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HomeMy WebLinkAboutCC Minutes 2005-08-01SRCC Minutes (Regular) 08/01/2005 Page 1 IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, MONDAY, AUGUST 1, 2005 AT 8:00 P.M. Regular Meeting: San Rafael City Council Also Present: Ken Nordhoff, Assistant City Manager Gus Guinan, Assistant City Attorney Jeanne M. Leoncini, City Clerk OPEN SESSION — COUNCIL CHAMBER None CLOSED SESSION — CONFERENCE ROOM 201 None ORAL COMMUNICATIONS OF AN URGENCY NATURE: Present: Albert J. Boro, Mayor Barbara Heller, Vice -Mayor Paul M. Cohen, Councilmember Cyr N. Miller, Councilmember Gary O. Phillips, Councilmember Absent: None 8:11 M a) 1476 Lincoln Avenue, San Rafael: - File 100 x 171 Melany Kramer, 1476 Lincoln Avenue, submitted a letter outlining the ongoing problems with repairs, etc., at her apartment complex at 1476 Lincoln Avenue, San Rafael, with Caltrans being the landlord. She indicated that this ranged from repairing leaking gas stoves, to replacing broken stairs, to allowing the entire area to deteriorate. Mayor Boro suggested the matter be referred to Community Development Director Bob Brown, who would be in touch with Ms. Kramer in this connection. b) Transactions and Use Tax: - File 9-4 Indicating that she very much supported the proposed Transactions and Use Tax, Ms. Kramer, stated that of all of the communities in which she had lived in Northern California and Los Angeles, and those she had visited all over the country, San Rafael was far and away the loveliest, best run, most diverse and most resident friendly. Commenting that this did not happen by accident, she stated this was due to the City Council, City staff, Police and Fire Departments, all those who were not sufficiently paid and had taken budget cuts. Ms. Kramer believed it was time for all those who enjoyed City services to step up to the plate and support the tax. c) Conflict in Iraq: - File 9-1 John Jenkel reported that he intended to send a letter to Representative Lynn Woolsey and other Bay Area Members of Congress, requesting support for a ceasefire in Iraq. Rachel Bell addressed issues in connection with the conflict in Iraq and 9-11. CONSENT CALENDAR: Councilmember Phillips moved and Councilmember Miller seconded, to approve the Consent Calendar, as follows: ITEM Approval of Minutes of Regular Meeting of Monday, July 18, 2005 (CC) 2. City Attorney's Impartial Analysis of Ballot Measure - Transactions and Use Tax (CA) — File 9-4 x 9-3-16 3. Summary of Legislation Affecting San Rafael (CM) — File 116 x 9-1 RECOMMENDED ACTION Minutes approved as submitted. Accepted City Attorney's Impartial Analysis of Ballot Measure — Transactions and Use Tax. Aaaroved staff recommendation: SB 148. Alcoholic Beverages: Licensing Restrictions. Scott — SUPPORT SCA 15. Eminent Domain: Condemnation Proceedings. McClintock — OPPOSE ACA 22. Eminent Domain: Condemnation Proceedings. La Malfa -OPPOSE SRCC Minutes (Regular) 08/01/2005 Page 1 SRCC Minutes (Regular) 08/01/2005 Page 2 4. SECOND READING AND FINAL Approved final adoption of ADOPTION OF ORDINANCE NO. 1837 -An Ordinance No. 1837. Ordinance of the City of San Rafael Adding Chapter 3.19 to the San Rafael Municipal Code Imposing a Transactions and Use Tax to be Administered by the State Board of Equalization, Subject to Approval of a Majority of the Electors Voting on the Tax Measure at the General Municipal Election to be Held on Tuesday, November 8, 2005 (CM) — File 9-4 x 8-5 5. Report on Bid Opening and Resolution Awarding RESOLUTION NO. 11812— Contract to West Coast Arborists, Inc. for RESOLUTION AWARDING Emergency and Routine Tree Services Contract CONTRACT TO WEST COAST 2005/2006, in an Amount Not to Exceed ARBORISTS, INC. IN AN AMOUNT $180,000 (Bid Opening Held Tuesday, July 19, NOT TO EXCEED $180,000 FOR 2005) (PW) — File 4-1-575 "EMERGENCY AND ROUTINE TREE SERVICES 2005/2006" AND AUTHORIZING THE DIRECTOR OF PUBLIC WORKS TO EXECUTE THE CONTRACT (Lowest responsible bidder 6. Report on Bid Opening and Resolution Awarding RESOLUTION NO. 11813 — Contract to Ghilotti Bros., Inc. in the Amount of RESOLUTION AWARDING $100,000.00 for the Sidewalk Replacement CONTRACT TO GHILOTTI BROS., Contract 2005/2006, Project No. 11064 (Bid INC. IN AN AMOUNT NOT TO Opening Held Thursday, July 21, 2005) (PW) — EXCEED $100,000 FOR "CITY OF File 4-1-576 x 11-7 SAN RAFAEL SIDEWALK REPLACEMENT CONTRACT 2005- 2006" AND AUTHORIZING THE PUBLIC WORKS DIRECTOR TO EXECUTE THE CONTRACT (Lowest responsible bidder) 7. Report on Bid Opening and Resolution RESOLUTION NO. 11814 — Awarding Contract to Ghilotti Bros., Inc. in RESOLUTION AWARDING THE the Amount of $1,115,554.68 for Street CONTRACT FOR STREET Resurfacing 2004/2005, Project #11037 (Bid RESURFACING 2004/2005, Opening Held Tuesday, July 26, 2005) (PW) PROJECT NO. 11037, TO — File 4-1-577 x 11-15 x 9-3-40 GHILOTTI BROS., INC. IN THE AMOUNT OF $1,115,554.68 (Lowest responsible bidder) 8. Resolution Amending Resolution No. 11792 RESOLUTION NO. 11815 — to Appoint Stan Gibbs as an Additional RESOLUTION AMENDING Member to the Business Improvement RESOLUTION NO. 11792 TO District (BID) Board of Directors; Term APPOINT AN ADDITIONAL Expiring June 30, 2007 (RA) — MEMBER TO THE BUSINESS File 224 IMPROVEMENT DISTRICT (BID) BOARD OF DIRECTORS; TERM EXPIRING JUNE 30, 2007 (Stan Gibbs from Art Works Downtown) 9. Resolution Authorizing Temporary Closure of RESOLUTION NO. 11816 — a Downtown City Street to Accommodate RESOLUTION AUTHORIZING THE Blues, Brews & BBQ Event on Saturday, TEMPORARY CLOSURE OF A September 17, 2005 from 8:00 a.m. until CITY STREET FOR THE 3RD 7:00 p.m. — Fourth Street from Lootens Place ANNUAL BLUES, BREWS & BBQ to A Street (RA) —File 11-19 ON SATURDAY, SEPTEMBER 17, 2005 FROM 8:00 A.M. TO 7:00 P.M. (Fourth Street from Lootens Place to A Street) SRCC Minutes (Regular) 08/01/2005 Page 2 10. Resolution Rescinding Resolution No. 11809 and Authorizing the Temporary Closure of Alto Street from Larkspur Street to Belvedere Street to Allow for the Canal Welcome Center Cultural Celebration and Anniversary on September 18, 2005 from 9:00 a.m. — 6:00 p.m. (RA) — File 11-19 AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: PUBLIC HEARINGS: SRCC Minutes (Regular) 08/01/2005 Page 3 RESOLUTION NO. 11817 — RESOLUTION RESCINDING RESOLUTION NO. 11809 AND AUTHORIZING THE TEMPORARY CLOSURE OF A CITY STREET FOR THE CANAL WELCOME CENTER CULTURAL CELEBRATION AND ANNIVERSARY ON SEPTEMBER 18, 2005 FROM 9:00 A.M. TO 6:00 P.M. (Alto Street from Larkspur Street to Belvedere Street) Cohen, Heller, Miller, Phillips and Mayor Boro None None 11. Public Hearing: CONSIDERATION OF APPEAL OF THE PLANNING COMMISSION'S ACTION REGARDING REQUEST FOR AN ENVIRONMENTAL AND DESIGN REVIEW PERMIT AND PARCEL MAP MODIFICATION TO EXPAND THE BUILDING ENVELOPE FOR THE PROPERTY AND PERMIT LANDSCAPE IMPROVEMENTS, 151 FAIRHILLS DRIVE — DOUG AND ELIZABETH CHIANG, APPELLANTS, SO4-014 AND ED04-090 (CD) — FILE 10-7 x 10-6 x 5-1 Mayor Boro declared the public hearing opened. Principal Planner Bill Meeker stated that this item was an appeal of the Planning Commission's denial of the request for a parcel map amendment and environmental and design review permit for property located at 151 Fairhills Drive in the Fairhills neighborhood of San Rafael. He indicated that by virtue of a tie vote on June 28, 2005, this matter failed when it appeared before the Planning Commission. Using a PowerPoint presentation, Mr. Meeker explained that the project included the restoration of a lawn area located at the northwest corner of the site that existed prior to non -permitted work that commenced in 2004. The project includes the installation of concrete paths to accommodate the installation of a spa area adjacent to the residence and circulation between the re-established yard area and the existing deck and patio areas near the south property line. Mr. Meeker reported that the project would also include the approval of a reduced height retaining wall, currently constructed at a height of 6' 6", to a height of 2' 10" near an existing Oak tree within the southern portion of the site near the property located a 135 Fairhills Drive. Additionally, he stated the applicants proposed to place approximately 8-10 cubic yards of fill adjacent to the retaining wall at the base of the Oak tree. He indicated they also proposed to modify an existing picket fence along the south property line to match an existing 8' high wood fence further east on the property line, and to construct a wood fence along the northwest property line that would be modified to a height of 8'. Reporting that in general, the Planning Commission appeared supportive of the restoration of the lawn area and improvements for the spa and the circulation between existing patios, the spa and yard area, Mr. Meeker stated that however, some Commissioners were opposed to allowing the retaining wall under the Oak tree in the southern portion of the site, and also the retention of the play structure. He indicated that this level of opposition resulted in the deadlocked vote on June 28, 2005. Mr. Meeker stated that the staff report went into a great level of detail on the existing Natural State calculations, etc., and there were some corrections to that information which he would address. He reported that the corrected development envelope for the property was 7,552 square feet, equaling 35% of the total lot area. The total development envelope with the requested changes totaled 9,528 square feet, which included a portion of the play structure that lay outside of the existing development envelope. He indicated that the existing Natural State calculation for the lot was 65% and the proposed Natural State following the improvements requested would be 55.9%. Mr. Meeker stated that the Municipal Code on these hillside residential guidelines requires a Natural State minimum of 53.5% and this would, therefore, exceed the minimum requirement. Reporting that the existing play structure on the property encroached roughly 75 square feet outside of the existing development envelope, Mr. Meeker explained that at the time it was SRCC Minutes (Regular) 08/01/2005 Page 3 SRCC Minutes (Regular) 08/01/2005 Page 4 constructed, the property owners were advised by a former City planner that the structure did not require building permits. He indicated that the structure includes vertical supports extending down to the ground and as such, could be considered an accessory structure, subject to the City's accessory structure requirements. He noted that a portion of the structure lay within the 12'/2 foot side yard setback for the property also and as an accessory structure located within a side yard setback, it could not exceed a height of 15 feet. In looking at the site plan for the property, Mr. Meeker stated it appeared the structure was roughly 11 feet from the side property line; therefore, the level of encroachment was only approximately 1'/2 feet. Should Council so choose, he stated it could be conceivable to direct staff to work with the applicant in this instance to pare back the size of the structure to bring it into compliance with the setback requirement, and also to bring it to a level that would not require a building permit — building permits are triggered at the 120 square -foot level, and this appeared to be a marginal structure in terms of that size, i.e., a little over 100 square -feet. Mr. Meeker stated that in general, the project had received widespread support of the Fairhills neighborhood and the only level of opposition received during the entire hearing process before the Planning Commission had been expressed by the neighbor at 135 Fairhills Drive. He explained that the opposition expressed by that property owner related to loss of privacy, blockage of views across the property and the reduction in the Natural State conditions on the property. Explaining that staff was recommending approval of the appeal and the project as proposed, Mr. Meeker requested that the City Council provide direction regarding the play structure. Should this be approved as part of the proposal, he indicated he had performed the calculations that could modify the Resolution accordingly. Also, if approved, he requested Council provide staff with the opportunity to insert the correct language regarding the Natural State and development envelope calculations, which had been modified since the staff report was prepared. With regard to the retaining wall under the tree, Councilmember Miller stated he understood this to be 8 -feet. Mr. Meeker confirmed this to be 6'/2 feet tall. Councilmember Miller inquired whether this was the same height as the previous retaining wall. Mr. Meeker explained that the 6-'/2 feet was the height it was constructed to. A portion of the wall extends within the 12'/2 foot setback area, and because of exceeding 3 -feet in height, it would be subject to that 12'/2 foot setback, which was the reason for proposing the reduction in height. Regarding Councilmember Miller's question as to whether there was a retaining wall there previously, Mr. Meeker stated it was his understanding from the applicants that a timber tie wall existed at that location previously. He was unaware of the height of the wall as it was removed prior to his becoming involved in the project. Councilmember Miller confirmed that the current 6 -foot height was the same height as the previous wall. Councilmember Miller inquired whether there was another retaining wall of 20 -feet or more on top of the hill. Mr. Meeker stated there was a retaining wall on the property at 21 Idlewood which was directly across the private driveway from the Chiang's property that appeared to be roughly 20 -feet in height, and he estimated approximately 80 -feet in length. While this wall did not hug the hill and was quite prominent, Councilmember Miller noted that the wall at the Chiang property did actually hug the hill and was visible only from the adjacent properties of 135 and 155 Fairhills, not from below. Also on the question of the retaining wall, Councilmember Heller inquired whether diminishing the height would hurt the structure. Mr. Meeker stated that documentation was provided by the applicants' engineer demonstrating that it would be constructed to be safe and adequately retain the materials placed behind it. Neil Sorensen, attorney for appellants/applicants, Doug and Elizabeth Chiang, confirmed that Councilmembers had received the binder submitted by the Chiangs, and also a letter submitted by Larry Mulryan. Thanking staff for the tremendous amount of work put into this application, he stated that while it was unfortunate it had taken so much time, he believed a resolution could be arrived at this evening. Urging the City Council to follow the staff recommendation and approve the map amendment and design review, Mr. Sorensen explained it might not be clear from the materials submitted to Council that in addition to the hot tub, a retaining wall was being applied for. While it could be deemed a replacement or repair project, he indicated that the wall underneath the Oak tree was a pre-existing wood tie retaining wall approved by the Design Review Board in 1998, (Exhibit G), and he provided Councilmembers with a set of minutes from that meeting. Mr. Sorensen identified the wall to be replaced by the cinder block and stucco wall, currently partially built. As indicated by Mr. Meeker, the 6 -foot high wall would be reduced to 2'/2 - 3 feet, the height at the time of approval by the Design Review Board in 1998. SRCC Minutes (Regular) 08/01/2005 Page 4 SRCC Minutes (Regular) 08/01/2005 Page 5 Regarding the proposed lawn area, Mr. Sorensen stated this was a pre-existing lawn area also. It was approved by the Design Review Board, installed by the builder, was in existence when the Chiangs purchased their property in February, 2000, and was inspected and approved by the Planning Department at that time; therefore, these were largely pre-existing improvements. Mr. Sorensen stated he believed staff had made an important determination that the proposal was consistent with the General Plan and Hillside Ordinance, and met all the Natural State guidelines. The retaining walls had been properly engineered and would help stabilize the site, and contrary to claims by a neighbor, there had been no slides or instability on this property. Mr. Sorensen reported there were detailed reports in the binder by an arborist, soils engineer and civil engineer, Exhibits P through U, detailing this. As indicated by Mr. Meeker, Mr. Sorensen stated the project had essentially unanimous support from the community, including support from the Fairhills Property Owners Association. Noting an issue was raised in the past concerning creek setbacks and the fact that these improvements could encroach upon some type of creek setback, Mr. Sorensen stated that to view the site, Council would agree this drainage was not a creek. He stated it was culverted above the site and under the road, appears for a brief period on the property and then is culverted again towards the bottom of the property; therefore, in no way could it be called a creek and there was no issue with creek setbacks. Mr. Sorensen requested that the City Council grant the appeal, approve the map amendment and design review and address the issue of the play structure, which they believed met all requirements and could be approved this evening. Frank Smart, President, Fairhills Homeowners Association, noting the issues had been well stated, indicated he found an anomaly he did not understand. Referring to the Design Guidelines document generated a year after the subdivision was put in place, he expressed the hope that policy was being administered via these guidelines. Mr. Smart stated that in setting up the criteria for this property, the bare minimals - envelope coverage 35%, natural state 53.5% - were the milestones set up to allow for a building permit. Having read the definition of "Natural State" in reference to this document, Mr. Smart stated the key focus in this instance was: "Planning and landscaping which is in addition to and enhances the natural environment are permitted." Expressing regret at the issue reaching this level, he stated it should have been resolved with the Planning Department at staff level. Lance Kuvkendall, Vice -President, Fairhills Property Owners Association (FPGA), stated the members of the Board of the Fairhills Property Owners Association, representing 183 partners, were in attendance this evening because a year and a half of dithering and two inconsequential meetings of the Planning Commission had placed them in an irreconcilable position. Indicating the issue concerned four properties, he stated that either one home in Fairhills be denied the right to landscape their property or as suggested by the Planning Commission, three others be required to remove theirs. Mr. Kuykendall noted that all of this was for an unknown, never previously enforced ordinance that was unclear as to its intention or requirements. Mr. Kuykendall posed the following questions: ■ Should a garden be included in a building envelope? ■ Should Planning even be involved in a landscape plan that is supported by 95% of the neighbors responding? ■ Is a children's tree house a structure to be protected from? and he believed the answer to these questions was "No." Mr. Kuykendall stated this project made Fairhills a better neighborhood, it improved the slope, stability and drainage and made the entire neighborhood look better than the current ugly gully. If approved, Mr. Kuykendall stated the 1990 ordinance would become moot, if not they would proceed as allowed by that agreement to rescind it, with either action resulting in the same conclusion. He urged the City Council to approve the Chiangs' application as originally submitted, rescind the discriminatory ordinance concerning only these four properties and bring what had become a waste of time, money and effort by everyone to an end. Jan Robinson, Realtor and San Rafael resident, reiterated the importance of maintaining the legality of deed restrictions in San Rafael when properties are subdivided. She indicated that the idea behind the private open space restriction was to maintain the natural beauty, not the landscaped one, not only for the adjacent neighbors but also for the remainder of the residents of San Rafael. Ms. Robinson stated this was not the only parcel with this deed restriction for private open space. She indicated that once a precedent is set whereby property owners are SRCC Minutes (Regular) 08/01/2005 Page 5 SRCC Minutes (Regular) 08/01/2005 Page 6 permitted to ignore these restrictions whenever they choose, it becomes almost impossible to enforce them in the future; therefore, she respectfully requested on behalf of the San Rafael residents that the City Council not allow the rules to be broken in this matter. Ron Brown, 131 Fairhills Drive, ex -member of the Fairhills Property Owners Association, stated he had the pleasure of living next door to Mr. and Mrs. Chiang and Bill Ceglarz and Karen Nugent. He had walked both pieces of property substantially and believed it was time to move forward on the proposal. He noted Mr. Meeker's suggestion that there were just a few minor points needing to be discussed overall; therefore, he favored getting the job done. Having lived in San Rafael for four or five years, Mr. Brown stated he was amazed at the one and one-half inch staff report for the issue that should have been resolved at the staff level. He believed it was time to make the neighborhood beautiful again and would appreciate Council support. John Robert Hann, 155 Fairhills Drive, stated he supported the Chiangs in their request for approval of the improvements to their property. He commented that being in direct view, 30 - feet below, they could see the tarp and exposed land and he and his wife were concerned about the land being exposed to the elements, especially during the rainy season. He urged the City Council to approve the request. Karen Nugent, 135 Fairhills, expressed regret that so many meetings had to take place to arrive at this point. She indicated that when she purchased her home one year ago she reviewed all plot maps, deed restrictions, CC&Rs, hillside requirements, together with all City requirements for her property and the surrounding area. Ms. Nugent stated she understood from the CC&R plot maps that the deed restrictions were established, and this included the open space easements for her neighbors. She indicated that the City spent a lot of time, money and energy to determine these deed restrictions, which were made for a reason. Ms. Nugent stated that when it was set forth to dedicate private open space via deed restriction, this was a law and the residents respected the decision. She did not think, and did not believe today, that these restrictions could or should be changed because one felt that subsequent to purchasing a home these rules, regulations, restrictions and laws did not apply. She stated that these stringent restrictions were placed on the properties because of the impact to the hill, the view of the hill from across the valley, for soil content, topography, flora and fauna and for many other considerations, the Planning Commission, Design Review Board and the City considered prior to the homes being built in the 1990s. Ms. Nugent stated the hillside had not changed, this large house sits on the same hill and the open space easement precluded it from being too developed too close to its neighbors. By attempting to significantly increase their building envelope, the applicant would significantly impact her privacy and enjoyment of her home and the views of the green open space. She noted that a retaining wall and leveled play area within 3 -feet of the shared property line would eradicate the setbacks that were carefully thought out by the City of San Rafael and would affect her. Ms. Nugent stated that these deed restrictions were developed for the benefit of not only the owners of adjacent properties, but for all of San Rafael, and to now infer it was alright to build and expand into open space would be setting the precedent that the City did not care about all private open space in San Rafael. Ms. Nugent respectfully requested that the City Council continue to uphold what the City had already determined to be established. Bill Ceglarz, 135 Fairhills, stated that in going over the project he went through the hillside regulations design review to ascertain whether it met any of the regulations. He indicated that most of what the Chiangs were requesting did not meet the present hillside regulations, noting the regulations prohibited invasion of neighbors' privacy or views and the open space was intended to prevent houses from being next to each other. Mr. Ceglarz stated that the design indicated the shrubbery was to be up next to the house to prevent the house up above from being seen by the downside neighbors. This, he stated, had not been done, rather a structure was placed in the area not even 10 -feet from the property line. He requested that Mr. Meeker check that the setback for the rear was not 15 -feet, rather the Planning Commission made it 25 - feet for that area. He noted one side was 15 -feet, the front was 5 -feet, rear 25 -feet and the west side 72 -feet. Mr. Ceglarz noted the Planning Commission thought long and hard about the natural swales going through the west side of the property; therefore, they made the drainage 60 -feet wide going up the hill where slides are still prevalent. Noting part of the hillside regulations state: "Don't change the natural appearance or affect the drainage", Mr. Ceglarz stated that what was proposed would do this. He indicated that in the private open space next to his property, this 6'/2 foot retaining wall was built without permits, was dug by hand and there was no verification of what went into it or where it was supposed to be. It did not form into the hillside, rather out and away from the natural flow of the land, which did not meet the hillside regulations. Mr. Ceglarz noted that Mr. Sorensen also indicated a wall was approved by the Planning Commission, and this was correct; however, it was the wall that was approximately 50 -feet up SRCC Minutes (Regular) 08/01/2005 Page 6 SRCC Minutes (Regular) 08/01/2005 Page 7 the hill, not the retaining wall being placed currently, rather these were two different locations. He reiterated that the wall above was approved and was still at that location, while the illegal wall, farther down, was never approved by the Planning Commission. Mr. Ceglarz stated the Chiang family was attempting to make flat play areas in the hillside; however, the hillside regulations were in place to prevent flattening out of the hillside to make paths. Stating that everything the property owners were doing went against the hillside regulations, Mr. Ceglarz respectfully requested that the City Council not grant the appeal. Ken Moynihan, Fairhills Property Owners Association, stated that before this grew into a huge issue FPOA was invited down to look over both properties. Noting the Chiang property was behind the property at 135 Fairhills, he stated that to actually see it would necessitate the owners at 135 Fairhills going outside and looking back over their shoulders. He indicated that the fence in question was a picket open fence which did not secure the pool nor match the secure fence that was built prior to their purchase, and he noted that all of these were in place when the house at 135 Fairhills was purchased. Mr. Moynihan stated that the Chiangs were stopped in the middle of a major remodel and the entire issue was that the Chiang property was in the sightline of 135 Fairhills and ruining the property value. He indicated that this was untrue as they had a view in front and to see the Chiang property they had to stop, walk over and look back. He therefore, believed the City Council should pass the Chiangs' proposal for which they had worked very hard, and he did not see anything wrong with it. Doug Chiang, 151 Fairhills Drive, apologizing for the fact that the issue had been blown out of proportion stated there were certain items they did not have an opportunity to address during the last two Planning Commission meetings. He expressed disappointment that Mr. Ceglarz could not accept the engineering reports, etc., confirming exactly what was being stated this evening. Addressing issues raised by Mr. Ceglarz at recent Planning Commission meetings, Mr. Chiang explained that Mr. Ceglarz accused him of removing several large heritage trees, which was absolutely false, and at the last Planning Commission meeting Mr. Ceglarz had added a large Pine tree to this list, which again was untrue. He believed this to be an example of the type of fabrication being applied by Ms. Nugent and Mr. Ceglarz in an attempt to undermine the Chiangs. Regarding the issue of privacy, Mr. Chiang stated he found it curious that the residents of 135 Fairhills raised this issue when they were really interested in invading the Chiangs' privacy. He explained that in a May 2005 Planning Commission meeting they requested a planting plan to screen their pool, which was done by presenting a comprehensive plan with native trees; however, in a subsequent meeting, Ms. Nugent stated their view into the Chiangs' yard was being blocked and too much privacy had been created. Mr. Chiang stated that they were deeply rooted in the community with long-term relationships and commitments. He indicated they were very proud to be part of the Fairhills community and of San Rafael and took a lot of pride in their home. Quite simply, all they wished to do was replace what was already there, create a safe environment to raise their children, be treated fairly and consistently with the other homes in the neighborhood, and one neighbor's obstinacy did not make the matter right. Mr. Chiang expressed the hope that the City Council would review the plans, look at the facts and consider approving their plan. There being no further comment from the audience, Mayor Boro closed the public hearing Commenting on the setback for the play structure issue, Mr. Meeker stated that at the time the home was constructed, the Planning Commission established specific standards for this lot that went well beyond the normal code requirements. He indicated that part of the proposal this evening was to revert to what is ordinarily applied pursuant to the Hillside Residential Guidelines for this property, which would include, pursuant to the Zoning Ordinance, a 12-'/2 foot setback from that site property line adjacent to 135 Fairhills. As indicated earlier, Mr. Meeker stated that the play structure encroached very slightly into the setback and it was his belief it could be modified in such a way that it complied with all City standards if the applicants were willing to work with staff on the issue. Mr. Meeker reported having had a recent conversation with Mr. Ceglarz regarding concerns with respect to the landscaping adjacent to the pool and he indicated there were concerns about the landscaping growing too large and obstructing views across the Chiang property. He indicated that staff could also work with the applicant to revise the landscape plan to plant materials that would not obstruct views at that location. He reiterated there were things that SRCC Minutes (Regular) 08/01/2005 Page 7 SRCC Minutes (Regular) 08/01/2005 Page 8 could be done in the approval process, with direction from the City Council, to ensure some of these issues were addressed. Mayor Boro reported having had the opportunity several weeks ago of meeting with representatives of the homeowners group and his recollection of when the issue was first presented in the late 1980s was that the neighborhood was opposed to developing these four lots. Restrictions were placed on the lots that were more restrictive than the subsequently passed Hillside Design Ordinance and apparently, three of the four homes were developed in a way that met the existing ordinance but not the original restrictions. Mr. Meeker stated it was his understanding that an application submitted by FPOA representative, Mr. Smart, was pending that would ultimately lift the extraneous conditions imposed by the original subdivision approval and revert to the hillside residential guidelines. He indicated he was awaiting information on that application to confirm that the lots all complied with the Hillside Residential Guidelines; however, from discussions with representatives, his impression was that they likely do. Mayor Boro confirmed that this particular application would comply with the hillside standards Clarifying that this was how it had been reviewed, Mr. Meeker explained that the proposed amendments were viewed in light of the standards that apply to any other hillside property in the City and their compliance with those, and it was found this property did comply. Depending on Council's desire with respect to the play structure, Mr. Meeker stated that if Council was comfortable with directing staff to work with the applicant to revise that to comply, he had language that would correct some of the statements in the Resolution regarding the development envelope size and the Natural State requirements that he would like to read into the record. Councilmember Cohen inquired as to where the more restrictive language could be found. Mr. Meeker stated that deed restrictions were placed on these properties that were imposed pursuant to the subdivision approval in 1989; therefore, they were recorded against the deeds for all four properties. He indicated that the language was contained in the document entitled "Declaration of Restrictions" — dated June 8, 1992 — which read: 4. Development Restrictions - (Page 4): Development of each lot shown on the Parcel Map shall be subject to the following restrictions: (a) Except as allowed through the Design Review process required in paragraph 4(b), development of the structures on a lot shall be permitted only within the building envelopes designated on the attachments to the Parcel Map. Areas outside of the building envelopes on each lot and designated as "Private Open Space" shall be limited to passive private recreational uses. Within the private open space areas only native landscaping and open wire mesh fences with wood posts are permitted, except as allowed through the Design Review process required in paragraph 4(b). The removal of any trees over five (5) inches, diameter breast height ("dbh"), located within the private open space areas shall be subject to design review approval by the City of San Rafael (`City"), provided, however, that any tree that is determined to be a health, fire or safety hazard by the San Rafael Fire Department or any other governmental agency may be removed without design review approval. Councilmember Cohen inquired whether it was the staff or the City Attorney's understanding that that Design Review approval was only for a new residence or was design review available at a subsequent time. Responding, Mr. Meeker stated it was staff's impression that this language would apply to any subsequent modifications to the property also and would not apply just at the original approval of the new home construction. Commenting that this appeared to be the logical conclusion, Councilmember Cohen stated that with that he could not understand what all the fuss was about and he agreed with the speakers who indicated they did not understand why the issue was in front of Council. He believed it had excruciating design review and was consistent with the hillside guidelines. While he understood there were neighbors who were not satisfied with the impact, he believed the Hillside Design Guidelines had served the City in very good stead and the question of compliance had been answered. He indicated he did not need to hear a lot more other than staff commenting briefly on the play structure and their recommendation. Mr. Meeker explained that the play structure encroached approximately one and a half feet into the zoning code required side yard setback for the property and he indicated he had language SRCC Minutes (Regular) 08/01/2005 Page 8 SRCC Minutes (Regular) 08/01/2005 Page 9 drafted that he could read into the record that would provide direction to staff and the applicant to work together to reduce the size of the play structure or relocate it to comply with all applicable development standards, to include setbacks, heights, etc. He stated that the development envelope for the site would also be expanded by roughly 75 square -feet to accommodate that portion of the play structure outside of the existing development envelope, and this was all factored into the calculations he would read into the record. Councilmember Heller stated she assumed the Chiangs would be conducive to accepting this. Noting there had been a small retaining wall at the bottom of the lawn area currently covered with a tarp, Councilmember Heller inquired whether this would be located there again. Mr. Meeker stated that the current plans do not include the reinstallation of a retaining wall at that location. He indicated there would be a safety rail on top and staff had requested documentation, which had been submitted, that demonstrated the lawn area could be installed in a manner that would be stable at that location, with a safety rail. Thanking the neighbors for being in attendance, Councilmember Phillips inquired whether the deed restriction was superseded/overridden by the standards. Deferring to legal counsel, Mr. Meeker commented that the proposal was to modify that restriction for this particular property in order to impose the Hillside Residential Guidelines. Councilmember Phillips inquired whether the City had the authority to override deed restrictions Assistant City Attorney Gus Guinan stated that generally speaking, if the only reason the deed restriction was placed was because of a condition of approval from the public agency, the public agency's change of the restriction would remove the restriction. Should there be private CC&Rs that run to a homeowners association providing other private restrictions, these were not enforced by the City and not affected by Council's decision. Councilmember Phillips clarified that the City Council could make the decision to override the restriction. Having visited the site and pouring through the documentation, Councilmember Miller stated this appeared like a cauldron of misstatements, mistakes and misinformation and those being scalded were the Chiangs. He stated it was his understanding that only two or three feet of the retaining wall around the tree would have to be reduced to three feet and he had no problem with keeping the remainder as is, to avoid added expense. With respect to the lawn area, Councilmember Miller stated the fact that there would be some type of preventative fencing was sensible, responsible and safe as children playing in the area could tumble way down the ravine, and he also agreed with staff's recommendation regarding the tree house. Cognizant of the fact that this issue had gone on too long, Councilmember Miller stated it was time for the City Council to make it well. Mayor Boro stated he supported the recommendation to overturn the decision of the Planning Commission and uphold the appeal. He indicated this was based not only on remarks this evening but also his understanding that the other three property owners enjoyed similar benefits over the years. Nothing different was being created for this site and it was consistent with the hillside development, which to him was the big issue. Mayor Boro stated he realized a separate issue would be before Council on the other three at some point; however, this appeared to be the fair solution. Mr. Meeker outlined the wording for Council consideration: Draft Resolution — Page 2 — Subdivision Map Amendment: Paragraph 1 — revised to read: The revised development envelope will reduce the previously approved natural state of the lot from 65% to 55.9%.... Paragraph 2 — revised to read: The proposed improvements will minimally expand the development envelope for the property, reducing the "natural state" on the lot from 65% to 55.9%... Paragraph 4 - ....revise the "natural state" calculation to 55.9%. Draft Resolution — Page 3 — Environmental and Design Review Permit: Paragraph 1 - Revise the natural state requirement to be 55.9%. SRCC Minutes (Regular) 08/01/2005 Page 9 SRCC Minutes (Regular) 08/01/2005 Page 10 Paragraph 2 — Recommend revising the first sentence to read: The project does not include additions or alterations to the existing single-family residence on the property, only landscape improvements and a play structure that will be modified to comply with applicable development standards for the zone. Conditions of Approval: Condition #1 — Typographical error in the second line — should read - City Council approval on August 1, 2005. Mr. Meeker suggested an additional Condition — That the property owner shall be directed to work with the Planning Division staff to modify the configuration of the play structure to comply with all applicable development standards for the R20 -H zone. With regard to the landscaping around the pool, Mr. Meeker stated that an additional Condition could be added to have the applicant work with staff to revise the landscaping in that area to ensure that landscape materials would not grow above the line of the pool deck and obstruct the views from the pool. Councilmember Cohen indicated he was not entirely comfortable with this last language and suggested the Condition should be to direct the applicant to work with staff to resolve the landscaping issues. He stated it was not possible to be simultaneously concerned about the loss of privacy and loss of views, which left no solution. He suggested the applicant work with staff to try to resolve the issue; however, not unreasonably withhold approval, and he did not believe he could make any judgment this evening on the solution that would get closest to mutual agreement. Councilmember Cohen suggested leaving it to the discretion of the Planning staff to work with the applicant to resolve as much as possible of the landscaping issues along the property line. Councilmember Miller stated that privacy for the Chiangs should also be taken into account. Councilmember Cohen moved and Councilmember Heller seconded, to adopt the resolution, as amended. RESOLUTION NO. 11818 — RESOLUTION GRANTING THE APPEAL OF NEIL SORENSEN (ON BEHALF OF DOUG AND ELIZABETH CHIANG) AND APPROVING A SUBDIVISION MAP AMENDMENT (SO4-014) AND AN ENVIRONMENTAL DESIGN AND REVIEW PERMIT (ED04-090) TO EXPAND THE EXISTING BUILDING ENVELOPE FOR LANDSCAPE IMPROVEMENTS TO AN EXISTING SINGLE-FAMILY HILLSIDE RESIDENCE LOCATED AT 151 FAIRHILLS DRIVE (APN: 010-154-49) (as amended) AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 12. Public Hearing: CONSIDERATION OF ADOPTION OF A RESOLUTION TO ESTABLISH AN AFFORDABLE HOUSING IN -LIEU FEE FOR DEVELOPMENTS WITHIN THE CITY OF SAN RAFAEL (CD) — FILE 10-6 x 13-16 x 9-10-2 x 115 (2020) Mayor Boro declared the public hearing opened. Community Development Director Bob Brown reported that last November the City Council adopted the new Affordable Housing Ordinance providing for the payment of in -lieu affordable housing fees. This basically allows applicants, at their discretion, to pay an in -lieu fee for fractional units below 0.5; however, it permits the Planning Commission or City Council, as final decision makers, to allow payment of in -lieu fees in situations where it is impractical or infeasible to locate the affordable units on site. Mr. Brown stated that both the Zoning Ordinance and General Plan call for the adoption of an Affordable Housing In -lieu Fee. The former Council Resolution was adopted in 1988 and it did not provide a fee, rather a mechanism for calculating a fee by basically taking a market rate unit cost and deducting the ability of a moderate -income household to pay for housing, the difference being the Affordable Housing In -Lieu Fee. Mr. Brown stated that in each instance this required conducting a survey to find market unit costs and make the determination, which was not done in very many cases. SRCC Minutes (Regular) 08/01/2005 Page 10 SRCC Minutes (Regular) 08/01/2005 Page 11 Mr. Brown explained the current proposal was to make it somewhat simpler by adopting an actual Affordable Housing In -Lieu Fee and allowing it to increase by inflation each year. He indicated that the basis for that fee was an averaging of some actual Marin housing projects built over a two or three year period and studied by an economist under contract to the County and City — attached to the Resolution. Mr. Brown indicated that it basically established a per unit cost based on construction, land values, improvement costs, and it then applied it to a typical 1,200 square -foot affordable unit, coming up with an in -lieu fee of $193,200. Indicating that this was mentioned to the City Council last year during the public hearing process, Mr. Brown stated staff was returning at this point to actually implement the in - lieu fee. Mayor Boro stated he understood the intention with a fractional unit; however, did not quite understand going beyond the fractional unit. Mr. Brown explained that even though the City's policy was strongly towards integrating the units, there could be rare instances where it might not be practical to incorporate the units, particularly in the case of a high-end single-family subdivision where the construction costs were so high itjust might not make sense. He indicated that even in those situations staff had tried to work in duplexes, etc., and this was a possibility; however, the Ordinance specifically stated that the City Council or Planning Commission as final decision maker, had to find it infeasible to create the affordable units. Mayor Boro recalled a project approximately 9 years ago where 29 units were being constructed, the average cost of which was $1 million, and the case Mr. Brown had just instanced could easily have been made, yet the developer presented a very creative approach to the affordable unit by building a triplex that looked like a unit. He stated he was very concerned about opening this discretion up unless absolutely necessary. Mr. Brown pointed out that now this ordinance applied to non-residential projects also and he could envision that a commercial development could be proposed in a location where it simply did not make sense, i.e., next to Home Depot, to locate housing units with the non-residential project. In that case, he stated it was more likely the Planning Commission or City Council might wish to consider taking the money rather than locating units in an industrial area. Mayor Boro requested further explanation. Mr. Brown stated that should Best Buy, for example, have to build a couple of affordable housing units in conjunction with their project, the City Council or Planning Commission could deem it inappropriate to locate those units next to, for example, Infinity of Marin and their auto body shop, as it might not be the best living environment. They could, therefore, consider it better to take the $400,000 in in -lieu fees for the two units and have them constructed elsewhere. Mayor Boro inquired why staff would not wish to limit this discretion above the fractional rate just to non-residential projects rather than residential. Indicating this was a possibility, Mr. Brown stated staff believed that if they were creating the flexibility, it would be made applicable to any affordable housing development. He reiterated it was entirely at Council's discretion. Councilmember Heller inquired whether staff was worried that by putting a number out a developer might consider it easier to simply pay the price without having to go through building. Concurring, Mr. Brown explained it was a pretty steep subsidy when taken on a per unit basis in a residential project where 20% of the units had to be affordable. Dividing the $193,000 by five would work out to about $38,640 of essentially subsidy per unit. Going further, he stated that because one of those five was affordable it should only be divided by four units, the figure was approximately a $48,000 subsidy per market rate unit. Indicating it was a fairly steep hit, Mr. Brown stated that when the figure was mentioned to developers they rolled their eyes and he did not believe they would be rushing to propose paying this fee. SRCC Minutes (Regular) 08/01/2005 Page 11 SRCC Minutes (Regular) 08/01/2005 Page 12 Mayor Boro inquired where in San Rafael a unit could be built for $193,000. Mr. Brown stated it would have to be built in conjunction with another project. Indicating he did not have a problem with Mayor Boro's suggestion of limiting the flexibility to non-residential projects, Councilmember Cohen stated he believed the argument for non-residential projects in -lieu fee made sense. He expressed concern that on a multi-million dollar single-family subdivision, even given these numbers, there actually would be an incentive to try to make the case. He indicated he was proud of the fact that the City had been successful in creating some diversity in some of these units, there was a good public policy argument for that and he supported modifying it. Regarding the cost calculation, Councilmember Cohen inquired whether the Lee Saylor Construction Cost index included the cost of the land or whether it was the price of labor and materials. He indicated his impression was that it was the cost of labor and materials, and if so, it was not an appropriate inflator because the calculation upon which it was based included the cost of land. Labor in real terms had been pretty stable, materials had gone out of sight, land had outpaced them both tremendously and five years from now, taking this number and using the Lee Saylor Construction Cost index would show an increase in the cost of labor and materials but not reflect an increase in the cost of land, and this number would be impractical as no units could be built for this. He believed something should be included that stated that at least periodically the underlying calculations would be resurveyed, build in the appreciation and land values and revise the number accordingly. Roger Roberts, San Rafael resident and representative of Marin Conservation League and Community Marin, an association of four environmental groups, noted all had received a copy of the Community Marin document from 2003 which contained a policy they were pleased to see the City Council was adopting — Realistic In -Lieu Fees for affordable housing. He indicated that more affordable housing was needed and wished to ensure that in -lieu fees would help achieve this. Mr. Roberts called into question the actual figures proposed, explaining that the average figure of $161 per square -foot for building in Marin appeared terribly low. He indicated he recently had some contact with his own insurance company concerning covering the cost of rebuilding in the event of some type of damage, and all the insurance companies he spoke with indicated that the cost of reconstruction of any properties or new properties in Marin is somewhere between $250 and $350 per square -foot; therefore, this $161 fee appeared very low and it seemed to him it needed to be adjusted upwards. There being no further comment from the audience, Mayor Boro closed the public hearing. Mayor Boro inquired whether there was a consensus that this would only apply to the non-residential units and the partial units on residential, to which Council responded affirmatively. Rather than acting on this item this evening, Mayor Boro requested staff to return at a future meeting with that change, an evaluation of the construction cost and the entire issue of land. He suggested this could be a Consent Calendar item. Councilmember Heller inquired whether other cities had such a figure. Mr. Brown confirmed that some cities did have Housing In -Lieu Fees, which varied widely. He believed Novato's was $3,000 per unit, multiplied by 10 totaled $30,000, which was why they were getting nothing but in -lieu fees. He indicated that other cities were quite a bit higher and he was unsure that in a survey any real advantage would be gained. He confirmed that in most cases, those cities that did have Housing In -Lieu fees put them in writing. Councilmember Cohen noted this was based on a study from January 2002 —Study for the Commercial Development Linkage Fee - and the June 2003 County of Marin Inclusionary Housing Study, and that was where the number of $193,200 came from. SRCC Minutes (Regular) 08/01/2005 Page 12 SRCC Minutes (Regular) 08/01/2005 Page 13 He questioned, therefore, whether this already was a couple of years out of date. He inquired what it would take for Rosen to review that number and either confirm it was still good or it needed some upward revision. Mr. Brown stated this would cost approximately $30,000 to resurvey newer projects. Agreeing Mr. Roberts made a good point, Councilmember Cohen stated he did not believe the number would be $250 to $350 because a range of housing types, including rental properties, was being evaluated, together with seeking sufficient funding to add a unit to a project. Noting the number was a couple of years out of date, while he did not believe it to be worth $30,000 to resurvey, Councilmember Cohen suggested there be some provision for revisiting this in the fairly near future. Mr. Brown stated the alternative was to try to get more realistic inflation factors both in construction and land value and apply them for the intervening years. Indicating this would work for him, Councilmember Cohen suggested that in addition, at a minimum, staff should want to apply the Lee Saylor Construction Cost Index to the figures from 2002-03. He stated that even if the construction cost inflator only were used, it should be applied for the last two years and not take the 2002-03 number of $193,000. Mr. Brown stated staff would look for a better construction cost index, if there was one, and they would also look to incorporate something in terms of land value. Councilmember Cohen stated that on construction cost, Lee Saylor was fine; however, the land value issue was more difficult to deal with. He believed Lee Saylor should be applied for at least two years from the most recent study and ascertain whether or not there was a way of adding a calculation for land values or whether there should be some type of language providing for an interim check on the impact of the increase in land values. Noting the public hearing was closed, Mayor Boro requested that the item be continued to a date uncertain. 13. CONSIDERATION OF TEMPORARY BANNER AND A -FRAME SIGN PROCEDURES (CD) — FILE 125 x 9-3-85 x 10-3 x 10-7 Principal Planner Bill Meeker reported that on June 7, 2004, the City Council adopted a Resolution implementing temporary procedures and criteria for the issuance of temporary A -frame signs and banners. He indicated that the banner program was extended citywide while the A -frame signs were only allowed within the downtown area of San Rafael. Stating that the program ran for a period of one year, expiring on June 7, 2005, Mr. Meeker explained that during the term of the program, the City issued a total of sixteen banner permits and three A -frame sign permits. Code Enforcement's reaction during the entire year's pilot program was that it resulted in a minimal impact upon their workload, as only eight citations were issued for banners and two for A -frame signs. Mr. Meeker reported that prior to preparing this evening's report he consulted with Joanne Webster, Downtown Business Improvement District (BID), to gain the business community's perspective regarding the success of the program. He indicated that Ms. Webster surveyed the BID membership and found that the program was minimally used because it was felt that the restrictions on A -frame signs were too limiting. Specifically, it was felt that changeable copy signs should be allowed for all businesses and that sign design standards should be loosened up somewhat. Additionally, he indicated that the Board of Directors for the BID had expressed an interest in meeting with staff in the near future to discuss revising the restrictions regarding A -frame signs. He stated they did support the adoption of A -frame sign procedures as a permanent element of the Zoning Ordinance. Mr. Meeker stated that this evening the City Council was being requested to consider reinstatement of the program for an additional one-year period with certain modifications as outlined in the staff report. He indicated that specifically, staff recommends reinstatement of both the banner and A -frame programs for a one-year SRCC Minutes (Regular) 08/01/2005 Page 13 SRCC Minutes (Regular) 08/01/2005 Page 14 period. They further recommend that direction be given to incorporate the banner provisions as a permanent element of the City's Sign Ordinance. With respect to the A -frame signs, Mr. Meeker stated staff recommends that the standards for A -frame sign construction be loosened to permit not only wood but plastic, metal and any other type of durable material in the construction of the sign. Additionally, he indicated that staff supported a change that would allow restaurants and entertainment venues to utilize changeable copy signs when requested. Relative to this item, Mr. Meeker reported that correspondence had been received from Eric and Dawn Theilen, owners of Form Body Studio, located at 1000 Fifth Avenue, at the northwest corner of Fifth Avenue and Court Street. He explained the Theilen business was situated in a Fifth and Mission residential office zone, within which A - frame signs are not permitted, and the owners were requesting that the City Council consider expanding the program to at least include that zoning district allowing them to apply for an A -frame sign to better advertise their business. Mr. Meeker stated staff did not feel the expansion of the pilot program into the other areas outside of the core downtown area was appropriate as it could result in the proliferation of A -frame signs. He indicated that the areas outside of Fourth Street in particular, typically would have narrower sidewalk areas and A -frame signs in the public right-of-way could restrict pedestrian flow in these areas. Mr. Meeker stated staff recommended the City Council consider reinstatement of the program for an additional one-year period and provide direction to proceed with incorporating the banner program elements into the sign regulations. Joanne Webster, Director, Business Improvement District, thanked the City Council for allowing businesses last year to apply for A -frame signs and she believed it was a great example of how City and merchants could work cooperatively. They considered the program a success and favored its continuance. She indicated that they agreed with staff's recommended changes to the program; however, had some concerns about one particular change, i.e., allowance for changeable copy only for restaurants and entertainment venues. They did not consider this fair and would like equal opportunity afforded to all of the BID members. Ms. Webster stated that even if Council were tonight to adopt the Resolution with their request to allow changeable copy for all A - frames, there still would not be a proliferation of signs, rather a manageable amount of signs downtown. She noted that last year the major concern was that there would be a proliferation; however, only three permits were taken out. In conclusion, Ms. Webster requested that the City Council adopt the Resolution and consider the request that changeable copy be allowed for all A -frame signs. Dawn Theilen, co-owner Form Body Studio in downtown San Rafael explained that their building overlooks the new courtyard with the waterfall. She commented that some months ago she had submitted a position paper regarding the pedestrian traffic they get. Ms. Theilen submitted a list of signatures and addresses from clients and students who attend their studio and indicated that they found the studio because of the A -frame sign. She indicated they were in an awkward situation with the City and the sign because being on the corner, they only had a front door that leads to the street. Having tried all other sign options, she stated that nothing would work because of the lack of frontage space. All of their 1,720 square -feet being in the rear, she reported that they attempted to put a sign in the garden, which did not work because it would force their neighbors to take down their awning signs. Ms. Theilen stated the A -frame sign was the only option for their studio. She produced a photograph depicting the A -frame sign in place and noted it did not block any part of the sidewalk. In addition, Ms. Theilen reported that Form Body Studio brings in 30 people daily and with everyone paying for meter parking, this amounted to $468.00 monthly, $5,616 annually to the City. Having been in business for three years, Ms. Theilen stated this amounted to $16,848 that her studio alone has brought to the City. She indicated they were now in a position where they would possibly sign another 3 -year lease; however, at this point, her husband had to get another job because they had lost 70% of new business since being forced to remove the A -frame sign. SRCC Minutes (Regular) 08/01/2005 Page 14 SRCC Minutes (Regular) 08/01/2005 Page 15 Indicating that they teach through the community college, teaching two classes per semester, Ms. Theilen stated this brings people from Mill Valley, Tiburon and all over Marin into the downtown area and they usually patronize the restaurants, farmers' market, etc. She expressed hope for the City Council's understanding in their unique situation. Regarding extending the program, Councilmember Miller stated he favored an extension of 6 months. Indicating he still had questions about the entire A -frame situation, he noted that while it was believed important for businesses, only 3 applications were received. He stated he had problems with the multiple sizes and types of signs, which caused clutter and was visual disrepair. Regarding changeable copy, indicating that he walks down Fourth Street regularly, Councilmember Miller recalled that Sonoma Bank relocated their A -frame sign to their window; it displayed changeable rates, which worked very well. Understanding restaurants liked A -frame signs, he also noted that most displayed their menus in a side window. Councilmember Miller stated these were concerns he would like to have taken into consideration by staff in working out the program. Councilmember Cohen stated he could support a shorter extension; however, his concern was whether this time period would give an idea of whether or not the more flexible rules for use of A -frame signs would result in an unpalatable increase, or to draw any meaningful conclusions. Given the small number of applications he stated it appeared that to date what was adopted was fairly meaningless; however, he was willing to consider the staff recommendation of different materials. Councilmember Cohen stated he was leery of changeable lettering without some standards about how it would look, as there was a lot of potential for it to be done poorly. He indicated he would be willing to consider 6 months, with the recommendation to allow for a variety of materials and changeable letters, and evaluate their appearance. With regard to Form Body Studio, Councilmember Cohen stated that in looking at the photographs provided he understood the position they were in. As opposed to expanding the scope generally of the A -frame ordinance, he questioned whether it would be preferable to evaluate the sign program for this building to ascertain whether there was a way to tweak it to allow Form Body Studio some signage to address the location of the door and configuration of this building. Mr. Meeker stated this was suggested to Mr. Easley and the Theilens and it was his understanding from Ms. Theilen that they had explored that route and it was not an acceptable solution for them. Rather, the suggestion was to do a monument sign within the courtyard that could advertise more of the businesses. Mayor Boro stated he favored not expanding the A -frames; however, he did understand the hardship. In looking at the building he suggested doing something on the side of the building and see whether there was a way to work within the sign ordinance to make an exception because of their location being way in the back. He suggested that signing on the corner of the building would be just as effective, in his opinion, as an A - Frame. Mr. Meeker stated staff would look into this to ascertain whether there were further options that could be made available to the Theilens. Councilmember Heller favored looking at new signage of the entire building. She was aware there were some upstairs areas that perhaps also needed some signage. She indicated that the banner portion of this item was fine and had not been a problem; therefore, she favored passing that portion now if there was a consensus. Councilmember Heller inquired whether the problem related to the rules, the price and time for getting an A -frame and going through the City process. Mr. Meeker stated his understanding from Ms. Webster was that it was more the restrictions on the construction and the lack of changeable copy. He did not recall that SRCC Minutes (Regular) 08/01/2005 Page 15 SRCC Minutes (Regular) 08/01/2005 Page 16 the price issue was raised in the letter, attached to the staff report. Councilmember Heller stated she was happy to go along with the consensus of Council. Indicating that the banners were fine, Councilmember Phillips believed twelve months a more reasonable period of time to assess the A -frames through the holidays, etc. Regarding the concept, he noted this discussion took place a year ago and at that time he stated he did not believe the A -frame added to the downtown, rather it provided some clutter and hazards. He recalled being uncomfortable with only designating a certain portion of the town, noting Northgate had sidewalks equally as wide as any downtown, perhaps wider, and presumably if this were an economic boon, he questioned why it should not be shared throughout the City as it appeared inconsistent not to do so. Councilmember Phillips stated his overriding consideration was the appearance of the downtown, should the program be isolated to that area. He did not believe it added in any way to the appearance, rather distracts, which impacted all businesses with a look of clutter, and changing the message would produce a variety of print styles, size, etc., which further cluttered the downtown appearance. Subsequent to the previous long discussion on this topic Councilmember Phillips noted there were only three applications for A -frames and he questioned why more businesses, even with the restraints, were not taking out permits. He suspected one of the reasons was that not everyone with a sign had in fact, applied for a permit. Believing there were more than three in the downtown, he suggested staff had not been as diligent as was necessary. Councilmember Phillips stated that while he was in favor of the banners, he was not in favor of the A -frame signs and would vote against the item because of that, and would do likewise in a year from now should the issue be raised again. Councilmember Miller stated he noted a gradual increase in blade signs along Fourth Street, some of which were very attractive, performing the same function as the A - frame. He stated the merchants should be complimented on their use. He had taken photographs up and down both sides of the street and noting few ugly signs, he indicated there were some very fine and neat blade signs. He indicated that the merchants had done the City proud, making the downtown more pleasant with blade signs performing a similar function to the A -frame sign without any safety hazard or inconvenience to pedestrians. Mayor Boro stated he tended to agree with Councilmember Phillips that if there was a real hue and cry for these signs, more than three applications would have be submitted. He indicated he did not like changeable copy, and recalling visiting different cities with A -frames, he noted these were usually located in the lower end of town. He believed blade signs and window signs would work and noted that most restaurants posted their menus in the window and could certainly include a special. Mayor Boro stated he was willing to give it a trial for 6 plus months; however, he believed there should be consistency in what the material looked like. His understanding was that the current signs were designed by the merchants, not the City, the requirement had been changed from wood to plastic and changeable copy instead of fixed, and he believed that a different answer would be forthcoming each time the issue was raised. Mayor Boro commented that the results would be pretty much predicated on what transpired over the next several months. With regard to the building on Fifth Avenue, Mayor Boro stated he did not mean to imply that an entire new sign program should be looked at for it, rather his request was to explore some way within the existing Ordinance to consider the hardship of that location and give visibility comparable to what would be derived from the A -frame. Mr. Meeker stated staff would evaluate the Ordinance to ascertain whether through the sign exception process a way could be found to accommodate the problem. Deborah Colby, stated she applied for her A -frame just after the deadline had passed. Indicating she had an unusual situation, she explained her business was on Second Street. The building she occupied with one other business was set back 30 -feet from SRCC Minutes (Regular) 08/01/2005 Page 16 SRCC Minutes (Regular) 08/01/2005 Page 17 the road on a one-way street headed east and was not visible from any distance. She indicated that for her, an A -frame sign worked perfectly and there was more than adequate room for one. She stated she desperately needed an inexpensive way to entice customers in so she did not have to spend a lot of advertising dollars chasing people. Ms. Colby reiterated that she was very interested in being able to locate an A - frame sign at her business and would appreciate the Council's consideration in allowing both the Ordinance and changeable copy, which again, would work really well for her business. She believed she was not the only business that needed the flexibility an A - frame sign with changeable letters afforded. Noting small business was suffering, she stated that whatever possible should be done to keep them going. Councilmember Cohen inquired whether Ms. Colby's location was within the downtown district. Mr. Meeker stated the pilot program was based upon many of the downtown zones and he believed Ms. Colby's business was located in one of the included zones. He indicated that she had pursued the A -frame sign permit through the Planning Division staff based upon the pilot program; however, the program expired before she could get back in. Therefore, it was determined that she could apply for an A -frame sign previously. Councilmember Heller inquired whether the banner portion of the item could be moved through. Mr. Brown, Community Development Director, explained that the banner suggestion would simply be a direction to staff to return with an Ordinance change. He indicated it could be included as a sign ordinance amendment; therefore, should Council be comfortable with the banner provisions, staff would codify those, return them to the Planning Commission and subsequently the City Council. Councilmember Heller moved and Councilmember Phillips seconded the motion to codify the banner provisions, by amending the Sign Ordinance, returning the item to the Planning Commission and subsequently, the City Council for action. AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None Councilmember Cohen inquired whether Councilmember Miller's proposal was to extend the program for 6 months as is or with the change in materials. Councilmember Miller suggested that extending it as is made no sense. Mayor Boro suggested extending it to April 1, 2006 and Councilmember Miller concurred. Mayor Boro stated this would afford the opportunity of evaluating the changeable copy in the rain and through the winter and Christmas. Regarding the type of material, he requested that staff work with the BID to generate some standard format. Mr. Meeker stated the intent was that staff and the BID Board of Directors would meet in September. Councilmember Miller confirmed these discussions would be confined to A -frames only, and not any other type of construction. Mr. Meeker explained that the provisions were the same as during the initial program, i.e., same size restrictions, same type of construction; however, staff recommended allowing a different material, subject to the same construction standards. Councilmember Miller confirmed that the changeable signs would need to have a good appearance. Councilmember Heller inquired whether a decision could be made this evening to extend the program to April 1, 2006 with staff working out a standard format with the BID. She requested that staff inform the Council when a new sign was put in place. Councilmember Cohen indicated he was willing to make a motion to extend the trial SRCC Minutes (Regular) 08/01/2005 Page 17 SRCC Minutes (Regular) 08/01/2005 Page 18 period to April 1, 2006, and allowing changeable lettering and different materials, subject to staff working with the BID. He stated it was pretty clear that if the BID "messed this up" they would lose the entire program; therefore, he suggested working hard to make it look good and an enhancement to the downtown. Regarding allowing the changeable copy, Mr. Meeker inquired whether it was Council's desire to allow it for all businesses, as suggested by Ms. Webster, or simply based upon staff's recommendation. Councilmember Cohen stated that the opportunity should be afforded to prove whether this could work or not. Councilmember Phillips inquired why this was confined to just Fourth Street. He suggested that a businessman in Northgate could question the justification for that. Mr. Meeker explained that his understanding of the intent of the initial program was to isolate it to primarily the Fourth Street area because of the pedestrian character of those zones. Challenging this, Councilmember Phillips stated that the sidewalks in Northgate were wider than any place in downtown Fourth Street. Mr. Brown stated staff was also trying to concentrate staff enforcement resources. He stated officers have to get out of their cars and walk Fourth Street and to have them do this in different locations of the City he believed would be a challenge. Councilmember Phillips challenged whether it was being enforced at all. He noted that three permits were issued and inquired as to how many signs were on Fourth Street. Mr. Brown reported having walked the entire length of Fourth Street on Wednesday and Thursday speaking with all the restaurants and he noted two illegal signs, both of which were cited. Being a recent survey, Councilmember Phillips did not believe this to be representative. He questioned what was to be established by a trial period, i.e., would it then be shifted to the City in its entirety or would it remain on Fourth Street. Assistant City Manager Ken Nordhoff suggested that if staff and the BID were permitted to work out the extension of the program through April 1, 2006 with all the noted conditions, should they return with an acceptable report in terms of materials, copy, etc., consideration could then be given to expanding it on a broader basis in the community, to be defined. He noted related enforcement issues; however, suggested it be piloted in the downtown business districts. Evaluating the program in April would determine its future. Mr. Nordhoff stated his expectation was that Council would wish to hear something about what would happen after April 1, 2006. He indicated this would either be to memorialize some program on a permanent basis that staff would like to codify in some way, or not. He believed Council wished to receive some type of report on the success of the program. Mr. Nordhoff confirmed for Councilmember Cohen that staff would work out all the details; however, as the program unfolded over the next 8 — 9 months, staff would report to Council on its success and Council could evaluate whether to continue it under the conditions put forth. He indicated that other parts of the City should be evaluated to ascertain where this would apply. While Northgate could be a good example, Mr. Nordhoff stated there could be others also. Councilmember Cohen moved and Councilmember Heller seconded, to extend the pilot program to April 1, 2006 and direct staff to work with the Downtown Business Improvement District to modify design criteria to allow for a variety of materials and tasteful changeable copy. Mayor Boro commented that he did not believe there was a lot of support for this program and did not favor wasting a lot of time trying to invent something. He stated SRCC Minutes (Regular) 08/01/2005 Page 18 SRCC Minutes (Regular) 08/01/2005 Page 19 that had it really been that important, more than three applications would have been submitted. Expressing the hope that merchants would consider blade signs, Mayor Boro stated that unless there was a good A -frame program, he did not think there would be support for it. AYES: COUNCILMEMBERS: Cohen, Heller and Mayor Boro NOES: COUNCILMEMBERS: Miller and Phillips ABSENT: COUNCILMEMBERS: None COUNCILMEMBER REPORTS: 14. None. There being no further business, Mayor Boro adjourned the City Council meeting at 10:06 p.m. JEANNE M. LEONCINI, City Clerk APPROVED THIS DAY OF 12005 MAYOR OF THE CITY OF SAN RAFAEL SRCC Minutes (Regular) 08/01/2005 Page 19