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HomeMy WebLinkAboutCC Minutes 2000-02-07SRCC MINUTES (P-­ular) 2/7/2000 Page 1 IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, MONDAY, FEBkuARY 7, 2000 AT 8:00 PM Regular Meeting: Present: Albert J. Boro, Mayor San Rafael City Council Barbara Heller, Vice -Mayor Paul M. Cohen, Councilmember Cyr N. Miller, Councilmember Gary 0. Phillips, Councilmember Also Present: Rod Gould, City Manager Gary T. Ragghianti, City Attorney Jeanne M. Leoncini, City Clerk OPEN SESSION - COUNCIL CHAMBER - 7:00 PM Mayor Boro announced Closed Session item. CLOSED SESSION - CONFERENCE ROOM 201 - 7:00 PM 1. Conference With Legal Counsel - Existing Litigation Government Code Section 54956.9(a) Case Name: Kerner Blvd., LLC v. City of San Rafael Marin County Courts Case No. 172694 City Attorney Ragghianti announced no reportable action was taken. ORAL COMMUNICATIONS OF AN URGENCY NATURE: 8:05 PM RE: PEACOCK GAP LAGOON - File 4-4-6.b x 5-1-243 x 166 x 12-9 x 12-19 x 13-12 Suzanne Mabardy stated she lived on the Peacock Gap Lagoon, and noted that for the past six months she has been meeting with Public Works Director David Bernardi and the President of the Peacock Gap Homeowners Association regarding the management of the Peacock Gap watershed, which deposits the storm drains into the lagoon. She pointed out the community had conducted meetings, and obtained grants through the MCSTOPP Program (Marin County Stormwater Pollution Prevention Program), designed and written to enhance community education regarding protection of the watershed. However, Ms. Mabardy' stated the meetings with the City and the Peacock Gap Golf and Country Club did not generate the plan they had hoped for. Ms. Mabard.y presented a letter outlining what had occurred as a result of the meetings, reading the letter into the public record. She noted a 30 -day Notice to Comply had been issued to the City and the Peacock Gap Golf and Country Club by the San Francisco Bay Regional Quality Control Board, directing that they jointly address this matter. She stated the residents were emphasizing the need for a Flood Management Plan to be included as an integral component of the Peacock Gap Lagoon Management Plan. Public Works Director David Bernardi reported the City was working with the Peacock Gap Golf and Country Club to develop a Pond Management Plan, as the Golf Club is the owner of the pond, and the City simply has an easement for drainage purposes. He explained it was the City's job to pump it out, and the Golf Club's job to manage and maintain it. Mr. Bernardi stated the Regional Board has told the Golf Club they must develop a Pond Management Plan, and the City is involved because it has a storm drain that is an integral part of keeping the water fresh. He reported the Golf Club was re -analyzing the existing Pond Management Plan, which was done when they planned to renovate the golf course. Mr. Bernardi stated the City was more than willing to do its part in this program, but reiterated it was the Golf Club that was the primary mover in this case. Councilmember Cohen noted Ms. Mabardy had stated the City had been served notice for illegal discharge into the Bay. Mr. Cohen clarified that the Notice to Comply referred to '.potential" discharge, pointing out that was an important distinction. He stated he was not trying to make light of Ms. Mabardy's concerns, and he believed the City would take them very seriously. However, he stated he was very sensitive to statements being made in a public forum stating that the City had made illegal discharge into the Bay, when in fact it would appear, from the documentation, that the City had only been put on notice that there was a potential for discharge into the Bay, and not that anyone had found that the City had caused any illegal discharge. Mayor Boro asked Mr. Bernardi when the City could begin a dialogue with all the interested parties, and what he felt was a reasonable period of time when he could return before the Council? Mr. Bernardi noted the Golf Club had thirty days to respond to the Regional Board's notice, and once that was done, the Regional Board's staff would look at the work plan proposed by the Golf Club, and determine whether or not it was appropriate. He stated, assuming the Golf Club's plan is appropriate, the dialogue could then begin between the Golf Club, the City, and the neighborhood to make certain the plan was something everyone could live with. Mayor Boro noted that would be some time after the middle of February, and asked when Mr. Bernardi felt he could come back before the Council with an update or closure? Mr. Bernardi suggested 60 days from the middle of February. Councilmember Cohen noted that when Mr. Bernardi comes back before the Council, he would like to see that the concerns of the neighbors are also discussed, along with the Flood Management Plan. SRCC MINUTES (Regular) 2/7/2000 Page 1 SRCC MINUTES (P -pular) 2/7/2000 Page 2 RE: PRESENTATION FROM THE BUSINESS IMPROVEMENT DISTRICT RE: MILLENNIUM PARTY - File 102 x 105 x 183 x 249 x (SRRA) R-414 Gisela Greene, President of the Business Improvement District (BID), stated their Board of Directors had voted unanimously to present the City of San Rafael with a check in the amount of $2,500 to help defray the expenses of the Millennium Party. She stated the BID believed the City had taken a forward thinking approach in bringing such a fabulous event to San Rafael, and regardless of the monetary loss, it would always remain a successful endeavor. She noted the benefits to the business community overall, on a local, national, and international level, were and would continue to be incalculable, and would be felt for many years into the future. Ms. Greene stated the BID believed this was part of the Vision which San Rafael set out to achieve, and they thanked the City leaders for having the courage to take the risks so necessary today to be a viable business community. On behalf of the Business Improvement District, Ms. Greene presented the City with a check in the amount of $2,500. RE: MILLENNIUM PARTY 2000 - File 249 x (SRRA) R-414 Katie Kinder stated she had been born and raised in the City of San Rafael. She reported that while she and her husband had not attended the Millennium Party because of the high prices of the tickets, she had read that 1,000 people had received free tickets to the Millennium Party. She suggested those who received tickets pay the City for the price of the tickets. Ms. Kinder stated she loved the City of San Rafael; however, she was embarrassed because of the large amount the City had lost on the party. She noted there were City trees on her street that needed to be cut, and there were potholes in some of the streets that needed to be repaired, and she felt the party had been a bad plan. Referring to the initial plan of making enough money to build a fountain on Court Street, Ms. Kinder noted that when the Courthouse burned years ago, a fountain was built at that location; however, it was now used as a planter for flowers. She stated that if the City really wanted to build another fountain, she would be happy to donate $200, and have her father's name put on the fountain wall, but she did not want that money to come from what was left over from the Millennium Party. Mayor Boro clarified that the 1,000 people Ms. Kinder had referred to did not get into the Millennium Party for free, rather their companies paid corporate sponsorships, and part of the compensation for those sponsorships were complimentary tickets. He reiterated they had paid for those tickets through their sponsorship, either with money or in-kind services. RE: CONTEMPO MARIN MOBILEHOME PARK - File 13-7-1 x 9-3-16 Tom Davis, 22 Yosemite Road in Contempo Marin Mobilehome Park, referred to a letter from the law firm of Hart, King, and Cauldron, which was sent to City Attorney Ragghianti and City Manager Rod Gould on behalf of MHC, the park owner of Contempo Marin. He stated the letter threatened to sue the City over the issue of vacancy control in San Rafael's rent control Ordinance. Mr. Davis read a specific paragraph from the letter, in which the park owners discuss their goals for Contempo Marin, "It is our goal to work with the City in operating clean, efficient and desirable rental communities that attract higher income residents, and the type of home retail prices that speak well for the City of San Rafael. We want to ensure that mobilehome communities will continue to upgrade appearances to continue to attract new residents at higher rents, avoiding the cycle of deterioration that befell the trailer parks of the 50's and 60's". Mr. Davis recalled that several months ago he had brought to Council MHC's Annual Report, which discussed what they were planning to do with Contempo Marin, and noted that now they were telling the City directly. He believed that if the City was going to take seriously the housing component of its General Plan, which sets aside Contempo Marin as affordable housing, it was now faced with an implacable enemy. He believed this letter revealed that MHC is at odds with the City's plan to preserve that space as affordable housing, and felt that perhaps it was time to take a collective look at whether MHC can continue to function in this City as a corporate citizen, one that can comply with the laws, and act in furtherance of the City's goals and plans. He stated if they cannot do that, perhaps the City should invite them to leave, and take their plans to a community where they would be more welcome. RE: CONTEMPO MARIN MOBILEHOME PARK - File 13-7-1 x 9-3-16, Coleman Persil.v, resident of Contempo Marin, thanked the Council for giving the residents an Ordinance to protect them against bad rent increases. He stated the City's Ordinance withstood court challenges, and it has been shown that the Ordinance is both Constitutional and legal. He referred to the Vacancy Control clause in the Ordinance, explaining this meant that if a resident sells his home, the next person to buy it does not have to receive an increase in the rent, and the homes can be kept affordable. He stated this was what the park owner was contesting, and why the law firm had written their letter. He believed this was dangerous, as the park owners would likely come before the Council and attempt to have the Ordinance amended to get rid of the vacancy control. Mr. Persil.v noted the park owner could refer to a few examples of cities that had given up their vacancy control; however, he assured the Council that upon any kind of hearing, there could be shown many more cases of cities that have vacancy control, and are sticking with it. Mr. Persil.v'urged the Council not to comply with MHC's request, and to keep the mobilehome parks affordable. City Attorney Ragghianti stated he had responded to the letter from the law firm representing MHC, and he invited Mr. Davis and Mr. Persily to contact his office so he can provide them with a copy of his letter. He stated he was not at all convinced the legal SRCC MINUTES (Regular) 2/7/2000 Page 2 SRCC MINUTES (RAqular) 2/7/2000 Page 3 arguments set forth in MHC's letter were accurate; however, they were complicated, and were based upon the Ninth Circuit Court opinion dealing with the Honolulu land use issue. Mr. Ragghianti stated the City had no intention of acquiescing to the requests made in the letter. He noted it had been at least two weeks since his response to the author of the letter, in which he asked for four or five different things mentioned in the letter; however, he had not had a response, which was why this issue had not yet been brought to the Council. He stated, at this point, it was nothing more than a letter suggesting that vacancy control constitutes a regulator taking. Mayor Boro urged Mr. Davis and Mr. Persily to avail themselves of City Attorney Ragghianti's office. CONSENT CALENDAR: Councilmember Phillips moved and Councilmember Heller seconded, to approve the following Consent Calendar items: ITEM ACTION 2. Approval of Minutes of Special and Regular Meetings Minutes approved as of Tuesday, January 18, 1999 (CC) submitted. 3. Call for Applications for Appointments to Fill Two, One -Year Youth Positions on the Bicycle and Pedestrian Advisory Committee, Due to Expiration of Terms of Dominique Goff and Joel Segura (Terms to Expire End of February, 2001) (CC) - File 9-2-55 4. Resolution of Appreciation to Chester Williams, Maintenance Worker II, Employee of the Quarter for Period Ending December 31, 1999 (CM) File 102 x 9-3-40 x 7-4 Approved staff recommendation: a) Called for applications for two youth members on the Bicycle and Pedestrian Advisory Committee. Only students who are residents of the City of San Rafael and are attending high school may apply. Terms will be for one year and will expire end of February, 2001; b) Set deadline for receipt of applications for Tuesday. February 29, 2000 at 12:00 Noon in the City Clerk's Office, Room 209, City Hall; and, c) After interviews and appointments of the applicants at the next regular Bike and Pedestrian Advisory Committee meeting on Monday, March 13, 2000, the Council can confirm the new appointees at the next regular City Council meeting, to be held on Monday, March 20, 2000. RESOLUTION NO. 10581 - RESOLUTION OF APPRECIATION TO CHESTER WILLIAMS, MAINTENANCE WORKER II, EMPLOYEE OF THE QUARTER FOR PERIOD ENDING DECEMBER 31, 1999. Resolution of Appreciation to Kenneth Nordhoff, RESOLUTION NO. 10582 - Assistant City Manager, as the 2000 John H. Nail RESOLUTION OF APPRECIATION TO Award Recipient (CM) - File 102 x 9-3-11 x 9-3-20 KENNETH NORDHOFF, ASSISTANT CITY MANAGER, AS THE 2000 JOHN H. NAIL AWARD RECIPIENT. 6. Resolutions of Appreciation to John Ortega for the RESOLUTION NO. 10583 - Marin County Human Rights Commission 1999 Martin RESOLUTION OF APPRECIATION TO Luther King, Jr. Humanitarian Award (CM) JOHN ORTEGA FOR THE MARIN - File 102 x 13-17 COUNTY HUMAN RIGHTS COMMISSION 1999 MARTIN LUTHER KING, JR. HUMANITARIAN AWARD. 7. Report on Bid Opening and Resolution Awarding Contract for the Freitas Park Rehabilitation to Bauman Landscape, Inc. in the Amount of $333,300 and Allocate an Additional $55,000 in Funding Out of Park and Recreation Facility Fund (Project No. 275-6697-615-8000; Bid Opening Held on Wednesday, 1/19/2000) (PW) - File 4-1-505 x 2-1-29 x 9-3-66 x 12-5 x 12-15 RESOLUTION NO. 10584 - RESOLUTION AWARDING THE CONTRACT FOR THE FREITAS PARK REHABILITATION TO BAUMAN LANDSCAPE, INC. IN THE AMOUNT OF $333,300 AND ALLOCATE AN ADDITIONAL $55,000 IN FUNDING OUT OF THE PARK AND RECREATION FACILITY FUND (Lowest ResDonsible Bidder). SRCC MINUTES (Regular) 2/7/2000 Page 3 SRCC MINUTES (P^gular) 2/7/2000 Page 4 9. Resolution Authorizing Temporary Road Closure, Andersen Drive From West Francisco Boulevard to "A" Street, on Sunday, March 19, 2000, 6:00 AM to 2:00 PM, for the Pacific Bell Park Pitch Event (CS) - File 11-19 AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ABSTAINING: COUNCILMEMBERS: RESOLUTION NO. 10585 - RESOLUTION APPROVING THE STREET CLOSURE OF ANDERSEN DRIVE, FROM WEST FRANCISCO BOULEVARD TO 'A' STREET ON SUNDAY, MARCH 19, 2000 FROM 6:00 AM TO 2:00 PM, FOR THE PACIFIC BELL PARK PITCH EVENT. Cohen, Heller, Miller, Phillips & Mayor Boro None None Cohen and Heller (from minutes of the Special Meetinq of 1/18/2000 only, due to absence from meeting) The following item was removed from the agenda for further discussion: 8. RESOLUTION ADOPTING SAN RAFAEL PUBLIC LIBRARY INTERNET USE POLICY (Lib)_ File 9-3-61 x 12-8 Councilmember Cohen asked for clarification regarding what the Council was being asked to adopt, and whether they were modifying the policy to restrict access in the Children's Library. He noted there would be a policy that in the Children's Library the Internet terminal was going to be limited only to sites bookmarked by the Children's Librarian, and in addition, another policy was being added regarding usage of work stations for adults, stating that minors under the age of 14 years of age needed permission. Mr. Stratford stated that was correct. Mr. Cohen asked if the balance of the policy was the same as the one the Council previously adopted? Mr. Stratford stated the Council had never adopted a policy, explaining the Library Board adopted the current policy two years ago. He noted one of the reasons staff was now asking the Council to act was because there is a State law which requires the governing body of the Library to adopt a Children's Internet Policy. He pointed out staff had developed a Children's Internet Policy when the Library was going to begin offering Internet service in the Children's Room, and the guiding policy was the Internet Use Policy now before Council for adoption. Councilmember Cohen pointed out there was specific language in the Children's Internet Policy, but not in the overall policy, and he felt that needed to be addressed. Mr. Cohen stated he fully supported free public access to the Internet through the Library, as he believed that was a natural component of Library services. However, he believed it was important to have a policy on that, although he acknowledged it was difficult to balance what constitutes offensive material with the issues of free speech. Mr. Cohen referred to one line of Exhibit "A" of the Internet Use Policy which states, "Users are asked to respect the sensibilities of others when accessing potentially offensive information and images". He agreed it was difficult to do more than that; however, he asked who was to be the judge of that, and whether it would be Library staff? Mr. Stratford stated staff had been trained to deal with instances when there is a complaint. Mr. Cohen agreed that was probably as finely balanced as the policy could be; however, he pointed out the Children's policy included another document, Exhibit "B", which appeared to be a separate but related policy governing the use of the Internet terminal in the Children's Library. He pointed out that at the end of Exhibit "B" it states, "Misuse of the Internet or any violation of our policies may result in the withdrawal or suspension of access privileges"; however, he did not find a comparable phrase in the Adult Policy. Mr. Stratford stated Internet privileges have been withdrawn from adults in the past, and while it was not stated in the Adult policy, staff did have a practice of doing that. Mr. Cohen suggested the phrase used in the Children's policy which refers to misuse should be changed to read, "Misuse of the Internet terminals or Internet access privileges", as opposed to "Misuse of the Internet". He also felt this phrase, as modified, should be included in the Adult Internet Policy, so that it states, in writing, what happens if someone persists in violating reasonable limits on what they are accessing. Councilmember Cohen stated he believed staff had drawn as fine a line as could be drawn on such difficult issues. SRCC MINUTES (Regular) 2/7/2000 Page 4 SRCC MINUTES (P-qular) 2/7/2000 Page 5 Councilmember Cohen moved and Councilmember Miller seconded, to adopt the Resolution, as amended. RESOLUTION NO. 10586 - RESOLUTION ADOPTING A POLICY FOR PUBLIC USE OF THE INTERNET WITHIN THE SAN RAFAEL PUBLIC LIBRARY (as amended: The last sentence of Exhibit "B" of the Children's Policy shall be changed to read, "Misuse of the Internet terminals or Internet access Drivileqes, or any violation of our policies, may result in the withdrawal or suspension of access privileges". This same wording is also to be added to the Adult Policy). AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None SPECIAL PRESENTATIONS: 10. PRESENTATION OF RESOLUTION OF APPRECIATION TO CHESTER WILLIAMS. MAINTENANCE WORKER, II. EMPLOYEE OF THE QUARTER FOR PERIOD ENDING DECEMBER 31. 1999 (CM) File 102 x 9-3-40 x 7-4 Mayor Boro announced that Employee of the Quarter, Chester Williams, had been unable to attend the meeting. 11. PRESENTATION OF RESOLUTION OF APPRECIATION TO KENNETH NORDHOFF, ASSISTANT CITY MANAGER. AS THE 2000 JOHN H. NAIL AWARD RECIPIENT (CM) - File 102 x 9-3-11 x 9-3-20 Mayor Boro asked City Manager Gould to describe for Council the nature of the award being presented to Mr. Nordhoff. City Manager Gould explained that once a year the City Managers Department of the California League of Cities gives an award in memory of John H. Nail, who was a long-time City Manager and Assistant City Manager, a man known for his integrity, character, dedication to his profession, and his outgoing and friendly manner. Mr. Gould reported all the cities throughout the State are encouraged to nominate top- notch municipal assistants to compete for this coveted award. He stated there is only one award given each year, and this year, Assistant City Manager Kenneth Nordhoff was awarded the John H. Nail Award. Mr. Gould stated it was a tremendous honor for Mr. Nordhoff, and for the City of San Rafael, explaining that Mr. Nordhoff had been given the award in Southern California on Friday morning, and would also be given a free trip to the International City Managers Association Conference for further recognition this Fall, as a result of this honor. Mayor Boro presented the official plaque, which had been given to Mr. Nordhoff in Southern California, and a Resolution of Appreciation from the City Council, which addresses the many fine things he has done for the City, the leadership he has shown, and the tremendous work he has done with respect to the City's budgets, financing, and reorganization of the Management Services Department. Mayor Boro noted Mr. Nordhoff had truly made an impact on the City in a very short period of time. Mayor Boro congratulated Mr. Nordhoff, stating he was very happy and proud to have him as the City's Assistant City Manager. Assistant City Manager Nordhoff thanked Mayor Boro and the Council. He stated he did not believe he could have achieved this honor without several facets that occur at the City, beginning with the City Council. He stated he really appreciated working with the five Councilmembers, noting they take risks, they think progressively, and allow staff a lot of latitude to do many things, which translated into a lot of successes. Mr. Nordhoff stated nothing could really be accomplished without City Manager Gould, noting he has had the pleasure of working with him for the past eight years in two different locations. He stated Mr. Gould has been a great mentor, and more than that, a great friend to him and his family. Mr. Nordhoff expressed his appreciation to his colleagues, noting they deserved some of the credit for his award, because much of what he does he also asks them to do, and they support him. Mr. Nordhoff stated, most importantly, his staff did a very good job, and they put their all into everything they do; and he believed much of the success they have in Management Services, and many of his responsibilities, were attributable to them. Therefore, he thanked the Council on behalf of all those who have helped him achieve this success. SRCC MINUTES (Regular) 2/7/2000 Page 5 SRCC MINUTES (P -pular) 2/7/2000 Page 6 12. PRESENTATION OF RESOLUTION OF APPRECIATION TO JOHN ORTEUA FOR THE MARIN COUNTY HUMAN RIGHTS COMMISSION MARTIN LUTHER KING, JR. AWARD (CM) - File 102 x 13-17 Mayor Boro stated John Ortega was before the Council for further recognition of an award he received from the Human Rights Commission. He explained the staff report states the Human Rights Commission, established by the Marin County Board of Supervisors, honors people each year for the work they do to eliminate prejudice, intolerance and discrimination due to race, religion, national origin, sex, age, cultural background, sexual orientation or disability. Mayor Boro stated the Commission recognized Mr. Ortega for the fine work he has done in the community of San Rafael, and in particular, in the neighborhood in which he lives. Mayor Boro stated Mr. Ortega has really been a leader in that community, bringing a lot of the different groups together, and he has effectively worked with the City, noting he was a member of the Advisory Committee for Redevelopment, and makes certain the conscience of his community is heard, which is a real contribution. Mayor Boro stated Mr. Ortega has been a very effective representative of the community he represents, noting the Resolution of Appreciation being presented by the Council acknowledges that fact. On behalf of the City Council, Mayor Boro thanked Mr. Ortega for all his hard work. John Ortega thanked Mayor Boro and the Council, giving special thanks to Councilmember Cyr Miller, for having done incredible work in the Canal. Mr. Ortega noted Mr. Miller had reached into the hearts and souls of many people in the Canal, and he appreciated Mr. Miller's "see all, tell all, know all" policy, and his ability to really see what is happening in the Canal and translate that to the Council. Mr. Ortega stated "deeds are love", and Councilmember Miller has shown that. Mr. Ortega stated he wished to share his award with those people in the Canal who are struggling to become part of the community, socially, economically, and politically, noting it was on behalf of those people in the community that he accepted this award, in full appreciation of them. PUBLIC HEARING: 13. CONSIDERATION OF CITY INITIATED AMENDMENT OF TITLE 14 OF THE SAN RAFAEL MUNICIPAL CODE (CITY OF SAN RAFAEL ZONING ORDINANCE). SECTION 14.17.110 (PERFORMANCE STANDARDS FOR SEASONAL OUTDOOR EATING AREAS PROPOSED IN CONJUNCTION WITH FOOD SERVICE ESTABLISHMENTS) TO PROVIDE FOR A LICENSE AGREEMENT FOR USE OF CITY SIDEWALKS AND RIGHTS-OF-WAY FOR OUTDOOR EATING AREAS. IN LIEU OF ANY USE PERMIT, ENVIRONMENTAL DESIGN REVIEW PERMIT, OR ANY OTHER PERMIT FOR SUCH USE. AND PRESCRIBING STANDARDS FOR SUCH USE. ALSO PROPOSED IS AN AMENDMENT TO OTHER STANDARDS SECTIONS 14.17.110.0 OF THE ZONING ORDINANCE) FOR OUTDOOR SEATING AREAS (CD) - File 10-3 x 10-5 x 10-1 x 11-7 x 2-11 Mayor Boro declared the public hearing opened, and asked for the staff report. Senior Planner Dean Parsons reported the Council reviewed this issue in October, and explained the reason for the amendment of Title 14 was to eliminate the requirement for a Use Permit and Design Review Permit for outdoor eating on public rights-of- way, which are normally on public sidewalks. In addition, staff was also recommending amendments to the Performance Standards. He recalled that at its last meeting the Council directed staff to allow permanent roofs over outdoor seating areas on expanded sidewalks, that there be a quarterly cleaning of outdoor eating areas on sidewalks, and that there be no parking requirement for permanently covered outdoor seating areas. Mr. Parsons reported staff returned to the Planning Commission in January with these recommendations, and they have done further "fine-tuning" since then. He noted that since the Planning Commission meeting regarding this issue, staff has recommended the parking performance standard be further refined, as indicated in the staff report. He explained staff was recommending the parking standard requirement that no outdoor seating area shall exceed 25% of the indoor seats, and if the seating is permanently covered, parking shall be required if it is not in the Downtown Parking Assessment District. He gave, as an example, a seating area in Terra Linda, noting that if the seating were permanently covered, and on private property, it would require parking. Mr. Parsons noted staff had also recommended the License Agreement have a five-year term, and the Planning Commission concurred, as it was felt that it was very important for the City to be able to take back the sidewalk or public right-of-way if the road had to be widened, or for other reasons. Mr. Parsons reported that since that time, staff has discussed this issue with the City Attorney, and with Mr. Berry, a Downtown property owner, noting the reason for that discussion was to potentially try to add more flexibility into this requirement. He reported they came up with the option of a Lease Agreement, as an option to the License Agreement, SRCC MINUTES (Regular) 2/7/2000 Page 6 SRCC MINUTES (r hilar) 2/7/2000 Page 7 whereby the property owner or restaurant operator could enter into a lease which would have a fixed term, giving them the guarantee of a specific time period. Mr. Parsons stated this was requested, particularly by Mr. Berry, due to the investment incurred by putting in a permanent seating area. Mr. Parsons explained that while giving a fixed term, it would also require compensation to the City, which is typical of any lease. Mr. Parsons noted this was being included in staff's recommendations, which meant there could be either a License Agreement or a Lease Agreement for outdoor dining on a public right-of-way. Mr. Parsons stated staff was also recommending that any License Agreement be revokable at the pleasure of the City Council, rather than be for a five-year term. He explained that would be easier for staff, and possibly for the restaurant operators, in that the City would not have to keep track of the five-year terms, and it would allow the use to discontinue if, for any reason, the City had to take back the sidewalk. Mr. Parsons explained staff was recommending that any Lease Agreement come to the City Council, and that they be reviewed on a case by case basis, so the term, as well as the compensation, could be reviewed and approved by the Council. Mr. Parsons referred to other cities with similar situations, noting they either charge by the area of outdoor seating, or by the seat, which is something staff could further research if Council requested. Mr. Parsons stated staff was recommending a couple of minor changes to the Ordinance. On Page 3, Division 5, in the "Parking" section, Mr. Parsons recommended adding the word "covered" to the sentence, "Parking shall be provided for all permanently covered outdoor seating areas". On Page 5 of the Ordinance, Section 14.16.277 F, he recommended adding to the end of the sentence, "...and as approved by Resolution of the City Council". He explained that would be for any kind of License Agreement. Councilmember Cohen asked if the distinction between the License Agreement and the Lease was at the discretion of the City? Mr. Parsons stated the restaurant operator could request either a license or a lease. He stated staff expected a license would be more typical, noting that would be an agreement between the City and the restaurant operator. He explained that if the restaurant operator wanted a lease with a guaranteed term, that would also be the operator's option, and would require City Council approval, whereas a License Agreement would require Community Development Director and City Attorney approval. Mayor Boro asked if a License Agreement would have a proviso that it could be revoked at any time, at the discretion of the City Council? Mr. Parsons stated that was correct. Mayor Boro asked if a lease would be for a specific period of time, and Mr. Parsons stated that was correct. Mayor Boro noted the Planning Commission had favored a five-year period as the typical term for a lease, and asked what time period staff was considering? Mr. Parsons stated he would expect it to be at least ten years. Mayor Boro asked if staff was asking Council for guidance on that issue, as he was trying to get a sense of what to expect if this is approved? Mr. Parsons stated he believed each lease should be looked at on a case by case basis, pointing out that in any event, there were very few opportunities for this in the Downtown. Mr. Parsons noted another factor that needed to be looked at was the value of the improvement the restaurant was installing, and determining a reasonable period of time to amortize the value of that improvement. He stated staff had not really discussed a specific term. Mayor Boro clarified that a lease would be brought to the Council for approval, whereas a license would be approved by the Community Development Director. Mr. Parsons stated that was correct. Mayor Boro invited public comment. Linda Bellatorre, former member of the Vision Committee, referred to the design review, asking if she was correctly interpreting that there would be no more design review, or just that there would be no more permits issued? She noted that when they did the follow-up on where they set the zoning, they had been told there was no money for a design standard program for the Downtown. She asked if there was going to be any kind of control, especially in the instance of how a covered roof was going to look? Mr. Parsons explained that through the License Agreement, staff would complete a design review, just as they were doing now with the Use Permits and Design Review Permits. Ms. Bellatorre asked if that meant staff would be able to give some guidance to someone coming forward with a proposed design? Mr. Parsons stated that was correct. Ms. Bellatorre asked if it would have to be in compliance, or carry out some kind of standard that was now in the Downtown. Mr. Parsons stated it would. Robert Berr.v, property owner in the Downtown, recalled he spoke to Council in October, when this Ordinance was first heard. He noted substantial changes had been made to the Ordinance since that time, for which he was very pleased; however, he felt further changes needed to be made. He stated he had no problem with a Licensing Agreement being used for most of the total Downtown, with the exception of the expanded sidewalk areas only, pointing out those were few and far between. SRCC MINUTES (Regular) 2/7/2000 Page 7 SRCC MINUTES (F iular) 2/7/2000 Page 8 Recalling a little of the background, and the City's original "Alive After Five" campaign, Mr. Berry noted he had been one of the first to participate in what was an experiment at 1130 Fourth Street, the Chinook Restaurant, which wanted to expand to the sidewalk area and try this particular concept. Mr. Berry noted the City paid for the expansion, poured the sidewalk and made the barriers, and then the City reviewed the look and the feasibility. It was decided that this particular kind of function might be something the City would like to have in the Downtown, and it was then agreed that this would be in the General Plan. Mr. Berry recalled that when the sidewalk area was replaced in the entire Downtown area in 1997, the Redevelopment Agency went to all the property owners in the Downtown area to inquire as to which property owners would be willing to pay for the sidewalk expansion areas. He stated they were few and far between, and he was shocked that more restaurant owners and/or property owners did not apply for, and pay for, the sidewalk expansion area, noting he was one of the few who did, along with the Rafael Theatre. In addition, Red Boy Pizza was done at that time. However, I1 Davide came later, and it was not in conjunction with the Fourth Street sidewalk area. Consequently, the initial opportunity to see what was happening was in the 1997 expansion of the sidewalk area. Mr. Berry noted, to date, the City had two License Agreements, one with the Chinook Restaurant, and one with Red Boy Pizza, and two Use Permits, pointing out there were only two, possibly three, businesses that would be affected by this Ordinance. Mr. Berry stated he was more concerned with the long-term, rather than the short- term effect. He noted the short-term would affect what happens to the tenants that have the existing right to use the sidewalk area; however, there could be tenants in the future who might want to use the sidewalk area, such as a tenant in the former Macy's building who might want to have food service or a coffee shop on the corner, or a restaurant with a patio. He felt it was also likely that the yet unoccupied cafe area surrounding the Rafael Theatre would want to have some kind of permanent structure on the sidewalk, and that could be affected by this proposed amendment, noting that if they do not currently have a Use Permit, they certainly would not have a Use Permit for a permanent structure. He stated staff would put the theater through the same loop holes he and his tenant were currently being put through. Mr. Berry asked that Council refer the amendment back to staff to review the expanded sidewalk area, and give more thought to whether the City wants to encourage other tenants on Fourth Street to expand their sidewalk areas. And if that is what the City wants, in the long term, he believed the City would have to give those potential property owners and tenants the incentive to put in the dollars to make it look decent in the Downtown area. Mr. Berry stated his tenant, The Broken Drum, spent a lot of money on the outdoor look, noting it is a permanent structure, and has an awning, a rain gutter, drainage underneath the sidewalk, light, heat, wind protection and planters. He believed that if this was the kind of look the City wanted, then the City had to encourage the owners and tenants to spend the money for that particular kind of look. He believed that if the City enacted the amendment to the Ordinance, what it would get in the future was the "Red Boy Pizza" look, with no permanent structures where people could sit outside and be protected. Mr. Berry noted that when he appeared before the Council in October, he had reported that the tenant then at 1136 Fourth Street, Pasta Boat, who had a long-term lease with an option, had elected to close his business, and was trying to sell his lease. The owner had received an offer from P.J.'s Oyster Bar, a successful business in San Francisco, who wanted to open a small seafood restaurant with an outdoor area similar to The Broken Drum, where they could have an expanded seating area. However, at the time of the negotiations with The Pasta Boat, staff was in the process of developing this amendment, which had already gone through the Planning Commission. He recalled that when the potential tenant appeared before the Planning Commission and was told of the Ordinance in affect at that time, he got cold feet, and chose not to purchase the lease. Mr. Berry reported that shortly thereafter his tenant, The Broken Drum, negotiated with the owner of Pasta Boat, and was able to purchase the lease. Mr. Berry stated he, as the property owner, approved the purchase of the lease, thinking the tenant believed it would be easy to obtain an amended Use Permit to use the area, similar to the way the areas at 1132 and 1134 Fourth Street had been used for the past two years. He noted the Pasta Boat had a Use Permit for ten seats, although it did not include the use of a permanent outdoor structure. In November, after The Broken Drum had obtained Pasta Boat's lease, the owner applied for a Use Permit, believing it would involve nothing more than a staff review, and the Use Permit would be adjusted. However, it became a major issue regarding the License Agreement, and it was not until shortly after the first of the year that the tenant received a letter from staff stating the Use Permit had been approved, subject to ten conditions. He reported all of the conditions had been acceptable except one, which was, in effect, to change the Use Permit to a License Agreement, including the Use Permit that had been previously approved for 1132 and 1134 Fourth Street. Therefore, in essence, for The Broken Drum to expand into the adjoining business, he would have to give up his Use Permit on the other locations he occupied. Furthermore, the letter of approval gave a five-day period to accept the conditions, or to file an appeal. On advice of counsel, the Use Permit application was withdrawn, so time could be given to perhaps make a negotiated SRCC MINUTES (Regular) 2/7/2000 Page 8 SRCC MINUTES (P-qular) 2/7/2000 Page 9 agreement with the City concerning a Use Permit or License Agreement. Mr. Berry stated at that time he was advised that if the License Agreement, by definition and by law, was a revokable instrument, and if it had been accepted, it would be revokable under any set of circumstances. With that in mind, they were left with only two or three different avenues of approach; to continue to use a Use Permit, or to call the agreement something else, such as an encroachment agreement. Summarizing, Mr. Berry stated a successful tenant wanted to obtain the space next door, in order to expand his business; he had an existing agreement that was suitable to the City and had no expiration date, and he wanted to ask for an extension on the space next door. Mr. Berry noted that however that could be done, it would be acceptable to him, as the owner of the property, and to the tenant, as long as it was not a revokable type of instrument. Due to circumstances of short time, or lack of availability to negotiate something in the interim, Mr. Berry requested Council carve this particular issue out of the Ordinance, so it can be reviewed with more time, and in the very specific instance of these five or six tenants and property owners who would be affected, carve something different than for those tenants who put a few tables out and use them as an encroachment on the sidewalk for a limited period of time, and not on a year-round basis. Councilmember Cohen stated he had listened carefully when this issue had previously been brought before the Council, recalling Council, as a whole, had heard the concerns and directed staff to review the issue. However, using Mr. Berry's own description, they were referring to a permanent structure built on a sidewalk, which is public property. He noted the condition which currently exists is that of a permanent structure, privately owned and operated, which exists on public property, with no further right of the City to revoke that Use Permit. Mr. Cohen stated he understood Mr. Berry's concerns regarding the hesitation of a business owner to invest in building a permanent structure, which Mr. Cohen agreed added more to the streetscape than a couple of iron tables. However, he believed the City had addressed that in the proposal to do a lease, noting that if five years is not sufficient time to amortize the investment, the operator can come and sit down with staff and propose what he feels is a sufficient time to amortize the investment, and negotiate a long-term lease. However, Mr. Cohen believed the public had some right to expect some compensation for that, because the public was giving up any right to use its property for a specified period of time. Mr. Cohen stated that rather than the City telling the property owner or tenant to go ahead and build their permanent structure on the public's property and keep it there as long as they like, the City was instead telling them they could have it one of two ways. First, they could do it by License Agreement, which Mr. Cohen acknowledged was intentionally meant to be something the City could revoke at will; or, the owner could enter into a Lease Agreement with the City for the use of its property for a specified term, presumably negotiating something that would be satisfactory to all parties, reflecting a term the property owner and his tenant were comfortable with. Mr. Cohen noted the City would be getting compensated for giving up its right to use its property in other ways. He stated he had heard Mr. Berry's concerns before, and had agreed the issue needed further work; however, he felt the City had done that, having left the opportunity within the Ordinance to address those concerns. Mr. Cohen stated he was not certain what else Mr. Berry would have the City do, other than turn portions of public property over to private property owners. Mr. Berry stated the proposed Ordinance, at least as proposed and offered to his tenant, contained no time limit; therefore, it was timeless, just as the current Use Permit. Mayor Boro stated Mr. Berry had the opportunity, if The Broken Drum wanted to expand, to come back for a Lease, which would allow him to develop that property. However, in lieu of allowing them to develop the property, the City wanted to eliminate having a Use Permit, and instead have a lease with a specified term, which would be negotiated, based upon the applicant's needs and the cost to amortize. Mayor Boro stated he felt the City had truly met Mr. Berry's concerns, and he did not understand why Mr. Berry wanted to further "carve this out" and start all over again. Mr. Berry stated the License Agreement, as originally proposed, had no termination date, although it did have a clause for termination upon the will of the City. Mr. Berry felt that was like a political leaf floating in the air, noting no one ever knows what is going to happen in the future with the Council, and whether they are going to want to cause Fourth Street to become something different than what it is now. Mayor Boro stated Mr. Berry could only deal with today, and if he did not want to have a License Agreement, then he could enter into a Lease Agreement. Mr. Berry stated it was one thing to call it something different; however, the terms had also changed, with time limits on something that used to be of a permanent nature. He noted this was also the first time he had heard of any kind of "consideration". He pointed out he had personally paid for the sidewalk, not the City, and the Redevelopment Agency had encouraged him to expand the sidewalk. He felt that was consideration for the lease; however, the City was looking at a successful business, and wanted to charge the business because it was successful. He asked if the City was going to charge the other licensees rent, noting that if they did, they were never going to get anyone to do anything. SRCC MINUTES (Regular) 2/7/2000 Page 9 SRCC MINUTES (RP,1flar) 2/7/2000 Page 10 City Manager Gould stated that rather than negotiating a lease with Mr. Berry during the Council meeting, staff recommended Council adopt the amendment to the Ordinance, as presented. Mr. Berry requested Council carve this particular issue out, and adopt the Ordinance without the expanded sidewalk areas, in order to provide an opportunity to further define what exactly staff was trying to accomplish by this. Noah Berry, owner and operator of The Broken Drum, stated that while he applauded the Council for being bold and taking risks, this proposed amendment concerned him for a number of reasons. He noted that in reading the background information in the staff report, it seemed the main reason for the Zoning Ordinance amendment was to avoid a potential property right claim through the issuance of Use Permits on City property. Mr. Berry believed there was a way to overcome this, through an amendment to existing Use Permits, stating that existing property owners and business operators make an express claim, in an amendment, that no past, present or future property right claims can be made on outdoor eating areas on City property. Mr. Berry believed this would solve the property right claims issues, rather than adopting the draft Ordinance amendment. In addition, he pointed out the terms of the existing Use Permits state the parameters within which an operator may conduct business, and if the parameters are not met, or if the operator is being a nuisance, the Use Permit can be revoked. Therefore, he believed those issues were satisfied, and there should not be a property right issue if anyone choosing to operate a business on City property makes those claims. Mr. Berry, also noted the City, in the General Plan, was trying to create an "Alive After Five" atmosphere in the Downtown, and he believed, in order to do this, the City had to allow successful operators to make an additional investment within the City, and within their successful operations. He stated he ran a successful operation, he did not believe he was a blight on the City, and he felt he brought a lot to the City, contributing to the tax base by bringing more people Downtown and creating a "scene" for people to come to, to spend their money and enjoy the scene in Downtown San Rafael. Mr. Berry. believed this Ordinance amendment would create great insecurity for existing and potential future operators to do business in Downtown San Rafael. In addition, he noted he, himself, financed his business through a Small Business Administration loan, and the terms of his loan state that any agreements, licenses, or leases he engages in must be approved, even those he engages in subsequent to receiving his initial SBA loan. Therefore, this amendment could potentially revoke his existing financing, and would potentially affect the financing of any future expansion he may choose to do. Mr. Berry believed this amendment would make anyone reluctant to invest money in the City, and that, in turn, would negatively affect future tax revenue, which was something he felt should be a consideration of the Council. Regarding the proposed Lease Agreement, Mr. Berry pointed out there were no specific terms, noting it was so ambiguous he urged Council to either not adopt it, or send it back to staff for further specification of a year 2000 lease term, per square foot or per seat, so any operators attempting to expand in the City would have some kind of hard figures to go on. Mr. Berry urged Council to make it easy for successful businesses to do business in this community. He stated he really enjoyed his operation, as he believed many other people did, and he felt the proposed amendment was going overboard. He asked Council to put themselves in the operators' shoes, and see what this amendment had the potential to do, noting it basically put a rug underneath an operator that could potentially be pulled out at any time. Councilmember Phillips asked why there was such a great reluctance, noting that if the operators negotiate a lease, they are accustomed to doing that, as any business is. He stated if he were an operator, he would not want the City to specify for him, as an operator, whether it was a two-year, five-year, or ten-year lease, he would want to negotiate that himself. He believed it would be less advantageous for the City to specify the terms of the lease, because the users may have different needs, one from the other. Therefore, he asked why Mr. Berry would not want the flexibility staff was offering, as he believed that was the most advantageous? Mr. Berry stated the Lease Agreement was not appropriate. Mr. Phillips asked why, if he was going to establish a lease, it would not be appropriate to have more flexibility in the terms of the lease regarding the length of time, than less flexibility? Mr. Phillips noted the City could pick ten or fifteen years, which might not be appropriate for him, and he could not understand why Mr. Berry would object to more flexibility, rather than less. Mr. Berry stated he objected to the whole idea of a Lease Agreement. Mr. Phillips clarified that Mr. Berry wanted no lease, and Mr. Berry stated he believed a lease was the wrong way to go, noting he believed the City should amend the existing Use Permit on a case by case basis, with amendments that were concurrent with what Planning staff deemed appropriate. There being no further public comment, Mayor Boro closed the public hearing. Mayor Boro stated that in reading the staff report, Council had already agreed to the fact that the City was going to eliminate Use Permits, with the idea of going to a License. Therefore, he noted the Council had already had this debate, and he did not believe it should be started all over again. He stated the only difference that had come up was the issue of a License Agreement versus a Lease Agreement, and he SRCC MINUTES (Regular) 2/7/2000 Page 10 SRCC MINUTES (RF-ilar) 2/7/2000 Page 11 believed staff had provided for great flexibility with a lease. Therefore, he believed the City was supporting what the property owners were trying to do. However, as Councilmember Cohen had pointed out, this was public property, and the City had a right to say something about its use, and to be compensated, to some degree, for its use. Councilmember Heller asked if there was any disagreement on the compensation, or would that be only a minimal amount of money? Mr. Parsons stated that if a Lease Agreement were proposed between a restaurant operator and the City, staff could bring Council information regarding what it might be valued at, in comparison to other cities, noting some charge by the seat, and some by the square footage of the outdoor area. In addition, staff would also look at the amortization of the operator's investment into the property. Community Development Director Brown noted staff would also take into consideration any other public improvements the property owner may have installed previously. Councilmember Cohen asked for further information regarding design review, noting he was not clear on where the license procedure required design review. He pointed out there was reference to administrative design review, but it appeared that paragraph had been struck, so the requirement by even administrative design review seemed to be eliminated. He asked where in the amendment, or the Ordinance, it stated that design review was explicitly required at some level, be it administrative or otherwise? Mr. Parsons explained that in the Performance Standards for Outdoor Eating, which was included in the staff report as an attachment, there were several performance standards, which covered such things as the types of fixtures that can be placed on the site, refuse, whether chairs or umbrellas would be used, and whether or not there were permanent or moveable planters or pots. Mr. Parsons stated it was staff's intent that any License Agreement would cover the aesthetics of the fixtures. Councilmember Cohen referred to the Standards listed in the staff report, citing Standard #11 which states, "Downtown Parking Assessment District - Outdoor eating areas in the Downtown Parking Assessment District shall be conducted as part of a legally established food service establishment, and must comply with standards (1), (9) and (10) above, and require an Administrative Design Review Permit". However, Mr. Cohen pointed out license language in what Council was being asked to adopt in the amendments to Division 6 and Section 14.16.227, state that a "License can be in a form approved by the City Attorney, including the applicable standard provided in Section 14.17.110", which is the eleven Standards he had referred to. However, the paragraph prior to that, Paragraph "A" states"...which License Agreement shall be in lieu of any environmental design review permit, use permit, administrative use permit, encroachment permit or other permit required for use of the City sidewalk or right-of-way for such purpose". He felt perhaps the City Attorney needed to clarify this, because those two statements seemed to be in contradiction. He pointed out the one in the staff report, 14.17.110 C-11 states there needs to be an administrative design review permit; but the paragraph immediately preceding states that if the owner or operator has this license, they do not need any permits. He stated the Ordinance was very unclear, as it states two different things in two different places; therefore, he felt the question was a good one, and he wanted to see it clarified in the revisions, or in some other way. He suggested adding to one of these paragraphs wording that specifically includes the requirement of an administrative design review permit, noting he felt that would satisfy the question that has been raised. Deputy City Attorney Eric Davis stated he believed the section which makes reference to a design review permit was being stricken from the Ordinance. Mr. Parsons noted they were referring to the Applicability section, which refers to design review and use permit. He reported that section was actually being modified by the Ordinance, noting that in Division 4-B, the intent was to get rid of use permits. Mr. Davis stated it was his understanding that the purpose of staff's intention of eliminating both ED and Use Permits was because in the language of the Ordinance, the general provision as to ED and Use Permits speak to these permits running with the land, and inadvertently, when the Ordinance was originally adopted, the way it read suggested that granting an ED Permit or a Use Permit relating to the City sidewalk areas would somehow run with the land, which it cannot, as the City cannot give private property owners the property rights to City property. He stated an ED Permit or a Use Permit, whatever it is called, is not going to give anyone a property right that is going to run with the land; therefore, staff has eliminated those entirely. Instead, there will be either a license or a lease, and the City, as the property owner, will determine what that will entail, and what performance standards will be applied to both private property and public property. He stated, in general, the ED Permit is "out the window", as is the Use Permit, as it relates to City sidewalk areas. Councilmember Cohen stated he understood this; however, the question was raised during public comment as to what happens to design review? He asked, if the City tells someone their proposal does not meet the City's design review standards, and they point out that the Ordinance does not require them to do that, can the City then not give them a license? He asked what would justify that, and if they meet SRCC MINUTES (Regular) 2/7/2000 Page 11 SRCC MINUTES (RF -10 ar) 2/7/2000 Page 12 all the other standards and requirements, but refuse to comply with the City's design review standards, where does the City have the "teeth" to require them to do so? Mr. Cohen stated it did not have to be an ED Permit, but there should at least be an administrative review regarding the issue of design, should the City ever get to Downtown design standards. Mr. Davis referred to Section 14.16.277, Item "C", which states, "Such license agreement also shall be subject to such regulations hereafter deemed necessary by the Community Development Director to protect the public health, safety and welfare, and as approved by Resolution of the City Council". Mr. Davis believed this was intended to provide a mechanism if the Community Development Director felt there needed to be standards, of any kind, and to allow staff to bring issues of design, safety, or any other issue back before the Council. Councilmember Cohen clarified that Mr. Davis was stating that if staff decided a project needed an administrative design review, it could be brought back, and Council could revise the Resolution or the Ordinance. Mr. Cohen felt there should be a way to include that in the amendment, so it explicitly states that if someone is going to get a license or a lease for this kind of improvement, they are going to have to go through some kind of administrative design review. He asked if there was some way this could be included so it explicitly states that if someone is going to get a license or a lease for this kind of improvement, they have to go through an administrative design review process? Mr. Davis cautioned that the City's Environmental Design provision indicates that it runs with the land. He believed the City could get where it wanted to go by adopting some design criteria, which could be applied when approving any license or lease, but not to come back into the design review approval process, as that brings them back to the situation whereby, if they approve a design review permit, it runs with the land. Mayor Boro felt more clarity was needed, noting he would like to get the sense of the Council, to help staff in directing their efforts. He believed the issue, as Councilmember Cohen had pointed out, was that whether it is a lease or license, the City will want the ability to have some design review, and that needed to be woven into the Ordinance amendment. Councilmember Cohen stated he would prefer that the specific design standards the City wanted to use were not spelled out in the Ordinance, because any time the City modifies its design standards, the Ordinance would also have to be revised. He agreed that rather than trying to resolve the issue at this time, that Council refer the item back to staff for further review. Mr. Davis noted the design standards could clearly be done by Resolution, without having to affect the Ordinance. He felt that had been the intention of Section "C" stating it would allow Council to do that by Resolution, and would not require an Ordinance revision. City Manager Gould suggested staff bring this item back for further consideration at the next City Council meeting. Councilmember Cohen stated he was ready to comment on the license versus lease versus Use Permit issue, and find whether Council was close to consensus on that. In addition, he stated if it was possible to bring this issue back on the Consent Calendar, he would be prepared to accept staff's assurance that the design issue had been addressed, although he acknowledged he was not certain that could be done without reopening the public hearing. He did not feel that Council needed to address all the issues again. Mayor Boro asked if the other Councilmembers were looking for revisions on any other issues related to this Ordinance amendment? Councilmember Miller stated he wondered about the levels of design review, noting this issue concerned permanent structures in the middle of the Downtown; therefore, he believed the design review should be of the highest level, and should go to the Design Review Board itself, not have simply an administrative design review. Mr. Miller did not feel this would be burdensome to the Design Review Board, because there would only be a limited number of these instances; however, on the other hand, it would give the City a sense of really protecting the Downtown. He pointed out San Rafael's Downtown was different from other cities, because of its diversity, which was one of the basic components of the Downtown Vision. He believed the diversity component in the Vision almost demanded that the City protect that diversity, and have quality design. Councilmember Heller asked for clarification, noting she had understood Deputy City Attorney Davis to state that if the City went to design review standards, then the City would also be dealing with the issue of the use running with the land, while a license or a lease took it out of that realm. Mayor Boro acknowledged that Mr. Davis had stated that was the case; however, the Council was stating that for the right of obtaining a lease, the City was expecting a certain level of design. Mr. Davis stated the City could certainly have a design process, they just had to make certain that the design approval process was not the same type as that currently stated in the City's Zoning Code, which is an ED review process, and as such, runs with the land, creating the controversy of some type of property right that the applicant would have, as opposed to City property which is not restricted or SRCC MINUTES (Regular) 2/7/2000 Page 12 SRCC MINUTES (RP-ljlar) 2/7/2000 Page 13 encumbered. Mr. Davis stated that if the City wanted to put together an ED process, he would recommend the Council refer that specific issue back to the Planning Commission for their review and consideration, and language that would provide a process whereby the Council could consider it at a future meeting. Mayor Boro asked why there could not be a requirement for a lease or license to have design review, and have it go only with the lease or the license, and when the lease or license dies, that is the end of it? Mr. Davis stated that is because the language in the City's Ordinance indicates the approval of an ED Permit runs with the land. The whole problem with tying this into an ED Permit or a Use Permit is that it suggests the private property owner has some right that it runs with the land, and it does not, as it is the City's property. Mr. Davis clarified that was not to say the City could not have some design review, but it would be a different kind of design review. Councilmember Cohen stated he believed it was important that the City have the ability to impose design guidelines, and make sure any proposed permanent structure is in keeping with design guidelines. He stated he did not want to make this overly onerous, and he was a little concerned that having to go through Design Review Board hearing for a small covered seating area may get to that point. He felt it may not justify going to the Design Review Board, and he would be comfortable in knowing that staff had the ability to review it, and if the property owner was not satisfied with staff's decision, they would have the ability to take it up with the Planning Commission or the Council. He stated he was not sure he would agree that the City should require, in order to obtain a License Agreement, that someone would have to go through a hearing process before the Design Review Board. Community Development Director Brown stated that when staff reviews this issue, they will compare it to what would be required for a small expansion of the building itself. Councilmember Phillips stated reference had been made to Terra Linda, and he was not certain how far this traveled, noting staff had referred to the two sites, perhaps three, in San Rafael, and he was unclear on what the scope was, and whether it was extended throughout the City, rather than just two or three locations in the Downtown. He wondered about the degree of review, as it related to the visibility of the sites. Mr. Brown stated certain portions of the Ordinance, such as No Parking, would apply to the Downtown Assessment District, which covers the three sites they have been discussing. However, the general provisions are being broadened for the entire City, for use on private property, as well. He noted a good example was Gianni's Italian Restaurant, explaining they had done a permanent expansion, and it was very much a permanent set-up; however, under the current Seasonal Outdoor Eating provision, it could not be classified as such, as they had to go 'round and 'round with the provisions of the Ordinance. Mr. Brown stated this amendment would actually broaden things for private property, as well, noting in those instances they did not have the same constraints regarding design review, and the City would also require additional parking, because it is a permanent use. Councilmember Cohen stated he was comfortable with referring the issue of design review back to staff, and asking them to come back to Council with a recommendation as to how to handle the design issues. Mayor Boro asked the Councilmembers if there was any sentiment toward changing any other part of the Ordinance, based on this discussion? There was not. Councilmember Cohen stated he believed the Council had provided a lot of flexibility, and he was very happy with what staff had brought forward, other than the design issue. There being no further discussion, Mayor Boro again closed the public hearing. OLD BUSINESS: 14. RESOLUTION APPROVING POLICY AND WARRANTS FOR THE INSTALLATION OF SPEED HUMPS ON RESIDENTIAL STREETS (PW) - File 11-1 x 11-11 x 11-12 x 9-1-2 Public Works Director David Bernardi explained staff was presenting two recommended actions; one was to approve the pilot project Council had approved in 1999, and the second was a Resolution for adoption, which also included the standards to be used in the future for speed humps on other residential streets. Referring to Exhibit 1, Mr. Bernardi noted it gave a "before and after" picture of what happened on Belle Avenue in the vicinity of Coleman School. He explained that vehicle counts had been reduced by approximately 238 cars, which meant the vehicles that were diverting off of Highway 101 and Grand Avenue were now back where they were supposed to be, rather than on Belle Avenue. In addition, vehicle speeds had been reduced by roughly six miles per hour, which he noted was significant, having dropped from 34 mph to 28 mph. Mr. Bernardi stated staff had also dealt with the issue of emergency response times. He reported Traffic Engineer Nader Mansourian SRCC MINUTES (Regular) 2/7/2000 Page 13 SRCC MINUTES (Rr--ilar) 2/7/2000 Page 14 conducted a study with Fire Department vehicles, both before and after, and the total length of time was approximately 15 seconds longer, because the vehicles had to slow down to approximately 10 miles per hour over each speed hump. Mr. Bernardi stated that was felt to be acceptable by the Fire Department. Referring to the After Speed Hump Survey, Mr. Bernardi noted the results indicated a very favorable response, the residents were happy with the speed humps, and they would recommend it to be used in other parts of the City. Mr. Bernardi referred to Attachment "A" of the Resolution, which addressed the actual Speed Hump Installation Policy. He explained this was basically the same policy Council provisionally approved in April, 1999, in order to allow speed humps to be installed on Belle Avenue. He stated the process outlined in the resolution, as well as the standards, worked very well on Belle Avenue, and staff would plan to use the same procedure in other areas, as they receive additional requests for installation. Councilmember Cohen referred to the issue of Warrants, noting that when the Residential Stop Sign Warrants were done, a clause was included for factoring in high pedestrian counts, such as near schools. He asked if that had been done in this case, and if it was something staff might want to consider factoring in? Traffic Engineer Nader Mansourian explained that speed humps were installed to reduce the speed of the cars, and staff only dealt with cars that were traveling on the roadway. Actual pedestrian conflicts were not considered. Councilmember Cohen asked if it would make sense where an area, for a variety of reasons, might not be appropriate for a stop sign, and might instead be appropriate for this treatment, where the City wants to reduce speeds because there are more pedestrians? He asked, if there is a higher number of pedestrians, particularly children in a school area, or a path of travel to school, would it make sense that the City might want to consider lowering speeds if there was a speed problem where there are a lot of kids trying to cross the street? Mr. Mansourian stated that had been the case with Belle Avenue, explaining there had been high traffic volume in a residential area, near a school zone, yet it was not a high volume roadway. Mayor Boro stated there were 238 cars that were no longer going up Belle Avenue, either going up Grand or Rafael Avenues, and no longer going through the neighborhood. He noted that when staff reviews the criteria for installing a speed hump, they are interested in getting the reaction of the neighbors on the streets where the speed humps will be installed. In this instance, he pointed out the vehicles were likely now going up Grand Avenue, which was pretty much a thoroughfare; therefore, an additional 238 trips over the period of a day would not be too significant or noticeable. He asked, if there was another street, which was a slow street, and traffic was diverted to a nearby adjoining street, wouldn't those neighbors have an interest in what the City was doing on that adjoining street, and how would staff get their input? Mr. Bernardi stated one of the things Mr. Mansourian does is to analyze what happens when cars do divert. He noted, for example, when stop sign installations are reviewed, it is noted that this might divert cars to another street, and staff makes sure that the impact of doing something in one locations does not create a problem in another location. As an example, Mr. Mansourian reported that with Belle Avenue they had anticipated some of the cars would go back to using Highway 101, and some would use Grand Avenue, noting the numbers were very low, approximately 20 - 22 cars per hour. He stated staff does consider the parallel roadways to which these devices will shift the traffic, and also contacts the neighborhood associations, asking for their input in analyzing the situation. Councilmember Heller stated she was certainly in favor of expanding this to other areas of the City, noting the Sun Valley Neighborhood Association Traffic Committee would like to become the next area to be considered, perhaps on Fifth Avenue. Mr. Mansourian stated they were on the list. Steve Patterson, Chairman of the Federation of San Rafael Neighborhoods, stated they applauded the work Mr. Mansourian has done in relation to the speed humps, and believed he had done a terrific job in terms of reaching out to the neighborhoods. Mr. Patterson reported that approximately six months ago, several members of the Federation, along with other San Rafael residents, attended a two-day workshop entitled, "Creating Walkable Communities", and one of the components of the workshop dealt with traffic calming techniques. He encouraged Mr. Mansourian and the Council to support not only the extension of speed humps, where it makes sense, but also to look at other techniques and tactics that could be used, such as roundabouts or circles, raised planted medians, strategically placed and planted trees, and bike lanes. He pointed out these were just additional tools that could be added to the City's tool box. In addition, Mr. Patterson reported there was a terrific website, www.walkabout.org, which addresses these issues, and he encouraged the Council and staff to check it out. SRCC MINUTES (Regular) 2/7/2000 Page 14 SRCC MINUTES (R, -filar) 2/7/2000 Page 15 Linda Bellatorre, member of the Federation of San Rafael Neighborhoods, also thanked Mr. Mansourian for his forward thinking, and for coming to so many meetings and listening to their concerns and answering their questions. She noted he had also attended several joint City/Federation meetings, where the residents were able to have smaller, private discussions with him, and she very much appreciated that. Ms. Bellatorre noted Mr. Mansourian was really progressing, and stated she particularly liked the timing of the signals on Fourth Street. Albert Barr, representing the Loch Lomand Homeowners Association, thanked the Dominican Neighborhood Association for raising this issue with the City. He noted some years ago he had been asked by residents on Manderly Way to raise this issue with the City; however, he had been discouraged from pursuing the issue because it was felt that speed humps would slow down the response of emergency vehicles. Mr. Barr stated his Association had not yet decided whether they would request that the City install speed humps noting they wanted to conduct their own survey first, a survey which would include not just the residents of Manderly Way and Lochinvar, but all the residents of the entire neighborhood, because they will all use those streets. Mr. Barr stated he was concerned with some of the conditions. He asked if all three of the conditions had to be met or, if the first condition regarding volume was met, then only one of the other two primary conditions had to be met? Mr. Mansourian stated that once the condition regarding traffic volume was met, then one of the other two conditions had to be met. Regarding the issue of volume, Mr. Barr stated he understood staff liked to have clear direction before beginning the process of initiating speed humps. However, he suggested the wording be changed to provide staff with certain flexibility when considering speed humps. He felt it should be a more reasonable number, depending upon the traffic and speed problems that actually exist. He stated they likely would not reach 1,000 cars on Manderly Way or Lochinvar; however, they did have a lot of speeding cars, especially in the morning with kids going to school. He reported the Association had raised this issue in their newsletter, asking parents to discuss the issue with their kids. In addition, they have asked their neighborhood beat officer to monitor these two roads, and also asked the Public Works Department to install a "Slow Traffic - Children at Play" sign, but they were informed these signs were no longer permissible. Mayor Boro asked about the criteria for installing speed humps. Mr. Mansourian stated the criteria for volume was between a minimum of 1,000 and a maximum of 5,000 cars, based on research conducted by all cities. He explained areas with more than 5,000 vehicles were too congested to use speed humps, and they were not very effective in areas with less than 1,000 vehicles. Mr. Mansourian reported that since discussing this issue with Mr. Barr, he had contacted the cities of Portland, Oregon and Sacramento, California to discuss their findings. He noted that in the City of Sacramento, in areas where the streets were too wide and they were experiencing a lot of speeding, they reduced the volume requirement to between 400 to 500 vehicles, which proved successful in one area, but was unsuccessful in two others. The City of Portland reported their minimum criteria was at least 1,000 vehicles. Mayor Boro asked if there was any flexibility in the number of vehicles required? Mr. Mansourian stated the criteria had been established to require that the volume warrant had to be met first, which was at least 1,000 vehicles, and once that criteria was met, they would have to meet the criteria for either speeding or accident history. However, the volume was the most critical element. Mayor Boro asked what would happen if a neighborhood did not meet the criteria for volume, but they felt they had a problem and they were willing, as a neighborhood, to have speed humps installed to effect slower speed? Mr. Mansourian stated that if an entire neighborhood signed up and stated they wanted speed humps, staff would have no objections. Public Works Director Bernardi stated staff would work with the neighborhoods, and if they had specific concerns that could not be addressed through enforcement or other traffic calming means, the City would not rule out looking at a lower number of vehicles. He stated staff would like to use the minimum of 1,000 vehicles as the standard, and allow Mr. Mansourian to use his judgment in cases where there are not 1,000 cars, noting if there were other issues to deal with, speed humps might still be a tool he could use to solve their problem, if the neighborhood agreed. Mayor Boro asked, if Council adopts the Resolution with the current attachment designating 1,000 vehicles, and then there was support from a neighborhood that did not meet the criteria of 1,000 cars, what would it take for staff to approve such a project? He wondered if an amendment would have to be made? Mr. Bernardi stated an amendment would not have to be approved, pointing out this was not an Ordinance, it was merely a standard to be adopted by the Council. Mr. Bernardi stated language could be added which states the standard is 1,000 to 5,000, except in cases where staff feels that less than 1,000 is warranted. SRCC MINUTES (Regular) 2/7/2000 Page 15 SRCC MINUTES (Rr filar) 2/7/2000 Page 16 City Attorney Ragghianti noted that in the past, the Traffic Engineer's professional judgment has been permitted to be exercised on this very issue. Therefore, he felt that since it has been explicit, it should also be expressed that the Traffic Engineer is charged not only with the responsibility, but also given the latitude of making exceptions if, in his professional opinion, he believes it is appropriate. Mr. Cohen suggested adding the statement, "In the event that all other criteria is met, but the volume is not reached, if, in the professional judgment of the Traffic Engineer it is warranted, they may proceed". Councilmember Cohen moved and Councilmember Heller seconded, to adopt the Resolution regarding residential traffic calming techniques, and approving the Residential Street Speed Hump Warrants and Policy, as amended to allow an adjustment downward in the volume if, in the professional opinion of the Traffic Engineer, it is warranted. RESOLUTION NO. 10587 - RESOLUTION OF THE CITY OF SAN RAFAEL REGARDING RESIDENTIAL TRAFFIC CALMING TECHNIQUES AND APPROVING THE RESIDENTIAL STREET SPEED HUMP WARRANTS AND POLICY PERMANENTLY (With Exhibit 'A' as amended, to allow an adjustment downward in the volume, if, in the professional opinion of the Traffic Engineer, such adjustment is warranted). AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None NEW BUSINESS: 15. CONSIDERATION AND APPROVAL OF CITY COUNCIL APPOINTMENTS (CC) - File 9-1 Mayor Boro referred to the list of City Council appointments, and pointed out the changes that had already been made for this year, reporting Councilmember Heller had been elected Vice -Mayor and Vice -Chair of the Redevelopment Agency, and Councilmember Phillips had taken Councilmember Heller's place on the Business Issues Committee. City Clerk Leoncini noted the addition of a new Board, the Marin County Transit District Board of Directors, on which Councilmember Heller would represent the City. Mayor Boro asked if there were any other changes to suggest? City Manager Gould noted the CATV (Cablevision Joint Powers Authority) was defunct, and had been replaced by the Marin Telecommunications Agency. The Councilmembers voted unanimously to approve the list of City Council appointments, as amended. COUNCILMEMBER REPORTS: 16. a. SOROKIN LAWSUIT FILED BY THE CITY - File 13-1 x 13-16 x 9-3-16 (Verbal) Councilmember Miller reported he had been involved with City Attorney Ragghianti in filing a complaint against Dr. Gideon Sorokin. He noted that in reviewing the City's Ordinance and speaking with Marin Legal Aid, it had come to their attention that one issue that was lacking in the City's Ordinance was the payment of relocation for people who are forced to relocate because of the abuse they receive from their landlord. He stated he had received from the City of Napa a copy of their Ordinance dealing with relocation, noting he had since forwarded that information to Assistant City Attorney Guinan, asking him to look into how San Rafael might begin to develop an Ordinance that would cover relocation costs from a recalcitrant landlord. There being no further business, the City Council meeting was adjourned at 10:10 PM. JEANNE;/ '. LEONCININI, City Clerk APPROVED THIS DAY OF MAYOR OF THE CITY OF SAN RAFAEL 2000 SRCC MINUTES (Regular) 2/7/2000 Page 16