Yamagiwa v. City of Half Moon Bay (523 F. Supp. 2d 1036, 2007)

FINDINGS OF FACT CONCLUSIONS OF LAW

VAUGHN R. WALKER, Chief Judge.

Joyce Yamagiwa (“Yamagiwa”), brought this action alleging that defendant City of Half Moon Bay (“City”) damaged certain real property that she holds in trust. Doc. # 1-2. The property, known as the Beachwood Property, is located in the City of Half Moon Bay at Assessor’s Parcel No. 048-280-020. Id. Yamagiwa brought a federal claim for inverse condemnation and pendent state claims for inverse condemnation, nuisance, trespass and recovery of amounts paid to finance public improvements. Id.

This case was tried before the court without a jury on June 6, 7 and July 2, 3, 5, 6, 9, 11 and 12. Doc. ## 173-175, 177, 179, 181, 186-188. The court heard testimony from 22 witnesses, including seven expert witnesses, and received into evidence nearly 300 exhibits. The court now makes its findings of fact and conclusions of law:

FINDINGS OF FACT

The Beachwood Property

1. This case involves a 24.7-acre undeveloped parcel of property located in the City of Half Moon Bay, known as Beach-wood (“Beachwood,” or “the Property”). (Ex. 556.) Both sides agree that there are substantial wetlands on the Property. The principle disputed issue is what caused the wetlands to develop and, more specifically, whether a public project constructed by the City was a substantial cause of the development of Beachwood’s wetlands.

2. Beachwood is located on the east (i e, inland) side of Highway 1, north of Highway 92. The Property is roughly rectangular in shape. Its northern border is 1837 feet long, and its western frontage along Highway 1 is 576 feet. (Ex. 75, at 9900122.)

3. To the north of Beachwood lies an undeveloped parcel of property known as Glencree. To the north of Glencree lies a partially developed subdivision known as Grandview Terrace (“Grandview”). (Ex. 425.)

4. To the south of Beachwood lies resi-dentially developed property known as the Newport Terrace/Highland Park subdivision (“Highland Park”). Highland Park contains three streets running east/west: Terrace Avenue is the northernmost street; Silver Avenue is the middle street; and Highland Avenue is the southernmost street. Golden Gate Avenue runs north/ south and connects Terrace, Silver and Highland. It starts at Highland and dead-ends at Beachwood’s southern border. (Ex. 425.)

5. Beginning in 1983, as discussed in detail below, the City of Half Moon Bay constructed a public improvement on and nearby the Property. The project was known as the Terrace Avenue Assessment District (“TAAD”).

Pre-TAAD Topography of Beachwood

6. The pre-TAAD topography on Beachwood is depicted on Exs. 122 and 426 (the latter being a copy of Ex. 122 with the topographic lines shown in alternating colors for emphasis). Ex. 559 is another topographic map depicting Beachwood and surrounding properties in the pre-TAAD condition.

7. Each of these pre-TAAD topographic maps display 1-foot contour intervals on Beachwood as of October 1976. (White, 394:8-13.) A 1-foot contour interval topographic map is a very detailed map, showing all points of equal elevation at one foot intervals. (Weirich, 806:16-24; Huffman, 1510:6-14; Coats, 1325:14-23.) A 1-foot contour interval topographic map is a design-level map that allows an engineer to design the subdivision and calculate quantities of dirt that need to be cut or filled on the property. (White, 324:24-325:12; 392:8-15.)

8. Topographic maps indicate mounds or depressions on the land by closed-loop polygons. Such closed-loop polygons show that the land inside the loop is either higher than the polygon border (hence, a mound) or lower than the polygon border (hence, a depression). When a closed-loop polygon has hachures or tick-marks on the inside of the polygon, this means that the area inside the closed loop is a depression. (White, 394:4-7; Weirich, 861:8-22.) This rule of topographic mapping is sometimes called “The Rule of O’s.” (Huffman, 1509:17-1510:5.)

9. The detailed pre-TAAD topographic map of Beachwood reflects no closed-loop depressions on the Beachwood Property. (Ex. 122; White, 394:4-19; Weirich, 862:3-5.) The pre-TAAD topographic map does, however, indicate a closed-loop depression on the Glencree property to the north of Beachwood. (Ex. 122, White, 393:15-394:7.) The absence of closed-loop depressions on Beachwood shows that the pre-TAAD topography of the Property lacked any such depressions.

10. Instead, the pre-TAAD topography of Beachwood reflected a gently sloping property, with its highest point (elevation approximately 100 feet above sea level) on the eastern border. The eastern slope of the Property — covering roughly the easterly }éth of the land area — descended from the 100' elevation down to approximately 60'. From that point, the elevation descended more gradually to approximately 47'. The lowest point on the Beachwood Property was along its northern boundary with the Glencree property, and the topography on Glencree continued to descend from that point to a low point along Glen-cree’s northern boundary with Grandview, as indicated on Ex. 426. To the west of the low point on Beachwood is a small ridge rising to approximately 50'; and to the west of that ridge, the Property descends to Highway 1 at its eastern border. (Exs. 122, 426, 559; Weirich, 806:13-807:22.)

11. Using the foregoing 1-foot contour topographic maps, Dr. Frank Weirich, plaintiffs expert hydrologist, prepared a digitized, color topographic map of Beach-wood in its pre-TAAD condition (Ex. 836). Dr. Weirich also prepared a digitized topographic map depicting the low point along the northern boundary of Beachwood (Exs. 837, 838).

Pre-TAAD Surface Flows Onto and Off of Beachwood

12. Before the TAAD project was built, there were four areas that contributed surface flows onto and off of Beachwood. The first area was direct rainfall that fell onto the Property. (Weirich, 826:12-16; Coats, 1285:1-13.)

13. The other three areas were off-site drainages, or watersheds, located upslope from Beachwood in the hills to the east, that contributed surface run-off to Beach-wood in heavy storms. (Weirich, 826:17-827:18; Ex. 828.)

14. The first off-site contributing area was a 132-acre drainage basin located south and southeast of Beachwood. This area was designated Drainage Area A by Dr. Weirich. (Ex. 828, Weirich, 828:18-22.) The second off-site contributing area was a 92-acre drainage basin located southeast of Beachwood. This area was designated Drainage Area B by Dr. Wei-rich. (Ex. 828, Weirich, 830:4-10.) The third off-site contributing area was a small 7-acre drainage basin located northeast of Beachwood. Dr. Weirich designated this area as Drainage Area C. (Ex. 828, Wei-rich, 830:11-21.)

15. While there were many disagreements between the experts in this case, there was substantial agreement regarding the pre-TAAD watersheds and the amount of stormwater delivered to Beachwood from the contributing areas. The pre-TAAD drainages mapped by Dr. Weirich (Ex. 828) do not differ materially from those mapped by David Freyer, the City’s expert (Ex. 1358). And the average estimated annual water input from direct rainfall and the off-site drainages pre-TAAD did not differ materially as between Dr. Weirich and Dr. Robert Coats, the City’s expert hydrologist. (Ex. 1352.)

16. Not all the stormwater that fell on the off-site drainages flowed to Beach-wood. The amount of off-site run-off actually delivered to Beachwood pre-TAAD was determined by the amount of rainfall as well as the soil characteristics, vegetation and slope of the drainages. (Weirich, 831:8-832:8.) Pre-TAAD, surface run-off from Drainage Area B that was able to reach Beachwood entered the Property at its southeast corner, where it flowed westerly in a creek along Beachwood’s southern boundary. (Weirich, 830:6-10.) Slightly east of the mid-point of Beach-wood’s southern boundary, run-off from Drainage Area B was joined by surface run-off that was able to reach Beachwood from Drainage Area A, which flowed from the hills to the east and then curved northerly across what is now the Highland Park subdivision. (Weirich, 829:18-830:3; 830:22-831:3.) From the confluence point, the surface run-off from Drainages B and A that was able to reach Beachwood then flowed northwesterly across Beachwood toward its low point on the Beach-wood/Glencree border, and then continued to flow northwesterly off the Beachwood Property to the Glencree property. (Ex. 828; Weirich, 831:18-24.)

17. Pre-TAAD, surface run-off from Drainage Area C entered Beachwood near its northeast corner, where it flowed in an undefined path, ultimately working its way to the low point on the Beachwood/Glen-cree border, and flowing northwesterly off of Beachwood in the same manner as described above. (Weirich, 830:13-21.)

18. Pre-TAAD, the vast majority of the direct rainfall on Beachwood and the run-off from Drainage Areas A, B and C flowed toward the low point on Beach-wood, where it exited the Property and then continued to flow northwesterly onto and across Glencree, to Grandview. There were no barriers to flow preventing the surface flows on Beachwood from reaching the low point and continuing off the Property. (Weirich, 816:2-21; 841:4-8.) The exception to this flow was the direct rainfall that fell on the west side of the small ridge at elevation 50. The surface flow from such direct rainfall flowed westerly toward a ditch along the east side of Highway 1, where it was collected and directed northerly toward Grandview. (Weirich, 816:22-817:12.)

19. Rainfall on Beachwood and surrounding properties was and is extremely variable. Annual rainfall since 1940 (measured on a Water Year basis, which begins on October 1 of the preceding calendar year and ends on September 30 of the Water Year) varied by a factor of four, from a low of 13" in Water Year 1972 to a high of 52.6" in Water Year 1983 (excluding years with substantial missing rainfall data). (Ex. 763; Weirich, 836:11-839:18.)

20. The rainfall totals give a gross sense of annual rainfall, but they are not sufficient to calculate accurately run-off that would have reached the Beachwood Property pre-TAAD. Run-off is more accurately determined on a per-storm basis, for which rainfall data of short duration— typically 5 — to 15-minute intervals — is needed. The most detailed rainfall data available for Half Moon Bay are daily totals. (Ex. 760.) The daily totals give a sense of the total rainfall that fell that day but, again, do not provide sufficient data to calculate off-site run-off to Beachwood from individual storms accurately. (Wei-rich, 841:19-842:17.)

21. The lack of adequate data to calculate total run-off on a per-storm basis accurately is not critical.' What is more important is the path of the surface run-off that did reach Beachwood in the pre-TAAD era, that being across and off of the Property. Most critically, there were no closed-loop depressions on Beachwood in its pre-TAAD topographic condition that would collect and store water; and there was a clear exit path along Beachwood’s northern border, at it's low point, which allowed surface flows to exit the property and continue the northwesterly route across Glencree and to Grandview.

22. Two witnesses with percipient knowledge of pre-TAAD surface flows across Beachwood testified to this pattern. Gary Whelen, who lived on Terrace Avenue just south of Beachwood for 10 years before construction of the TAAD project, traced the pre-TAAD flow of water that he observed onto and off of Beachwood on Ex. 9, a September 11, 1978 aerial photograph. (Ex. 9; Whelen, 44:11^16:8.) Ben White, who was the project engineer for TAAD and had done drainage studies in the areas before TAAD, traced a similar pre-TAAD flow onto and off of Beachwood on Ex. 70, a drainage study map that was prepared by his firm, MacKay & Somps. (Ex. 70; White, 212:14-213:3.) White further testified to the sheet flow of surface water off the Beachwood Property before TAAD was built. (White, 217:6-218:8; 353:1-9.)

23. ■ The pre-TAAD flow path is further supported by periodic flooding at “the end of the line,” in the Grandview subdivision, in the years before TAAD was constructed. (Ex. 429 at 1; White, 297:2-10; 304:14-16; Weirich, 839:19-840:9.) The surface run-off that caused flooding in Grandview pre-TAAD was run-off from the hills to the east, through the various off-site drainages, that joined direct rainfall on Beachwood and then flowed off of Beachwood, across Glencree, and to Grandview. (White, 202:11-203:6; Wei-rich, 840:25-841:8.)

24. There is no percipient witness testimony of pre-TAAD long-term ponding of water on the Beachwood Property. Before TAAD, the Beachwood property was unfenced and was used by neighbors to hike and walk their dogs. Whelen was on the Beachwood Property an average of once a month for the 10 years he lived on Terrace Avenue before the TAAD construction, from 1973 to 1983. He never saw ponding of water on Beachwood pre-TAAD. (Whelen, 45:6-47:3.) White, the project engineer, was on Beachwood about a dozen times before TAAD, at different times of the year; he also never observed ponding on Beachwood. (White, 214:21-215:13; 291:9-21.) In extremely heavy storms — such as during the 1982 El Nino storms — stormwater may have occasionally ponded on Beachwood. (Muller, 1243:18-23; Weirich, 841:9-18.) This was the exception, not the rule.

25. The City’s evidence of frequent or long-term ponding on Beachwood before TAAD is insubstantial and implausible. The City presented no testimony by any witness who could recount frequent or long-term ponding on Beachwood before TAAD. Clearly, this was not for lack of effort, as the City presented testimony by two long-time farmers in the City. Albert Adreveno has'resided in Half Moon Bay since 1954. He never observed ponded water on Beachwood and, indeed, was never on the Property and made no observations of the Property. (Adreveno, 1285:20-1237:13.) John Muller, Mr. Adre-veno’s son-in-law and a member of the Half Moon Bay City Council, farmed the Scopesi property across Highway 1 from Beachwood. Other than recollection of occasional ponding on the westerly 50-100 feet of the Property — it being unclear whether such ponding was pre-TAAD or post-TAAD — Mr Muller never observed frequent or long-term ponding on Beach-wood pre-TAAD. (Muller, 1241:24-1242:23; 1244:20-1245:7; 1246:23-1247:16.) If there truly had been such ponding on Beachwood pre-TAAD, it seems likely that the City could have located witnesses to the ponding and produced them at trial. The factual testimony of Messrs Adreveno and Muller added nothing of consequence to the ease, and certainly did not support frequent or long-term ponding on Beach-wood before the TAAD project was constructed. And Mr Muller’s objectivity might well be questioned, given his role in City government.

26. Further, the City’s expert witnesses were uninformed, and their opinions regarding pre-TAAD topography and drainage are rejected as baseless. The City had three technical experts in the case, Dr. Robert Coats (hydrology), David Freyer (civil engineering) and Dr. Terry Huffman (wetlands). None of these expert witnesses had ever seen the pre-TAAD 1-foot contour interval topographic map of Beachwood before they formed their opinions in this case. (Coats, 1327:4-1328:12; Freyer, 1378:8-21; Huffman, 1511:20-1512:5.) Typical is Mr Freyer. The most detailed topographic map that he saw of Beachwood in its pre-TAAD condition had only a single topographic line running through the Property (but for the hilly area on the Property’s eastern edge) from which no supportable conclusions about pre-TAAD topography or flows could be made. (Freyer 1392:18-1393:18.) Dr. Coats tried to testify about Ex. 122, the 1-foot contour interval pre-TAAD topographic map, but he did not see or rely on that map when he formed his opinions. (Coats, 1287:12-1288:9.) Dr. Coats then testified that the post-TAAD 1990 topographic map reflected pre-TAAD topography as well (Coats, 1293:2-15) — but he had no basis to draw such a conclusion, as he had not seen the detailed pre-TAAD topography. In fact, the detailed pre-TAAD topography bears no resemblance to the post-TAAD topography Dr. Coats relied on, as discussed in further detail below. Dr. Huffman also testified that the earliest 1-foot contour topographic map he saw was the post-TAAD (August 22, 1990) topographic map by Brian Rangas Foulk (“BKF”). (Ex. 556; Huffman 1511:20-1512:5.) On direct examination, Dr. Huffman testified that Sheet 19 of the TAAD plans (Ex. 21) reflected pre-TAAD topography of Beachwood, and he testified in some detail how he purportedly relied on Sheet 19 as showing the pre-TAAD topography of Beachwood. (Huffman, 1442:9-1443:13.) On cross-examination, however, it was revealed that Sheet 19 of the TAAD plans did not even depict the Beachwood Property; instead, it depicted the Highland Park property to the south of Beach-wood. (Huffman, 1513:12-1514:17.) In sum, none of the City’s experts had sufficient information to compare or opine about pre-TAAD versus post-TAAD topography, because none of them had seen the pre-TAAD detailed topography necessary to make such conclusions. The opinions of the City’s experts regarding pre-TAAD topography and flow paths are therefore rejected as baseless.

27. The City’s experts also tried to rely on secondary pre-TAAD reports to support their views about pre-TAAD topography and drainage. Drs. Huffman and Coats relied on Ex. 1384, an unsigned June 1974 Preliminary Soil Investigation Report by Harlan Engineers. (Coats, 1303:17-1304:5; Huffman, 1434:13-21.) The author of the Harlan Engineers Report wrote that water “apparently” ponded in a depressed area in the center of the site. (Ex. 1384, p. 1384-4.) There is no evidence that the Report’s author ever actually observed any pre-TAAD ponding on Beachwood. The author’s visit to the site was presumably sometime between May 23, 1974 (the date of the work order [Ex. 1384-3]) and June 19, 1974 (the date of the report [Ex. 1384-3]), not during the rainy season.

28. Dr. Huffman also relied on the September 1975 Initial Study Concerning the Possibility of Environmental Impacts by Jones-Tillson & Associates. (Ex. 1114; Huffman, 1441:6-12.) The statement in the Jones-Tillson report that echoes the Harlan Engineers report — that “ ‘[u]nder natural conditions, drainage was apparently ponded on the site,’” (Ex. 1114 at COHMB 0099072) — is a quote from a different report by Burkland and Associates that was not produced at trial. Again, there is no basis to conclude that the authors of the Jones-Tillson Initial Study ever saw ponding on Beachwood; they merely quoted from someone else’s report.

29. In sum, there is no plausible evidence of frequent or long-term ponding on the Beachwood Property before TAAD. The topography does not support such ponding, nor does the eyewitness testimony. The opinions presented by the City’s experts are baseless, as none of them knew the pre-TAAD topography, and the secondary sources they relied on are inconclusive and vague. The evidence establishes that there was no frequent or long-term ponding of stormwater on Beachwood before the TAAD project was constructed by the City.

The TAAD project

30. On March 16, 1982, the City Council adopted a Resolution of Intention to form the Terrace Avenue Assessment District (“TAAD”), Res No. 22-82. (Ex. 14.) The resolution included a general description of the TAAD project, but cautioned that the project plans would be controlling as to the correct and detailed description of the project. (Ex. 14, ¶ 12.) The TAAD project was planned and approved pursuant to the Municipal Improvement Act of 1913 (Cal. Streets & Hwys Code §§ 10000 et seq). (Ex. 14, at 601 ¶ 18; Ex. 17, at HM209807 [2nd “whereas” clause]; Ex. 20, at' HM209357, ¶ 10.) The TAAD project was financed by assessments on real property within the assessment district, with bonds issued under the Municipal Improvement Bond Act of 1915. (Ex. 14, ¶ 15.)

31. Beachwood was one of the properties included within the assessment district, and was one of the properties on which work was performed pursuant to the TAAD project. (Ex. 21; White, 196:25-197:2.)

32. On September 21, 1982, by Res No. 103-82, the City accepted easement interests from the then-owner of Beachwood over, inter alia, portions of the Beachwood Property for construction of the TAAD project. (Ex. 75.) The last three pages of Ex. 75 (at 9900120 to 9900122) contain the relevant storm drain easements conveyed by The William Lyon Company (then Beachwood’s owner) to the City, and a map of the storm drain easements appears on the last page of Ex. 75 (at 9900122). Parcel 1 of the storm drain easement included a strip of land 15' wide and 1837.65' long, running along the entire northern border of Beachwood, and also included a small protruding area (55' long and 20' wide), near the low spot on Beachwood’s northern border. Parcel 1 also included a strip of land 30' wide and 576.34' long, along Beachwood’s western border, at its frontage with Highway 1. Parcel 2 of the easement consisted of a strip of land 15' wide along Beachwood’s southern border, starting at the western end of Golden Gate Avenue, and proceeding 1060.89 feet easterly to Beachwood’s southeast corner. (White, 235:12-237:13.)

33. On March 12, 1982, the City entered into a contract with MacKay & Somps, a civil engineering firm (“M & S”), under which M & S agreed to provide engineering consulting services to the City for the TAAD project. (Ex. 69.) Ben White was the engineer at H & S who oversaw the project. (White, 193:23-194:3.) Richard Braden was another engineer at H & S who worked on the TAAD project under white’s supervision. (Bra-den, 397:2-22.)

34. On June 21, 1983, the City Council adopted Res No. 53-83, ordering the work of public improvement called for by the TAAD project. (Ex. 17.)

35. On August 18, 1983, the City entered into a contract with Bay Cities Paving & Grading, Inc under which Bay Cities agreed to act as the City’s contractor in constructing the TAAD project. (Ex. 20; Whelen, 54:2-8.) The contract attached Bay Cities’ bid, which referenced Sheets 1 thru 19 of the TAAD plans. (Ex. 20, at HH209359.)

36. On August 3, 1983, the City’s then-Director of Public Works and City Engineer, Ronald G Young, signed an Extract of Public Works Contract Award, notifying the California Department of Industrial Relations that the TAAD contract constituted a contract to perform public works under Cal. Labor Code § 1777.5. (Ex. 638; Whelen, 55:21-56:5.)

37. The TAAD plans, prepared under White’s supervision and signed by him, are Ex. 21. (White, 197:3-17.) The TAAD plans were also approved by the City’s then-Public Works Director, Felix J Kar-pain. (Ex. 21.) The TAAD plans reflect substantial work that was planned for, and constructed on, the Beachwood Property. (Ex. 21, Sheets 6, 7, 8, and 14.)

38. Sheets 7 and 8 of the TAAD plans (Ex. 21) depict work on the north side of Beachwood. Along the entire 1836-foot northerly border of Beachwood, the City constructed a reinforced concrete underground storm drain pipe (“the Northern Drain”). For approximately the easterly 336 feet, the storm drain pipe was 15" in diameter; for the approximately 1500 remaining feet (to the northwest corner of Beachwood), the storm drain pipe was 30" in diameter. The Northern Drain was placed within the 15' — wide easement strip along Beachwood’s northern border that was included within Parcel 1 of the September 21, 1982 easement granted to the City.

39. The top portions of Sheets 7 and 8 contain a plan view of the Northern Drain, while the bottom portions contain a profile view. (White, 216:21-217:2.) The profile view contains a series of station numbers, which indicate 100 feet of distance from the starting point (Station 0) at Highway 1. (White, 217:6-11.) Thus, the downstream 1100 feet of the Northern Drain are depicted on Sheet 7 (from Stations 0 to 11) and the upstream 848 feet of the Northern Drain are depicted on Sheet 8 (from Stations 11 to 18 + 48). The Northern Drain actually extended slightly east of the northeast corner of Beachwood, where an inlet was constructed. (Ex. 21, Sheet 8.) The profile view also contains elevations on the vertical access. (White, 217:3-5.)

40. The pre-existing ground surface (i e, the pre-TAAD topography) along the area of the Northern Drain is depicted by the dashed lines on Sheets 7 and 8 of the TAAD plans. (Whelen, 59:24-60:2; White, 217:12-14.) The topographic low point of the pre-TAAD topography is indicated at Station 6 (i e, approximately 600 feet east of the northwest corner of Beachwood). (White, 217:15-19.)

41. In order to place the Northern Drain, the City’s contractor dug a trench from the pre-existing ground surface down to at least the bottom elevation of the storm drain pipe. (Whelen, 62:16-24.) The dirt that was taken out of the trench was placed on the northern side of the trench. After the trench was dug, the 30" storm drain pipe was constructed by a cast-in-place procedure by which the pipe was actually created in the trench. A ready-mix concrete truck drove along the north side of the trench, “feeding” the cast-in-place machine which was in the trench and creating the storm drain pipe as it moved along the trench. (Whelen, 62:25-65:4.)

42. After the Northern Drain storm drain pipe was placed, a series of seven vertical manhole shafts were constructed from the storm drain pipe to the elevation of the rim of the manholes. (Whelen, 68:6-16; 70:2-6.) Each manhole had a separate rim elevation, which is set forth on the profile view of the plans. For example, the manhole at Station 6 + 43 had a rim at elevation 47.2 feet, which was about 1.2 feet higher than the pre-existing ground surface at that location. (Ex. 21, Sheet 7; Weirich, 849:11-16.)

43. After the manhole shafts were constructed by the City’s contractor, the dirt that had been taken out of the trench was returned to the trench and compacted, a process that reduces the pore space between the dirt and makes it less permeable to water. (Whelen, 65:15-17; Weirich, 850:4-851:12; Josselyn, 1035:24-1036:8; Coats, 1341:12-17.) Not all of the dirt that had been removed was placed back in the trench, because the 30" pipe took up substantial space in the trench that had previously been filled with dirt. The unre-turned dirt was left on the north side of the trench, which created a lip or levee after the trench was backfilled. (Whelen, 66:1-16; Weirich, 852:6-13.) The trench was filled up to the manhole rims. (Whe-len, 70:11-13.) Because some of the manhole rims were higher than pre-existing ground surfaces, the top of the trench was higher than the pre-existing ground in those locations, including near the low point through which surface water had previously flowed northwesterly off of Beachwood and onto Glencree. (Weirich, 848:11-850:3.)

44. Finally, a series of horizontal storm stubs were connected to the vertical manhole shafts. The storm stubs were 5' in length and 12 or 15" in diameter and provided connection points where future storm drains on the Beachwood subdivision would tie into the primary 30" storm drain line. (Whelen, 71:1-72:17.) The elevation of the bottom, or “invert,” of each storm stub is reflected by the notation “Inv.” on the profile view on the plans, as is the elevation of the invert of the main 30" pipe. (Whelen, 74:22-77:23.) Thus, for example, at Station 6+43, the invert of the main 30" storm drain pipe was at elevation 39.40'; the storm stubs that connected to the manhole shaft had inverts at elevation 42.57'; and the rim of the manhole was at elevation 47.2'. Thus, the bottom of the storm stubs at this location was 4.63 feet below the finished ground surface (i e, 47.2 minus 42.57), but 3.17 feet above the bottom of the larger 30" pipe (i e, 42.57 minus 39.40). Altogether, the backfilled compacted trench at this location would have been 7.8 feet deep (47.2 minus 39.40).

45. When constructed as called for in the plans,.the Northern Drain was placed in a compacted trench 1837 feet long and of varying depths ranging from approximately 6 to 11 feet deep. The top of the trench at the pre-existing low spot was filled about 1.2' higher than the pre-exist-ing ground level, thereby restricting the flow of stormwater at the point where it had previously exited the Beachwood property on its pre-TAAD northwesterly flow path. (Weirich, 848:11-850:3.)

46. Sheet 7 contains a detail for a Redwood Box Inlet Box, a temporary drainage inlet shown as connecting to the 12" RCP (reinforced concrete pipe) storm stubs. Had the redwood box inlets been constructed at the storm stubs, they would have facilitated pre-development storm flow into the Northern Drain. But the plans do not note a specific location for the redwood box inlets (although the detail shows them connecting to 12" RCP pipes, and the only 12" RCP pipes were the storm stubs). White was not certain where the redwood box inlets were to be installed. (White, 218:12-23.) In any case, no such redwood box inlets were ever constructed. (Whelen, 80:18-21; White, 218:24-219:2.)

47. Along the entire length of Beach-wood’s western boundary/ the Western Drain was installed in a similar manner to the Northern Drain. The Western Drain was placed within the 30' wide storm drain easement that was granted to the City on September 21, 1982. (Ex. 75.) A trench was dug; the dirt was placed on the eastern (i e, Beachwood) side of the trench; the storm drain pipe was cast-in-place in the trench; the trench was backfilled with compacted soil to the rim of the manholes; and the remaining dirt that was not returned to the trench was left on the east side of the storm drain. (Whelen, 81:20-82:23.) The rims of the manholes were also higher than pre-existing ground along the Western Drain. (Weirich, 853:20-23.) The construction of the Western Drain also impacted the flows of stormwater runoff in the small area west of the ridge on Beachwood, which prior to TAAD had flowed to the ditch just east of Highway 1. The storm drain compacted trench and the remaining dirt from the trench were both placed to the east of the highway ditch, so surface run-off that had flowed westerly into the storm drain ditch pre-TAAD was prevented from reaching the ditch post-TAAD by the unreturned dirt and the compacted trench built to a higher elevation than the pre-existing ground. (Wei-rich, 852:25-854:6.)

48. The Southern Drain, constructed along a portion of Beachwood’s southern border, is depicted on Sheet 14 of the TAAD plans. Ex. 21. (Whelen, 85:4-13.) On Sheet 14, the profile of the Southern Drain appears on the upper part of the page, above the plan view; the lower part of Sheet 14 depicts the pipes that were constructed beneath Terrace Avenue, to the south of Beachwood.

49. The Southern Drain was constructed to collect run-off from the large uphill drainage (denominated Drainage Area B by Dr. Weirich) that entered Beachwood at its southeast corner. The inlet to the Southern Drain was not constructed directly at Beachwood’s southeast corner, but at a location approximately 100 to 200 feet west of the southeast corner, within the City’s easement. (White, 236:14-237:13.) The Southern Drain was a large 48" — diameter underground storm drain pipe with a 48" vertical inlet. On top of the inlet was placed a cylindrical metal debris rack cage, 4 feet in height, with metal bars around the outside of the cylinder and across the top of the debris rack. (Whelen, 85:14-86:5; White, 219:7-221:10.) The debris rack cage was designed to intercept leaves, branches and other debris that washed through the channel to the inlet, straining such debris to keep it out of the storm drain system, while allowing stormwater to flow into the inlet and be conveyed away through the underground pipes. (Whelen, 89:17-19; Braden, 415:15-17.)

50. The inlet to the 48" drain was placed along the flow line of the existing creek that, pre-TAAD, had continued to flow along Beachwood’s southern border in the manner described above. (White, 220:1-21; Braden, 408:8-14.) Downstream of the inlet, the pre-existing creek was filled in, except for a small basin area around the debris rack cage itself. No work was conducted upstream of the inlet. (Ex. 1163; Braden, 406:16-407:7; 408:15-20.) In this manner, the creek itself was incorporated into the City’s storm drain system. (White, 222:11-20.)

51. The Southern Drain was placed within the 15' wide strip of land that was conveyed as an easement to the City on September 21, 1982. (Ex. 75.) The 15'-wide strip also continued upstream from the location of the inlet approximately 100 to 200 feet to Beachwood’s southeast corner. (White, 237:10-13; Braden, 443:2-16.) The City’s easement thus included the natural area of the creek that had been incorporated into the storm drain system, 100 to 200 feet upstream of the inlet.

52. Gary Whelen, coincidentally a longtime Terrace Avenue resident, was the City’s inspector during construction of the TAAD project. He visited the site daily, kept a daily construction log (Exs. 22, 23, and 24) and occasionally photographed the construction. He was the City’s “eyes and ears” on the project. (Whelen, 48:18-49:7.)

53. Construction on the TAAD project commenced on September 14, 1983. (Whelen, 42:18-25; 52:5-7.) One of the earlier items constructed was the Northern Drain, along Beachwood’s northern border. (Whelen, 93:20-23.) By January 1984, work had progressed to the Southern Drain, along Beachwood’s southern border. (Whelen, 93:24-94:20.) The Western Drain was installed by March 1984. (Whe-len, 95:10-20.)

54. An aerial photograph taken March 28, 1984 shows the progress of construction of the TAAD project. (Ex. 493.) By that time, the Northern, Western and Southern Drains had been completed on Beachwood. (Whelen, 95:10-23.) Equipment had obviously traveled back and forth between Beachwood and the Highland Park subdivision to the south. A large stockpile of dirt was placed on the Beachwood Property, southwest of the low point on the Beachwood/Glencree border. (Whelen, 81:5-19; 95:24-96:13.) This stockpile area is also depicted on Sheet 7 of the TAAD plans. (Ex. 21.)

55. With the exception of the redwood box inlet noted above, City Inspector Whe-len was satisfied that the storm drain system constructed by the City on Beachwood as part of the TAAD project was constructed in accordance with the City’s plans. (Whelen, 80:25-81:4; 82:20-23; 89:20-23.)

56. Also on March 28, 1984 (the date of the aerial photograph, Ex. 493), Pestaña, a subcontractor for Bay Cities, was laying water pipes in the Highland Park area. (Whelen, 96:14-97:20.) The water pipes required a minimum cover over them, meaning they could not be placed any closer to the surface than the required minimum cover depth. (White, 261:17-262:1.)

The Dirt Shortage and the Borrowing of Dirt From Beachwood

57. The TAAD project included the grading of streets and lots on the Highland Park property by the City’s contractor, Bay Cities. (Whelen, 90:25-91:16.) The street and lot grading was included on Sheet 19 of the TAAD plans (Ex. 21), was included as separate line-items on Bay Cities’ bid and was included as part of the City’s contract with Bay Cities. (Ex. 20, at HM209360, Items 2 and 3 under “Streets.”) The City itself described the TAAD project in its CDP application to the Coastal Commission as including “street and lot grading.” (Ex. 80, at 1103626, Section 11(2).)

58. The street and lot grading work on the Highland Park property was designed to be a balanced cut/fill project. (White, 230:14-15.) This means that the dirt from areas that needed to be cut, or lowered, was to be used as fill for the areas that needed to be filled, or raised, during the grading process. (White, 230:8-25.) A balanced project is desirable and less costly because no excess dirt needs to be off-hauled, and no dirt needs to be imported to the site; hauling dirt can be very expensive. (White, 231:1-6.)

59. The Earthwork Summary prepared by M & S, contained on Sheet 19 of the TAAD plans (Ex. 21) indicated a total of 56,165 cubic yards of cut and 56,165 cubic yards of fill — a balanced project. (White, 232:2-5.) But quantities in the field typically vary from calculated quantities. For this reason, the notes on the Rough Grading specified that the quantities were estimates only, and it remained the contractor’s responsibility “to determine for himself the quantity of earthmov-ing that will be required to rough grade this job.” (Ex. 21, Sheet 19, Note 2; White, 232:12-14.)

60. In the event of a shortage of dirt during construction, the TAAD plans contained a series of adjustments to be followed, in a specified order, that would create more dirt from the project and thereby alleviate the shortage. Specifically, the plans called for a three-stage series of adjustments: first, Silver Avenue and the associated lots on Silver Avenue were to be lowered by 1/2 foot; second, Highland Avenue and the associated lots on Highland Avenue were to be lowered by 1/2 foot; and third, Golden Gate Avenue was to be lowered by 1/2 foot. (Ex. 21, Sheet 19, “Earthwork Adjustment Note;” White, 232:25-234:4.) Following this three-step lowering process would create more dirt on-site and thereby solve any dirt shortages.

61. Early in summer 1984, a dirt shortage arose on the TAAD project. One reason was a project change order. In September 1983, the City decided to revise the connection between Silver Avenue and Highway 1. As originally planned, the connection between Silver Avenue and Highway 1 was offset from the remainder of Silver Avenue to the east. (Ex. 21, Sheet 19.) As revised, a new Silver Avenue ramp was to be constructed so that Silver Avenue itself would have a direct connection to Highway 1 at its western end. (Ex. 82, at HM209718; Whelen, 99:19-101:1.) The revised Silver Avenue ramp required the placement of up to seven feet of roadway embankment. (Ex. 82, at HM209717; white, 257:16-258:8.) This plan revision required substantial additional fill above and beyond what had been originally calculated on Sheet 19 of the TAAD plans, Ex. 21. In a June 7, 1984 letter to Bay Cities, then-City Engineer Ronald Young noted that there would not be sufficient fill material to construct the realigned Silver Avenue ramp as part of TAAD. (Ex. 39.)

62. Although the TAAD plans contained the Earthwork Adjustment Note described above, the Earthwork Adjustment procedure could not be followed when the dirt shortage arose in summer 1984. The reason for this was that Bay Cities, the City’s contractor, had already placed the water lines and other utilities below the streets in Highland Park; and this, in turn, meant that the streets and lots could not be lowered to create more dirt because of the minimum cover requirement over the utility lines. (White, 261:5-262:5.)

63. The original recommendation by White and Braden, the City’s engineers for the TAAD project, was for Bay Cities to “import the necessary fill at no expense to the assessment district.” (Ex. 608, at 843.) If a timing problem arose in acquiring such fill, Braden agreed to contact The William Lyon Company about borrowing fill from Beachwood on a short-term basis. (Ex. 608, at 843.)

64. On June 28, 1984, White wrote to then-City Engineer Young about the dirt shortage, explaining that the shortage was due to the unorthodox construction procedure followed by Bay Cities:

“The contractor by his selected method of operation; i.e., installing sewer and water prior to grading, precluded the opportunity to .adjust grades as REQUIRED by the plans to assure an earthwork balance.” (Ex. 41.)

Placing the underground utilities before rough grading is not the standard order of construction. (White, 263:13-22; 266:5-13.) In White’s view, the entire dirt shortage arose from two causes: (1) the City’s revision of the Silver Avenue alignment, which created the need for more dirt; and (2) the City’s contractor’s construction methods, by which underground utilities were placed before rough grading was completed, thereby precluding the adjustment of the the rough grading to create more dirt. (White, 267:13-268:9.)

65. Then-City Engineer Young proposed a resolution of the dirt shortage in his July 16, 1984 memorandum to then-City Manager W. Fred Mortensen. (Ex. 43.) By that time, it had been determined that 13,000 cubic yards of fill would be needed to complete the TAAD project, including the grading of lots and the revised Silver Avenue alignment. A contract change order was proposed to the City’s contract with Bay Cities, under which Bay Cities would be paid $2 per cubic yard for the needed fill. City Engineer Young determined that 5,000 cubic yards were needed for the Silver Avenue realigned ramp, and 8,000 cubic yards were needed for the lower William Lyon lots; he determined that Lyon would pay for 8,000 of the additional 13,000 cubic yards of fill needed. (Ex. 43, at 862.) Lyon apparently paid for the 8,000 cubic yards, although White did not think Lyon should have. (White, 336:11-17.)

66. Then-City Engineer Young was faced with the need to resolve the dirt shortage dispute between M & S, the City’s engineer, and Bay Cities, the City’s contractor, so that the City’s TAAD project could be completed. Regardless whether the dirt shortage arose from the City’s own revision to Silver Avenue, or Bay Cities’ unorthodox construction practices which prevented the earthwork adjustments called for by the TAAD plans, or even due to calculation errors by M & S, the City is responsible for all these possibilities: the dirt shortage arose either because of its own project change or because of errors by its contractor or its engineer. Who paid for the resolution of the dirt shortage is not relevant; what is relevant is that the dirt shortage arose on the City’s public project, by a combination of factors all controlled by the City.

67. On July 17, 1984, the City Council, by Res. No. 48-84, approved Change Order No. 2 to the City’s contract with Bay Cities for the TAAD project, authorizing Bay Cities to borrow the needed 13,000 cubic yards of fill from Beachwood, at $2 per cubic yard. (Ex. 596.)

68. The very next day, July 18, 1984, Bay Cities began removing dirt from Beachwood in order to complete the TAAD project. (Whelen, 108:21-110:18.) The dirt was removed by Bay Cities from the areas where streets were then planned to go, pursuant to the 97-lot tentative map that had been approved by the City in 1976 (Ex. 121), and the 1983 rough grading plan for the Beachwood Property (Ex. 122). (Whelen, 110:6-18.) The street depressions from which dirt was removed from Beachwood by Bay Cities were approximately 50-60 feet wide and 3 to 4 feet deep. (Whelen, 113:9-13.) The dirt was removed by Bay Cities, the City’s contractor. (Whelen, 110:17-18.) The areas from which dirt was removed from Beachwood are clearly visible in the April 23, 1985 aerial photo, Ex. 498. (White, 269:2-13.) This is the earliest post-borrow aerial photograph in evidence. By contrast, the pre-borrow condition of Beachwood is depicted on Ex. 493, the March 28, 1984 aerial, the latest pre-borrow aerial photograph in evidence.

69. The street depressions that were dug by the City’s contractor collected stormwater when the winter rains came later in 1984. Following heavy rain on October 16, 1984, Whelen noted standing water in the depressions on Beachwood that had been dug just a few months earlier by Bay Cities. (Whelen, 115:19-116:20; Ex. 57.) He photographed one of the depressions filled with stormwater on October 23, 1984. (Ex. 58, at HM204375 [upper right photo].) Whelen, by that time an 11-year resident of Terrace Avenue, had never seen standing water like that on Beachwood before. (Whelen, 118:4-9.)

70. Whelen wanted the contractor to provide drains from the street depressions to the storm stubs at the Northern Drain to alleviate the standing water problem. (Whelen, 121:20-122:3.) On October 25, 1984, Whelen asked Charlie Raysor, the Bay Cities superintendent, to drain the standing water from the street depressions on Beachwood, but Raysor told Whelen “he didn’t give a rat’s ass about it and wouldn’t be responsible for the water.” (Whelen, 120:5-121:18; Ex. 24 at HM205488.)

71. After Burt Myers took over as City Engineer on November 1, 1984, the standing water problem persisted. Whelen voiced his concern to Myers and, ultimately, the City sent a backhoe to Beachwood and cut ditches to direct some of the standing water into the Northern Drain. (Whelen, 123:10-124:5.) This work was done at some point before July 2, 1985. (Whelen, 128:6-9.) The City-cut ditches did alleviate a lot of the standing water in the street depressions, but some remained. (Whelen, 126:10-23.) In addition, because the storm stubs were approximately 4 feet below the ground surface, the process of exposing the storm stubs required the digging of a hole just south of the Northern Drain. (Ex. 21, Sheets 7 and 8.)

72. Vegetation quickly grew in the City-cut ditches, reducing their ability to drain the standing water. (Whelen, 125:21-126:2.) Although for a few years the City removed weeds from the ditches it had dug, at some point the City stopped doing so. Whelen observed standing stormwater that could not get into the storm stubs because weeds had plugged the entrances. (Whelen, 133:13-135:5.) The entrances to the 5-foot long storm stubs were within the City’s 15-foot wide easement for the Northern Drain. (Ex. 21, Sheets 7 and 8.)

73. Years later, in 2000 when the City denied the CDP for the Beachwood subdivision, Joan Lamphier, the City’s contract planner, referenced the City’s initial cleaning of the ditches in her draft staff report for the March 21, 2000 City Council meeting. But Lamphier’s reference was crossed out by the City’s then-Planning Director Ken Curtis, and Lamphier’s final staff report did not include the history of the City’s own aborted efforts to keep the City-dug ditches clear and functioning. (Ex. 176 at HM211540; Lamphier, 622:9-624:19.)

Post-TAAD Beachwood Topography and Surface Flows on Beachwood

74. The TAAD project totally altered the topography of Beachwood and consequently affected the flow of surface water onto and off of the Property. (Weirich, 845:12-21.)

75. Initially, when the Northern Drain was installed, the low spot (i e, the pre-TAAD exit location for surface waters to flow northwesterly off of Beachwood and on to Glencree) was filled in because the trench was filled to the top of the manhole covers, and the manhole cover at the low spot is 1.2' above the pre-existing ground surface. (Weirich, 847:25-849:16; Ex. 21, Sheet 7.) Construction of the Northern Drain also left in place an underground wall, 6 to 11 feet deep, because the trench for the storm drain pipe was filled with compacted dirt. (Weirich, 850:4-23.)

76. The construction of the Western Drain, in the same trench and backfill procedure, prevented surface flows from reaching the ditch adjacent to Highway 1, which was the pre-TAAD method of collecting and removing run-off from direct rainfall that fell in the area west of the small ridge about 300' from Highway 1. (Weirich, 852:17-854:6.)

77. The stockpiling of dirt southeast of Beachwood’s low spot on its border with Glencree also changed the topography in this area. It disrupted the gentle pre-TAAD slope on the east side of the small ridge, which directed surface run-off to the low(i e, exit) point. (Ex. 21, at Sheet 7; Ex. 493 [showing location of stockpiled dirt]; Whelen, 81:5-19; 95:24-96:13.)

78. The borrowing of dirt from Beach-wood created other topographic changes. The borrow areas are depicted on the April 23, 1985 post-borrow aerial (Ex. 498) and are clearly shown on the 1990 post-TAAD 1-foot contour topographic map. (Ex. 556.) The borrowing of dirt created preferential collection points for stormwa-ter; stormwater flowing into them was trapped and could not flow out. (Weirich, 857:9-14.) Bayview Drive along Beach-wood’s northern border became both a compacted storage facility and a barrier that prevented stormwater from flowing northwesterly off the Property as it had done pre-TAAD. (Weirich, 857:15-24.) Dr. Weirich’s cross-sections illustrate the substantial changes to the topography along Bayview Drive due to the TAAD project. (Exs. 675, 676; Weirich, 878:5-882:13.)

79. Dr. Weirich also prepared digitized color maps of the post-TAAD topography, using Ex. 556 as the source of the topographic data. (Weirich, 859:2-12.) Dr. Weirieh’s post-TAAD digitized maps are Exs. 844, 845 and 846. The comparisons between the pre-TAAD topography (Exs. 836, 837, 838) and the post-TAAD topography (Exs. 844, 845, 846) show a landscape thoroughly transformed by the TAAD project. (Weirich, 859:13-860:1.) Not only were the street sections excavated, but closed-loop depressions (especially in the center of Beachwood) appear on the 1990 topography that did not exist in the pre-TAAD topography. (Weirich, 860:21-862:5.) These same topographic changes can be derived by comparing the pre-TAAD (Exs. 122, 426) and post-TAAD 1-foot contour interval topographic maps (Ex. 556).

80. The TAAD project completely changed the topography and the surface flow patterns on Beachwood. The consequences of those changes are discussed further below.

No City Maintenance Plan for the TAAD Improvements on Beachwood

81. Tony Moorhouse has been the City’s Maintenance Supervisor since 1983, when construction of the TAAD project commenced. He supervises seven maintenance workers, who constitute the City’s Maintenance Department. (Moorhouse, 179:12-180:17.) Moorhouse supervises and delegates the work of the Maintenance Department. (Moorhouse, 180:18-23.) One of the tasks performed by the Maintenance Department is the removal of debris from the top of catch basins in the City. (Moorhouse, 180:24-181:2.) The City keeps no records of the cleaning of its storm drains, and the only inventory of City storm drains is a list that Moorhouse keeps on his office computer. (Moorhouse, 181:12-182:25; Ex. 747.)

82. Moorhouse does not know whether or not there is a storm drain system on Beachwood. He has never been on the Beachwood Property and does not know that the City has an easement interest over the areas where the Northern, Western and Southern Drains are located, as well as the area upstream of the Southern Drain. (Moorhouse, 182:19-183:25; Ex. 75.) He is unaware of (1) the 48" inlet near the southeast corner of Beachwood or the debris rack cage atop the inlet; (2) the Northern Drain; (3) the Southern Drain; (4) the City-dug trenches to the storm stubs at the Northern Drain; or (5) any creeks or channels on Beachwood. (Moor-house, 184:1-14; 184:21-23.) Nothing on the Beachwood Property is on Moor-house’s list of the catch basins that the Maintenance Department cleans. (Moor-house, 184:18-20; Ex. 747.)

83. In general, the City’s maintenance plan for storm drains in the City is “fix it when it breaks.” Moorhouse is unaware of any plan of maintenance that the City has for any storm drain system located on Beachwood; and he is not aware of any maintenance the City has ever done to any storm drain system on Beachwood. (Moorhouse, 187:8-19.)

84. Paul Nagengast, the City’s Deputy City Manager who also runs the Public Works Department, is also unaware of any plan of maintenance for the portion of the storm drain system located on Beachwood. (Nagengast, 553:24-554:2.)

85. In order to function as designed, the 48" inlet near Beachwood’s southeast corner required a plan of maintenance to remove debris that would collect around the debris rack cage atop the inlet. The debris rack cage needed to be cleaned after each storm and before anticipated heavy storms, without such a maintenance plan, the inlet would silt up with debris, reducing and ultimately eliminating its intake capacity. (White, 285:3-24.)

86. The City knew long before the TAAD project was built that maintenance of drainage systems was necessary. As its then-City Engineer wrote in an October 31, 1973 memorandum to the City Council: “Drainage systems, in order to effectively fulfill their function, must not only be competently designed and properly constructed. They must also be adequately maintained so that they can continue to perform as intended.”' (Ex. 429, at HM306230.)

87. The clear lack of such a plan of maintenance by the City for its storm drain facilities on Beachwood did in fact cause the inlet area to become obstructed by debris that washed down out of the channel. Numerous photographs in evidence show the 4-foot high debris rack cage buried or nearly buried to the top by accumulated debris, (e g, Exs. 801-2, at 1200997 [March 2, 2000]; 84 [February 26, 2003]; 809-35, at 9901201 [March 11, 2004]; 810-6, at 9901235 [February 28, 2005].) As stated above, the 48" drain, was designed to drain a 92-acre watershed from the hills above Beachwood. (Weirich, 903:8-22.) It could not function as designed when debris restricted or eliminated its intake capacity.

88. Two eyewitnesses testified that they observed stormwater that was unable to flow into the inlet, and that instead flowed out onto Beachwood. Whelen, the City’s Inspector, observed the inlet in late January or early February 1999, when he had bars that had fallen off rewelded onto the debris rack cage. (Whelen, 136:11-138:9.) At that time, Whelen observed that water flowing down the creek was unable to get into the inlet and was instead flowing northwesterly onto Beachwood. (Whelen, 139:19-140:5.)

89. On February 12, 2000, Crowell went to the Beachwood Property after dark during a heavy rainstorm. He observed and photographed stormwater flowing past the inlet and out onto the Beach-wood property. (Crowell, 725:8-727:3; Ex. 795-12 at 1413376 [bottom photo].)

90. Water did not need to overtop the debris rack cage in order to flow onto Beachwood. The elevation of the top of the debris rack cage was surveyed to be 65.51'. (Ex. 566; Weirich, 904:11-905:24.) No surveyed points downstream of the inlet were higher than 65.51', meaning that water could escape the basin before it would flow into the top of the debris rack cage. (Weirich, 905:25-906:6.) One of the City’s own experts agreed that if debris had been deposited on top of the debris rack cage (as depicted in Ex. 84), water would have escaped the basin and flowed out onto Beachwood. (Freyer, 1389:4-1390:23.) And another of the City’s experts, Dr. Huffman, believed water was bypassing the inlet at the time he made his visit to the Property on February 28, 1999. (Huffman, 1537:10-24.)

91. The condition of the debris rack near Beachwood’s southeast corner is very different from the condition of the debris rack located east of the eastern end of Highland Avenue, also built as part of the TAAD project. The latter debris rack was designed to protect the homes in Highland Park. Its photographed condition on the same day as the Beachwood debris rack on several different days shows that the Highland Park debris rack was maintained and kept clear of debris. (Exs. 808-2 at 9901076 [Highland Park debris rack — February 26, 2003]; 808-15 at 9901099 [Beach-wood debris rack — February 26, 2003]; 809-14 at 9901162 [Highland Park debris rack — March 11, 2004]; 809-35 at 9901201 [Beachwood debris rack — March 11, 2004]; 810-4 at 9901230 [Highland Park debris rack — February 26, 2005]; 810-6 at 9901234 [Beachwood debris rack — February 26, 2005]; Weirich 963:14-965:20.)

92.In addition to the condition at the inlet which prevented the City’s Southern Drain from functioning as designed, there was also debris in the creek within the City’s easement, approximately 75 feet upstream from the inlet. (Braden, 410:1-21; Ex. 1163 at 1412858; Ex. 566.) Concrete rubble had been dumped in the creek channel some years prior to 1999, and a log had fallen across the creek just upstream of the concrete rubble. The condition of the debris rack and channel upstream of the inlet in 1999 stood in stark contrast to its condition at the conclusion of the TAAD construction in 1985. Bra-den, an M & S engineer, observed the condition of the area of the inlet upon completion of construction. At that time, the ditch at the area of the inlet was 5 feet deep and 22 feet wide between the banks. The channel was clear and well-defined and all water was able to reach the inlet. (Ex. 1163 at 1412858.) By 1999, the log and the concrete rubble diverted some of the stormwater out of the channel and onto Beachwood, instead of flowing downstream to the inlet. (Braden, 413:1-414:17; Weirich, 893:9-894:20.) Even the City’s expert was “a little surprised” to see concrete rubble in the channel; he conceded it was an obstruction to flow but did not quantify it. (Freyer, 1390:25-1391:11.)

93. Crowell observed water being diverted out of the channel by the concrete rubble upstream of the inlet. (Crowell, 722:9-723:3.) Dr. Weirich observed the escape channel by which stormwater flowed out onto Beachwood before ever reaching the inlet. (Weirich, 898:14-900:16.) Photographs in evidence support Dr. Weirieh’s view of stormwater escaping the channel and flowing onto Beachwood. (Exs. 789-7, at 1413188 [top and bottom photos]; 789-8 at 1413189 [top and bottom photos]; Weirich, 900:17-902:13.) Braden also described and drew the path of higher flows out of the hills that could not reach the inlet. (Braden, 413:20-414:17; Ex. 143.) The testimony of the City’s expert Dr. Coats that the concrete rubble in the channel was some sort of design feature “to prevent the upstream migration of a gully head cut,” is implausible and speculative, as conceded even by Dr. Coats. (Coats, 1338:25-1339:20.)

94. The exact identity of who dumped the concrete rubble in the channel or when it was dumped there is unknown. Based on all the evidence, and the substantial construction that was ongoing in the Highland Park subdivision between 1984 and 2000 (compare aerial photographs of March 28, 1984 [Ex. 493] with aerial photograph of February 17, 2000 [Ex. 425]), a reasonable inference may be drawn that the rubble was dumped in the creek upstream of the inlet by someone looking for a way to discard construction debris. Regardless how or when the concrete debris was dumped in the creek channel, what is clear is that it was dumped within the area of the City’s easement, which extended upstream of the inlet all the way to the southeast corner of Beachwood, in the creek that was incorporated into the City’s storm drain system. (Exs. 75, 566; White, 237:4-13; Braden, 443:2-12.) It was never removed by the City, as the City had no plan to maintain the storm drain system.

95. Based on all of the evidence, it is reasonable to conclude that, due to the absence of any plan of maintenance by the City, at least 50% of the flow that entered Beachwood at its southeast corner either did not reach the inlet or could not enter the inlet if it did reach it. (Weirich, 911:3-19.)

1990 Approval of the Beachwood Vesting Tentative Map

96. On December 26, 1989, Pilarcitos Valley Associates (“PVA”), an entity controlled by William Crowell, acquired Beachwood in a tax-free exchange. (Cro-well, 658:13-18; 659:15-660:18; Exs. 649, 742.) Crowell was an experienced and successful developer in Half Moon Bay. (Cro-well, 663:4-665:20.) PVA also acquired 93 water connections from The William Lyon Company to serve the Beachwood subdivision. (Exs. 83, 683; Crowell, 667:13-668:9.)

97. Days after PVA’s acquisition, on December 29, 1989, the Army Corps of Engineers disclaimed jurisdiction over any wetlands on Beachwood because no fill was proposed to be placed in the existing channel in the southeast corner. (Ex. 1032.)

98. On July 3, 1990, by Res. No. 31-90, the City Council approved a vesting tentative map (“VTM”) for PVA to develop 83 residential lots on Beachwood. (Ex. 141.) The VTM itself, showing the approved location