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359 connection with the modification including "the entire obligation to main- tain private utility systems located within that common area". In addi- tion, it is my understanding that one of the reasons the drainage system failed last winter is that, contrary to the improvement plans submitted to the City which called for all of the surface drainage from Upper Twelve Oaks Drive to run to Longview and down Longview to the storm drains at the bottom of the hill, the Association in their capacity as developers of the tract, installed one or two drains in Upper Twelve Oaks Drive which empty through an open pipe into the hillside drainage system. The obvious result is that there is more water being put into the hillside drainage system than was intended. "The staff report makes no mention of City responsibility or liability in connection with the. situation. However, it seems obvious to me that the City made a mistake, innocent as it may have been, in not requiring inclu- sion of the lower lots in the Association or requiring the creation of a new Association, when Tract 4779 was submitted for development. Inasmuch as there were no CC&R's, or any other notice, to the people who bought lots in Tract 4779 that we had or might have responsibility for anything other than our own lots, I am at a loss as to how staff expects to impose such responsibilities after the fact. Staff suggests that enforcement action could be based upon a violation of PUD-79-2. However, PUD-79-2 provides that enforcement authority is to be included in the CC&R's. Since there are no CC&R's applicable to the lower 17 lots, there is no enforcement authority. "Since there are no CC&R's and no Association in connection with the lower lots, and since Gloria and Dorothea Courts are public streets, it seems clear that the City has the same responsibility for Tract 4779 that it has for any other public area in town. I would respectfully submit that th City also has responsibility to the property owners on Gloria Court to exercise its rights to enforce the CC&R's in connection with Upper Twelve Oaks and that if you do not do so, you subject yourself to liability if damages are incurred by the lower property owners as the result of inade- quate drainage facilities on the hillside. "Thank you for giving Barbara and me the opportunity to express our view." /s/V. Frank Mendicino Mr. Smith, Attorney, stated to try and clear the record, there has been no attempt by the Twelve Oakes Homeowners Association to obsvocate who developed the property; there was a joint venture formed after Messrs. Boatright and Goodrich obtained this property and obtained the PUD permit and there was an assignment of rights to develop those upper portions by a joint venture called Todco, which included primarily the property owners. If Mr. Mendicino does the discovery he alludes to in his letter, and it gets to litigation, he will find that this joint venture named Todco had no interest at all in the bottom portion, never developed it or benefitted or profited by it. The second phase of this development was exclusively that of Goodrich/Boatright Enterprises, it did not have anything to do with Todco. In terms of fairness one has to remember this, the upper Twelve Oaks area was developed initially, subsequent- ly the lower homes were developed. Lower property owners have the respon- sibility, legally, they cannot move into a hillside area, cut their own plot, move their own home in and then without doing more object to water that comes onto their property. The law alluded to in the staff report requires lower - 12 1-6-87