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HomeMy WebLinkAboutCC Minutes 1999-10-04SRCC MINUTES (Regular) 10/4/99 Page 1 IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, MONDAY, OCTOBER 4, 1999 AT 8:00 PM Regular Meeting: San Rafael City Council Present: Albert J. Boro, Mayor Paul M. Cohen, Vice -Mayor Barbara Heller, Councilmember Cyr N. Miller, Councilmember Gary O. Phillips, Councilmember Absent: None Also Present: Rod Gould, City Manager Gus Guinan, Assistant City Attorney Jeanne M. Leoncini, City Clerk CLOSED SESSION None ORAL COMMUNICATIONS OF AN URGENCY NATURE: 8:20 PM RE: AFFORDABLE HOUSING AT CONTEMPO MARIN - File 13-7-1 x 13-16 x 9-3-16 Tom Davis, Member of the Board of Directors of the Golden State Mobilehome Owners League, Contempo Marin Chapter, stated he was very pleased to learn the Council would conduct a public hearing at the next Council meeting to discuss amendments to the City's Mobilehome Rent Control Ordinance. Mr. Davis stated he was now asking Council's assistance in enforcing the existing Ordinance, as it applies to Contempo Marin. He reported the residents had just received a rent increase notice, to take effect January 1, 2000, noting there were three components to the increase. First, there is a 4.1% Cost of Living increase, and Mr. Davis believed, from the way the owner had posted the information in support of the increase, the owner had not followed the requirements of the Ordinance, as he had included, in the rent base, units which are under lease, as well as units which are subject to the Rent Control Ordinance. Mr. Davis believed that had the effect of skewing the average rent higher, and he asked Council's help in determining that an adjustment be made. Mr. Davis stated a more serious adjustment was the Phase II Capital Improvement Pass -Through, in the amount of $7.50 per month for the next 240 months, which amounts to approximately $1,800 per lot. He believed that was the result of an arbitration award, which had first been an agreed settlement, and then was enforced by the arbitrator. Mr. Davis explained that as prerequisites for having that pass-through take effect, the park owner had to expend money on the flood control project, beginning in January, 1997, which Mr. Davis stated the owner had done; and, in addition, the owner also had to complete those improvements, pay for them, and document that to the Homeowners Association. Mr. Davis stated the owner had not complied with those terms, and he was seeking the Council's assistance in seeing that the owner does comply with the requirements of the arbitration award, and that he defer the beginning of the rent increase until such time as he has conformed, having made the improvements, paid for them, and provided documentation to the Homeowners Association. He stated the Homeowners Association asked the Council's assistance in getting that provision of the Ordinance enforced on their behalf. Assistant City Attorney Gus Guinan reported he had discussed the Phase II Capital Improvement Pass -Through of $7.50 with Mr. Jeff Renner, and reiterated what Mr. Davis had stated, that the park was required to provide certain documentation. Mr. Guinan stated he had suggested that Mr. Renner meet with Whitfield King, President of the Contempo Marin Homeowners Association, to see if the park could satisfy the Association's need for documentation, noting Mr. Renner had assured him he would be doing so. Mr. Guinan stated he would report back to Council at the next City Council meeting of October 18th as to the status. Mr. Davis stated the residents want to make sure the park owner complies with the provision that they finish making the expenditures, not just that he has the expenditures budgeted. CONSENT CALENDAR: Councilmember Phillips moved and Councilmember Miller seconded, to approve the following Consent Calendar items: ITEM RECOMMENDED ACTION SRCC MINUTES (Regular) 10/4/99 Page 1 SRCC MINUTES (Regular) 10/4/99 Page 2 1. Approval of Minutes of Regular Meeting of Monday, Minutes approved as September 20, 1999 (CC) submitted. CONSENT CALENDAR (Continued): 2. Call for Applications for Appointment to Fill One Approved staff recommendation: Unexpired Term on the Planning Commission, Due to a) Called for applications to Resignation of Thomas T. Hinman (Term to Expire fill one unexpired term on the End of June, 2001) (CC) - File 9-2-6 Planning Commission, due to resignation of Thomas T. Hinman, with applications due by deadline of Tuesday, October 26, 1999 at 12:00 Noon in the City Clerk's Office, Room 209, City Hall; b) Set date for interviews of applicants at a Special City Council meeting to be held on Monday, November 1, 1999, commencing at 6:00 PM to fill one unexpired term to the end of June, 2001. 3. Monthly Investment Report (MS) - File 8-18 x 8-9 Accepted Monthly Investment Report for month ending August, 1999, as presented. 4. SECOND READING AND FINAL ADOPTION OF ORDINANCE Approved final adoption of NO. 1742 - "An Ordinance of the City Council of No. 1742 - "AN ORDINANCE OF the City of San Rafael Amending Tables 14.05.020, THE CITY COUNCIL OF THE CITY 14.05.022, and 14.06.020 and Section 14.03.030 OF SAN RAFAEL AMENDING TABLES (Definitions) of the San Rafael Municipal Code 14.05.020, 14.05.022 AND to Revise the Gasoline Stations Subsection of the 14.06.020 AND SECTION Land Use Tables in the Zoning Code and to Add 14.03.030 (DEFINITIONS) OF THE a Definition for "Mini -Market" (CD) SAN RAFAEL MUNICIPAL CODE TO - File 10-3 x 10-5 x 10-1 REVISE THE GASOLINE STATIONS SUBSECTION OF THE LAND USE TABLES IN THE ZONING CODE AND TO ADD A DEFINITION FOR "MINI- MARKET". 5. Resolution Authorizing Approval of Final Map Entitled "Map of Fernwood Estates" (PW) - File 5-1-338 RESOLUTION NO. 10509 RESOLUTION APPROVING FINAL MAP ENTITLED, "MAP OF FERNWOOD ESTATES", SAN RAFAEL, CALIFORNIA. 6. Request for Approval of Closure of Fourth StreetApproved staff SRCC MINUTES (Regular) 10/4/99 Page 2 recommendation: Between "A" and "B" Streets on Thursday, Fourth Street between "A" and October 14, 1999 from 5:30 PM to 7:00 PM for the "B" Streets to be Closed on Robin Williams Tribute at the Rafael Theatre in Thursday, October 14, 1999 Connection with the Annual Mill Valley Film from 5:30 PM to 7:00 PM. Festival (RA) - File 11-19 x (SRRA) R-324 SRCC MINUTES (Regular) 10/4/99 Page 2 SRCC MINUTES (Regular) 10/4/99 Page 3 AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None ABSTAINING: COUNCILMEMBERS: Heller (from approval of Minutes of Regular Meeting of Monday, September 20, 1999, due to absence from meeting) PUBLIC HEARING: 7. PUBLIC HEARING - CITY INITIATED AMENDMENT OF: (CD) - File 10-3 x 10-5 x 11-7 x 2-11 x 10-1 a. SECTION 14.03.030 OF THE SAN RAFAEL MUNICIPAL CODE ZONING DEFINITIONS TO REVISE THE DEFINITION FOR SEASONAL OUTDOOR EATING b. SECTIONS 14.05.020, 14.05.022, 14.06.020, 14.08.020 (TABLE OF LAND USE REGULATIONS) FOR THE REGULATION OF OUTDOOR EATING AREAS ON CITY SIDEWALKS AND PUBLIC RIGHTS-OF-WAY C. THE ADDITION OF A NEW SUBSECTION IN CHAPTER 16 (SITE AND USE STANDARDS) FOR OUTDOOR EATING AREAS ON CITY SIDEWALKS AND RIGHTS-OF- WAY d. CHAPTER 14.17, PERFORMANCE STANDARDS, SUBSECTION 14.17.110B ("APPLICABILITY OF PERFORMANCE STANDARDS FOR OUTDOOR EATING AREAS") AND AMENDMENT TO SUBSECTION 14.17.110C ("STANDARDS") Mayor Boro declared the Public Hearing opened, and asked for the staff report. Dean Parsons, Senior Planner, explained current zoning regulations require a Use Permit and Environmental Design Review Permit for all outdoor eating, regardless of whether it is on private property or public property. He reported the City Attorney's office had some reservations about issuing Use Permits and Environmental Design Review Permits for outdoor dining on public sidewalks, because that implied ownership of public property, and they had stated they would feel more comfortable if the City required a License Agreement, which would avoid any potential property right claims. He noted a License Agreement would also allow insurance and indemnification to protect the City in those instances where a public sidewalk is used for outdoor dining. Mr. Parsons stated the License Agreement being proposed would be for a maximum term of five years, noting the City would notify surrounding property owners when a License Agreement was to be issued, and the License would have a five-day appeal period. Mr. Parsons stated it was important to note that a License Agreement would not require authorization by the property owner adjacent to the outdoor dining area. In addition, any existing restaurant that already has a Use Permit for outdoor dining would not be required to have a License Agreement, because if they already have a Use Permit, that Use is permitted. He reiterated this would only apply to newly established outdoor dining on public sidewalks, or to those who do not already have the proper permits. Mr. Parsons reported the changes to the Zoning Ordinance also included a change to the definition of "seasonal outdoor dining", deleting the word "seasonal". He explained staff believed many restaurants were having outdoor dining throughout the year, weather permitting, and the City wanted to encourage that. He stated the biggest changes to the Ordinance were to the Performance Standards, and could have a potential impact to Downtown restaurants using sidewalks. He explained that currently, Downtown restaurants located in the Parking District are exempt from all the Performance Standards, with the exception of conformance with zoning laws, litter control, and hours of operation; however, staff felt they should have to comply with other Performance Standards, as well. Mr. Parsons stated that while the City still wanted to encourage outdoor dining, the current Performance Standards had been in effect for a long time, and staff wanted to do some "fine tuning". He noted that would include deletion of Performance Standard No. 11, and all references to "seasonal" in the Parking Performance Standards, which now allows seasonal outdoor eating only between March and November. This change would allow outdoor eating throughout the year. In addition, any outdoor dining with permanent roofing would be required to meet all the Parking Standards. SRCC MINUTES (Regular) 10/4/99 Page 3 SRCC MINUTES (Regular) 10/4/99 Page 4 Mr. Parsons noted that with the recommended changes and requirements for Performance Standards, those properties on the public sidewalks would not be allowed to have permanent roofing, such as a permanent awning or any solid roof; they could only have converted roofing, such as umbrellas or retractable awnings. Mr. Parsons stated staff was recommending the change to the Sunshade Performance Standards, because they felt a permanent roof implied ownership of a sidewalk, and they did not believe that was appropriate. Regarding barriers, he explained that any barriers around sidewalk outdoor dining areas would have to be of a temporary nature, noting that could include wrought iron bolted to the sidewalk, although when it was removed, the sidewalk would have to be repaired. Mr. Parsons reported the Planning Commission had added a section to the Maintenance Performance Standards, recommending an annual steam cleaning be required to keep the public sidewalks in a cleaner state. Mr. Parsons reported staff had presented these modifications to both the Chamber of Commerce and the B.I.D. (Business Improvement District); both had reviewed them, and the Chamber had told staff it supported the changes, and believed the amendments would expedite the process. Mr. Parsons pointed out the process of securing a License Agreement would be cheaper than the current Use Permit and Environmental Design Review process, reporting a total of approximately $760 for a Use Permit and Environmental Design Review, while the recommended fee for a License Agreement was $370. Mr. Parsons recommended one modification to the Ordinance being proposed, referring to Page 3, Division 4, Section 14.17.110 B. He reported the underlined section at the bottom should read, "Notwithstanding the foregoing, any outdoor eating area located on City sidewalks or rights-of- way shall not be subject to either the administrative use permit, or use permit process...". Mayor Boro noted Mr. Parsons had stated this would not affect existing outdoor dining areas; however, he asked what would happen if those dining areas changed ownership, whether they would be affected, or if the Use went with the property? Mr. Parsons explained it was staff's interpretation that if a Use Permit for outdoor dining on a public sidewalk had already been issued for a restaurant, it went with the land, as does any Use Permit. Mayor Boro asked for more information concerning the issue of roofing as it relates to the Parking Standards. Mr. Parsons noted that currently in the Downtown area, a business with outdoor dining on a public sidewalk is allowed to have covered outdoor dining. He explained there were several exceptions to the Performance Standards for outdoor dining in the Downtown area, one of which was the exemption of required parking for covered outdoor eating, and staff felt that because the Parking District is full, and because a permanently covered roof over a sidewalk implies ownership of the sidewalk, that this should not be permitted. Therefore, staff was recommending there be no covered roofing, although the businesses could have a retractable awning or umbrellas. Mr. Parsons reported that in the case of Broken Drum, where they do have a permanently covered area by virtue of a canvas awning, they would not be required to take the awning down because a Use Permit had been issued to allow it; however, in the future, staff would recommend that no such permanently covered outside dining on public sidewalks be allowed. Councilmember Heller referred to the issue of maintenance, and asked if fast food establishments and coffee shops, even though they might not have outside seating, would fall under the maintenance requirements? She pointed out that many times they have a lot of litter, and she wondered if there was any way to require them to clean-up their area, particularly around the coffee shops? Community Development Director Brown stated the Municipal Code does require that merchants keep the sidewalks in front of their establishments clean of litter and debris, noting he and Public Works Director Bernardi had recently discussed using that section of the Code in a couple of specific instances. Mr. Brown explained the City did have Code Enforcement authority, upon complaint, to require cleaning in front of businesses. Ms. Heller asked if that requirement could be broader, as some of the fast food debris goes further than just in front of the business? Mr. Brown stated the Ordinance addressed maintaining sidewalks in front of businesses; therefore, he believed that would be the City's limitation. However, as a fast food restaurant does require a Use Permit, that could be addressed in the Conditions of the Permit. SRCC MINUTES (Regular) 10/4/99 Page 4 SRCC MINUTES (Regular) 10/4/99 Page 5 Councilmember Cohen referred to the issue of licensing restaurants that already have Use Permits, and asked if Use Permits come up for review at some point, or if they are granted forever? Mr. Parsons stated the Use Permits have no terms or expirations, and do not come up for review, noting that currently applied to Broken Drum and Pasta Boat. Mayor Boro asked what applied to Red Boy Pizza across the street from Broken Drum and Pasta Boat? Mr. Parsons stated Red Boy Pizza already had outdoor dining, and when they came to the City to modify, improve, and upgrade their dining, they voluntarily went with the proposed standards and License Agreement, and provided both insurance and indemnification. Mr. Parson stated the same was true of Chinook Restaurant. Councilmember Cohen noted the Pasta Boat Restaurant appeared to be out of business, and asked if the Use Permit ran forever, even with a business that is closed? Mr. Parson stated that was correct; however, if a new restaurant were to locate there and establish outdoor dining, and if they wanted to modify the existing Use Permit in any way, they would then have to be consistent with the current standards now being proposed. Councilmember Heller asked what would happen if the Use changed? She wondered, if someone took over Pasta Boat's location, opened a boutique or some other type of business other than a restaurant, and then the new business closed, would a fast food business or restaurant of some kind have to come in for an Administrative Permit? Mr. Parsons stated it was staff's belief that the Use Permit still runs with the land, noting that was part of the problem with the Use Permit process, and why staff wants the License Agreement. Ms. Heller clarified that the original Use would just sit there, even if the property was used for another type of business, and Mr. Parsons noted she was correct. Mayor Boro invited public comment. Robert Berry, property owner in the Downtown, reported Pasta Boat was still under lease, noting the present owner was attempting to sub -lease the location to another food operator, and was currently in negotiation with three or four food operators. Mr. Berry stated he had interviewed several candidates, along with the owner of the business, and it appeared the most likely candidate was P.J.'s Oyster Bar, which is currently owned by a restaurant operator in San Francisco. Mr. Berry noted this prospective tenant would like something similar to Broken Drum, but with an outdoor dining area of a more permanent nature than what now exists. Mr. Berry stated when he originally appeared before the Planning Commission, he had asked that the owner of a building, who is leasing to a tenant applying for a Use Permit, be included "in the loop" in the event of a Licensing Agreement. He stated one of the reasons for that request had to do with insurance, noting that under the Use Permit, his insurance was required to give the City coverage, as well as the tenant's insurance. He pointed out that by going to the License Agreement, the City would be losing that double insurance standard. Mr. Berry believed it was only common sense that the owner of the property would want to maintain some semblance of control over the tenant, noting if the owner did not have control over what the tenant does in front of the business, then he really did not have control over his own property. Mr. Berry noted, as pointed out during the Planning Commission meeting, he had obtained Use Permits for two of the three tenants on his property, and appealed the third in 1997, an appeal which had not yet been heard. He stated he had been told that with the possible passage of the Licensing Ordinance, his appeal money would simply be refunded to him, which he felt was an unlikely way to deal with an appeal. Mr. Berry explained he had no objection to the City redefining outdoor dining, or to the City establishing a License Agreement instead of a Use Permit; however, he did have a problem with the general concept of the City changing some of the standards, particularly with regard to parking and the definition of a permanent structure, and taking out "seasonal dining" and making it simply "outdoor dining". He noted that prior to coming to this meeting, he had driven down the entire length of Fourth Street, and of the eight or ten places that had chairs and tables outside, Broken Drum was the only one with anyone on the patio. He believed the reason was because Broken Drum has wind protection and heat, and people can sit outside, even in the cold. He noted no other place had that, pointing out that even though other places, such as I1 Davide have heaters, there is no protection from the wind. Mr. Berry reported he had been on the Vision Committee, recalling one of the things the Committee had stated was that they wanted Fourth Street to be "Alive After Five", with activity at night, and that had been the reason SRCC MINUTES (Regular) 10/4/99 Page 5 SRCC MINUTES (Regular) 10/4/99 Page 6 for many of the actions the Committee had taken. However, he believed that by the City now saying it did not want to make nighttime dining suitable for most food service operations, we were going to end up with umbrellas overhead, and a lot of temporary heaters banded together and chained out in front of the restaurants. He felt the City needed to rethink what it really wants to do, stating that if the City really wants patio outdoor dining to be like Red Boy Pizza, then it should approve this Ordinance; however, if the City wants outdoor dining to look like Broken Drum, and have more people and activity, then the Ordinance should be referred back to staff or the Planning Commission for further study, so they can come up with something that will reflect what the City really wants. Referring to Page 3, Chapter 17 of the Performance Standards, Section 4, "Parking", he suggested deleting the words "permanent" and "awning". He explained the parking requirement would be the absolute killer, noting no one would be able to furnish parking, as there is no parking in most existing locations and, therefore, if that is a new requirement, it would be tantamount to stating it cannot be done. He pointed out that most of the Downtown is in the Parking District, which is full. Referring to Section 5, Item 5, "Barriers", Mr. Berry suggested removing the sentence, "Perimeter barriers shall be temporary/removable fixtures", and change the first sentence under Item 6, "Sunshades" to read, "Awnings and umbrellas may be used in conjunction with an outdoor eating area, but there shall be no permanent roof or shelter over an outdoor eating area located on a public sidewalk". He also believed Item 11, Downtown Parking Assessment District, should be restored to the original wording. Mr. Berry believed the Ordinance could be enacted with very few changes, giving the essence of what the City really wants. Regarding his particular building, Mr. Berry stated he was concerned the new tenant taking over the space previously occupied by Pasta Boat might want a permanent improvement in the future, and that Broken Drum might want to expand, noting it would look very funny if one side was encased, and the other side had moveable heaters and umbrellas. Mr. Berry noted the City had allowed expanded sidewalks in several areas of the Downtown, most notably the Rafael Theatre, and the areas in front of his building, Red Boy Pizza, and I1 Davide. He pointed out that in these areas, the owners or the tenants have operated with the City's consent, and paid for additional sidewalk area; however, he noted the Ordinance calls for a six foot clear pathway, and in looking at some of the existing non - expanded sidewalk areas, in many instances there is less than five feet, so the application of the clear pathway is not uniform between the Use Permits that have been granted and the Licensing Agreement being proposed. He wondered why the expanded sidewalk areas had to have a larger pathway than the others, and why the City was applying different standards? Mr. Berry felt that since the expanded sidewalk area took cooperation between the City and the owner of the building, as the owner of the building was usually the one who paid for it, there should be some structural consideration given in those situations of expanded sidewalks. He acknowledged these were special situations, which required the consent of the City before the sidewalk can be pushed out, causing a loss of parking, which is valuable in the City. He felt it would be one thing for City to use this License Agreement Ordinance where businesses just put tables out on the sidewalk adjacent to their doorways; however, he believed it was completely different when dealing with I1 Davide or Red Boy Pizza, where they have paid for their sidewalk expansion, and he believed the City could legitimately treat these differently. Mayor Boro asked if it was Mr. Berry's position that if there was an extended sidewalk, the License Agreement should not apply? Mr. Berry believed staff had a problem with the Use Permit, because they viewed it as granting property rights. He stated it was up to the City to determine whether this is to be viewed as an important area, and whether the City wants to encourage activity at night, with people being seen on the street at night. He felt the Ordinance should be sent back for further study. Mr. Berry pointed out there was a vacancy next to the Rafael Theatre, and one of the difficulties was the financing of tenant improvements. He stated a proposal for that property would likely come before staff in the near future; however, he believed there might be problems again if the City does not allow some kind of substantial improvement at that location. He also referred to the Macy's project, noting if Mr. Schafer was going to so much expense on Court Street, there would undoubtedly be some food use on that corner, and they were going to want to use the sidewalk. Therefore, he encouraged Council to take a little time on this Ordinance, send it back to staff and the Planning Commission, and perhaps drive down Fourth Street at night to see what kind of tables are occupied. SRCC MINUTES (Regular) 10/4/99 Page 6 SRCC MINUTES (Regular) 10/4/99 Page 7 There being no further public comment, Mayor Boro closed the public hearing. Mayor Boro referred to the parking requirement for establishments with permanent roofing, asking if this would affect existing uses, such as Broken Drum? Mr. Parsons reported staff was recommending a Performance Standard which would allow no permanent covered outdoor eating areas in the Downtown. He explained the Parking Standard would be modified to require parking for any permanently covered outdoor dining area, and that would only apply to private property. He added this requirement would also delete the seasonal aspect. Community Development Director Brown pointed out this would not affect the Broken Drum restaurant, as no parking had been required of them. Mayor Boro asked if they would be grandfathered under the proposed Ordinance, and Mr. Brown stated they would. Mayor Boro asked, if there can be outdoor dining during the season, without additional parking requirements, what was so significant about enclosed dining that it tripped the parking requirements? He pointed out they were just continuing what they do during the summer, by accommodating people during the winter. He wondered, if there are no parking requirements for uncovered dining in the summer, why do we need parking requirements for the covered version of that same use in the winter? Mr. Parsons stated it was felt that during the summer there is good weather, people like to eat out on the sidewalks, and there is more of a transfer of the indoor seating to the outside; therefore, additional parking requirements are not imposed. However, in the wintertime, if there is permanent roofing over the outdoor area, then even in inclement weather there is the potential for diners to sit outside under heat lamps, filling the outdoor seating as well as the seating inside, which has an impact on the Parking District. Mr. Parsons explained that since the Parking District is full, staff felt that to be fair, and to treat them like any other restaurant on private property, the same standard should be applied. Community Development Director Brown stated it actually came down to a policy question involving both the use of parking and aesthetics, and whether or not the City should, essentially, allow building expansion onto City sidewalks without the requirement for parking. Mayor Boro noted, however, the Ordinance does allow for this Use on the sidewalk for part of the year. He asked if the coverage at Broken Drum would allow people to sit in the rain? Mr. Brown stated it would, noting what had been approved for Broken Drum was partial covering; however, they had since expanded, with an awning that now provided complete coverage and year-round use. He also pointed out that staff has encouraged Mr. Berry to legalize that awning. Councilmember Heller asked, if the City allowed permanent roofing, was that the same as allowing the business owners to expand their restaurants, using the City sidewalk for free and not paying any rent? Mr. Brown stated that was correct. Ms. Heller stated that would seem to be a benefit for someone with permanent roofing, rather than an establishment where they are simply moving tables in and out during good weather. Mr. Brown stated staff saw it as being another benefit differentiating that which a private property owner, not on a City sidewalk, would be allowed to do. He explained the City would be allowing the use of the City sidewalk seasonally, as opposed to a permanent expansion of floor area. Councilmember Phillips noted Mr. Berry had raised a number of points that seemed worthy of consideration. He acknowledged staff had worked very hard on this issue; however, Council was being asked to take into consideration Mr. Berry's points, as well as the staff report. He stated he did not feel it was unreasonable to ask staff to review the report, in light of the comments made, noting he would like to have the comfort of knowing that each of the points raised had been considered before being rejected; and if that was the case, he would like staff's response to the significant points raised by Mr Berry. Mr. Brown reported Mr. Berry had made these same comments at the Planning Commission meeting, where they had been discussed and considered. Mr. Brown noted staff had been very careful to point out to the Chamber of Commerce and the B.I.D. (Business Improvement District) the ramifications regarding permanently enclosed and covered areas, and they seemed comfortable with those changes, and did not feel they would have a great impact. Addressing specific concerns raised by Mr. Berry, Mr. Brown referred to the issue of notifying adjacent property owners regarding License Agreements, and reported staff would notify the owners. Mr. Brown noted Mr. Berry had discussed, in front of the Council and the Planning Commission, the wisdom of allowing adjacent property owners to have some say in whether or not a SRCC MINUTES (Regular) 10/4/99 Page 7 SRCC MINUTES (Regular) 10/4/99 Page 8 license should be approved. Mr. Brown pointed out that adjacent property owners could certainly establish, as part of the lease with their tenants, the requirement of the property owner's approval before the tenant applies to the City for a License Agreement. However, staff did not believe it was appropriate that adjacent property owners have control over the use of the City sidewalk, believing that should be handled as a private matter in their private leases. Referring to the discussion concerning additional benefits to property owners with expanded sidewalks, Mr. Brown pointed out the City's contribution was the loss of parking in exchange for a much wider sidewalk, which the owners paid for, but which allowed them, through a License Agreement, to provide significantly expanded space for their tenants for outdoor, seasonal dining. Mr. Brown believed there was a value to that, noting that in comparing Chinook and the Broken Drum versus other restaurants, they were much less constrained than other restaurants in the Downtown, such as Cafe Ristorante Italia, which has a space barely wide enough for single tables. Mr. Brown addressed the issue of Mr. Berry's appeal, clarifying the appeal had been filed in 1998, and was being held in abeyance, in anticipation of this Ordinance. He noted that in the interim, Chinook had been granted a License Agreement; therefore, the question of whether that appeal was moot, or would go forward, was something the City Attorney's office would have to respond to. Mayor Boro stated he believed the Ordinance should require steam cleaning quarterly, rather than yearly. In addition, he stated he was having a difficult time supporting the concept concerning enclosed dining and the requirement for parking, noting that on a warm day, I1 Davide or Broken Drum would have the same situation as on the winter night described by staff. He believed that on a warm day the restaurants would be full, with people eating on the sidewalk and in the restaurant; therefore, the problem was already there. He stated he had a hard time understanding why, if they have an awning, the City needed to drive the parking requirements up so high. Mayor Boro believed Councilmember Heller had raised a good point when she stated that perhaps for the privilege of installing an awning and creating year-round space, there might be a fee paid to the City for that privilege. However, he stated he would have a difficult time prohibiting it because of parking. Community Development Director Brown acknowledged the City's highest parking demand was during the summer, noting the City would be allowing seasonal outdoor eating, in any event, without parking requirements. He believed another consideration was one of aesthetics, and whether the City felt it was appropriate to, essentially, establish an outdoor room as an appendage to a building on the City sidewalk. Councilmember Cohen stated he would like to pursue the issue further, noting that was a fine line, and he was not yet convinced the City was on the right side of the line. He believed this was a policy question, acknowledging Mr. Berry's point that in looking around the City, it was a question of what people liked better, and that could simply be a matter of personal preference. Mr. Cohen stated he recognized there were some issues that deserved consideration regarding whether or not Broken Drum had extended their building out over what is essentially public property. However, Mr. Cohen pointed out they had created an area that would allow outdoor dining and activity during more of the year, and he did not recall that when they had discussed "Alive After Five", the City only wanted to do that during the summer. With regard to the logic of requiring parking in the winter but not in the summer, he believed, from personal experience, that fell flat. He stated he had been Downtown last Thursday night at the Farmers' Market, and attempted to take relatives to Broken Drum for dinner; however, the restaurant had been full inside and outside, and there was no parking on Fourth Street, because the City had closed it off for the Farmers' Market. Mr. Cohen stated that when the weather is good, more people come out, and the restaurants are full, both inside and outside, when the weather is nice; however, when it is raining, people tend to think about ordering a pizza and having someone bring it to them, as opposed to going out to a restaurant, regardless of whether they could be sitting inside, or in an enclosed outdoor area. Therefore, Mr. Cohen stated he was not convinced the parking argument was consistent. He acknowledged the City might want to make the argument that in compensation for the City giving up some of the public space, the City should have parking; and perhaps for this period of time, when the Parking District is full, require people to find other solutions to parking until the City can fix the parking problem in the Downtown by expanding the capacity, and then easing that SRCC MINUTES (Regular) 10/4/99 Page 8 SRCC MINUTES (Regular) 10/4/99 Page 9 requirement. He stated he could understand such an argument, although he would not necessarily agree that it would be any more plausible than stating that since people eat there in the winter, parking is required, but it is not required in the summer. Following up on earlier comments, Councilmember Cohen stated he was uncomfortable with the notion that this was a permanent encroachment on a public sidewalk. He noted that appeared to be the situation with respect to Broken Drum, and possibly Pasta Boat, and he believed if this was something the City had allowed, which appeared to be the case, it was done in error, and the City should have thought it through a little more. He stated he would be comfortable with a Licensing Agreement that reserved some rights for the City, should a future Council decide they do not want people eating in public view. Mr. Cohen stated he would be interested in pursuing the notion that permanent structures were possible under Licensing Agreements, giving the City the right to re -visit a decision where the sidewalk has been expanded. Then if another property owner wants to come in and make that kind of investment, the City could say the owner had to make an additional investment by popping the sidewalk out. Councilmember Cohen stated he did not object to the look and feel of the sidewalk in the area of Broken Drum, and felt it had added to the kind of atmosphere the City was trying to create in the Downtown. He noted it had been a significant investment, and while he understood the argument that somehow the City should be charging rent, he pointed out it had contributed to the kind of cultural change the City was trying to bring, and had successfully brought, to Downtown San Rafael. Mr. Cohen stated, at this point, he was not comfortable with the statement that there be no more permanent structures, and that the City simply would not allow it, noting he believed that particular policy decision needed to be revisited. He stated he was open to whatever other requirements the Councilmembers felt should be placed on that; however, he had not heard an argument that convinced him there was a logical reason for the City to state it was never going to let this happen again. He stated he did not know whether someone would want to come forward and make the investment for significant improvement to the front, as well as an investment for popping out the sidewalk so there is a clear pathway, and then also have to figure out how to deal with the parking problems. Councilmember Heller asked if there were any other opportunities for expanding the sidewalks, noting it was her understanding the City was only going to stay with the ones that were already there, and no longer offer that opportunity, because each time this is done, we lose parking space. She stated she would have a hard time allowing that to happen from now on. Mayor Boro stated he did not believe the City was going to allow the sidewalks to be cut up any further, and they were actually discussing very limited opportunities. Mayor Boro stated he and Councilmember Cohen were concerned with the same issue, the logic of supporting seasonal dining, and why the City would want to support the prohibitions. He felt the City's controls were already stringent enough. Councilmember Miller stated he was concerned with the privatization of a public place, which he felt this was, noting they were, in effect, simply adding on to the building, and allowing people to sit there and use public space for that purpose. He did not believe that was what the purpose of public space was all about. Mayor Boro noted, even if the dining was done with just umbrellas and chairs, they were still using it, the only difference was that there was nothing permanent, even though they were getting the same benefit. Mr. Miller acknowledged they would be getting the same benefit; however, he pointed out they would not be making the public space privatized, preventing it from being used for anything else. Mr. Miller stated it was the difference between "permanent" and "temporary". Mayor Boro noted, as an example, Red Boy Pizza was currently using space, so in essence, the City had privatized the space they are using. Mayor Boro acknowledged Mr. Miller's argument that if they placed a permanent fixture on the property, they would be taking it over. However, Mayor Boro stated that if they were to do so under a Licensing Agreement, and the City had the ability to revoke the License, then they really had not taken the property. Mayor Boro pointed out that in the case of Mr. Berry, it was an entirely different arrangement, as the City was not challenging or changing what he had. Councilmember Miller acknowledged that had already been done; however, he believed it was something the City should not have done. He stated he was working on the basis that the City could do this for the common good, allowing use of the property for private gain, but it was SRCC MINUTES (Regular) 10/4/99 Page 9 SRCC MINUTES (Regular) 10/4/99 Page 10 different when it was made a permanent structure. He stated a temporary use, with awnings and umbrellas, was far different than a permanent structure, and that was where his argument was. Community Development Director Brown stated staff could return to the Planning Commission and make the Ordinance more flexible. He agreed there were probably limited opportunities where this might be utilized, and secondarily, without granting a Use Permit with some permanency, he was not sure whether property owners would be willing to make that kind of investment, knowing the License could be revoked at any time, and they would have to restore the sidewalk. Mr. Brown stated staff could put that flexibility back into the Ordinance. Mayor Boro suggested that if the City was going to look at anything, it should be on a License Agreement basis, and only for those locations that have an expanded sidewalk for enclosure. Councilmember Phillips stated he agreed with that, and while he understood Councilmember Miller's point, and even agreed with it in some ways, he noted he was looking at the end result, and he much preferred the end result of Broken Drum over Red Boy Pizza, as an example. He felt it benefited the City more by having the Broken Drum concept applied in the limited areas that exist, rather than the other approach, and he believed that if the City could get there by allowing permanent structures, he would be willing, under a License Agreement, to allow for a "permanent" or "semi-permanent" structure, because of the result, which he felt set the tone for the City, and was a tone he preferred. Mayor Boro clarified that the public hearing had been closed, and this item would be referred back to the Planning Commission, specifically to pursue this one point. He stated action on this item would be continued to a date uncertain (Item to be re -noticed). OLD BUSINESS: 8. RESOLUTION AUTHORIZING CITY ACQUISITION OF REDEVELOPMENT AGENCY OWNED PROPERTY (APNs 130-021-22, 36, & 37) IN AN AMOUNT NOT TO EXCEED $732,735 (MAHON CREEK) (RA) - File 2-19 x 12-16 x 4-10-296 x (SRRA) R-374 Economic Development Director Nancy Mackle explained the item before Council was a City acquisition, and the first step in making the Mahon Creek Conceptual Plan a reality. She pointed out this plan had previously been approved by Council, and an EIR (Environmental Impact Report) had been adopted. Ms. Mackle noted the Plan calls for grading the banks of Mahon Creek, putting in native plants, and constructing a bicycle/pedestrian path along the entire length, making a major improvement to the area. Ms. Mackle stated staff was proposing something that had never been done before. She explained the City had accumulated over $800,000 in funds, by virtue of State Land Settlement Agreements done over the years; however, these funds could only be used to acquire properties that meet the needs of the State Lands Commission, which would include land designated as water oriented or recreational, and only for the acquisition of the land, not for construction. Therefore, she noted it was very difficult to find property that could be acquired with these funds, property that meets the purposes of being public use and water oriented, and also remains in trust for perpetuity. Ms. Mackle explained staff was proposing the City buy the Mahon Creek property from the Redevelopment Agency, using the State Trust Funds. This would allow the Mahon Creek project to move forward, as the Redevelopment Agency could then use those funds, combining them with $550,000 the Agency will receive from MTC (Metropolitan Transportation Commission), and $250,000 Fair, Isaac has committed for doing the bike path. This would give the Redevelopment Agency a total of $1.5 million, which staff believed would be suitable for the construction. Ms. Mackle did point out that staff had not yet obtained an Engineer's Estimate, and the staff report contained preliminary estimates for the project. However, she noted this was the type of project that could be done in stages, and could even be scaled down if the project was underfunded. She explained Council was being asked to authorize the City's acquisition, and to authorize staff to enter into an agreement with the State Lands Commission. She noted the State Lands Commission had already approved the agreement, which states the City is entitled to spend the funds for this purpose, as it meets the needs of the Commission, and keeps the land in trust. SRCC MINUTES (Regular) 10/4/99 Page 10 SRCC MINUTES (Regular) 10/4/99 Page 11 Councilmember Cohen asked if the action Council was being asked to take applied only to the purchase of the land owned by the Redevelopment Agency, which was approximately from Lindaro Street to Francisco Boulevard, and did not include any of the improvements? Ms. Mackle stated that was correct, noting that at the next Redevelopment Agency meeting staff would present a Resolution authorizing the sale of the land. Mayor Boro clarified the City was being asked to give the Agency the $700,000 State Lands money to purchase the property, then that money, in turn, would be used by the Redevelopment Agency to develop the property. Ms. Mackle stated that was correct. Mayor Boro pointed out the Agency did not yet know how much of the project it would be able to develop; therefore, he was trying to understand why staff had brought the plan before the Council for execution, without knowing what the "total pie" will be? Ms. Mackle noted staff could wait and return to Council when that information was available; however, she explained staff had been trying to line everything up to make certain there would be enough money to move forward on the project, and to make sure the State Lands Commission had enough time to place this issue on their docket, which they did. She stated staff believed there would be enough funds to do the segment that was identified on the map. Mayor Boro noted, based on earlier discussions this evening, it seemed the City had been missing the mark on some of its projects, and while he would like to see the City acquire the property and tie it up, he felt it would be more helpful if the Council knew "how deep the pool was" that they were getting into. Ms. Mackle reiterated this was the type of project that could be cut back, doing a shorter segment, or adding some of the lighting or landscaping at a later date. City Manager Gould pointed out that staff was not asking Council to approve the project at this time, noting that until the funding was in hand, the project was well defined, and staff could show where all the funds are, staff would not ask Council to move forward. He explained this request was to enable staff to use a rather unique set of circumstances to acquire funds that could be used later for this project, which, in the past, Council had indicated great support for. He stated this action would get the Agency very close to where it wants to be, and then staff would return with a well defined project, showing exactly what the project will cost. Mayor Boro felt that by doing it this way, the Agency was giving up leverage with a potential major property owner, and he believed that if the Agency truly knew what it was going to cost, we could explain what we were willing to do, and also tell them of any shortfall we might have. He pointed out that now the City and the Agency would be committed and the money would be spent, and he felt it would have been nice to have a full picture, and perhaps have been able to leverage this a little more with Fair, Isaac. Mr. Gould reported that during negotiations with Fair, Isaac, the City had gotten every dollar it was going to get, as part of the DDA (Disposition and Development Agreement), and he did not believe the City would be able to come back to them for more money. Mayor Boro stated Fair, Isaac had great expectations for Mahon Creek, and if the money was not there to build it, or the land was not acquired, they might change their mind once they get their building up. Mr. Gould reported the DDA was very clear that the City was not under any time commitment to build the improvements, and Fair, Isaac's only commitment was to contribute some money toward it. Ms. Mackle also pointed out the State Lands Commission had agreed that the City could purchase the property for the same value established when the Agency purchased the property; however, she noted that could change if the City waited too long. Councilmember Cohen asked, if the City purchased the property, was the Agency bound to use the funds with which the City purchased the land for these improvements, and nothing else? She explained the language in the agreement states the Agency will use the money for the improvement along Mahon Creek, or other improvements that meet State Trust purposes, which could include a project behind Montecito Plaza, or some other water oriented project, as long as it fit within the Trust's purposes. Mr. Cohen stated it appeared the net effect of this would be to take the $730,000, which is currently available only for acquisition, and make it available for either acquisition or improvements that meet State Trust purposes. He asked Ms. Mackle if that was an accurate summary? Ms. Mackle stated the language of the agreement stated the funds were to be used for SRCC MINUTES (Regular) 10/4/99 Page 11 SRCC MINUTES (Regular) 10/4/99 Page 12 improvements, quoting from the agreement, "The money received by the Redevelopment Agency from the sale of the Mahon Creek Property shall be used by the Agency for the Mahon Creek Project (grading, landscaping, and a bicycle/pedestrian path), or for similar improvements to other Public Trust Lands within the City of San Rafael"; therefore, it is stated that this money is to be used for improvements, rather than acquisition. Ms. Mackle noted this money would provide the opportunity for this particular acquisition, which the Agency has had a hard time finding. Mayor Boro noted this money was sitting in trust, and clarified it was not money the City could use for just anything, rather the City had to be very specific in how the money was used. However, the City did have an opportunity to acquire the property, and then, in turn, once the money becomes available to the Redevelopment Agency as payment, it becomes a "double hit", with the Redevelopment Agency first getting the money to buy the land from the State, and then getting that same money to develop the property. He agreed this was a great concept. Councilmember Phillips moved and Councilmember Heller seconded, to adopt the Resolution authorizing City acquisition of Redevelopment Agency owned property, in an amount not to exceed $732,735, and authorizing execution of a Certificate of Acceptance. RESOLUTION NO. 10510 - RESOLUTION AUTHORIZING CITY ACQUISITION OF REDEVELOPMENT AGENCY OWNED PROPERTY (APN 130-021-22, 36, & 37) IN AN AMOUNT NOT TO EXCEED $732,735 (MAHON CREEK) AND AUTHORIZING EXECUTION OF CERTIFICATE OF ACCEPTANCE. AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None MONTHLY REPORTS: 9. CITY MANAGER'S REPORT - File 9-3-11 City Manager Gould reported Elissa Giambastiani, President of the San Rafael Chamber of Commerce, had indicated the City may be receiving an award from the Marin Economic Commission. He urged the Councilmembers to attend the luncheon on Friday, October 22nd. COUNCIL ER REPORTS: 10. a. RE: JOINT MEETINGS WITH CITY BOARDS AND COMMISSIONS - File 9-1 x 9-2 (Verbal) Mayor Boro recalled that at one time the Council had been very aggressive in meeting annually with the various City Boards and Commissions, and asked if the Councilmembers would like to begin that cycle again, with perhaps one meeting per month? The Councilmembers unanimously agreed, with Councilmember Miller pointing out the Commissioners particularly liked having those meetings. Councilmember Heller suggested they begin these meetings in January, 2000, and the Councilmembers agreed. b. RE: INTERVIEWS FOR PLANNING MANAGER - File 9-3-85 (Verbal) Mayor Boro asked if a date had been set for the interviews of applicants for the Planning Manager position. City Manager Gould reported the date had not yet been scheduled, but noted the interviews would be held in approximately two weeks. Mayor Boro asked to be informed when the date is set, stating he would plan to attend the interviews. There being no further business, Mayor Boro adjourned the City Council meeting at 9:20 PM in memory of Ely Caillouette, Jr., former City Engineer, who recently passed away. SRCC MINUTES (Regular) 10/4/99 Page 12 SRCC MINUTES (Regular) 10/4/99 Page 13 JEANNE M. LEONCINI, City Clerk APPROVED THIS DAY OF 1999 MAYOR OF THE CITY OF SAN RAFAEL SRCC MINUTES (Regular) 10/4/99 Page 13