Judge Says City Violated Municipal Code in Tartre vs. City of Poway Case

The city of Poway violated its municipal code in requesting two Poway families obtain a floodplain permit and conduct a study before allowing them to install fences across a creek that runs through their properties, said Superior Court Judge Lisa Foster in a decision filed Monday.

"This Court recognizes that local governments have broad authority to regulate development in floodplains both within the scope of their police powers and pursuant to federal national flood insurance program regulations, and Poway has done so in its Municipal Code," read the official statement. "But the City can only act consistent with its Municipal Code. It simply failed to do so in this case."

The case has been an between the city and Poway residents Lee Tartre and Diane Armstrong for four years.

“I think that it’s a correct ruling,” said Tartre, who received the judge’s statement on Wednesday.

were constructed in June 2007 after city-contracted employees cut down trees on the residents' properties in January 2007. The city argued that the fences were built on a flood area, so the residents needed to obtain a floodplain permit, which would require a study for the fences. Tartre said the study would have cost about $30,000, shared by both families.

Tartre said they are still filing motions on the code violation and have a hearing date set for Aug. 12.

“It’s been like a full-time job,” said Tartre about the legal battle. “It’s not over. This is only an intermediary step. There’s still a long way to go.”

This is just one case the Poway residents have against the city.

The legal battles began when the city hired contractors to chop down 25 trees across nine properties—not including Tartre's—to provide access to a pipeline that runs through the area on Avenida La Valencia. Crews instead removed 24 trees on Tartre’s property and 18 on Armstrong’s.

Tartre and Armstrong filed a lawsuit against the city after attempting to resolve the issue for more than a year. They won, but the city appealed. In June 2010, the appellate court ruled that the city was responsible for the engineering study. The city filed its appellate brief, and Tartre said they plan to file their reply and appeal before the end of summer.

Tartre said the fences, which had been pushed back, were moved back over the creek after the appellate court’s ruling.

While attorneys represent Tartre and Armstrong on the case concerning the trees, they have represented themselves in the code violation case since 2008.

“Because we’re not asking for money damages, we just couldn’t continue to pay money on both cases, so we had to take it over ourselves,” said Tartre, who described the legal battles as an “expensive nightmare.”

City Manager Penny Riley said she “cannot comment on the cases at this point.”

“The city will have a closed session in mid-May and we may have a statement on the writ (fence case) after that meeting,” she said in an email response.