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HomeMy WebLinkAboutCC Minutes 1990-12-03SRCC MINUTES Regular) 12/3/90 Page 1 IN CONFERENCE ROOM 201 OF THE CITY OF SAN RAFAEL, MONDAY, DECEMBER 3, 1990, AT 7:00 P.M. Regular Meeting CLOSED SESSION CLOSED SESSION TO DISCUSS LITIGATION - File 1.4.1.a Closed session was not held. IN THE COUNCIL CHAMBERS OF THE CITY OF SAN RAFAEL, FlONDAY, DECEMBER 3, 1990, AT 8:00 P.M. Regular Meeting: Present: Lawrence E. Mulryan, Mayor San Rafael City Council Albert J. Boro, Councilmember Dorothy L. Breiner, Councilmember Michael A. Shippey, Councilmember Joan Thayer, Councilmember Also Present: Pamela J. Nicolai, City Manager Gary T. Ragghianti, City Attorney Jeanne M. Leoncini, City Clerk CONSENT CALENDAR Councilmember Breiner moved and Councilmember Shippey seconded, to approve the recommended action on the following Consent Calendar items, noting that Item 3 was deleted from the agenda: ITEM 2. Approval of Minutes of Regular Meeting of November 5, 1990 (CC) 3. Resolution with Findings Denying Appeal of Planning Commission's Denial of Five -Foot Fence, 506 "C" Street; Venkateswara/Parameswari Lakireddy, Owners; Perry Litchfield, Rep.; AP 12-155-02 (Pl) - File 10-4 x 10-1 4. Authorization of Library Fine -Free Week and Food Drive to Benefit the Marin Community Food Bank (December 10-15, 1990) (Lib) - File 9-3-61 5. Approval of Extension of Personnel Board of Review Members' Terms up to November, 1991 (Pers) - File 9-2-12 6. SECOND READING AND FINAL ADOPTION - ORDINANCE NO. 1597, AN ORDINANCE OF THE CITY OF SAN RAFAEL ADDING CHAPTER 17.20 OF THE MUNICIPAL CODE ESTABLISHING REGULATIONS FOR ANCHORING AND MOORING OF BOATS IN DESIGNATED AREAS WITHIN CITY LIMITS (CA) - File 144 x 12-10 x 10 x 2 7. SECOND READING AND FINAL ADOPTION - ORDINANCE NO. 1599, AN ORDINANCE OF THE CITY OF SAN RAFAEL PREZONING CERTAIN REAL PROPERTY FROM THE COUNTY OF MARIN ZONE BFC -RSP 7.26 DU/AC (BAY FRONT CONSERVATION RESIDENTIAL SINGLE FAMILY PLANNED DISTRICT 6,000 SQ. FT. MINIMUM LOT SIZE) DISTRICT TO THE CITY R-1 DISTRICT (RESIDENTIAL SINGLE FAMILY 5,000 SQ. FT. MINIMUM LOT SIZE) (183 OAK DRIVE, AP 186-153-37) (P1) - File 5-2-89 x 10-1 RECOMMENDED ACTION Approved as submitted. Item removed from agenda. (to be carried over to meeting of 12/17/90) Approved staff recommendation. Approved staff recommendation, extending interim Board members' terms through November 30, 1991. Approved final adoption. Approved final adoption. SRCC MINUTES (Regular) 12/3/90 Page 1 8. Amendment to Agreement Between County and City re Cost Sharing Formula for Animal Control (Ch1) - File 4-13-54 SRCC MINUTES kRegular) 12/3/90 Page 2 RESOLUTION NO. 8301 - AUTHORIZING THE SIGNING OF AN AMENDMENT TO A JOINT POWERS AGREEMENT BETWEEN THE COUNTY/ CITY RE ANIMAL CONTROL SERVICES (through 6/30/95 and automatically extended for each year thereafter unless prior notification is received.) 9. Resolution Authorizing Participation RESOLUTION NO. 8302 - AGREEING in Funding of Homeless Coordinator and TO PROVIDE INITIAL JOINT Commission (CM) - File - 13-16 x-8-5 FINANCIAL ASSISTANCE ALONG WITH THE MARIN COUNTY BOARD OF SUPERVISORS, THE MARIN INTERFAITH COUNCIL AND THE MARIN COMMUNITY FOUNDATION FOR THE HIRING OF A HOMELESS COORDINATOR AND THE ESTABLISHMENT OF A HOMELESS COMMISSION (Funding to be provided for 36 mos. beginning 1/1/91 through 12/31/93) 10. Authorization to Hire Kay Grace, Consultant, to Conduct Fundraising Feasibility Study for Falkirk Cultural Center and the Boyd House (Cult. Affs.) - File 4-10-250 x 9-3-84 11. Authorization to Apply to Marin Community Foundation for Grant Funds for Multi -Cultural Programming for Falkirk Cultural Center (Cult. Affs.) File 9-3-84 12. Claim for Damages: a. Vickie Anne Boone (PD) Claim No. 3-1-1522 AYES: COUNCILMEMBERS: Boro, NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None RESOLUTION NO. 8303 - AUTHORIZING THE EXPENDITURE OF FALKIRK MEMBERSHIP FUNDS, AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT (IN AMOUNT OF $8,325) WITH KAY SPRINKEL GRACE, ORGANIZATIONAL CONSULTANT, FOR PROFESSIONAL SERVICES TO CONDUCT A FUNDRAISING FEASIBILITY STUDY FOR FALKIRK CULTURAL CENTER AND THE BOYD HOUSE. RESOLUTION NO. 8304 - AUTHORIZING FALKIRK STAFF TO APPLY TO THE MARIN COMMUNITY FOUNDATION FOR GRANT FUNDS IN SUPPORT OF FALKIRK MULTI -CULTURAL PROGRAMMING (Grant request $50,000) Approved City Attorney's recommendation for denial of Claim a. Breiner, Shippey, Thayer & Mayor Mulryan 13. PUBLIC HEARING - TS86-A - APPEAL OF PLANNING COMMISSION'S CONDITIONAL APPROVAL OF TENTATIVE MAP FOR A 7 -LOT SUBDIVISION; MEYER ROAD, EAST OF "D" STREET; ARMAND LOCKE, OWNER; PERRY LITCHFIELD, REP.; DON DAGLOW, APPELLANT; AP 12-291-16 & 17 ( P1 ) - File 5-1-318 Mayor Mulryan declared the Public Hearing opened. He noted that it is a continuation of previous hearings and was sent back to staff for some very specific questions, and while it was noticed as a public hearing, it is primarily for Council discussion and input from staff. Planning Director Pendoley briefed the Council on the specific points. He stated that staff had been asked to have a subdivision map prepared with graphic information on it, with trees being coded, building envelopes, the conservation easement, and similar issues. He emphasized that this is the map which was approved by the Planning Commission, the basic difference being color. He stated the Council had asked that the map designate if any redwood trees were being removed. He stated staff compared this map to Exhibit 2-A, which was one of the tables in the Environmental Impact Report (EIR), and staff agrees with the EIR conclusion that with the movement of a driveway which serves Lots 6 and 7, all of the redwoods would be protected. He stated the Planning Commission required that the driveway be moved, and the driveway and the configuration approved by the Planning Commission are shown on this map. SRCC MINUTES (Regular) 12/3/90 Page 2 SRCC MINUTES (Regular) 12/3/90 Page 3 Mr. Pendoley stated that Mr. Daglow, the appellant, had suggested that the trees be tagged prior to the approval of the Tentative Map, probably to make it easier for the residents to have an idea what the effect would be, and staff recommends that the Council consider that. However, he suggested that they be tagged prior to approval of the Final Map, since the Subdivision Map Act does allow for minor changes between the filing of the Tentative and Final maps. He stated that if the Council concurs, staff has revised wording to condition (aaa). Mr. Pendoley noted that the streams have been shown, as requested by the Council, and in the staff report he has summarized discussion regarding setbacks from previous meetings. He stated that the Council asked for more specificity regarding the timing of public improvements, and he has suggested an additional condition which would require that all on- and off-site improvements, as well as all common on-site drainage improvements, be constructed before the issuance of any building permits for homes. He stated that this follows the process the Council set for the Loch Lomond subdivison, and the purpose here is the same, to assure that from the first day you have all of the benefits of the added flood control which would come from this project, as well as full assurance that this project itself would be mitigated with regard to flood control from the first day. With respect to tree replacement, Mr. Pendoley referred to condition (xx), paragraph 2, which Councilmember Breiner had questioned. He explained that this condition relates to trees within the building envelope, which would be removed as part of construction. He noted that conditions require that these trees be tagged and their removal approved by the Design Review Board and Planning Commission, prior to issuance of the building permit, all of which would be done with notice. He noted that this was not done as a mitigation measure in the EIR, and the reason is that the EIR stopped at simply requiring the landscape plans which would show the preservation of the maximum number of trees. He stated that staff is concerned that in some areas the vegetation is heavy enough that large replacements would not be advisable, and they would not survive well. He stated, as in Loch Lomond, the preservation of trees is outside the building envelope and within the conservation easement. He added staff would recommend the 48 -inch standard for all trees except oak, since the Design Review Board advised staff that oaks do better at a somewhat smaller size. He stated the Council may want to consider adding that condition. Regarding Design Review Standards, Mr. Pendoley stated staff is recommending an added condition that the homes on Lots 2,3,4 and 5 on Meyer Road be limited to one story as viewed from Meyer Road. This would allow the homes to step down the hills, and would be a good design approach. He stated that because of the slope this might mean that some of the homes would be three story, but that is an effective way of handling hillside design. Mr. Pendoley noted that at the last meeting, Planning Commissioner Bellatorre asked that staff require photographic studies to show visual impact at the time of design review. He stated staff would recommend that the Council concur with that request, and will provide language to that effect. He also noted that in his analysis in the staff report he had discussed the adequacy and cost of storm drains, and had also addressed the subject of lower density and referred to the City Attorney's opinion in Exhibit F. With regard to Partial Completion, staff could find no precedent to use as a guide, and did not find any alternatives which would be effective or advisable. Mr. Pendoley stated that what should always be kept in mind is that these homes will all be built with financing and belong to the bank until the first resident takes legal posession. He added that if the builder could not complete a home, the bank will take means to have it done, in order to cover its cost. He stated the City can always go to the Uniform Building Code, to avoid any hazardous condition. Mr. Pendoley stated that the architecture of individual homes will be required to comply with the Hillside Design Standards currently in preparation; however, if the new standards relate to subdivisions, that portion of the standards could not affect subdivision design of this project, because the subdivision will be deemed complete long before the Hillside Design Standards. Mr. Pendoley noted that the EIR was not appealed, and it is not before the Council tonight, since it has been certified and the time for appeal has passed. He stated that staff strongly recommends that this project is clearly consistent with the General Plan, the Zoning Ordinance, the Subdivision Ordinance, and includes the amendments of 18 months ago to the slope questions of the Subdivsion Ordinance. He stated that staff recommends approval. SRCC MINUTES (Regular) 12/3/90 Page 3 SRCC MINUTES (Regular) 12/3/90 Page 4 Councilmember Boro referred to pages 5 and 8 of the staff report regarding partial completion, and stated he was concerned with the partial completion of the overall site rather than the individual sites. He stated he was concerned about what had happened recently on the Irwin Street project, when it stopped and the City had to step in. He referred to the wording, "...All on- and off-site public improvements and all common on-site drainage shall be constructed and determined by the Public Works Director to be complete, consistent with the Tentative and Final Map prior to issuance of..." He questioned can those items be bonded as they start so they will be completed. Public Works Director Bernardi responded that part of the Subdivision Agreement with the developer was to require improvements security, so all of the physical improvements which will be constructed will be bonded and if, in fact, they are not completed, the City can go to the bond monies to have them completed. Mr. Boro then stated that on page 7 the report talks about the outside drainage, and in the memo to Exhibit C it says that the completion from Ivy to Octavia would be about $5,000 to $10,000. He inquired if this project would go into the Capital Improvement budget, and Mr. Bernardi responded he would appreciate it if he would be allowed to do this project concurrently with the subdivision drainage work. He said they propose that some of this would come from gas tax, so he would come to the Council for authorization to spend those funds. City Attorney Ragghianti stated that, in terms of the security which would be required for the on-site improvements, it is his policy not to accept bonds because it is too difficult if something happens to go after the bonding company, and that usually they accept Letters of Credit. He stated that is the easiest way to acquire the funds in case of default. Councilmember Thayer stated she has a few concerns regarding the appeals process. She added that she had spoken to City Manager Nicolai today and she mentioned the fact that the appellants actually have thirty days to appeal an EIR. She reported that she had gone back to the August 20, 1990 staff report and, in a response to one of the questions which was asked, on page 4, in speaking about the Planning Commission's public hearing on the certification of the EIR on January 23rd, it was said that five residents living near the project commented on the Final EIR at that time, and no appeal of the Commission's decision to certify the EIR was filed within the required five-day appeal period. City Manager Nicolai stated she had found she had erred, and had tried to call Councilmember Thayer back, because it is a five-day appeal period and then there is a thirty -day period after the City files it with the County during which they could file lawsuits. Councilmember Thayer stated she feels there is a lack of understanding among neighborhoods regarding their right of appeal of the EIR. She added that the notification process may be deceptive. She cited the case of Loch Lomond #10 subdivision, where the certification of the EIR was not appealed, and yet the hearings following were constantly referring to inadequacies in the EIR. She stated the notification process should be looked at. Mr. Pendoley responded that the appeal rights are printed on the face of the Planning Commission agenda, and at the conclusion of every contested agenda item, the Chair reads the appeal rights. Councilmember Thayer stated she had spoken to one of the individuals who was very upset over the Loch Lomond #10 project, and learned that the residents were not aware that they could not contest certain aspects of the EIR later, when it came before the Council. Mayor Mulryan responded that the City makes it very clear what the appeal rights are, and he does not know what could have gone wrong. Councilmember Thayer reported that some people say that when they come before the Council they start re -arguing the Tentative Map, and she stated she does not think it was made clear to them that once the appeals process is over with these are not topics for discussion and the right to review them is very limited. Councilmember Boro noted that when an EIR is heard before the Planning Commission the Chairman always tries to limit the discussion to the EIR and not the merits of the project. Then that is either passed or continued, and then the normal rights of appeal are announced, and it is printed on the agenda. Councilmember Boro stated that perhaps the Council erred in allowing some of the issues which are EIR related to be discussed, and perhaps that is where people are missing it. He stressed that the Planning Commission separately considers the EIR from the project's merits, and then they come back after the certification period and address the merits of the project. SRCC MINUTES (Regular) 12/3/90 Page 4 SRCC MINUTES Regular) 12/3/90 Page 5 Mayor Mulryan stated there are two different issues, the allowed scope of discussion, and the adequate notice of appeal rights. He stated they must be kept separate. Councilmember Thayer stated that if the Loch Lomond residents had been aware of the consequences of not appealing the EIR, they would have done so. Councilmember Breiner stated that she approves of many of the suggestions made in the staff report, and finds the maps very helpful. She questioned page 5, dealing with the replacement trees, which would provide an incentive for protecting the trees which are to remain as part of the required mitigation. She wondered if addition of "if any trees intended to be saved which are accidently removed or damaged" should be added to the proposed condition wording. She stated the trees can be damaged enough that they die, and the City should be able to go in and require a replacement. Mr. Pendoley recommended adding that to the existing conditions which cover in some detail how the trees are to be tagged, and like issues. He added this would be easier for people dealing with the conditions in the future. Councilmember Breiner then referred to page 6, regarding Design Review standards, stating that subparagraph 5, referring to a maximum of two full stories, is somewhat inconsistent with the second subparagraph at the bottom of the page which says that the architecture should be stepped. Mr. Pendoley responded that on some of these slopes they will be restricted to two stories, but it might work on the bottom slopes which are gentle, in the 20-27% range, but the top slopes are steeper, and it would not work. Councilmember Breiner inquired if there was some way to say that the two stories are not totally binding. She stated she would not like to have anyone downtown looking up there at a three-story mass. She added that the aesthetics of that also concern the neighbors. She wondered if, on subparagraph 5, it would read, "A maximum of two full stories is desirable but not mandatory". She stated that the stepped hillside approach is good, and should not be eliminated, but if the stepped approach is a maximum of two full stories and in some cases can be achieved, the Design Review Board should be informed that that is what the Council hopes to see. Mr. Pendoley stated that is discretionary for the Council, and he would recommend strongly that it be made mandatory, because it conflicts with a much broader statement which staff provided at the bottom of the page. He stated that if the Council wished to simply relay its intent, it may be useful in the future. He emphasized that, of all the ideas which have been discussed, the strongest is the Council's ability to rely on the Hillside Standards unless they make a deliberate decision not to do it, because a public hearing was held to that effect six weeks ago. Councilmember Boro pointed out that the Council is trying to deal with the Hillside Standards, but they are also trying to deal with the fact that they are going to great extent in the development of the site to preserve the trees, part of which is saving the views both up close and from a distance. He stated that the kind of discretion Councilmember Breiner may wish to give to the Planning Commission or Design Review Board is something along the lines that, if they can assure that through the use of three stories the mass will be screened by the natural vegetation from afar, that would be appropriate, but if they cannot, a way would have to be found to limit it. Mr. Pendoley stated that Councilmember Breiner's suggstion goes a long way toward giving strong direction. Councilmember Thayer stated she remembered Councilmember Boro requesting that staff explore the possibility of the added drainage section of approximately 100 feet which was lacking to connect with the City system. She asked if that is feasible from a staff planning view. Mr. Pendoley stated he feels it is feasible, and he suggested that the Council recommend it to the applicant as a gesture of good faith and working together. Mayor Mulryan opened the hearing to public comment, asking that the discussion be restricted to the narrow points discussed thus far. Dan Simonsen of 19 Wolfe Avenue stated that after the EIR was certified, the applicant was allowed to change it. He also stated that the 16 -foot access road was allowed to be changed to 14 feet which is not in accordance with the SRCC MINUTES (Regular) 12/3/90 Page 5 SRCC MINUTES (Regular) 12/3/90 Page 6 health and safety policies of the General Plan. He also objected to the 25 -foot setback from the creek, which he stated should have been 50 feet and was before it was changed. He also questioned the reference to fencing, stating that the EIR said "no fencing within the subdivision", and then they came in after the EIR was certified, and said that what they really meant to say was that fencing should be allowed around the building envelopes. He stated that this was because the people who prepared the EIR came in after certification and said they had really meant to say other things. He said he had been told by the planner who was working on the project, and who now has left the City, that an appeal on the EIR would not be necessary because there were very tight guidelines. He stated the subdivision does not meet the minimum code, and they will not allow this to happen. He stated he feels that the residents have not been treated fairly. Mayor Mulryan inquired if the City is not complying with the minimum code requirements, and Mr. Pendoley responded that in his opinion it is. He stated since he came into the project recently he cannot at this time respond to the allegations about the road. Councilmember Boro requested an explanation of the allegation that the developer changed the EIR after it was closed. Mr. Pendoley responded that the EIR was not changed with regard to fencing, which was stated that it was not to impede animal movement, so obviously the fencing would have to be restricted to the development envelopes. Mayor Mulryan inquired if that is how it was described in the EIR, and Mr. Pendoley responded that to his knowledge it is. Linda Bellatorre informed the Council that while she is now a Planning Commissioner for the City of San Rafael, at the time she was involved with this she was not on the Commission. She noted that the bottom of page 6, the first (unnumbered) condition, reads, "Use of tinted glass and large roof overhangs to reduce glare may be required". She stated that is a negative approach, and should be tightened up, feeling it is something which should be required, and she is sure the Council would know the proper wording. With regard to Mr. Simonsen's remarks she stated that if they knew then what they know now, they would have appealed the EIR. She said that with regard to the Lower Density Alternative, it was discussed very briefly in the EIR, and there was not even a map for it. She stated that the average citizen does not really know the appeals procedure, and what is relevant to the discussion. Don Daqlow, of 10 Meyer Road, the appellant, stated that with regard to an appeal on the EIR, he had asked Mark Wolfe specifically if that was a problem and he said that what people often do is to not appeal the EIR and then simply cite at the Map level with the Commission itself, because very often the EIR you are arguing about is whether an expert is right or not. He recommended skipping the appeal. He stated he would be willing to testify under oath that they were given that information by City staff. Mr. Daglow then expressed concern regarding the fire access. He then addressed the recurrent slides on the property, which he said had been discussed at both the EIR hearing and the Tentative Map hearing before the Planning Commission. He stated that one of the documents, he was not certain which one, said that there would probably be some surface slippage, as a result of this development. He stated that it was agreed that houses would not slide because they would be on deep enough foundations, but the other disturbed soils around them would. He stated that the combination of that, plus the very real flooding problem which the downstream people face, seems to be a very legitimate health and safety issue which must be considered. He stated he would like to confirm, since he has been at all the hearings, that there has never been a legitimate discussion of a Lower Density Alternative which would abet and ameliorate these health and safety issues. He did not agree that a lower density would not make a difference. He stated that if there are four contiguous houses on Meyer Road, the forest will go away. He pointed out that would mean there would be nothing to hold the soil, and there would be an increase in slides. The watershed would not retain the moisture, and that would create a health and safety problem down below. Aileen Treadwell recommended that documents be written in a language more easily read. She said she would be happy to work on something like that. She stated she feels the reason it has taken this project so long is because there are so many problems with it. She also objected to the building of so many homes on Meyer Road. She expressed concern regarding the downstream flooding. She stated that if the flooding is negligible, she does not understand why the developer is spending $100,000 on a drainage system, which will help the City. She added that she has not found anyone who is in favor of this project. She said it is atrocious, and she regrets that there is no way the residents can SRCC MINUTES (Regular) 12/3/90 Page 6 SRCC MINUTES (Regular) 12/3/90 Page 7 protect the area. She said that in the future she would like the City to have some kind of arbitration or discussion, even before a project gets to this point, so that people could talk together as people without having attorneys involved, and people taking notes, and with a good facilitator they could probably reach an agreement sooner, especially if it were a person living in the neighborhood. She said it should start with the Planning Department, long before it reaches the Council. Leslie Simonsen, 9 Wolfe Avenue, stated she also spoke with Mark Wolfe, who said appealing the EIR was not appropriate because it indicated, for instance, that the lower portion of the lot was a highly sensitive biological habitat and building in that area would be at issue later, and the EIR had nothing to do with density. Therefore, they did not appeal it on those grounds, feeling it was not appropriate. Mrs. Simonsen added that, with regard to the exceptions that were made to certify the EIR, she referred to the Planning Commission's minutes of May 29, 1990, and quoted from attorney Perry Litchfield's remarks, that "With regard to Fire Department condition (ii), which states that the minimum driveway width shall be not less than 16 feet wide unobstructed, Mr. Litchfield stated that there is one small area on the access at C Street where there are two redwood trees (Mrs. Simonsen stated that actually there is one redwood tree and a telephone pole) about 14 feet apart, and he would like this to be an exception". She noted that there have, in fact, been exceptions. Mrs. Simonsen then noted that Mr. Litchfield had other exceptions also, which include wanting to have sprinklers only in the two houses in the lower area to prevent those homes from burning. She added that her home does not have sprinklers and is too far from a fire hydrant, and also the EIR indicated that increased occupation and more people in the area would increase fire damage, so as far as fire and safety her group has a real objection. She noted that Mr. Litchfield also wanted to eliminate the ladders, and also discussed the fencing at this point, and where it states that no fencing shall be permitted he assumes this does not apply to the existing residence, and also stated it would be logical to provide an area for children to play, etc. She noted that the EIR said there would be no fencing within the building parameters, and she added it is all in the files. She stated she would like to ask the Council to disapprove this project, that it has been around for a long time because it is not a good project. Sandy Lollini of the Gerstle Park Neighborhood Association concurred with Mr. Simonsen and Mr. Daglow and the other speakers, that they were told that they could speak about these issues at the Tentative Map level and then again when the Final Map comes up. She added that the Lower Density Alternative was one which they wanted to discuss because when they changed the setback from the creek from 50 to 25 feet, and now with the fire lane as well, lower density should be looked at. She added that the City's portion of the drainage system, from Ivy Lane to Octavia, should be completed, because it is critical because there is a lot of flooding there at odd points in time. Attorney Perry Litchfield, representing the applicant, responded to Mr. Daglow's comments about losing the forest, and stated that only a small portion of the building envelope will be encumbered by a home, but not the whole building envelope. He added that with respect to tree replacement, the applicant does not have a problem with the recommendations as stated prior to opening up the public hearing. He stated they did have problems with the legality of requiring 48 -inch boxed trees within the building envelopes for the trees removed within them, since the EIR did not address that and it is already heavily forested, and it does not appear that it would be economically or legally justified under the EIR. However, according to discussion at the beginning of this meeting, it is not a problem. He stated that, with respect to Design Review Standards on page 6, the applicant does not have a problem with sending a message that two stories would be preferable unless it would be a better alternative to have them stepped. He noted there is still a problem with Lots 6 and 7, to the extent that they limit, or tie the hands of the potential designer, since they are not now incorporated in the existing proposed conditions, and actually were removed at Planning Commission level because we wanted to be sure there was some flexibility in Design Review. He stated they do not have a problem with it as it stands now, with the conditions suggested by staff. He stated, however, that he does not feel it is appropriate to impose the Hillside Design Standards at the Tentative Map stage. He stated that if, in fact, they are going to be applicable to design once adopted, then they will be applicable to design, but to impose them at the Tentative map stage suggests that you are putting a requirement with respect to legislation which we have not even been SRCC MINUTES (Regular) 12/3/90 Page 7 SRCC MINUTES (Regular) 12/3/90 Page 8 able to review yet. He stated it is not a fair condition. If it is going to affect the Tentative Map, then it should not be imposed because of the Map Freezing Act. If it is something which is a legal requirement which is going to affect this project when it is actually built out, it will affect it at that point, so it has no place in the Tentative Map stage. Regarding density, Mr. Litchfield stated the record clearly shows that substantial evidence supports a requirement of lower density has not been presented or received at any stage of these proceedings and, as such, he believes that the appropriate design would be the one which has been recommended to the Council at this stage. In closing, Mr. Litchfield noted that the Planning Commission, when it closed the public hearing and prior to voting on this project, commented that this project, in their experience, had received the most thorough scrutiny of any project they had acted upon prior to that. He stated that this project has come a long way, and thanked the Council for its consideration. Mayor Mulryan agreed that this has been difficult but that much progress has been made. He then referred to the last 100 feet of the proposed drainage project, as discussed earlier, and raised the question of whether the City would be donating to a private project, and whether the applicant would be willing to do the entire drainage project. Mr. Litchfield responded that he discussed it briefly with his client this evening and he does not object to that. He would be willing to provide the extra 250 feet, but in making that offer he does not know what decisions the Council will make and whether there will be conditions he would want to challenge, so at this point, it is the applicant's intent to do that, and he can provide something to that effect prior to Council action on the Consent Calendar two weeks from now to verify that fact. Lionel Ashcroft, who lives adjacent to this project, stated he has had personal experience with a slide of significant proportions, and that condition is a concern involving a hillside where a large development is proceeding. His other concern was fire, because a friend had lost his home on Meyer Road through fire. He stated this is an.unstable ridge, and he asked the Council to take that into consideration. There being no further public input, Mayor Mulryan closed the public portion of the hearing. Councilmember Breiner referred to page 23 of the Planning Commission staff report of May 29, 1990, specifically Public Works condition (h) the first sentence of which read, "A level 'B' soils report shall be submitted with the improvement plans...". She inquired if the level "B" soils report was going to address each housing site. Mr. Bernardi responded that it will. He stated there will be a specific analysis done for each site once Design Review is finished and the location for the house has been selected and all other Design Review factors have been approved. That is when the in-depth soils analysis will be done. Also, part of the Design Review process will require that some preliminary soils work be done because it may be that the soils work will dictate where the house must be sited within the building envelope. Councilmember Breiner asked Mr. Bernardi to explain what level "B" would cover, for the information of the audience. He responded that it will include a soils investigation which will include boring to indicate the foundation type, and the work itself would be such that it would maintain the stability of the site as well as to insure that the house will not slide down the hill once it has been built. Mr. Pendoley added that, with regard to slope stability, this was addressed as part of the EIR and then again through the Geotechnical Review process, which is peer review. He stated that the EIR found that there had historically been sluffing problems at Meyer Road and, in fact, there had been a slide repair. He noted that no construction has been proposed in the area of the slide repair. The final EIR concluded that, in fact, sliding problems would be reduced by this project, because of retaining walls which would be required in the normal course of events for the homes on the upslope side. He added that small dams are required, not more than one or two feet high, in the drainage swale, for the purpose of catching debris. He said their primary purpose is to slow the flow of water and retain it for purposes of biology in the area. With regard to driveway width, Mr. Pendoley stated this was an issue at the Planning Commission, and he quoted from a letter from Fire Marshal Keith Schoenthal, acknowledging that they had done a field inspection and they felt satisfied with the 14 -foot SRCC MINUTES (Regular) 12/3/90 Page 8 SRCC MINUTES (Regular) 12/3/90 Page 9 width at the one point and that it met the Fire Code. He noted that the rest of the driveway is 16 feet. Mr. Pendoley then addressed the subject of the drainage mitigation, and cited memos from Assistant Public Works Director Lloyd Strom and from Land Development Engineer Fred Vincenti. He stated that basically this project will add only .2 of 1% to the drainage basin over the flow which is there already which is barely measurable. He stated that, in addition to the on-site drainage improvements, the applicant felt that it would be to his advantage as well as the City's if he constructed the off-site drainage project he proposed, and he hoped that by helping the neighborhood with the improved drainage he would incur the good will of the neighbors as well as the City. He stated that it would be a great advantage for the applicant to complete the additional 100 feet of drainage system as recommended. Mr. Pendoley informed the Council that there had been an analysis done on the Meyer Road density issue. The average density in the neighborhood was assessed, and it was staff's conclusion, which was backed up with numbers, that the proposal is consistent. He stated that the fears of some residents that the trees would all be removed is not valid, because it would not be possible to build out the entire building envelope. Regarding the dissatisfaction about the Planning process, he stated it is the objective of staff to conduct the Planning process to the best of their ability, but they cannot guarantee satisfaction to everyone. He stated that in any decision, some people benefit more than others. He added he would like people to feel that they have access to the staff, and noted the benefits of the recently initiated neighborhood meeting process which has been very successful. He stated that unfortunately this project was well along in the process before the meetings were initiated. He added that his office is always accessible and he encouraged people to come in and discuss issues with him. Councilmember Boro addressed the issue of density, noting that in the report tonight is a letter from City Attorney Ragghianti dated November 19, 1990, with a letter he addressed to Councilmember Shippey on August 25. He noted that in the City Attorney's letter he points out what sections of the Code govern this whole process, and said that neither of these sections prohibit a public agency from disapproving a development project involving housing, or from imposing as a mitigation measure a reduction in density so long as the requisite findings are made. Councilmember Boro said his understanding of the EIR process is that there is a proposal for a certain number of sites, as there was in this case, and that it is incumbent upon the applicant to prove those sites are safe and that all of the health and safety issues are addressed. He stated that if the applicant is able to do that, the City does not have the option to arbitrarily go ahead and reduce the density if he is able to make those findings. He added that he believes that in this case the process has been served. Councilmember Boro then stated that he had asked at the last meeting whether the City streets could handle the additional runoff without the drainage under- grounding project, and also what it would cost. He said Mr. Bernardi stated it could not handle it without the undergrounding, and if it was to be done it would cost $5,000 to $10,000. He stated he supports the Mayor's position that if this project is approved the applicant should go ahead and complete it, not as a definite requirement, but as a benefit to the entire comrunity. Councilmember Boro then asked Mr. Pendoley about the remarks of Mr. Litchfield regarding the Hillside Standards, and also the issue of the telephone pole and redwood tree in the road. He stated that almost always a telephone pole can be relocated, and he would like staff response. Mr. Pendoley stated he will check and respond to the recommendation regarding the telephone pole. With regard to the Hillside Standards issue, Mr. Pendoley stated he has spoken at length with the City Attorney and the City Attorney has pointed out that you cannot apply the Hillside Standards to the Tentative Map, which Mr. Pendoley agrees. The language Mr. Pendoley recomRends would be to simply put people on notice that the Design Review for the individual homes will be subject to the Hillside Design Guidelines. He said it might be that this was not well stated, and he will work on clearer language. He noted that the property owner is protected by State law on the Tentative Map, but noted that the Council may, as a result of the public hearing held six weeks ago, apply those design standards to the individual buildings. Councilmember Thayer stated that is very clear, and agreed that the individual homes would be subject to the standards which are devised regarding architecture. SRCC MINUTES (Regular) 12/3/90 Page 9 SRCC MINUTES (Regular) 12/3/90 Page 10 Councilmember Breiner noted that on page 4 of the staff report, under "Streams" is a topic which was not discussed at length, but she noted the remark made by Mr. Pendoley that, with a little shifting of the property lines of Lots 2 and 3 by 20 and 12 feet respectively, the 50 -foot setback could be provided on Lot 2. She asked is there any down side to doing that. Mr. Pendoley responded that an exception would be required, which could be granted by the Council if they find it is in the public interest to provide that setback. He said it could conceivably cause two of the houses to be 10 feet closer together. However, with very large lot sizes this should not be noticeable. He stated that is within the Council's purview to grant the exception. Councilmember Breiner recommended that the Council deny the appeal, and make the following changes to conditions of the Tentative Map: 1) Add the condition (aaa) as stated in the staff report (regarding trees removed during installation of subdivision improvements) at the bottom of page 3; 2) On page 4, Councilmember Boro recommended adding the marking of trees prior to the Final Map; 3) Also, the 50 -foot setbacks for Lots 2 and 3, as noted on page 4; 4) On page 5, revised wording to the issue of the trees intended to be saved, to read, "Any trees intended to be saved which are accidentally removed or damaged..."; 5) At the top of page 5, added condition regarding all on- and off-site public improvements and all common on-site drainage improvements shall be constructed..."; 6) On page 6, keep all conditions of condition (xx), including the recommended items at the bottom of the page, with condition (xx) 5 amended to read, "A maximum of two full stories will be encouraqed, thouqh not mandatory", and the first unnumbered condition to read, "Use of tinted glass and large roof overhangs to reduce glare shall be required for portions of homes which are highly visible from off-site"; 7) On page 7, in the middle of the page, the proposed condition (unnumbered) for "Applications for Design Review shall include . . .", the word "be" should be omitted from the first line; 8) Drainage completion should be required as discussed; 9) Relocation of the telephone pole to permit the 16 foot maximum width in that area. Councilmember Breiner moved and Councilmember Shippey seconded, that the appeal be denied, with the above changes in the conditions of the Tentative Map. AYES: COUNCILMEMBERS: Boro, Breiner, Shippey, Thayer & Mayor Mulryan NOES: COUNCILMEMEERS: None ABSENT: COUNCILMEMBERS: None Councilmember Thayer stated she is concerned about the appeals process, in that she feels that people who come in after an EIR is certified should be told right after that that this is going to affect their rights with regard to appealing density of a given project, because rights of review are more limited at this stage in that regard on the Tentative Map. She stated that this seems to be the major bone of contention on that project. City Attorney Ragghianti pointed out that in the letter he wrote he also included a copy of Public Resources Code Section 21085. He stated the fact that the appellant states limitations here does not have anything to do with the fact that their appeal from the EIR was not timely. It had to be with the fact that this was a housing development project, and that Section 21085 contains the same constraints against reducing density as the condition of mitigation in the EIR as Section 65589.5 contained in the Government Code. Councilmember Shippey expressed his support of Councilmember Thayer's remarks, stating although it appears that the City is doing everything right, he hears the same frustrations, and perhaps as Councilmember Boro said the Council is encouraging that by allowing discussion of more than just the limited scope. He stated this was an excellent discussion of staff report, and he complimented Councilmember Breiner on her work in picking out all of the issues which needed revision. 14. RESOLUTION AUTHORIZING EXECUTION OF COUNTYWIDE PLANNING AGENCY JOINT EXERCISE OF POWERS AGREEMENT RE DESIGNATION OF COUNTYWIDE PLANNING AGENCY AS AGENCY RESPONSIBLE FOR PREPARING CONGESTION MANAGEMENT PROGRAM (CM) - File 4-13-81 City Manager Nicolai reported that when this issue came before the Council at their last meeting, there was a general consensus that there should be an appeals process at the local level in the Agreement. She added that in the process of researching whether that could be done, that they proposed to have an appeal in there to MTC (Metropolitan Transportation Commission), none of which are allowed. Therefore, the Resolution is being presented with a recommendation that it be adopted so the Congestion Management Plan can move ahead. SRCC MINUTES (Regular) 12/3/90 Page 10 SRCC MINUTES (Regular) 12/3/90 Page 11 Mayor Mulryan reported that he had attended the meeting on this issue last week on Ms. Nicolai's behalf, and there was an attempt made by County Planning to get much more specific on a parcel -by -parcel basis, but they agreed to stay in the concept of review and be sure they are aware of the views and desires of the individual communities. He suggested that the Council support staff's position, and added that he feels the Agency is sensitive as it was in the past and will incorporate all of the communities' views. Councilmember Breiner moved and Councilmember Shippey seconded, to adopt the Resolution as recommended. RESOLUTION NO. 8305 - AUTHORIZING THE SIGNING OF A JOINT POWERS AGREEMENT (Countywide Planning Agency Joint Exercise of Powers Agreement re Countywide Congestion Management Program) (until January 1, 2011) AYES: COUNCILMEMBERS: Boro, Breiner, Shippey, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 15. RESOLUTION CONFIRMING EXECUTION OF AGREEMENT WITH ATTORNEY ASSISTANCE FOR THE SERVICES OF OUTSIDE COUNSEL TO REPRESENT SAN RAFAEL POLICE DEPARTMENT IN U.S. TAX COURT (CA) - File 4-3-234 x 9-3-30 x 9-3-16 City Attorney Ragghianti explained that neither he nor Assistant City Attorney Tessie Belue are admitted to practice in U.S. Tax Court. He stated he knows very little about this except that it is a supoena for deposition. Mayor Mulryan inquired about the fee for outside counsel, and Mr. Ragghianti responded it is $75.00 per hour. After further discussion, Councilmember Breiner moved and Councilmember Thayer seconded, to adopt the Resolution authorizing execution of agreement with Attorney Assistance for the services of outside legal counsel to represent the San Rafael Police Department in U.S. Tax Court. RESOLUTION NO. 8306 - RESOLUTION AUTHORIZING THE EXECUTION OF AGREEMENT WITH ATTORNEY ASSISTANCE FOR THE SERVICES OF OUTSIDE LEGAL COUNSEL TO REPRESENT THE SAN RAFAEL POLICE DEPARTMENT IN U.S. TAX COURT AYES: COUNCILMEMBERS: Boro, Breiner, Shippey, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None There being no further business, the meeting adjourned at 9:35 p.m. MONE M. LEON CI t, City Clerk APPROVED THIS DAY OF , 1991 MAYOR OF THE CITY OF SAN RAFAEL SRCC MINUTES (Regular) 12/3/90 Page 11