91-35. - A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF PALM DESERT, CALIFORNIA, SETTING FORTH ITS FINDINGS AND
AUTHORIZING THE DESTRUCTION OF FILES FROM THE DEPARTMENT OF
FINANCE THAT HAVE BEEN MICROFILMED.
Rec: Waive further reading and adopt.
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REGULAR PALM DESER CITY COUNCIL MEETING MARCH 14, 1991
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J. MOLEST FOR APPROVAL of Final Tract Map 26068, Westinghouse Desert
Communities, Applicant.
Rec: Waive further reading and adopt Resolution No. 91-26, approving Tract Map
26068.
K. REQUEST FOR APPROVAL of Application for Crossing Grant for the Proposed Cook
Street Overpass at the Southern Pacific Railroad.
Rec: By Minute Motion, authorize staff to prepare an application for funding for the
proposed Cook Street interchange at Interstate 10 and the Southern Pacific
Railroad.
L. REQUEST FOR AWARD OF BID for the Purchase of a Four -Wheel Drive Utility
Flatbed Truck.
Rec: By Minute Motion, award the purchase of subject vehicle to Tom Bell Chevrolet
in the amount of $24,898.04.
M. REQUEST FOR RELEASE OF SUBDIVISION IMPROVEMENT SECURITIES for
Tract 25304, KEN-MOR Enterprises, Applicant.
Rec: By Minute Motion, accept the subdivision improvements as complete and
authorize the City Clerk to release the subdivision improvement securities for
this project.
N. MINUTES of the Civic Arts Committee Meetings of October 31, November 19,
December 7, and December 17, 1990, and the Meeting of January 28, 1991.
Rec: Receive and file.
O. REQUEST FOR APPROVAL of Contribution to the McCallum Theatre/Bob Hope
Cultural Center.
Rec: By Minute Motion, authorize the payment of $40,000 to the McCallum Theatre
with an additional appropriation of $30,000 to be taken from the Unobligated
General Fund Reserve.
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REGULAR PALM DESERT CITY COUNCIL MARCH 14, 1991
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P. REOUEST FOR RATIFICATION of City Manager's Authorization to Proceed with
Emergency Repairs on Cook Street at the Whitewater Flood Control Channel.
Rec: By Minute Motion, ratify the City Manager's action and authorize the
appropriation of $50,000 from the Unobligated Fund Reserve to Account No.
110-4310-3320.
Upon motion by Wilson, second by Crites, the Consent Calendar was approved as presented by
unanimous vote of the Council.
VI. ORAL COMMUNICATIONS - A
None
VII. RESOLUTIONS
None
VIII. ORDINANCES
For Introduction:
None
For Adoption:
A. ORDINANCE NO. 633 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF PALM DESERT, CALIFORNIA, ESTABLISHING MINIMUM STANDARDS FOR
THE ABOVE GROUND STORAGE OF FLAMMABLEJCOMBUSTIBLE LIQUIDS
AND GASES. (Continued from the meeting of February 28, 1991.)
Mr. Altman noted there was a memorandum from the Fire Marshal addressing the issue
of storage tanks (attached hereto and made a part hereof as Exhibit "A"). He
recommended adoption of the ordinance.
Upon motion by Wilson, second by Benson, Ordinance No. 633 was adopted by unanimous vote
of the Council.
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REGULAR PALM DESER 7ITY COUNCIL MEETING MARCH 14, 1991
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B. ORDINANCE NO, 636 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF PALM DESERT, CALIFORNIA, APPROVING AN AMENDMENT TO THE
ZONING ORDINANCE TEXT, MUNICIPAL CODE SECTION 25.68.
Mr. Altman stated that no changes had been made since introduction of this ordinance,
and he recommended its adoption.
Councilmember Benson moved to waive further reading and adopt Ordinance No. 636. Motion
was seconded by Crites and carried by a 4-1 vote, with Councilman Kelly voting NO.
IX. CONSENT ITEMS HELD OVER
None
X. NEW BUSINESS
A. REQUEST F6R OPPORTUNITY TO ADDRESS CITY COUNCIL BY MICHALE
KWAIT RELATIVE TO THE COLLEGE OF THE DESERT STREET FAIR.
MR. MICHAEL KWAIT addressed the Council relative to the street fair at College of
the Desert. He read a prepared statement relative to the court case ruling that a college
swap meet in the City of Santa Ana was illegal (attached hereto and made a part hereof
as Exhibit "B"). He said he felt the College of the Desert Swap Meet was illegal and
violated the zoning codes of the City of Palm Desert, specifically Section 25.28.140which
prohibited outdoor selling in Palm Desert. He asked why, if the City had no jurisdiction
over the College and the Swap Meet, the vendors were required to obtain a City of Palm
Desert business license.
Mayor Snyder stated that this was something that had drawn considerable attention for
some time and that the City Attorney would be asked to prepare a report on the entire
matter. He asked the President of College of the Desert for his input.
DR. DAVID GEORGE, President of College of the Desert, home address 73-230
Calliandra, Palm Desert, stated he was not prepared to address the correctness of
statements raised; however, he noted that the attorney representing College of the
Desert also represented the college referred to by Mr. Kwait. He said the street fair
had been running for eight years without any charges being raised, and he felt there
was some element of longevity and precedence in this matter. He added that the street
fair provided a substantial margin of financial flexibility and supplemented income
received from the State. He said if a lawsuit is filed and succeeds in the court system,
loss of that revenue source would substantially damage the ability of the College to
perform at the level that most of the citizens in the Valley desire. Legal considerations
aside, he said he felt the swap meet was a boom to the overall retail strength of the area.
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REGULAR PALM DESERT CITY COUNCIL MEETING MARCH 14, 1991
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NOTE: THIS ITEM WAS DISCUSSED AGAIN AT THE BEGINNING OF THE 7:00
P.M. PORTION OF THE AGENDA UNDER ORAL COMMUNICATIONS.
B. INFORMATIONAL ITEMS:
1. Palmer CableVision Update.
Mr. Ortega stated that staff would have a full report to Council at the next
meeting.
2. Update on Tri-Cities Sports Facility.
Mr. Diaz reported that he had met that day with a top outdoor lighting expert,
Musco Lighting, and was impressed with the suggestions for mitigating some of
the concerns. With regard to materials to do a demonstration for adjacent
property owners, he said the firm had indicated it could have something ready in
two to three weeks. As far as design of the fields, he said the consultant had
made some changes to help resolve concerns about glare from the lights, and he
said he would have drawings and a report for the Council at the next meeting.
He noted that the Parks & Recreation Commission had expressed concern with
the fact that the dates for baseball season had been moved up from what they
used to be and that staff would be looking into this matter.
3. Hovley Lane Ordinance 416 Improvements.
Mr. Folkers noted there was a memorandum in the packets and stated that as of
this date the contractor was working on the site to eliminate the conflicts with the
existing water lines and sewer lines that are being put in.
Upon question by Councilman Snyder, Mr. Folkers responded that staff was
hopeful that the entire project would be completed by the middle of April.
4. Status of Cahuilla Hills Park.
Mr. Ortega noted the memorandum in the packets and stated that Administrative
Assistant Ray Janes was working on this issue.
Councilman Crites suggested looking at different types of shade structures and
expressed concern with the use of soft pine because of the possibility of people
carving on the wood. He said the structures they had seen in Arizona were made
of concrete, which would be more permanent than the wood.
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MINUTES
REGULAR PALM DESERT .__ITY COUNCIL MEETING MARCH 14, 1991
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Councilman Wilson stated that a letter had been received from Mr. Del Gagnon
relative to the name of the park. He felt this should be looked into before any
new signs are made up.
5. Art -In -Public Places Fee.
Mr. Altman stated that he had asked Mr. Diaz to prepare the memorandum in
the packets covering the history of this fee.
With regard to the first paragraph of the memorandum, Councilman Wilson asked
who had raised questions concerning the fee.
Councilman Crites responded that members of the Public Art Committee had
asked him questions, and he had asked Mr. Diaz to look into what other cities
were doing. He said one of the issues was whether the fee should be tied to the
CPI increase. Another question came from a developer who had a very small
project and was required to pay $50,000; even if his project was ten times larger,
the same fee would apply, and the developer wanted to know why the limit was
set the way it was. He said that in reading the report, it may be that a project the
size of the Palm Desert Town Center or Ahmanson should be subject to a
different fee.
Councilman Kelly addressed the CPI issue. He said the Art -in -Public -Places fee
was based on the value of the project; as the CPI goes up, the cost of the project
goes up, and the AIPP fee goes up accordingly. He added that he could see no
reason to change this item. With regard to the other issue raised, he felt perhaps
it should be changed so that a project under a certain size would contribute a
reduced amount. He stated he felt the current system was excellent and that he
would be reluctant to tamper with it.
Mr. Altman stated that no action was necessary unless Council wished to direct
staff to take some action.
Councilman Wilson agreed that the system should not be tampered with and felt
it should be kept the way it is and monitored for the next several years to see if
change is warranted.
Council concurred.
XI. CONTINUED BUSINESS
None
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REGULAR PALM DESERT CITY COUNCIL MEETING MARCH 14, 1991
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XII. OLD BUSINESS
None
XIII. REPORTS AND REMARKS
A. CITY MANAGER
None
B. CITY ATTORNEY
Mr. Erwin requested a Closed Session at the appropriate time pursuant to Government
Code Sections 54956.9 (a) (Levald vs. Palm Desert re: Indian Springs Mobile Home
Park), (b), and (c), pending and potential litigation, and 54956.8, real r..,r:,.t�►
transactions (five -acre parcels in Section 4).
C. MAYOR AND MEMBERS OF THE CITY COUNCIL
o City Council Requests for Action:
None
o City Council Committee Reports:
1. Councilman Kelly reported that Tuesday morning he had attended a County
Board of Supervisors meeting and accepted a resolution on behalf of the City
Council commending the City of Palm Desert for its work in recycling, specifically
the Ahmanson project where over 80% of the demolition was recycled.
2. Councilman Wilson commended staff for the quick action taken to open up Cook
Street, which had been washed out by the recent storm.
3. Councilman Wilson stated that a report had been given at the RCTC meeting
regarding the study being done on the rail system to link the Coachella Valley
with the Los Angeles area. He said four sites had been picked for stations, and
he asked that staff look into the possibility of including access for a rail station
when moving forward with interchange improvements at Cook Street, Monterey,
and Washington. He felt it would benefit the residents to have the train stopping
in Palm Desert.
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MINUTES
REGULAR PALM DESERT TTY COUNCIL MEETING MARCH 14, 1991
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4. Councilman Wilson stated that he continues to receive telephone calls regarding
traffic on Mesa View. He asked staff to look into why the speed limit is 35 mph
on Portola to the Fire Station and then immediately goes to 40 mph on Mesa
View Drive and whether it could be changed to 35 mph throughout.
XIV. ORAL COMMUNICATIONS - B
None
Upon motion by Crites, second by Kelly, and unanimous vote of the Council, Mayor Snyder
adjourned the meeting to Closed Session at 4:50 p.m. He reconvened the meeting at 7:00 p.m. with
no action announced from Closed Session.
XV. COMPLETION OF ITEMS HELD OVER FROM 4:00 P.M. SESSION
None
XVI. ORAL COMMUNICATIONS - C
DR. DAVID GEORGE, 73-230 Calliandra, addressed Council relative to the College of the
Desert Street Fair and asked whether the City Attorney was ready with a report.
Mr. Erwin responded that the matter had been referred to his office for a detailed and complete
staff report to be presented to the Council at a future meeting.
XVII. AWARDS, PRESENTATIONS, AND APPOINTMENTS
A. PRESENTATION OF AWARDS TO THE WINNERS OF THE STUDENT ART &
ESSAY CONTEST.
Mayor Snyder, Contest Chairperson Evelyn Bennett, and Committee Member Alvin O.
Mark presented awards to the following:
Desert Arts Calendar Magazine Awards - Essay:David Gudelunas, Grade 8, Palm Desert
Middle School; Mural: Mrs. Killebrew's 5th Grade Class, Lincoln School.
Palm Desert Art Gallery Association Awards - Mural; Mrs. Killebrew's 5th Grade Class,
Lincoln School; Mario Martinez, Grade 3, Lincoln School.
The Desert Press Club at Palm Springs Award; Michael Swartz, Grade 1, Washington
School.
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MINUTES
REGULAR PALM DESERT CITY COUNCIL MEETING MARCH 14, 1991
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Award of Excellence - Perpetual Award 1991: Principal Jackie Colarusso, Abraham
Lincoln Intermediate School.
Mural Category - Group Entries; Mrs. Bowman, Grade 1, Washington School; Mrs.
Zagorski, Grade 8, Palm Desert Middle School; Mrs. Weeks & Mrs. Mower, Grade 5,
Lincoln School; Mrs. Kerbajian & Mrs. Fuller, Grade 4, Lincoln School; Mrs. Deady,
Grades 4-5, Lincoln School; Mrs. McGihon, Grade 5, Lincoln School; Mrs. Aren, Mrs.
Brady, Mrs. Cathcart, Mrs. Marks, Mrs. Morris, and Mrs. Poole, Kindergarten Class,
Washington School; Mrs. Schmidt, Grade 3, Lincoln School; Mrs. Nishikawa, Grade 3,
Lincoln School; Mrs. Wiener, Grade 4, Lincoln School; Mr. Burroughs, Kindergarten
Class, Washington School; Mrs. Montgomery & Mrs. McDaniel, Mixed Class, Lincoln
School East.
Art Category - Individual Entries; Jimmy Cathcart, Grade K, Washington School; Ricky
Osborne, Grade 1, Washington School; Celine Van Reinsdyke, Grade 2, Washington
School; Veronika Vitsaras, Grade 4, Lincoln School; Colby Homec, Grade 5, Lincoln
School; Stephanie Chambers, Grade 6, Palm Desert Middle School; Manuel Quines,
Grade 6, Lincoln School East; Breia Sanders, Grade 7, Palm Desert Middle School; Abel
Lopez, Grade 8, Palm Desert Middle School; Kim Furr, Grade 9, Palm Desert High
School; Arcelia Mandrasan, Grade 10, Palm Desert High School; Steve Carter, Grade
12, Palm Desert High School.
Essay Category - Individual Entries; Michael Mozingo, Grade 2, Washington School;
Laura Garner, Grade 3, Lincoln School; Merry Hoffman, Grade 4, Lincoln School;
Hillary Herr, Grade 5, Lincoln School; Allison VanOosting, Grade 6, Palm Desert Middle
School; Kellye Francois, Grade 7, Palm Desert Middle School.
Closing remarks were made by Council Richard S. Kelly, and he thanked everyone for
attending these ceremonies.
B. REQUEST FOR APPOINTMENT TO THE CIVIC ARTS COMM! i i rt TO FILL AN
UNEXPIRED TERM.
Councilman Crites moved to, by Minute Motion, appoint Ms. Carolyn Miller to the Civic Arts
Committee to fill the unexpired term of Mrs. Pat Anderson. Motion was seconded by Benson and
carried by unanimous vote of the Council.
C. REQUEST FOR APPOINTMENT TO THE PALM DESERT TRAILS COMMITTEE.
Councilman Crites moved to appoint Mr. Randall White, Mr. Dave Johnson, Mr. Jack Kearney,
and Ms. Judy George to the Palm Desert Trails Committee. Motion was seconded by Kelly and
carried by unanimous vote of the Council.
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MINUTES
REGULAR PALM DESEI CITY COUNCIL MEETING MARCH 14, 1991
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XVIII. PUBLIC HEARINGS
A. REQUEST FOR APPROVAL OF A PLAN OF DESIGN FOR THE IRONWOOD
PARK AND CERTIFYING A NEGATIVE DECLARATION OF ENVIRONMENTAL
IMPACT.
Mr. Diaz reviewed the staff report, noting that the Planning Commission and Parks &
Recreation Commission had reviewed the plan for the design of the Ironwood Park and
recommended it be implemented. He stated that one of the issues discussed was
restroom facilities, and it was decided that a restroom should be placed in this park.
With regard to parking, it was felt the parking on the site should be placed in such a
manner as to discourage people from parking on adjacent streets and encourage them
to park on the site. He reviewed the issues dealing with noise, access, privacy, and
impact from outsiders, noting that this would be a passive park with no organized sports
activities. He said it would be an open area for picnics and family gatherings. He added
that staff recommended approval of the plan and adoption of the resolution.
Mayor Snyder declared the public hearing open and invited testimony in FAVOR of this plan.
The following people spoke:
MR. RANDALL WHITE, 73-186 Somera Road, commended staff and the Planning
'Commission for their work on this park. He said although there were still some people
against the park, he felt the majority of residents were in favor of having the park built
as soon as possible.
MS. DONNA PEAT, 73-185 Somera Road.
MS. BETSY WHITE, 73-186 Somera Road.
MS. DANIELLE BIXBY, 47-825 Sun Corral Trail.
MRS. HARRY NUDD, 73-409 Little Bend Trail, said she was in favor of this park but
was concerned that closing off the street would cause UPS and trash trucks to use her
circular driveway to turn around.
Mayor Snyder responded that Mr. Folkers would look into this matter.
Mayor Snyder invited testimony in OPPOSITION to this request.
MR. NEIL NEUMANN, 73-280 Buckboard Trail, said he was in favor of the park but
felt the actual design should be tabled until issues of electricity, water, sewer, etc. are
resolved. He felt if the park were built as planned, various service trucks, such as
Southern California Edison, would not be able to get in and out of the area.
Mr. Altman responded that the detailed plans would include utility placement, sewers,
etc. He said this request was to approve the general concept of the park; the next step
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MINUTES
REGULAR PALM DESERT CITY COUNCIL MEETING MARCH 14, 1991
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is to get the engineers to do formal plans, and he said Mr. Neumann's input would be
most welcome.
Mr. Diaz added that the City had a very good working relationship with all the utility
companies. He said this park would be designed like all the other parks, using the most
economical and cost effective methods to develop it and bring in the necessary utilities.
He said the water, sewer, and electricity were available for the facility. He added that
a state of the art irrigation system would be used to ensure a minimum of water usage
in terms of the turf area.
Mayor Snyder declared the public hearing closed,
Councilman Crites moved to, by Minute Motion, affirm the recommendation of the Planning
Commission and waive further reading and adopt Resolution No. 91-37, adopting the Ironwood Park
Plan and certifying a Negative Declaration of Environmental Impact therefore, noting that the issues
raised by Mr. Newmann were the types of issues that will be addressed by the site plan. Motion was
seconded by Wilson and carried by unanimous vote of the Council.
XIX. ORAL COMMUNICATIONS - D
None
XX. ADJOURNMENT
Upon motion by Crites, second by Benson, and unanimous vote of the Council, Mayor Snyder
adjourned the meeting at 8:25 p.m.
ATTEST:
SHEILA R. GILL4AN, C CLERK
CITY OF PALM DESERT. ALIFORNIA
WALTER H. SNYDER, MAYO
12
�.. COUNTY
# -
RIVERSIDE.,..
RIVERSIDE COUNTY FIRE
COVE FIRE PREVENTION BUREAU
44.900 EL DORADO DRIVE
INDIAN WELLS, CA 92210
March 8, 1991
RIVERSIDE COUNTY
FIRE DEPARTMENT
IN COOPERATION WITH THE
CALIFORNIA DEPARTMENT OF FORESTRY
AND FIRE PROTECTION
GLEN J. NEWMAN
FIRE CHIEF
Honorable Mayor Snyder and City Council Members
73-510 Fred Waring Drive
Pals Desert, CA 92260
RE; ABOVE GROUND FUEL ORDINANCE
OkLICORN74
fit' eF RENMROrEc! 0"41
210 WI S1 SAN IA( IN IO AVI:NUE
PERRIS, CALIFORNIA 92370
TELEPHONE: (7141 657.3183
Dear Mayor Snyder and City Council Members:
if
As per the meeting held on March 8, 1991, we have clarified that the Uniform
Fire Code clearly defines a tank as that being a quantity of over 60
gallons. Since this ordinance deals only with tanks, it is recommended that
we pass this ordinance intact. The issue of containers, that being
quantities less than 60 gallons, shall be addressed in a separate ordinance
soon to follow. Your existing use of such individual containers in
quantities less than 60 gallons each within the city will be permissible
under the old existing ordinance, and also the new ordinance dealing with
tanks.
A second ordinance would clarify the minimum requirements of the Uniform
Fire Code for dispensing out of containers as is being presently done at the
Shadow Mountain Resort.
Respecully,
CLYDE EHITTENDEN
COVE FIRE MARSHAL
CC:djb
14694
Datlp Apt:Batt itpart
ease, the trial court properly accomplished the desired re-
sat br the lotpostng octlte charitable trust on the proper
le
Ilgep Civic Club did teat Tara the condition that
the plaintiff have a right to the real property but fashioned
a remedy that would recognise that right. However, the
shareholders of a corporation have no ownership right to
the real property of the corporation but only a right to own-
ership of the shares The constructive trust which would
recognize that right is a constructive trust on the shares
wrongfully acquired. The right to those shares carries an
indirect right to exercise control of the real property
through the voting rights of the shareholders But that is too
indirect an interest to support a lis pendens. Plaintiff must
show an effect of the title or the right to possession in order
to resist expungement of* lis pendens.
• Leta peremptory wrltissue directing respondent court
to grant the motion to expunge tut lis pendens.
POCHE,J.
We Concur.
ANDERSON,P.J.
PERLEY,J.
1. In explanation. the First Amsaded Complaint adds the fol-
lowing paragraphs 16 The imposttioe of a constructive trust on
the real property presently !mid in the name ofTIO PACIFIC LUM-
BER COMPANY, a Delaware oe. is nteesaary and appro
Oars. (Pare' o7. Delendaata 1 AX AM PACIFIC LUMBER COM-
PANY. a Delaware Corporation. and CHARLES HURWITS have
dissipated the trust property, Ls.. the real property in Humboldt
County, tide to which was Ibrmer17 beld by the PACIFIC LUMBER
COMPANY. a Mahe Corporatism. (Para,* Since *arty UMi, defen-
dants and IWRWITS and their aCWatas and agents have received
Uremia and profits from the real property la *scan o(S100 milli**
dollars and have used such monies lor misery other purposes, in -
eluding the acquisition of XISER-TECH. aka IUSLR ALUMINUM.
and the payment of exorbitant salaries and bosuns to HURWITZ
and others. Defendants abould be required to account MO for all
r
la w aldttddefenda� MMAXXAM Ha. URWI 'S. THE PAof the CIFIC LUM-
BER COMPANY, a Delaware CorporsUoe. sad their affiliates and
anon seffbduated and obtained the transfer *flap! title to the real
property in Humboldt Count" fonliarly owned b! THE PACIFIC
LUMBER COMPANY, a Maine Coverall" said defendants are In -
'Mummy trustees bolding saidand the profits therefrom
in constnted,e trust lbr piaiatllf and plaintiff's class with the duty
to moony the sauce to plaintiff sad plaintiffs dam or to a now
tnute�e ay pointed by tin Caner hero br plaintiff. 70. The
MAZXA7( defendants aro not suitable to serve as the requested
constructive trustee and the Cast *odd appoint a arc trustee to
*Mataie aad control the subject teal property. Mersin. Plaint!ff
brings this action as age ivedee salon se behalf OM PACIFIC
LUMBER COMPANY, a Mahe Corporation PtaintlIdid not make
PACIFIC LUMBER MANY..aa Maine Cory ratie� tTHE
any
such attempt sad effort woad have been Mile la that the old Board
of Directors. to plating Intbrmatles and ballet. either no urger
Wits or is controlled by HUM/TM and the MAXXAM defendants
Plaisulrbaa. however, delivered a trot espy of this First Amended
Complaint to the law Arta which for•erly.neprmeated TILE PA-
CIFIC LUMBER COMPANY,* Males Corporation. and which now
represents the defendants. including THE PACIFIC LUMBER
COMPANY, a Delaware Ca peradoa, aaaheiy HUBER t GOODWIN
of Eureka. Calitbrnla. prior to 0liag this First Amended Com-
t The prayer la the First Amended Complaint also Includes a
request for a ve trust ee all shares obtained by the
MAJLXAMIletandantL
Counsel for Petitioner.
David G. Robertson
Susan Barnhardt
Jou S. Tiger
San Francisco,CA94104
Counsel for Respondent
No appearance
Counsel for Real Party in
Interest
ThomasC. Petersen
P.O. Box 9573
Santa Rosa, CA95405
Monde
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EDUCATION
ZoningLawsPreventSwapMeet
In CommunityCollegeParldngLot
Cite as 90 DailyJournal D.A.R. 14E94
THE PEOPLE e: reL EDWARD J. COOPZZ,
as City Attorney, ate, *Sal.,
Plaiatitb•AppellanIs,
♦.
RANCEOS:ANTIAGO COLLEGE et al,
Defendants-1Respoadeate.
No. G008731
Super. Cs. No. 546479
California Court o[Appeal
Fourth Appellate District
Division Three
Filed December 26, 1990 .
CERTIFIED FOR PARTIAL PUBLICATION'
Appeal from a Judgment of the Superior Court of Or-
ange County, William F. Rylanrsdam,Judge. Reversed.
Edward J. Cooper, City Attorney, Richard E. Lay, Assis-
tant City Attorney, and Frank L. Rhemrev, Deputy City Alp
torney, for Plaintiffs and Appellants. • • ' . • • . -
Liebert, Cassidy & Frierson and Mary L Dowell for De-
fendants and Respondents. '
The primary question presented in this appeil Is •
whether Government Code section 53094 permits a school
district to render a city coning ordinance Inapplicable to a
commercial swap meet conducted lathe district's parking
Lott We hold it does not.
- _ary 12. 1968,i� +n. Santiago College (Col-
lege), a community cons's% the OW of Santa Ana (Clay).
and Santiago Club (Club) an orrganiastRaa neither affiliated
with nor part of College, entered Into an agreement allow- .
ins the Club to operate a swap meet in College's parking lot
on Sundays from 8 a.m. to 6 p•te.s The swap meet been op-
eration January 17. While College doss not participate in
operating the swap meet, both it and the Rancho Santiago
College Foundation receive a percentage of 'the swip
meet's gross receipts • .!
On January 21. City and its attorney filed a one -count
complaint against College and Club to sztjoln operation of
the swap meet City alleged the parking lot is sorted open
space under its zoning ordinances, and a swap meet is not a
permitted use. On February 23. College adopted a resolu-
tion pursuant to section 53094 oo...ariag Cites zoningordi-
nances inapplicable to :all property 'of the college" in
Santa Ana and "all uses it properby,"'Thereafer, City
amended its complaint .ng causes of action ehalleng-
• Pursuant to California Rule. of Court rule 9'7Atbt oa-t of the
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Lay,Assis-
puty, City At -
moll for De-
s appeal is
alts a school
pllcabie to a
ices parking
;allege (Col-
a Ana (City),
,er affiliated
menu allow- .
s parking lot
et began op.
►rtic(pete in
ho Santiago
if the swap
a one -count
,psration of
zoned open
meet is not a
ad a resolu-
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ege" In
ter, City
. sailers•
or. wart delis
standards for
Ins the validity of the resolution, and allegth . gth the op- .
eration of the swap meet and adoption of the re on vi.
o d the California Environment Quali4eAct.
source 21000etseq;CEQA.)
City filed a a eremptory writ of ma ate
seeking to void both the part a Col-
lege's resolution on all of the grounds alleged In the
amended complaint On August 10, 1989, the motion was
granted in part. The trial court found the agreement to op.
erate the swap meet constituted a project under CEQA,
vioded the contract, and ordered College to prepare an Ini-
tial environmental study. But Club was permitted to con-
tinue operating the swap meet pending further order ofthe
court. The court refused to decide whether College validly
adopted its resolution. City appealed.
While the appeal was pending. College completed its
Initial study and Issued a resolution declaring the swap
meet would not have a significant impact on the environ-
ment On April 28,1990, respondents tiled a supplemental
return to the trial court's writ Clty objected to the return
and again moved for a peremptory writ challenging Col•
lege's authority to adopt the resolution under section
53094.OnJuty 13, the trial court overruled ClLy's objections
to the return and denied the writ.
DISCUSSION41147.
This appeal was filed before judgment was eatst+ed.
College asserts the appeal 1s premature and should be dis-
missed.Wedecline todoso. t•
Generally, an appeal may be taken only from a Onal
judgment. (Code Clv. Pro.,1904.1, aubd. (a); Knedel v. [m-
odel (1975) 14 Cal.App.3d 752.760; American Nat Beak v.
Stanfill (1988) 205 Cal.App.3d 1089,1096.)This rule applies
to actions between the same parties involving pie
causes of action that seek different forma of reU4 (do
v. Kendall de Vally O. Co., Ltd. (1934) 220 Cal. 742, 745-
746; Gambol v. Ashe (1958) 158 Cal.App.2d 517, 522-823
(overruled on an unrelated point in Taylor v. Superior
Court (1979) 24 Cs1.34 890, 900); Wilgus v. Wilson (1950) 96
Cal.App.2d 589, 596.)
In the present case no final judgment has yet been en-
tered. The August 10,1989, order from which Clty appealed
Involved only the third and fourth causes of action dealing
with CEQA. In that ruling. the lower court expressly de-
clined to decide the validity of College's resolution. The
July 13,1990, order decided only the resolution's msr.ite.
Nonetheless, the present cue is similar to Gumbos v.
Asks, supra, 158 Cal.App.2d 517. Titers, plaintiff* sued de•
fendant alleging three causes of action. The trial court aus-
tained a demurrer to the third count without leave to
amend and a judgment of dismissal was entered. P)aintifs
took an appeal from it While the appeal was pending, tries
was held on the first and second causes of action resulting
in a verdict for plaintiffs. SubspuenUy, a judgment was
entered on those two causes of action but no appeal was
taken from it Defendant moved to dismiss plaintiffs' ap-
peal. The Court ofAppeal denied the motion, amended the
judgment on the first and second causes of action to add a
paragraph dismissing the third cause of action and. under
California Rules of Court. rule 2(c). treated the appeal as
timely. (Id. at pp. 523-625.)
We conclude this approach is appropriate here as well
The mere fact the appeal presents Issues that were not
tided until July 13,1990, does not preclude use of the G
boa approach since Clty challenges the merits of 1 . r
court's August 10,1969, order. Accordingly, we shall a red
the July13ruling toadd aparagraph grantingjudgn t for
the defendants on the third and fburth causes of actlo and
treat City's notice of appeal as filed Immediately ant en-
try of theJuly 13 judgment (Cal. Rules otCourt. rule 2(c
II
"*" Section 53004 permits a school district to declare a city
zoning ordinance inappl icable to a proposed use of district
-. .
property, unless the proposed use is for "nonclaasroom fa-
cilities." The statute defines this phrase in broad terms.
but does not expressly state whetherthe'use eta school dis-
trict parking lot for a commercial swap meet by a third
patty is a nonclauroom facility. . • •.
The Legislative history of section 53094 and the scope
of the "nonclauroom facilities" exception were recently
considered in Clty °[Santa Cruz v. Santa Cruz Schools Bd.
of Education (1989) 210 Cal.App.3d 1. There, the Court of
Appeal for the Sixth District held the replacement of light-
ing fixtures on a high school's athletic field could be ex-
empted from a city's zoning ordinance.
In so ruling, the Santa Crns court concluded the Legis-
lature enacted section 53094 to "(strike] a balance ... be-
tween state educational and local regulatory interests and
control." (Id. at p. i<) The court explained the
"nonctassroom facitiUes" exception as foUows: "Although
the current law concerning which ageacls have to follow
what local regulations is a tangle of prohibitions and ex-
ceptions. lacking a single. arttculabls organising prtnctpte,
the amendments to section 63004 do suggest a IsglslaUve
conclusion that the relationship between school boards
and their'nonclauroons facilities' Is not significantly dif-
ferent from the relationship between other state agencies
and their property, which.1n fact. could also be character-
ized as'nonclassroom thc111U "end therefore.state-edu-'
csUonal policy does not reasonably or logically justiticoi*
tinned permlulof for school boards. to .exempt their
'nonclasuoom facilities'• from local control...As to what •
'nonclusroom facilities' are, the legislative genealogy of
section 53004 Anther suggests that 'nonclassroom facili-
ties' are those that are not bytbetrnature so dlrecUy orsuf-
ficiently related to a school board's valve . ftanction as to
distinguish it from any other local agency. •' • A
'The statute Itself confirms and helps clarity this sug-
gestion by enumerating Instructive examples of
'nonclauroom facilities.' The statute lists 'warehouses, ad-
ministrative buildings, (andj automotive storage and re-
pair buildings(.]' These !settines have nothing directly to
do with classroom activities. Rather, they are devoted com-
pletely to ancillary, nonlnstructional filncUons. Thus, we
perceive in section 53004 an Intention to dtatingutah be-
tween instructional and support nullities. Accordtngty, we
consider it reasonable and consistent with Use legislative
history and purpose of settler • " t094 to Interpret
'nonclauroom faclllUes' to mean sip. Directly used
for or related t- student Instructio.,. [Citation.] Moreover,
this Interpretation preserves the balance In section 53004
between the state's strong interest (In) public education
and the value aloes zoning controls. (Fn. omitted.]" (It at
rp.74)
Santa Cruz correctly resolves the tension between the
Ws Interest in edueaUon and the local entity's Interest
In zoning control. Based on that standard. $ commsreial
swap meet operated bbythied-poet .o xa - community col-
lege district'spopei'ty cannot p s eit 's
zoning ordManceunder suit ,
lege makes no effort argue the swap meet is
of educational process the school. It is aotaponaered
anyone connected wi the school as part 011ie sdeea-
on proceu. College trip to tie the swap mast late the edu-
cational process by noting that 20 percent of its proceeds
are turned over to the school, and the Income (appr'eat-
muely 85.700 per month) Nada InstrucUoaal pegysme
which benefit both College sad Its students. ire are wiper-
susdsd by this financial argument. Takid''tollrisdesi ex-
tension, Ifs school district could exsalpt'Csettbu s a dt s
zoning controls simply by resolving some rsm9. gr.Uvsro
turn for use of its property, section 463094 wswald.teems
meaningless. There Is no justification for sxsaaptlag this
commercial enterprise hosCtty'ssoningordinsese.
DI3P03IT11ON''. ' • ..
The July 13 order l amended by adding
14696
• Datl Appellate Report
. Monday, December31;r1990
graph granting judgment for defendant on the second
amended complaint's third and fourth causes of action. In
the Interests of justice, the notice of appeal Aled October 2,
1910. is treated as flied immediately after entry of the July
13 judgment. The judgment is ravened and the matter re.
mended to the lower court with directions to issues writ in-
validating the resolution adopted by College and enjoining
operation of the swap meet on College's property In viola-
Uon ofClty's souing laws!
We Concur.
WALLIN,ActingP.J.
SONENSHINE,J.
MOORE,J.
1. Section 53094 provides to pre "Notwithstanding any other
provisions otthls article _seepil cd,4103'f. thitgrnrs(ag bard
of a school district... may render a city... zoning ordinance inappli-
cable to ■ proposed use of property by such school district except
when the proposed use of Use property by such school district is for
nonclassroom faclllUu. Including. but Dot Ilmltad to. warehouses.
administrative buildings. automotive storage and repair buildings.
(T)he city ...may comment, an action... 'initial's review of such
action of the governingboard ofthe school distriet(aedInthe court
determines that such action was arbitrary and capricious. It shall
declare It to be ono forte and effect and the seeing ordinance In
question shall be applicable to the use of the property by web
school district"
Section 53097 provides In part "Notwlthalaeding any other
provisions of this article. the governing board of a school district
shall comply with any city... ordlaaaco t l ccuisUng drainage im-
provements and conditions. (2) regulaUns road Improvements and
conditions, or (3) requiring the review sad approval of grading
plans as such ordinance provisions relate to the design and con-
struction of ensile facilities and Improvements, and shall g)a con-
sideration to the speelfle requirements and cosdWWuolder ... en
dlnances relsUng to the design and eoastrvsUN.(oakite Wpm*.
menta....
For convenience, we will refer to Government Code asetoa
33004 as section 3300
2. The agreement provides "The SanUago Cub hereafter re-
ferred to as the 'Club' and Rancho Santiago Cummuaity (she) Col-
lege. hereafter referred to as the 'College' hereby agree to the fol.
lowing (Pan►11The Club shall use campus parking totems DO. afro
Ms purpose oeonducUng a'Mercado', (open market(Pars)2) Said
Mutedo shall commence Sunday, January 17,1335. hots 3:00 a.m.
to 6:00 p.m.. and continue every subsequent Sunday thereafter..
except as provided In this agreement (Pare) 3) This agreement
shall terminate July 3.1988. or after either party rovides the other
party with a 30 day written notice. (Para) 4) The Club shall provide,
security. management. personnel. restroosus, directional signs.
parking assignments. and elean•up of the area. (Pan) Si The Club
shall provide the college with proofof Insurance to operate Use Mer-
cado. (Pan)11)The College will provide the pub with 30 days notice
prior to the use cares by any other community organization or the
College in which the use conflicts with this agreement The Club
will waive use of the area upon receipt of the notice and make the
area available for others to occupy. (Para) 7) In consideration for
the use.( the area the Club will pay to the College twenty portent
(20'b) of the'Mereado' pow receipts. In addlUon to the preceding
30'Ji payable to the college (sic). the Club shall pay to the Rancho
Santiago College Foundation lwsnq percent (20%) of the amount
paid 10 the College."
3. The College resolution provides: *WHEREAS California
Government Code Section 53004 authorises a eeatmuaity college
district to adopt a declaration that It la exempt boas a elty or county
toning ordinance; and (Pars) WHEREAS the ate _Seale has has
taken the position that Its zoning regulations, and la particular DI -
vision 23, Sections 41•584 and 41.515 of the Santa Ana Municipal
Code. apply to the use of college property; and (Pan) WHEREAS
the City of Santa Ana has declared that all property .(Rancho San-
tiago College (nested within the City of Seats Ana 1s designated'O'
space; and I19ra( WHEREAS the Board members and adralalatra-
lion of Rancho Santiago College have had many dlacuesleas with
repreeentaUves otbe City ofSaata Ana, and the City still aalatains
its position that the _Wage's property k subject to Its maths ordi-
nances and that 1t wit great Do variances to the college far
which the City desau to be in violation efts ordinances: are (a i.
dueing the ability oche college to use Its poop soy tar the ben if
all Its students and the RanSantAlles College eommmdtrd '1
TIiER5FORE BE IT RESOLVED THAT: [Para) Raaebe gas o
College, In accordance with Goveraraeat Cede Softies I 1.
hereby declares the teeing ordinances echo City oSeats Ana, in -
eluding but not limited to tertlag Lotg sad Psrtleegg Let 7; and be it
father resolved that. (Pan) limbo Santiago Collage, la sear -
dance with Government Code Section 53094 hereby declares the
toning ordlaancesoftbeCity 0Santa Ana inapplkabie tedium of
Use property of the collegewitbla twattyoffeataAaa.*
4.1n light ofourdetermination section 53094 does not authorise
College to exempt Itselfhem City's Dosing ordinances. we seed not
reach the other issues relied on appeaL
�s
MEMORANDUM\
MEMO TO: VENDORS
FROM: JOE IANTORNO AND LUIS CORONA
DATE: FEBRUARY 26, 1991
RE: 1991-92 STREET FAIR
The following outlines the modified direction that the
College of the Desert Street Fair will take after May 30 1991.
In general, emphasis will reflect more of a homegrown
perspective, emphasizing such things as handcrafted items,
farmers' market type goods, antiques, and garage sale articles.
Entertainment activities will be increased in order to promote an
improved "Street Fair" atmosphere.
In keeping with this shift, the following categories of
merchandise will be dropped from the approved merchandise list,
except as they are modified below:
1. PURSES AND LUGGAGE - dropped. (Except for those items that
are handcrafted or decorated.)
2. WATCHES - dropped. Watch repair and/or sale of antique
watches would be permitted.
3. JEWELRY - dropped. Jewelry repair, antique jewelry, or
handmade jewelry would be permitted.
4. SUNGLASSES/READING GLASSES - dropped. USED or original
decorated glasses only.
5. SILK PLANTS/TREES - dropped. Handmade silk flower baskets
and centerpiece flower arrangements would be permitted.
6. ART PRINTS/PHOTOS - dropped. Original artwork and
lithographs of original art by the artist and original
photos would be permitted.
7. SHOES - dropped. Used shoes are permitted.
8. FURNITURE/PATIO FURNITURE - dropped. Handmade furniture and
patio furniture would be permitted.
9. LUCITE ITEMS - dropped. Only USED items permitted.
10. FURS - dropped. Only used or handmade fur items will be
permitted.
All other groups of merchandise will be allowed (without
restriction) subject only to the approval of the Alumni
Association. The Alumni Association also retains the prerogative
of reviewing the'merchandise mix periodically and making
adjustments as may be deemed in the best interest of the Street
Fair.
The nature of this understanding is to produce a mutually
supportable environment in .which the College of the Desert's
Alumni Association is allowed to provide important financial
reserves to the College of the Desert while at the same time
minimizing interference with the retail interests of the central
Coachella Valley.
It is anticipated that this modified Street Fair, especially
with its new "Fair" look, will continue to attract buyers and
sellers alike.
• an ordinance that bans'all outdoor
meets in the city.
The Council.. which approV.
ordinance by' a 5-2 vote; cited par• .
problemat theft, trash and neigpbolliOod
disruptions in passing the Ill«LlyreitT4,
ordinance' is t!'an. effort to maintats tpe..
' • _ character:Of the citr,s nelihbOT!* •
• said RobiR.Uptegraff. Platu#18" ..
' :..itkerytabligns.:,.tha.0 Prot9.dj
, action; g9144, yeariand. .years theeof ,what
•
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. •
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salutes Art1'...er1cal...::fla., g.- aS it is r,3 :'. ISc1t4:71....bilyr5.fifefl;;;:rs'i. du4AriniEgi9raalsir at ter.
.. • .
, ... , ..• • . 7. q - 1-."-44:: ,P4,74.A.:6.,-.::, • , . • : . . • r...44.k14.,
' '.•'.: "'• ' - ... .;*.t'•'., ,-. . ' '.' . . • • - ,...' •
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7
..:,; on behalf of Vietnam Veterans Retinit, :coinplaints.".-', ..1.,, ...'. „` 11..
,
-, • • ,..,• i ,. '22, !..0.
1 . ed. , , •!....:L:.+:, .; : ..-.1.:: —JON NALICIC.,A.A.;Rodney• Burge: a ilii -o
SANTA_,...• ' '!.4
.. • ff:404 t Orange.. County.: Chicilie; . • 110:15
.. ' . •ANA ..:-K. e. , • .-":•.;-.42."(x)mmittee. spoke out, agaff
las1,! . 'I.-..'
-. . - .... • • • •• .... , _ . . '',7,14-,;t4;:.•:-.3iiance., ':The Mexican. pitopi.via,,t,- i-kt's
_..2,
Outdoor Swap eetePways relied on this type.('.. • • ....,:. 1....
„„.f..A44irt.,!s ugfair to the people,arid • .
Otiffa-Wed in' 5-2.. .6 4tioaesaid-.. '..".t. -r'...-'f-414. , -?
.....1. -.r.•-•.1-t• .
•._ • • .•„v.:, .. - .: . . .:•,. • :• 2,,
., ... . . , . -. , v •Ii The ordinance-. does- • •
• • ...,... igdoor swap • meets .,oz„f.t.C4 tcm
f • „ The City.,Council on Tuesday piyase43-4,2•,..ivoutd001.- events 5661-4 reit444.
71:rairs or bazaars that' arli.‘,".,7..A.:„:....,..A-,b
"y government agencies; cli."_. - min
4.‘?7-profit service orcanizatio -
;: Outdoor swap meez{hayeee.
:-/ source of controversy sincailsV74....
0, city, officials shut ovitii .. - •
ineet held at Eddie.We §
.ce Teeeiving:
4'''.00uWash anci noisa.la's
*s4.114e, 0144,t.heliXint
• • ,•• :,
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• •
7
March 5, 1991
•
Palm Desert City Council
73-510 Fred Waring Drive
Palm Desert, Ca. 92261
Dear Sirs:
My name is Michael Kwait and I have been a resident of Palm Desert since
1978.
I would like to address the Council regarding the College of The Desert
Swap Meet. The purpose of my request is to question the fact that this
activity is legal. I have heard many rumors regarding the Swap Meet and
feel, as a resident, that I have the right to be heard and be given the
correct information regarding this subject.
I am hopeful that I will be on your agenda for your March 14, 1991 Council
Meeting.
Thank you for your consideration.
Sincerely,
Michale Kwait
48-594 Oakwood Way
Palm Desert, Ca. 92260
# 346-6310