HomeMy WebLinkAboutCC Minutes 2005-02-07
SRCC Minutes (Regular) 02/07/2005 Page 1
IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, MONDAY, FEBRUARY 7, 2005 AT 8:00 P.M.
Regular Meeting: Present: Albert J. Boro, Mayor
San Rafael City Council Barbara Heller, Vice-Mayor
Paul M. Cohen, 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
OPEN SESSION – COUNCIL CHAMBER – 7:30 PM:
Mayor Boro announced Closed Session item:
CLOSED SESSION – CONFERENCE ROOM 201 – 7:30 PM:
Conference with Legal Counsel – Existing Litigation
Government Code Section 54956.9(a)
Case Name: Poehlman, Kyla v. City of San Rafael, et al.
Marin County Superior Court Case #CV031987
Assistant City Attorney Gus Guinan announced that no reportable action was taken.
ORAL COMMUNICATIONS OF AN URGENCY NATURE: 8:11 PM
Redwood Village: - File 100 x 5-1-347
a)
Dil Kazaaz, Rafael Meadows, stated that he attended the November 15, 2004 City Council Meeting to
report the unacceptable approval process of the development behind his house and how it violated his
property rights, and he was directed to meet again with staff. Subsequent to this further meeting with
staff a letter was written on which he could not comment in the short space of time permitted this
evening. He indicated he was a Structural Engineer and a Licensed Contractor and had sold real
estate in Marin County, and this should not happen. He believed many processes were violated in this
situation and indicated he had obtained 160 signatures from people who like him, wanted the matter
raised at a public hearing. (Mr. Kazaaz did not submit the list of signatures at this meeting.)
Addressing Mr. Brown, Community Development Director, Mayor Boro stated he understood that all the
work done was in compliance with the approved plans.
Concurring, Mr. Brown stated Council had requested that Mr. Kazaaz bring forth any evidence that the
permits had been issued illegally or the construction carried out illegally. He noted Mr. Kazaaz
admitted the project was built according to plan and believed the major difference was that having read
a Planning Commission staff report describing the grading proposal, Mr. Kazaaz interpreted it in such a
manner that he did not believe there would be a great difference between the two properties. Staff
believed that section of the report was very clear; however, Mr. Kazaaz decided not to look at the
attached grading plans, which was unfortunate, as being an experienced civil engineer, he would easily
have understood them.
Using a PowerPoint presentation, Mr. Brown stated that the difference in the elevation for Lot 42 in
Redwood Village was 1.7 feet from that adjacent to Mr. Kazaaz’s property. From a side view he
identified the difference in grade and how it sloped down to the common property line. A further slide
depicted a difference from the situation found further down the property line towards the east where the
grade difference was greater. He noted that where the grade difference was two or three feet,
Signature Properties proposed and built a retaining wall two or three feet tall with a 6-foot fence on top,
and in that case, created a fence and wall approximately 8 – 9 feet tall between the two. Mr. Brown
stated that the fence between Mr. Kazaaz’s property and Lot 42 was 6 feet, because the grade
transitioned down.
Mr. Brown stated that since the project was built according to approved plans, the City could not legally
request that Signature Properties at this point, or the new owner of that lot, rectify the situation. He
noted it was not atypical, given the terrain in San Rafael, for lots to have a difference in grade, and
believed Mr. Kazaaz and his new neighbor had a common interest in wanting to shield each other’s
homes, which could be done with landscaping or raising the fence to the allowed 8 feet.
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) Contempo Marin: - File 3-2-97 x 13-7-1
b
Tom Davis, 22 Yosemite Road, Contempo Marin, stated he was accompanied by a group of Contempo
Marin residents to express their appreciation to the City Council for the support given to the San Rafael
Mobilehome Rent Stabilization Ordinance (“MRSO”), recognizing the expense involved in these times of
hard fiscal choices. He acknowledged those in attendance, indicating they were representative of a
much larger group that was aware and appreciated what the City was doing.
Mr. Davis believed the establishment of an ownership society to be a worthy goal and the MRSO was a
measure that promoted this. It allowed people of low and moderate incomes to acquire an ownership
stake in this community, which was a valuable resource, and he was pleased the City Council
recognized it as such.
Keith Meloney, 25 Yosemite Road, Contempo Marin, Vice-President, Contempo Marin Homeowners
Association, stated he recently attended a meeting where City Manager Rod Gould articulated some of
the City’s challenges in the coming year relating to budgeting and finance. He indicated he now
appreciated what the City was doing for the residents of Contempo Marin in defense of the MRSO
against MHC and was aware of the considerable resources exhausted as a result of the lawsuit. He
applauded the City’s dedication, commenting that the hard work had not gone unnoticed and he would
ensure this did not change.
Conflict in Iraq: - File 9-1
c)
John Jenkel, Graton, requested the City Council consider an agenda item commending
Congresswoman Lynn Woolsey for her proposed resolution (HC35) urging the immediate withdrawal of
troops from Iraq.
Joe Rhodes, Santa Rosa, requested Council support in ending the conflict in Iraq.
Doug Azevado, Healdsburg, requested Council support for Congresswoman Lynn Woolsey’s efforts in
withdrawing troops from Iraq.
Natasha Corso, Santa Rosa, read from a document expressing opposition to the Optional Conflict in
Iraq, and requested Council support.
Mayor Boro stated the City Council had a policy on taking a position on such items, while as individuals,
they were free to contact Congresswoman Woolsey to discuss whatever they wished. He invited Mr.
Gould to explain Council policy.
Mr. Gould stated that for many years the City Council had confined itself to taking positions on municipal
affairs only and not on foreign policy, viewing Congress as the elected representatives of the people of
the United States and this State in such affairs.
CONSENT CALENDAR:
Councilmember Miller moved and Councilmember Phillips seconded, to approve the Consent Calendar, as
follows:
ITEM RECOMMENDED ACTION
1. Approval of Minutes of Special Meeting of Minutes approved as submitted.
Tuesday, September 28, 2004 and Regular
Meeting of Tuesday, January 18, 2005 (CC)
2. SECOND READING AND FINAL ADOPTION OF Approved final adoption of
Ordinance No. 1834.
ORDINANCE NO. 1834 – An Ordinance of the
City of San Rafael Repealing Existing Chapter
10.60 of the San Rafael Municipal Code and
Enacting New Chapter 10.60 of the San Rafael
Municipal Code Regarding the Regulation of
Vehicles for Hire (PD) –
File 4-4-6c x 9-9 x 9-3-30
3. Resolution Authorizing Execution of Agreement RESOLUTION NO. 11702 –
RESOLUTION APPROVING AND
with Tramutola Public Mobilization, Revenue
AUTHORIZING THE CITY MANAGER
Consultants (CM) – File 4-3-434 x 9-3-11 x 9-4
TO EXECUTE AN AGREEMENT WITH
TRAMUTOLA PUBLIC
MOBILIZATION, REVENUE
CONSULTANTS (in an amount not to
exceed $50,000)
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4. Resolution Authorizing Execution of Agreement RESOLUTION NO. 11703 –
RESOLUTION APPROVING AND
with Godbe Research to Perform the 2005 City of
AUTHORIZING THE CITY MANAGER
San Rafael Public Opinion Survey (CM) –
TO EXECUTE AN AGREEMENT WITH
File 4-3-435 x 4-17-201 x 9-3-11
GODBE RESEACH TO PERFORM
THE 2005 PUBLIC OPINION SURVEY
(in an amount not to exceed $25,000)
5. Resolution in Recognition of the Friends of San RESOLUTION NO. 11704 –
RESOLUTION OF APPRECIATION TO
Rafael Public Library (Lib) – File 102 x 9-3-61
FRIENDS OF THE SAN RAFAEL
PUBLIC LIBRARY
AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
ABSTAINING: COUNCILMEMBERS: Cohen and Mayor Boro (from minutes of 1/18/05
and Item #2, due to absence from meeting of
1/18/2005)
SPECIAL PRESENTATION:
6. PRESENTATION OF RESOLUTION IN RECOGNITION OF THE FRIENDS OF THE SAN
RAFAEL PUBLIC LIBRARY (LIB) – FILE 102 x 9-3-61
Mayor Boro welcomed members of the Friends of the San Rafael Public Library, together with
Library Director, David Dodd.
So that those in attendance could get a sense of what people in the community do throughout
the City, Mayor Boro stated that a report was received this evening indicating that in 2002, there
were 1,546 volunteers working for the City in various capacities, contributing 66,058 hours with
a dollar value of $1,016,385, and in 2004, there were 1,725 people volunteering in the City,
contributing 68,599 hours, at a value of $1,207,447. He stated that volunteers were a great part
of the work done in the City, not only volunteering but also contributing and raising money for
the City.
Mayor Boro stated the Resolution talked about the Friends and all the wonderful things they had
done, and for the benefit of the audience he highlighted some of these: When the City was
faced with deep cuts to the materials budget, the Friends assumed financial responsibility for
the “Booking Ahead” program which the library uses to advance order bestsellers and popular
titles – a commitment of up to $20,000 per year. Members of the Friends spearheaded the
formation of a new group, the Book Fund Committee, to raise monies for new books, and over a
two-year period to raise $100,000, of which $30,000 had been raised to date. Also, Mayor Boro
noted that on behalf of the library, the Friends made the very large purchase of a self-checkout
machine in October, 2004, to facilitate automated checkout.
Besides raising money, Mayor Boro stated the Friends were involved in many other things,
including promoting the library. He stated everyone was very appreciative of their work and very
supportive of the San Rafael Public Library. While everyone understood the tough times the
City is facing, the library is cherished by all, and indicating that everything possible would be
done to sustain it, he looked to the Friends to assist in this.
On behalf of everyone present, Mayor Boro thanked the Friends of the San Rafael Public
Library for their great work.
Library Director David Dodd, thanking Mayor Boro and Councilmembers, stated the resolution
was presented to the current President of the Friends of the San Rafael Public Library, Pam
Dixon, whom he thanked for all her work. With all members present, he especially recognized
Marjorie Klamp, Past-President of the Friends, who was instrumental in getting the group
started. Thanking all for their work, he commented that they were an incredible crew.
Expressing thanks, President Pam Dixon, stated it was nothing but fun to work with everyone
and with the library staff. She hoped all could attend the ”Desk Set” movie on Monday,
February 14, 2005, as they were working hard to reach their book fund goal.
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Marjorie Klamp stated she appreciated every thank you they had been given. On returning from
Oregon after eleven years, she stated the first thing she did was to visit the library and she was
shocked to note there was no Friends of the Library. She wrote a note indicating there would
be a Friends and with a lot of help it came to fruition, for which she was very glad.
Mayor Boro thanked Ms. Klamp for her foresight in forming the Friends of the San Rafael Public
Library, and the members for keeping the idea alive and so successful, and he wished them
luck in their event on February 14, 2005.
PUBLIC HEARINGS:
7. Public Hearing – R.V. PARK OF SAN RAFAEL - CONSIDERATION OF FURTHER APPEAL
BY R.V. PARK OF SAN RAFAEL OF ARBITRATOR’S 2000 RENT INCREASE: STAFF
RECOMMENDING $25.00/MONTH RENT INCREASE (CA) – FILE 13-7-1 x 9-3-16
Mayor Boro declared the public hearing opened.
Assistant City Attorney Gus Guinan recalled that this petition was filed in September, 2000,
requesting a rent increase for what originally was known as the “B-Bar-A Trailer Ranch”,
currently known as the R.V. Park of San Rafael. He stated that in that petition, the request was
for an $88.07 increase above the CPI increase of $11.00. He noted this was filed in
September, 2000, relative to the year 2001.
Mr. Guinan reported that an arbitration hearing was held over a two-day period in February,
2001, and in April, the arbitrator issued a decision in which he granted absolutely no increase,
but indicated that the City’s ordinance did apply to the R.V. Park.
Mr. Guinan reported that within two weeks, the time permitted under the ordinance, the park
owner appealed to the City Council, and in October 2001, the Council heard the appeal.
Subsequent to listening to and reviewing all the evidence in the record (before Council this
evening in a binder), the City Council decided and confirmed the arbitrator’s decision that the
ordinance did apply to the R.V. Park, and denied that portion of the appeal, remanding it to the
arbitrator for further consideration of an increase of the rent over and above the $11.00 CPI
increase.
Indicating that in January 2002, the arbitrator issued a supplemental decision in which he
granted an increase of approximately $30 per month, Mr. Guinan noted that the R.V. Park
.
owner filed a writ in the Superior Court of Marin County, in December of 2001 The following
year they requested that the Administrative Record be prepared; this was prepared, completed
and served on the park owner in October 2002.
Mr. Guinan stated that the petition for the writ was served on the City in May 2003 and litigation
then commenced. In May 2004, the writ was denied after trial; however, the park owner
appealed to the State Court of Appeal, First District. He indicated that that Court ordered the
case to mediation, and in December 2004, a day of mediation resulted in the tentative
settlement agreement, copy of which was attached to the staff report for this evening’s meeting.
Mr. Guinan explained that tonight’s hearing, pursuant to the settlement agreement, was a
further appeal of that 2000 rent increase, which was approximately $30, and pursuant to the
terms of the settlement agreement to end the litigation. Staff was recommending that the City
Council modify the arbitrator’s opinion and provide an increase of an additional $25 per space
per month prospectively, not retroactively to January 1, 2001, but to commence after a 90-day
notice which the park owner would give, assuming the appeal was granted.
Explaining Council’s choices, Mr. Guinan stated they could deny any increase, grant the full $88
increase, or modify the decision, which was staff’s recommendation, to grant an additional $25
per space per month increase.
Mr. Guinan stated that under the terms of the settlement agreement, this rent increase would be
prospective only, not retroactive, after a 90-day notice, and it would provide that, if the tenants
did not file any type of court action within a 90-day period, the litigation would be dismissed.
Councilmember Heller inquired whether the rent had been increased anywhere along the line
and by how much.
Responding, Mr. Guinan stated that an additional petition for a rent increase was filed in the fall
of 2002, which went before Judge Sater, an arbitrator, who resolved the matter in March or April
2003, with an additional $23 increase beginning in August 2003. He indicated that he could
provide the rent increases schedule for the past ten years if required.
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Ernest Hokanson, R.V. Park, Space B-3, reported that a fellow renter, Malcolm Hall, along with
himself and other tenants prepared a case to present in two separate arbitration hearings
defending their own interests and demonstrating that the owners of the park had not conformed
to the San Rafael Mobilehome Rent Stabilization Ordinance (“MRSO”) even after having been
informed of their rights and responsibilities by the City Attorney.
Mr. Hokanson stated that the tenants initiated this action because there were not ample
resources for legal fees; however, there was a desire for justice. He noted that the arbitration
hearing referred to in Item F of the Settlement Agreement was the first hearing, and Item F
correctly stated that the hearing officer issued a Supplemental Decision guaranteeing the rent
increase but for less than the $88.07 sought by the owner. However, he indicated that not
noted was that the Supplemental Decision was for a $27.00 per month per space rent increase.
He stated that the meaning of the arbitrator’s decision in the matter of a fair return on
investment had been resolved. The City Council did not feel at the time it was resolved and
remanded the matter of the disallowance of rent increase back to the arbitrator. He reminded
Council that the hearing officer, Leland Dibble, author of that decision, gave absolutely nothing
to the owner in the initial decision and even pushed back the date of the annual rent increase
appeal six months. Mr. Hokanson recalled being dismayed when the distinguished Mr.
Coleman Persily, tenant advocate for his neighbors at Contempo Marin and no stranger to the
Council Chambers, reported that Mr. Dibble was no friend of mobilehome park tenants.
Mr. Hokanson questioned whether it was the amateurish presentation of the tenants’ case by
himself and Malcolm Hall or whether it was the owners’ blatant disregard for the law that
convinced the arbitrator to take such a hard line. Subsequent to giving thoughtful consideration
to the matter, he stated Mr. Dibble awarded the amount of $27 per space per month, and that
finding was what the owner is entitled to under the MRSO.
Having defeated a bruising $88.07 rent hike in 2002, Mr. Hokanson stated they were confronted
a year later with the same issue and the park owner again called for arbitration to fluff up his
investment.
Mr. Hokanson reported that in the most recent arbitration hearing before retired Judge Sater on
April 15 and 16, 2003, a compromise was struck and the owners and tenants agreed to the $23
rent increase referred to in Item K, with provisions. He stated that at the end of the afternoon
session on April 16, they called for negotiation and Mr. Preston Cook, an owner, agreed to a
$23 per month per space rent increase with no retroactive increases, no arbitration costs to be
passed on to the tenants and no further arbitration for three years. He noted that now, a year
and ten months later, the residents of the park were being asked to pay more, and this was
ignoring and violating the agreement. Mr. Hokanson stated that the agreement was hard fought
and in good faith by laymen inexperienced in legalese and conventions of corporate deceit. He
noted the agreement forged in the arbitration did not find its way to the chronology of the
Settlement Agreement before Council this evening. Item K. of the Settlement Agreement
recognized that the $23.00 rent increase should be a consideration in Council’s determination;
however, did not recognize that an additional $27.00 had also been granted six days after the
December 28, 2001 date. He stated that the Dibble supplementary decision allowed the $27.00
increase on January 3, 2002.
Mr. Hokanson noted that the rent increases over and above the annual CPI calculations were
$50.00 since that date, not $23,00, and 44 spaces at $50 per month totaled $26,400 annually.
He quoted from Item K “No tenant or group of tenants has filed a challenge under the
ordinance” and questioned why they would, as the rent increases had all been determined by
annual CPI calculations or by arbitration settlement. Seeing that the rent fight was to become
an annual affair, he stated the three-year respite appeared to be a comforting victory, and the
tenants could get back to their usual endeavors without fear of the oppression of a huge rent
increase looming over them. He questioned how the hard fought and good faith effort of the
tenants’ desire for security and lawful agreement was summarily dismissed.
Regarding the staff report mailed to tenants in connection with this meeting, Mr. Hokanson
quoted from page 3, Discussion: “The rent increase will not be any greater than an additional
$25.00 per month” and he appealed to the City Council to adopt the resolution granting R.V.
Park of San Rafael’s appeal and modify the arbitrator’s January 3, 2002 supplemental decision
to grant the R.V. Park owner an additional $1.00 per space, per month rent increase,
prospectively, after giving all tenants ninety (90) days’ notice. He stated the rent increase was
within the “not to be greater than” range and would allow the City to be free of the ongoing
litigation.
Helen Simco – A-15, R.V. Park of San Rafael, reported that 20% of those living in the park were
on low social security and could not afford the $27.00. She indicated that at the time of the
$23.00 increase as she was working part-time she was obliged to ask her boss for five more
hours to be able to pay it. She noted that R.V. Park of San Rafael was the only rent-controlled
park and she hoped the City would continue to support them. Should Councilmembers visit the
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park she believed they would determine that $419 monthly was sufficient.
Drew Fallon O’Neill – B-1, R.V. Park of San Rafael, stated she wished to donate $25 to the
Friends of the San Rafael Public Library and not Mr. Cook. She distributed photographs of
sanitary conditions at the park, noting that subsequent to rent increases in the past, there had
been no improvement or benefit to the tenants. She appealed to the City Council to help those
needing it.
Herman Privette, B-16 – R.V. Park of San Rafael, stated he supported his fellow tenants and
indicated it appeared there had been a good faith negotiation; the tenant group had followed the
procedures and now it appeared the owners wished to change what had been agreed upon. He
reminded Council that this litigation on rent control was in effect before the current owners
purchased the park and they should have known the situation. For them to demand more
money was to him unfair, and he questioned what would prevent them from requesting a further
$25.00 in a year hence.
Richard Malcolm Hall, stated that as a representative of the tenants of R.V. Park of San Rafael,
they were not, to his recollection, notified of any pending lawsuit, and believed they should have
had some input. Regarding the tentative agreement reached, he stated that while it could be
appropriate, it was short of other items that would benefit the tenants.
Mr. Hall stated there was an agreement in the arbitration of 2002 with the owners that they
would not file any arbitrations or seek any rent increase before 2006, and he could produce the
relevant documentation.
Indicating the agreement needed more consideration, at least as to what the owners would
agree to, Mr. Hall stated they certainly led the tenants to believe they would not seek anything
further before 2006. He requested that the City Council take this into consideration and
hopefully, schedule a further meeting with the owners, with tenant participation, to discuss other
issues that would make it beneficial to the tenants and afford the City the opportunity to settle
the issue out of court. As he had been ill, he was unable to discuss the issue with the tenants
and would welcome the opportunity to put forward input representative of all of the tenants. He
reiterated that he did not believe he or any tenants were notified prior to the recent staff report,
as had he received notification it would have raised a red flag.
Anthony Rodriquez, Attorney for the R.V. Park of San Rafael, in terms of the status of the
litigation, stated they were in the Court of Appeal and the primary issue, from the park owners’
point of view, was whether or not this piece of property really was an R.V. Park or a
Mobilehome Park, and should it be an R.V. Park, did the ordinance apply to it. He indicated
that the park owners strongly believed it was an R.V. Park and the ordinance did not apply;
however, as this was litigation they were unsure whether the Court would agree with them or
the San Rafael City Attorney, and this was the reason for the parties getting together in an
attempt to reach a compromise each side could live with. Mr. Rodriquez stated they were
hopeful the agreement would be approved and they could move forward with the $25 rent
increase.
With respect to some of the comments by residents concerning the agreement that took place
after this petition was filed, Mr. Rodriquez stated he was not a party to that. He indicated there
was an arbitration, mentioned in the agreement, where another judge granted a $23.00 rent
increase, prospectively, and was in the exhibit; however, this litigation preceded that rent
increase application. He believed it important the record should note that the park owners had
not gone back on their word, nor filed for any new rent increases since that 2003 agreement.
Councilmember Heller inquired as to whether it was Mr. Rodriquez’s understanding the park
owners had stated to the residents that there would be no increases, taking the $25.00 aside,
until 2006.
Indicating this was his understanding, Mr. Rodriquez stated he believed an agreement was
signed at the arbitration he was not part of. He did not believe either party was represented by
attorneys at the second arbitration; however, he believed there was some agreement that the
park owners would not apply for another rent increase from the date of that $23.00 increase
until he thought three years. Whatever the period in the agreement, he stated the park owners
intended to abide by it and would not apply for a rent increase during that period. Should that
be 2006, he stated they would not apply until 2006.
Councilmember Heller requested clarification that the only rent increase so far was the $23.00
and the $25.00 requested previously.
Mr. Rodriquez concurred and referred to an exhibit attached to the Settlement Agreement
identifying the rent increase granted at the R.V. Park since 2002. He noted that for the last two
years, the annual CPI adjustment was approximately $4.00 per space, and this CPI increase
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had provided only $200 per month in revenue for the park owners for each of the past two
years, which was not very significant in terms of the park owners’ return on their investment.
Sharon Shea, A9 – R.V. Park of San Rafael, reported that she moved into the park seven years
ago and was trying to live on a very small amount of money. She was aware many in the park
were on SSI and trying to get by on $800 per month or less. She indicated that seven years
ago, her rent was $340 per month and now was $445, noting there was a $5.00 increase in
January, 2005, and now a further $25.00. Ms. Shea stated that those in the park would not be
living there if they could afford $1,200 for a regular apartment, noting the previous owners of
the park were very kind about ensuring the increases were very small as they were aware of the
circumstances, whereas, the present owner did not.
Indicating she was rather confused about the fairness, Ms. Shea stated she believed there was
an ordinance that allowed the owner a fair rate of return on his property investment. As renters,
of small plots of land, approximately l0’ x 30’, they owned their trailers and paid the upkeep
expenses on them themselves. She concurred with a previous speaker that no repairs had
been carried out and the showers had not been painted in the seven years she had been there.
Ms. Shea stated they were in a predicament where they needed assistance, similar to people
living in a County where the rents were enormously high for those living on fixed incomes. She
indicated that should she move out of state or up state she could find an apartment for $400 per
month; however, for legal reasons, she could not leave Marin, and the R.V. Park was the only
place she could afford to live until her litigation was over. She stated she would be homeless if
the rent continued to increase, and she was not the only one.
Stating that the City had the power to deny any more increases, Ms. Shea encouraged the
Council to consider the fairness of this wealthy man having an ordinance that protected his rate
of investment, which he extracted from people living at the lowest possible income level. She
stated the reason for the ordinance was to protect those in this circumstance, those trying to get
by on $800 per month with a rent of $445, going up to $470, in January probably a further
$5.00 and probably next year a further $25.00. Ms. Shea stated this would force them to leave,
as had happened in Novato where two or three parks had closed down.
Ms. Shea stated they could not fight or afford a $400 per hour attorney and it therefore, came
down to who could afford lengthy, drawn out litigation. In this situation there was no contest as
Mr. Cook would win; however, she stated the City Council had the power to be compassionate
and requested that they deny this request, if possible.
There being no further comment from the audience, Mayor Boro closed the public hearing.
Noting the tenants alleged they were not aware of the arbitration, Mayor Boro inquired whether
they were noticed, and whether they could have been represented by counsel at the arbitration.
Assistant City Attorney Gus Guinan stated that the action before the City Council tonight was
not an arbitration and explained that the arbitration took place back in February 2001. He
indicated that the decision under the administrative provision in the MRSO allowed an appeal to
the City Council, and that occurred in April 2001. There was a bifurcated decision in that the
City Council upheld the applicability of the ordinance to the R.V. Park, but because the
arbitrator at the time had not granted any increase at all to the park owner, that portion of the
decision was remanded back to the arbitrator in light of Council’s concerns that, in fact, they
were not sure, based upon the record, whether or not that was a fair return. Mr. Guinan stated
that the supplemental decision of the arbitrator was issued in January 2002, the $27/$30
increase, and the reason it was looked at differently was because the method used by the
arbitrator at the time to come up with that amount was to compute the previous five years’ CPI
adjustments, arriving at the amount of $27.00. However, Mr. Guinan stated there was a dispute
as to whether or not the arbitrator’s computations were correct, and, in fact, it was closer to
$30.00.
Mr. Guinan stated that the arbitration process ended at the time. The writ was filed in
December of 2001 without the City’s knowledge and nothing further happened for a time. He
indicated that the park owner believed he should be able to return to the City for further
discussions concerning the arbitrator’s supplemental decision. He stated the City took the
position that in fact, they had failed to comply with the fifteen-day requirement to file a further
appeal to the City Council and therefore, the decision of the arbitrator awarding a $27.00 per
space per month increase was final. The park owner requested the City to prepare the
Administrative Record, a process required in a writ of Administrative Mandamus , which was
done, and in October 2002, the Administrative Record was served upon the petitioner’s attorney
as required by the statute. Mr. Guinan reported that in May 2003, the writ was served on the
City. This was when the litigation commenced; the City prevailed in the trial court on a
jurisdictional issue, and the park owner appealed.
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Mr. Guinan stated that the owner has very vigorously contested the issue of the applicability of
the ordinance to the R.V. Park; however, the owner is willing to give that up and agree that the
ordinance does apply to the R.V. Park. He stated this was significant in swaying the City in
terms of trying to provide some protection for the tenants, which was the basis for the
recommendation this evening.
Mr. Guinan stated that before Council this evening was a further appeal of the arbitrator’s
decision issued in January 2002, and it had nothing to do with the arbitration hearing that
occurred before Judge Sater in 2003. Both the tenants and representative of the park owner
were correct in that there was a written agreement in 2003, in which the park owner agreed not
to seek another arbitration for 2003, 2004 or 2005; therefore, they could again file a petition in
2006. Mr. Guinan stated that in that instance the park owner was giving up the right under the
ordinance to file a petition every year should they choose.
Mayor Boro invited Mr. Guinan to explain how the $25.00 rent increase was appealed and
handed down.
Mr. Guinan explained that this was as a result of a mediation at the State Court of Appeal,
which assigns these cases before they are fully briefed for oral argument, argued and taken
under submission and a decision issued.Indicating the Court of Appeal attempts to mediate
these cases, he stated the City was ordered to participate in the mediation by the Court. He
confirmed for Mayor Boro that the tenants were not noticed as they were not party to the
lawsuit.
City Manager Rod Gould inquired of Mr. Guinan whether this was really about a risk
assessment. Should Mr. Rodriquez be correct and the Court of Appeals finds that the MRSO
does not apply to the R.V. Park, these tenants are without any protection whatsoever, and the
property owner could raise the rents as high as he chose. Mr. Gould stated the alternative was
that perhaps the City would prevail and continue as before, and tonight’s proposal was a
compromise to avoid the risk of losing the entire protection provided by the MRSO for the
residents of the park. He noted it came with the price of $25.00 and this was what Council must
decide this evening.
Mr. Guinan stated that generally this was correct.
Phrased in this way, Councilmember Phillips stated that should he be sitting in the audience
and residing in the R.V. Park he would be concerned about the $25.00; however, he could be
more concerned about the possibility of the $25.00 becoming $250.00. While $25.00 was
certainly not preferable, given zero; however, given the risk it could be a better place. He
questioned whether the residents understood the tradeoff and the risk they ran.
Mr. Guinan stated he had not had discussions with the tenants. Having sent out the notice of
public hearing more than two weeks ago he had expected a lot of calls; however, he did not
receive any. He stated he would have been glad to meet with the tenants to apprise them of
what was happening and what the City was attempting to do, even though it appeared as
though all that was being done was assisting the park owner in raising the rent again. Mr.
Guinan stated this was not the situation; the City had been defending this case for four years
and he understood the confusion that could exist between the arbitration hearing that occurred
in 2003 and the promise made in connection with that agreement. However, as articulated by
Mr. Rodriquez, which was correct, this litigation evolved from the 2000 petition for the 2001
calendar year, and it was only now that the matter was reaching resolution.
Mr. Guinan stated he was unsure whether what was being attempted in terms of keeping the
ordinance applicable to the R.V. Park had been appreciated or not and he would be willing to
make efforts in that respect if they had not been successful to date.
Councilmember Phillips stated Mr. Guinan had made the position fairly clear this evening, for
which he thanked him.
Councilmember Cohen noted that one of the issues related to balancing of risk, and he was
aware they were dismissing the current lawsuit with prejudice. He inquired where it stated in the
Settlement Agreement that the park owners were agreeing the ordinance now applied to the
R.V. Park of San Rafael and that they would not contest that point at any time in the future.
Should they not make that commitment he believed this agreement was of significantly less
value as they could file a further suit claiming the City did not have any jurisdiction over them;
hence the City would not be receiving as much as it thought by agreeing to a $25.00 rent
increase.
Mr. Guinan invited Mr. Rodriquez to assert this as it clearly was staff’s understanding.
Mayor Boro and Councilmember Cohen inquired as to where this was stated in writing.
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Mr. Guinan stated that a provision could be added, with agreement from counsel for the park
owners.
Should this be a reason for the recommendation, Mayor Boro inquired as to why it was not
stated in the agreement.
Mayor Boro noted Mr. Rodriquez stated earlier that the owner would drop the contention
concerning the applicability of the MRSO on this park, and inquired whether this was correct.
Responding affirmatively, Mr. Rodriquez explained that at the first hearing prior to the arbitrator
(Mr. Dibble) being assigned by the City, the park owners took the position that before looking at
any evidence it was necessary to look at the ordinance itself which stated that it only applied to
mobile homes and mobilehome parks. They concluded theirs was an R.V. Park because of the
size of the spaces and other laws, etc., dealing with the definition of mobilehome parks and
R.V. Parks. Mr. Rodriquez stated they took that position from day one, they took that position
when going before the City Council months later, again in the Superior Court and they take that
position in the Court of Appeal. He reiterated the position taken by them throughout the course
of this litigation was that should they win and prove this was an R.V. Park, the ordinance did not
apply, they could raise the rent to whatever level they chose and they could obtain the back
rents lost, plus attorneys’ fees. While they believed they would win, it was not guaranteed, and
this was the reason for settling.
Mr. Rodriquez noted the Settlement Agreement stated that the park owners would dismiss their
appeal with prejudice. From a legal point of view he explained that when a case is dismissed
with prejudice, all the points raised in that lawsuit cannot be raised again. He stated they were
litigating the issue of whether this park was or was not an R.V. Park, and should they dismiss
their appeal, as required by the agreement, they had forfeited that issue, and it could not be
revisited. Mr. Rodriquez noted it did not state Councilmember Cohen’s words exactly and
believed the lawyers drafting the agreement perhaps should have had a non-lawyer peruse it
first; however, in discussing it, the lawyers all were aware of what it meant and the federal
mediator also knew what it meant. He emphasized that every lawyer in the room recognized it
meant that should the park owners dismiss their lawsuit and appeal with prejudice, that not just
that issue, but all the issues being litigated in that lawsuit were over, including what they
believed to be the most important issue, whether or not this was, in fact, a mobilehome park or
an R.V. Park. Mr. Rodriquez stated that at the mediation he did not believe there was any way
the park owner would agree to relinquish that issue for $25.00. He noted the mediator did not
believe so either and was unsure of whether the City thought so; however, the mediator
basically stated to the City that if he informed the park owners the most the City was willing to
give was $25.00, he could almost guarantee the park owner would not accept it, which was his
belief also. For whatever reason, Mr. Rodriquez reported the park owner stated he was tired of
fighting the issue and was willing to end it and take the $25.00.
He noted the Agreement did state that the park owner would dismiss the appeal with prejudice,
rendering all issues pending before the Court, or raised at any time, resolved by this settlement.
Mr. Guinan agreed that res judicata would preclude the park owner from raising the issue again;
however, he suggested it might make everyone more comfortable if the agreement so stated,
and he inquired whether the park owners would be in agreement.
Mr. Rodriquez stated he would discuss it with them; however, he assumed they would, and Mr.
Guinan suggested he do so.
If that was what it meant, Mayor Boro inquired what was wrong with amplifying and clarifying
the situation to everyone’s understanding.
Being unsure of what needed to be done, Mr. Rodriquez inquired whether a line should be
penciled in now or a redrafted document brought back.
Mr. Guinan suggested Mr. Rodriquez agree to adding a line that would basically state: “By this
agreement, the R.V. Park owner gives up, surrenders, will not prosecute, etc., the issue of
applicability of the City’s ordinance to the R.V. Park of San Rafael.” He agreed with Mr.
Rodriquez that he and his client would be precluded under the doctrine of res judicata from
raising the issue again should the case be dismissed. While other conditions needed to occur
first, assuming it was dismissed, Mr. Guinan stated he could not raise it again, and given the
fact that Council had addressed the issue, it could make it more comfortable for everyone if it
were so stated.
Mr. Rodriquez stated he did not have a problem with re-drafting the agreement; however, as the
majority interest owner was not present with him this evening, he could not make that decision
on his own. He stated the document could be redrafted and returned to the City Council;
however, he did not believe this necessary because of the inclusion of the dismissal with
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prejudice language. He confirmed that as a lawyer he could not make that decision himself.
Mayor Boro stated that Mr. Rodriquez was not being requested to make that decision, rather
include language that clarified what he (Mr. Rodriquez) understood and which was implied in
what he stated; therefore, it was not a change, rather a clarification. Should Mr. Rodriquez be
unable to do so without discussing it with his client, Mayor Boro believed there was some
question in someone’s mind that this may not be what it stated. He indicated he personally
would not be comfortable adopting anything until this was made clear.
From the rules of professional conduct, Mr. Rodriquez stated he had no authority to settle the
case. He indicated his client signed a piece of paper that stated he agreed to all of this. While
he could explain what it meant, Mr. Rodriquez stated he could not add a further word his client
had not signed off on, as he believed was the case with the City’s attorney. He stated he would
be happy to work on this in the next couple of days, and re-notice the hearing, etc.
Mayor Boro stated it would not be necessary to re-notice the hearing as the item could be
continued and returned at a later date; however, he would obtain the sense of the City Council.
Councilmember Cohen stated he was concerned about the rent increase, and having done the
math, it appeared to be a 15% increase over three years, adding the $25.00 in, which was
clearly above and beyond the Cost of Living Index in the Bay Area over that period of time.
Indicating he did feel for the tenants, he believed the language was in place because the City
was attempting to protect a valuable source of housing for those on very low and fixed incomes.
However, he believed it was also necessary to make some judgments and this was the reason
staff had presented it to Council in the interest of trying to ensure the City protected its ability to
continue to do this, and that was the only basis on which he would consider approving the
increase.
Should Council be requested to consider a rent increase on its own merits, Councilmember
Cohen stated that in good conscience he could not vote for it, and the only basis on which he
could support it would be to resolve the issue of whether or not the ordinance applied to the
R.V. Park of San Rafael. If the attorneys were in agreement that was what it stated, he
believed it should be no issue for the majority owner of the park to agree to add that language in
plain English so the non-lawyers could understand this was exactly what it stated. If the
inference was that this would be fought no more, forever, Councilmember Cohen stated he
could be willing to accept it as a tradeoff. Although tenants might not like the $25.00 rent
increase, should it guarantee the right to protect the ordinance itself in its application to this
park, that was a tradeoff he could be willing to live with; however, he could not do it without the
assurance that was what it stated.
Councilmember Miller stated he was in agreement with Councilmember Cohen in terms of the
tradeoff, noting the ultimate was to protect the ordinance. He indicated he was comfortable with
the concept as explained by both attorneys and if they stated the appropriate language was
included, he accepted that.
Councilmember Heller stated she understood Councilmember Cohen’s discomfort with not
finding the appropriate language included; however, she agreed with Councilmember Miller that
both attorneys had stated publicly their agreement; therefore, she was comfortable with voting
on the issue this evening. She requested the City Attorney to schedule a meeting with the
interested tenants to go through the process and explain that this was not so much a rent
increase as a settlement agreement on something that had been coming down the pike for quite
some time. She commented this was hard to see as when writing out the check there was only
one pot of money available.
Mr. Guinan stated he would be glad to do so.
Referring to the resolution, Mayor Boro quoted: “WHEREAS, …….the essential elements of
which are 1) the City would grant a further appeal hearing on the rent increase petition and
consider an additional $25.00 per space per month rent increase, prospective only; 2) the park
owner would no longer contest the applicability of the Mobilehome Rent Stabilization Ordinance
to the R.V. Park of San Rafael; and 3) the park owner would end the litigation against the City.”
He commented that this was in the heart of the resolution, and Mr. Guinan concurred. Mayor
Boro inquired where the legal phrase referred to by Mr. Rodriquez and Mr. Guinan was in the
Agreement.
Mr. Guinan explained Mr. Rodriquez was not referring to a particular statement that indicated
that provision was in the Settlement Agreement. Rather, as he (Mr. Guinan) understood it, Mr.
Rodriquez was stating that if all of the pre-conditions were met and the case was actually
dismissed with prejudice, the litigated case was over and all of the issues raised therein were
settled. Should the same parties raise the same issues in any future litigation, a legal doctrine,
res judicata, would preclude this. This, he believed was what Mr. Rodriquez was stating. In
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looking at the agreement again, Mr. Guinan stated the actual wording, as stated by
Councilmember Cohen, that the park owner would no longer contest the applicability of the
ordinance to the R.V. Park was not explicitated. He indicated that the thrust of Mr. Rodriquez’s
statements was that the effect of dismissal of the case would have the same legal preclusion so
that the owner could not raise the applicability of the ordinance to the R.V. Park issue again.
As a non-lawyer, Mayor Boro stated he was having trouble with a reference in paragraph 5 of
the Agreement, and quoted: “It is the express intention and agreement of the parties that a City
Council decision not to approve the $25.00 increase shall not be considered a final action…”
He inquired where it stated, as alleged by Mr. Rodriquez and stated by Mr. Guinan, that should
this happen … i.e., he was trying to understand how this document related to the resolution to
be adopted.
Mr. Guinan explained that it was a more general doctrine of legal jurisprudence. The language
discussed about res judicata was not included in a verbatim line in the Agreement. He agreed
with Mr. Rodriquez’s statement that once the legal case is dismissed, the issues raised by the
parties in that litigation die with the case and cannot be raised again.
Should the resolution granting the $25.00 increase be adopted this evening, Mayor Boro
inquired as to the procedure for having the case dismissed by the Court.
Mr. Guinan explained there was a 90-day waiting period, as spelled out in the agreement,
because the tenants have a right under the Administrative Writ of Mandamus statute to file their
own action should they so choose, and that period of time had to expire before this agreement
could become final. Subsequent to that 90-day period, the park owner would within ten days,
dismiss the case with prejudice. Mr. Guinan stated that on dismissal of the case with prejudice,
the doctrine of res judicata would preclude the same issue from being raised by the parties
again.
Speculating that at the end of 90 days the case was dismissed with prejudice and the rent
increase went into effect, Mayor Boro inquired as to what would happen if after the 90 days the
park owner changed his mind and did not dismiss the case.
Should the park owner not dismiss the case, Mr. Guinan stated the City could sue him on a
breach of the Settlement Agreement.
With all due respect to the tenants, Mayor Boro stated it was critical the City get protection for
the park, and it would appear that if both attorneys were representing the fact that this
Agreement would achieve that, he believed it had merit, albeit at a cost of $25.00 per month for
the tenants. He believed the R.V. Park would then be under the ordinance; there would be no
contention and increases brought forward in the future would be in accordance with the
provisions of the ordinance. Mr. Guinan confirmed this was correct.
Councilmember Phillips inquired as to what would happen in the event of a change in
ownership, or whether it would carry over to a new owner.
Mr. Guinan stated that the doctrine of res judicata afforded greater assurance that even though
a party had changed positions, the new owner would stand in the same position (what’s called
privity), and that person would also be precluded under the doctrine of res judicata from raising
the same issue. He confirmed that doctrine would give greater protection than would a line in
the Settlement Agreement to that effect.
Councilmember Cohen stated part of his concern stemmed from the experience with Contempo
Marin. He explained that Council could approve this in the belief something had been done;
however, in 2006, a request could be filed for a rate increase, followed by an appeal and lawsuit
specifically relating to a new 2006 action, and contending the existing agreement applied to the
2001 action. He indicated that if staff could be sure that the language contained in the
Agreement stated that this owner, or any subsequent owners of the park, could not challenge
the ordinance on the basis of this settlement, that was a tradeoff he could live with.
Councilmember Cohen stated he was not interested in endlessly modifying the Agreement and
bringing it back, and it appeared to him that if everyone agreed this was the interpretation of the
legal language, a statement in plainer English could also be added. The resolution could be
adopted subject to the property owner agreeing to binding language, together with successor
language to the effect that anyone purchasing the park would not contest the applicability of the
ordinance to the R.V. Park. Should it already be written in a fashion understood by lawyers, he
questioned why approval of the resolution could not be conditioned on adding it in plain English
to the Settlement Agreement.
Mr. Guinan stated this would be acceptable to him and he would work with Mr. Rodriquez to this
end.
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Councilmember Cohen stated that if Council directed staff to do this he would be comfortable
acting on the item this evening, with the proviso that the resolution was being adopted subject
to the agreement. He noted that the language referred to by Mayor Boro “said it pretty well in
plain English”, and particularly with the addition that it was binding on the owner and any
successors, and should the property owner be unwilling to agree to this, then perhaps the
Settlement Agreement did not mean what Council was being told it meant.
Mr. Guinan pointed out that the preclusion would be only as to the applicability of the ordinance
as to whether or not the R.V. Park was a mobilehome park by definition. It would not preclude
this or any subsequent owner from mounting any other legal challenge against the ordinance on
.
constitutional basesHe wanted to make sure that this point was understood because it was not
part of this agreement.
Councilmember Cohen confirmed it was not part of the lawsuit and that issue was currently
being tried.
Mr. Rodriquez referred Council to paragraph 11 of the Agreement which stated: “The Parties
represent, warrant and agree that this Agreement shall bind them, and each of their legal
representatives, successors, assigns, insurers and sureties, executors and administrators, and
all other persons or entities who may claim under or through them.”
Councilmember Cohen agreed this appeared to be the successor language; however, the
sentence he required was in the resolution and stated: “The park owner would no longer contest
the applicability of the Mobilehome Rent Stabilization Ordinance to the R.V. Park of San
Rafael.” He considered this plain English all could understand and that plus the successor
language would satisfy his concerns. Just because it was in the City’s resolution did not make it
binding on the owner and he would be more comfortable adopting the resolution subject to
amending the Settlement Agreement to include that sentence.
Councilmember Cohen moved and Councilmember Heller seconded, to adopt the Resolution.
RESOLUTION NO. 11705 – RESOLUTION GRANTING APPEAL OF THE RV PARK OF
SAN RAFAEL (FORMERLY “B-Bar-A – TRAILER RANCH”)
AND MODIFYING THE ARBITRATOR’S JANUARY 3, 2002
SUPPLEMENTAL DECISION TO GRANT AN ADDITIONAL
$25 PER SPACE, PER MONTH RENT INCREASE
PROSPECTIVELY, as amended to include in the Settlement
Agreement the sentence:
“The Park owner to no longer contest the applicability of the
MRSO to the RV Park of San Rafael.”
AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
Mayor Boro thanked everyone and expressed the hope that Mr. Guinan could get this resolved
with Mr. Rodriquez and moved forward.
With respect to the photographs submitted by Ms. O’Neill, Councilmember Cohen stated he did
not understand what the property owner’s responsibility was or what authority the City has over
conditions at the R.V. Park. He commented that should someone present photographs such as
these of an apartment building he would expect Code Enforcement to be there promptly. He
stated he would like to hear more about what authority the City has over such conditions, as
they were deplorable.
City Manager Rod Gould stated he would have Code Enforcement investigate whether or not
safe and sanitary housing conditions prevailed at the R.V. Park.
8. Public Hearing – CONSIDERATION OF AN APPEAL OF THE DENIAL BY THE PUBLIC
WORKS DEPARTMENT OF AN ENCROACHMENT PERMIT TO ALLOW CONTINUED USE
OF APPROXIMATELY 300 SQUARE-FEET OF CITY OPEN SPACE ADJACENT TO 140
CONVENT COURT; DR. MARLEEN SMITH, APPELLANT; APN 015-291-01 (PW) –
FILE 2-11 x 9-3-40
Mayor Boro declared the public hearing opened.
Public Works Director Andrew Preston drew Council’s attention to the fact that he had just
received from the applicant copies of 25 signed petitions from residents of Convent Court in
support of the fence remaining in place, together with a separate three-page document from the
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applicant arguing why the City Council should grant the exception.
Mr. Preston reported that Doctor Smith and Mrs. Ballas are co-owners of the property at 140
Convent Court which they purchased in October of 2001. He indicated that the property backs
onto City open space, the Dominican/Black Canyon Open Space, and at the rear is a small
fenced in garden area, approximately 300 square-feet, with an average dimension of 20’ x 15’.
Directing Council’s attention to a plat map included with this evening’s packet identifying the
property at the end of Convert Court, Mr. Preston explained that Convent Court was off
Mountain View Avenue in the Dominican area, and the white space at the end of Convent Court
was the public open space. He noted a hammerhead at the end of Convent Court, i.e., a small
turnaround to facilitate vehicle turning, and the garden area was to the north of this.
Mr. Preston referred Council to a photograph of 140 Convent Court, looking northeast, depicting
the fence, and explained that the photograph was taken by standing in the middle of the
hammerhead, almost on the centerline of Convent Court looking towards the new fence.
Looking through the fence itself a small garden area could be seen, and he noted that at that
garden area the ground basically plummeted away at a 45 slope, and to the left the public
open space went uphill at an approximate 45 slope also. Mr. Preston noted that all of the open
space in this area went into a very deep ravine and in the absence of that fence, the Public
Works Department would need to place some type of barricade to prevent vehicles from driving
off the end and down the ravine.
Indicating that Dr. Smith and Mrs. Ballas purchased the property from Mr. Parcell, who owned it
for 23 years, Mr. Preston stated Mr. Parcell also used it for a vegetable garden and reportedly
stated that when he purchased the house from the first owner, there was a vegetable garden
there also, fenced in with a wire fence.
Mr. Preston reported that the home was built after November 1965, and from the Building
Inspection Report it was unclear when the final building inspection was carried out; however, he
believed it was between November 1965 and October 1966, albeit this was unclear. He
indicated that the public open space was dedicated to the City in December 1970, leaving
about a five-year period of private ownership.
Explaining the reason why this had now come to a head, Mr. Preston stated that Dr. Smith and
Mrs. Ballas recently replaced the old wire fencing, which was covered in pampas grass, scotch
broom, etc., with a very attractive looking wooden fence, which then drew the attention of some
neighbors that the area was being fenced in with a new fence, when in actual fact the fence had
been in place for between approximately 30 - 35 years previously.
Attention then having been brought to the Department of Public Works, Mr. Preston stated that
Scott Schneider, Senior Civil Engineer, investigated the encroachment into the City public open
space and advised the owners that it was a violation of the Municipal Code, Chapter 19.10. He
indicated that at that time, Dr. Smith applied to the Public Works Department for an
Encroachment Permit to legalize the encroachment, which was denied. Explaining the reason
for this denial, Mr. Preston quoted from the staff report:
“Section 19.10.030 General management policies.
(7) Open space lands shall be open to the public for its use and enjoyment in accordance with
the policies, rules and regulations established by the city.”
Mr. Preston noted this was not open to the public, but fenced in.
“19.10.060 Open space regulations.
(1) Use of Open Space. No person or group of persons shall use any open space area or
facility for any purposes inconsistent with this title or other city ordinances or regulations, except
with written permission from the Public Works Department.
(10) Destruction of Property. No person shall cut, break, injure, deface or disturb any tree,
shrub, plant, rock, monument, fence, bench, table, structure, apparatus, equipment or property,
or remove any flora or natural geological or paleontological features or mark or write upon any
building, monument, fence, bench or other structure or carry any flowers, shrubs, or branches
into or through any open space area. In addition, no person shall remove, add or introduce any
vegetation, wood, soil, rock, sand or gravel from or onto any open space area without written
permission from the Public Works Department.”
Indicating that no such written permission was given, Mr. Preston stated that, therefore, the
Encroachment Permit application had to be denied by the Department of Public Works.
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Explaining the subsequent procedure, Mr. Preston stated the next step in the appeals process
was to go to the Park and Recreation Commission, which Dr. Smith and Mrs. Ballas did,
resulting in the appeal being denied on a 7:0 vote. He noted that the minutes of that meeting
were attached to this evening’s material.
The applicant having leave to appeal to the City Council, Mr. Preston explained that the City
Council could grant an exception to the Encroachment Permit under Section 19.10.070, and
indicating he would again quote from the staff report, he stated this was very important as it
related to the document the applicants presented this evening explaining their reasoning for
their belief that they had valid exceptions in accordance with those specified:
“19.10.070 Exceptions
(b) On appeal, the City Council may grant an exception from the express terms of this chapter
by making the following findings:
(1) There are exceptional or extraordinary circumstances or conditions applicable to the
request;
(2) The exception is necessary for the preservation and enjoyment of a substantial property
right of the petitioner;
(3) The granting of the exception will not be detrimental to the public welfare or injurious to
other property or property owners in the vicinity of the property that is the subject of the
exception;
(4) The granting of the exception will not interfere with public use of or rights to open space
lands.”
Mr. Preston stated these were the four conditions Council had to find to grant an exception and
as indicated, the petitioner had answers to all of these issues.
During discussions with the City, Mr. Preston stated Dr. Smith’s attorney did raise the fact that
there could be prescriptive easement rights on the property if they could demonstrate they had
use of the property or a hostile right of the property for five years. He noted that at this time
they had been unable to show they did have the property use for five years. Mr. Preston
deferred to Eric Davis, Deputy City Attorney, for legal questions.
For Council’s information, Mr. Preston explained that in 1984, the City Council granted an
Encroachment Permit into public open space for a septic underground system and leach fieldin
the unincorporated area of Marin County – 19 Indian Road. He stated that at that time, the City
Council did find in favor of the applicant and granted an Encroachment Permit.
Mr. Preston noted that Senior Civil Engineer, Scott Schneider, who did most of the research on
this issue, and Eric Davis, Legal Counsel, were present and could answer question.
Councilmember Miller confirmed with Mr. Preston that the City responds to a complaint,
subsequently carrying out enforcement. Mr. Preston stated the City did not have resources to
patrol or maintain public open space. Noting this area had been fenced off for approximately 35
years, Councilmember Miller inquired as to the number of complaints received in that time, and
Mr. Preston stated that to his knowledge, this was the first complaint.
Referring to the first photograph in tonight’s packet, Councilmember Miller suggested this was
an 18’ in length fence facing Convent Court, which Mr. Preston confirmed. Mr. Preston also
confirmed that no survey had been carried out and the Public Works Department does not
survey private property for original fence lines. He confirmed the City could survey where the
public open space boundary line ends, at an approximate cost of $3,000.
Regarding the hammerhead (turnaround), Councilmember Cohen stated he understood this
also was for public safety vehicles. Mr. Preston confirmed there was no restriction on parking in
the hammerhead. Councilmember Miller commented he had seen the site with cars parked and
without.
Regarding Councilmember Miller’s comment that the area was overgrown with pampas grass,
scotch broom, etc., Mr. Preston stated this was based on the information received from
correspondence with the applicant. Councilmember Miller suggested this would be considered
a fire hazard by the Fire Department, and Mr. Preston concurred.
Referring to the second photograph, Councilmember Miller inquired whether the approximate
property line went behind or to the side of the house. Mr. Preston stated the property line came
from the City’s GIS mapping and was basically an approximation. Looking at the “garden” area
with steps going down the side, Councilmember Miller confirmed this to be the fenced in area in
question, while the other side was a precipice, with a fence way down in the ravine. Noting the
photographs did not demonstrate the danger involved, Councilmember Miller stated that in
darkness should someone lose their balance, they would tumble down if the fence were not in
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place.
Councilmember Miller inquired whether someone could walk up from the ravine and access the
property. Mr. Preston stated that someone with the agility of a mountain goat could do so.
Councilmember Miller confirmed this was a natural barrier for ingress/egress, noting it could
also be a severe safety hazard.
Councilmember Miller inquired whether the Parks Department carried out any maintenance of
the area, to which Mr. Preston responded in the negative.
Noting the pathway at the side of the property afforded access to a path going to the left and
away from the precipice, Councilmember Miller confirmed with Mr. Preston that the fence also
prevented people from accessing the precipice. Councilmember Miller commented that the new
fence of approximately 10’ – 15’ met with what he guessed was the original wire fence, and
inquired whether pampas grass, etc., had been hiding it. Mr. Preston stated that according to
the information received from the applicant, this was the case. With a huge amount of fire
hazard under the trees, etc., Councilmember Miller wished to ensure that what was happening
with the fence was understood, as from his understanding of the use, this was an attractive
place for visitors after dark.
Councilmember Phillips inquired whether there were any provisions for selling a small amount
of open space such as this. Indicating this was not normally done, Mr. Preston stated all
Council could do would be to grant an exception for an Encroachment Permit with the four
conditions mentioned earlier. Should the parties be interested, Councilmember Phillips inquired
whether they could purchase the property. Mr. Preston stated he did not believe they could
purchase the property, rather they could use it should Council find on the four items under
Exceptions. Councilmember Phillips inquired whether it was possible to convey title to this 300-
foot plot. Mr. Preston deferred to Legal Counsel on this question.
Deputy City Attorney Eric Davis was unsure whether there was anything specifically in the
Municipal Code; however, he was aware that some years ago, the City Council adopted a
resolution concerning disposition of City property, that set up a process for obtaining a valuation
and putting it out to bid. While restrictions could apply to this particular property that could
prevent its sale in a bidding process, Mr. Davis stated he would have to examine the Deed. He
believed it was given to the City with the intent it be preserved as open space and he was not
aware of a deed restriction that would even apply. He was not aware of any restrictions in the
open space regulations themselves - they did not intend that the City should sell open space;
however, he supposed if the City Council followed its other procedures, it could do so. He
indicated he would be happy to research this if necessary.
Regarding the prescriptive easement, Councilmember Heller noted the applicant’s lawyer
indicated he believed she had an easement in place, albeit not providing any proof, and she
invited staff to go through the requirements to be followed to have an easement in place legally.
Mr. Davis pointed out that no one could acquire title to property held by the City by living on it.
He explained that once the City acquired title to property, any prescriptive use period started
when owned by someone privately was cut off. He indicated there had to be a period of five
years of adverse use that was continuous, open and notorious under a claim of right, and this
had to be established, normally in a court of law and not an administrative proceeding such as
this, and the burden would be on the party asserting they had done this. Mr. Davis stated the
courts held that prescriptive rights did not apply to a situation where there was exclusive use of
the area alleged to be prescribed. He indicated it did not apply in the case of a fenced off area,
in which case the courts stated this was taking ownership of that property, paying taxes on the
property to acquire title to it. He noted it was not possible to acquire a prescriptive easement to
an area one had enclosed, even though this may have been done for five years, open and
notoriously, adversely, with a claim of right. Reiterating this could not be done by enclosing an
area, Mr. Davis added it would also be necessary to pay taxes. He indicated this had to be
demonstrated by a person claiming either a prescriptive right or adverse possession.
Councilmember Heller noted that in this case there was no prescriptive right. Mr. Davis stated
he had asserted and it was his opinion there could not be a prescriptive easement because the
area was enclosed and there was no evidence he had seen that the applicants had paid any
taxes on the area so that they could acquire title by adverse possession. He noted there also
was a very big question as to the period of time the fence had been there, or whether it had, in
fact, been there five years prior to the City’s acquiring ownership in December 1970. As a
matter of law, he believed there was a failure to establish the legal requirements, either for
adverse possession or a prescriptive easement.
To clarify the record, Mayor Boro noted the staff report stated that Dr. Smith agreed to
postpone the hearing to the February 7, 2005 meeting due to the absence of the Mayor. He
stated he did not know who Dr. Smith was and wished to make it clear this was not due to any
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connection he had with her and he did not know what was behind this.
Mayor Boro stated that personally he would never consider selling open space under any
circumstances; however, from page 4 of the staff report he noted the time period 1965 to 1970,
and indicated he knew the owner of the property in 1965 - a good friend, now deceased, whose
wife was still alive – whom he visited regularly. He did not recall whether or not there was a
garden at that time or what the use was; however, he could identify that owner and should the
current owner wish to pursue alleged events at that time, he could make the identity of this
person available.
Doctor Marleen Smith, appellant, 140 Convent Court, stated that while she had only lived in San
Rafael for approximately three and a half years, she had been involved with the community for
many years. She had been a part-time professor and program director at Dominican University,
an involvement spanning approximately ten years, and the other owner of the house, Cilla
Ballas had served the Marin community since the 1980s as a supervisor, teacher and board
member at the Community Institute for Psychotherapy.
Indicating that to date, the City and City services had been somewhat less than responsive to
their attempts to safeguard and ensure a safe and livable community and environment, with the
exception of this evening’s meeting, Dr. Smith explained that early on they attempted to secure
help and information with respect to what they had come to learn as the extreme fire danger in
their area, and were informed there was no money nor assistance available, so they took the
task on themselves.
As mentioned this evening, Dr. Smith stated the City had never been clear as to where the
property line was for their house. They requested a survey and were informed the City could
not afford one and they would be obliged to pay for it themselves. She stated that no one in the
City had provided help or assistance in tracking down information respective to the historical
record of the surrounding land, indicating it was the appellants’ problem and burden of proof,
with the exception of this evening’s comment regarding apparent information about the original
owners.
Dr. Smith reported that in the midst of all this there were some threats. She explained that
during her office hours some months back, a lower level civil engineer threatened in a
telephone message that if she did not act soon, he would go out and tear the fence down. She
noted the experience of a true community spirited individual expressing what apparently was an
opinion in opposition to their fence by standing just outside the fence and throwing rocks into
the property, and who having been observed, fled. Dr. Smith stated this was not a very
generous or cooperative attempt to establish a partnership with newer and responsible
members of this community.
Dr. Smith noted that the material they submitted this evening included the signed letters from
the Convent Court community, together with the written response to the exceptions, which she
read:
“The Exceptional or Extraordinary Circumstances:
First is the reality that the house was constructed five years before the City acquired the
land in 1970. At the time of dedication of the Frank Sinatra parcel of private land given to
the City, there was either an oversight by the City respective to the fence or the City was in
agreement with the land being fenced in in the same way that it currently is. Obviously,
there has been some historical form of a tacit agreement or consensual arrangement.
The immediate previous owner, Larry Parcell, clearly stated in his disclosure statement that
for 23 years (now 25 years) the area had been fenced in, and that the previous owners
before the Parcells used the area in question as a vegetable garden. It is clear that if the
dirt plot was used as a vegetable garden by the owners before the Parcells, it must have
been fenced in, given the deer population in our area and their characteristic grazing
habits.
Also, we have overwhelming support from the members of the Convent Court community –
the very people who are most effected by this situation, as you can see for yourselves with
the signed letters. They recognize that no change has been made to the open area; they
are in full support of the fence remaining as it has historically been and they feel strongly
that the fence serves an important function to several needs of our immediate community.
The health and safety of our community is maintained by decreasing irresponsible access
to a highly flammable area that would be enlarged without the fence, thereby allowing and
even promoting more illegal parking, tossing of cigarettes and other behaviors that
constitute a danger and a nuisance to our area. The fence provides a necessary barrier
that prevents vehicles from careening down the immediate steep cliff on the other side of
the fence.
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Even more compellingly, we have members of our immediate community who have resided
here for 40 years, 38 years, 34 years, 32 years who have specifically asserted and signed
a petition stating that the area in question has been enclosed by a fence in the same
location since they have lived at their current residence. Each individual petition includes a
declaration of exact number of years lived at that location, and awareness of the existence
of the fence.
Given that the City cannot disprove the existence of the fence, even before the land
converted from private to public, and that the City has been able to offer no salient
information that could be clarifying one way or the other, these individual testimonies serve
as the most compelling evidence of the historical nature of the enclosed area and the
fence, which from our neighbors who have resided here for the past 40 years has always
been just as it currently is. Everything cannot be thrown into the convenient trash bin of
hearsay – there has to be some reasonable-mindedness applied here!
The Exception is Necessary for the Preservation and Enjoyment of a Substantial Property
Right of the Petitioner:
The 16’ x 19’ dirt plot most immediately in question is the only flat land around us – the rest
of the hill is so steep that one would have to rappel down the hillside to use it. Constructing
the new fence because the old one had broken down and been crashed into by cars and
trucks was done at considerable expense to us. Tearing it down only to reconstruct
another fence would be prohibitive and, as our community maintains, an unnecessary
expense. We do have rights that need to be respected in this regard, as well as with
regard to keeping our area safe from intruders, from illegal parking, carelessly tossed
cigarettes, overnight camping, from cars tucking into what would be an even less visible
area should the fence be torn down, as well as from the nuisance factor of local teens
partying in what would become a virtually hidden spot.
The Granting of the Exception will not be Detrimental to the Public Welfare or Injurious to
Other Property or Property Owners in the Vicinity:
To the contrary, allowing the fence to remain in the same location that it has always been
contributes to the public welfare and safety and helps ensure that other property and
property owners’ needs and safety are maintained. To this end, the fence provides a
necessary barrier against a steep cliff, helps us to maintain the area from flammable and/or
hazardous dumping, helps curtail vandalism and illegal parking and illegal overnight
camping. The Convent Court community overwhelmingly and enthusiastically supports the
fence remaining in its current and historical location. It would seem most reasonable to
listen to and attend to the needs of the actual community in the immediate area – the
property owners – versus the vitriolic efforts of non-residents of our area who appear to
stand on rigid notions of land-grabbing rather than reason or recognition of obvious facts.
The Granting of this will not Interfere with the Public Use of or Rights to Open Space
Lands:
As our community has clearly maintained, there is no obstruction of any path, trail or usable
open space area. The walking/biking path - which is apparently not a legal trail - remains
unobstructed nonetheless, and all the surrounding area is too steep for access and as such
is unusable - unless dumping over the cliff side (an occurrence we have had to contend
with when the previous fence allowed access due to disrepair), is to be considered public
use or rights to open space land.”
Dr. Smith quoted the text of the Convent Court Community Response:
1) “The newer portion of the fence replaced the previously existing fence around the
property and is in the exact same placement as the original fence;
2) I am in full support of the fence remaining as is and find no problem, intrusion or
obstruction of open space area;
3) The fence remaining in its current and historical location serves an important function to
our community in that:
a) It provides a barrier for cars respective to the steep, drop-off cliff;
b) It encloses an area that would otherwise allow more parking and overnight camping
which leads to significant increase in fire hazards, etc.;
c) The location of the existing fence serves to deter closer contact with the more fire-
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prone surrounds in that it allows for less car traffic and access.
4) I am aware that the enclosure from the fence has been there since I have lived here
(Date of residence in area included with signature);
5) I have found that the present owners of this property have been good stewards of the
land and valuable assets to our community in their work in maintaining all fire
hazard/defensible spaces at their own expense, monitoring for general neighborhood
safety issues (cars parked overnight, illegal camping, trash and hazardous materials
dumped); and
6) We implore the City Council to take our neighborhood needs and requirements into
account through acting in a reasonable fashion and through understanding that leaving
the fence in its location benefits us as a community.”
In conclusion, Dr. Smith stated it could also be of value to have a conversation with Fire
Department personnel, with whom they, as well as the Parcells, had been in touch. She noted
there always had existed a reciprocal agreement with the Fire Department; they were only too
happy to have the barrier there and would visit regularly to thank the Parcells. Dr. Smith stated
they had them out and worked with them in maintaining the barrier and clearing the space at
their own expense.
Raymond Friesecker, Convent Court, stated that in the 22 years he had lived across the street
from 140 Convent Court there had always been a fence there, which the present owners had
improved by installing a very attractive one. He indicated his understanding was that due to the
drop off behind that fence, the City would have to install a barrier at its own expense, while a
barrier was already in position at the owners’ expense.
Noting dumping occurs consistently, Mr. Friesecker stated that in his 22 years he had been a
trash collector, collecting beer bottles and cans, cigarette butts and a variety of other
paraphernalia. Since the fence had been there, his sense was that the amount of material being
dumped was less and it appeared that the nice-looking fence had a psychological effect. Given
the fact that the owners in good faith had erected a needed barrier, Mr. Friesecker stated he
believed they met the four criteria for an exception.
While he was aware the City did not wish to sell the land, Mr. Friesecker stated it could should it
so choose. He explained that on moving there 22 years ago he had his lawyer research the
land next to his home and he found out it was the Sinatra parcel given to the City as open
space. However, it contained an exception to the effect that the City could sell part of that land
to recoup the expenses it had for taking control of the land. He believed the amount was
approximately $60,000.
Dick Sadler stated that this fall he would be a 36-year resident of both San Rafael and the
Dominican area. He indicated it was at the last Council meeting in December 1970, 34 years
ago, that he along with other members of the Dominican Association, did their best to
encourage the City Council to go ahead and acquire this open space. He noted it was not a
shoo-in but required some effort from the people of the neighborhood to convince the Council to
do so. Fred Jensen, stating “what do we need that stuff for”, seconded the motion and the City
did acquire the lands.
Mr. Sadler stated that little did the residents of San Rafael who encouraged the City to purchase
the open space ever think that someone would have the temerity to try to use this open space
for their own personal use and he could not see the City Council granting that concept. He
indicated there were too many properties throughout San Rafael that bordered open space.
Mr. Sadler stated one could reasonably assume that someone with the mental capacity to
achieve an MDdegree would also understand the importance of due diligence when purchasing
a home. He noted this evening’s packet contained part of a document (Page 3 supplement
TDS) which appeared to be a disclosure document by the prior owner in which they state “For
the past 23 years we have enjoyed using a small piece of fenced City property” and subtracting
23 years from the date the note was signed resulted in 1978, some 8 years after 1970 when the
City acquired the property from Frank Sinatra and others. Mr. Sadler stated that, therefore, the
applicant was aware at the time she acquired the property in October 2001, that there was
illegal use of that land and due diligence would have required her to look at the ramifications of
this. He doubted whether she checked with anyone at the City and believed her effort at that
time was to stay under everyone’s radar and hope no one would notice, which probably would
have been accomplished but for the fact that they installed a bright, tall fence on City property
which drew attention.
In part of the voluminous amount of letters the appellant sent to the Public Works Department,
Mr. Sadler noted she stated in part “many thanks for your help and attention to this (annoying)
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matter regarding the fence.” He stated Dr. Smith was aware when she acquired the property
that that parcel was City owned, and now she was upset at having to respond to this clear
violation.
Noting the amount of staff time that had been involved in this matter, Mr. Sadler suggested the
City consider charging rent for the amount of time this City property was used.
Mr. Sadler directed Council’s attention to the draft Resolution, quoting “NOW, THEREFORE, IT
IS HEREBY ORDERED AND RESOLVED ………that the encroaching fence and all non-native
items, including plant matter and bricks, shall be removed from the City’s Open Space lands by
Dr. Smith within 30 days of the date of this resolution to the satisfaction of the Public Works
Department.” Questioning how this could be determined, Mr. Sadler stated he inquired of Scott
Schneider, Senior Civil Engineer, whether the City knew exactly where the property line was,
who responded negatively. He indicated the appellant did not know; therefore, should the
appellant be required by denial of this petition to move the fence three feet, would that be off the
City property? His point was that this was unknown and believed it would be a reasonable
condition in the resolution that those causing the problem should pay for the solution. Mr.
Sadler stated he did not believe the City should be responsible for paying for a survey in this
situation. Should the appeal be denied, he suggested that this document be modified to require
the applicant to provide a survey as to where the line is, otherwise, how would Public Works
know on their return in 30 days that the conditions had been satisfied. He reiterated that it was
not the City’s responsibility to perform that survey and he could not see the City Council
approving this.
Trudy Rucker, Convent Court, stated that her neighbors were requesting the approval of a
permit that would allow them to retain a fence that has existed in the same place for as long as
one could remember. She indicated that the challenge arose when the owners improved the
fence and she believed the complainant was concerned this set a bad precedent and that every
house adjacent to or abutted public land would, therefore, take it upon themselves to do
whatever. While it was reasonable to be concerned about setting a bad precedent, she
believed two precedents were involved in this issue: 1) The precedent of preventing anyone
from encroaching on public land; and 2) The precedent of granting a permit to allow the
continued historical use of the small square-footage of public land abutting private property.
Ms. Rucker stated another precedent related to the denial of common sense in favor of
defending and enforcing legal loopholes that engaged the hard working and budget constrained
City in trivial pursuits, rather than in working for the good of the general public.
Ms. Rucker believed the precedent of allowing common sense to prevail and not encouraging
nuisance complaints such as this to proceed was as much a valid precedent as being
concerned about that of not allowing any encroachment on public land.
Regarding the issue of purchasing the land, Ms. Rucker stated that a couple of years ago some
development was planned for Gold Hill Grade and part of that agreement was not the purchase
of public land but an agreement considered by the City to exchange a small piece of land. She
explained that the developers wanted a piece of open space and the City was going to possibly
exchange that open space for another piece of the private land.
Cilla Ballas, co-owner of the property in question, stated she attempted to telephone Mayor
Boro on several occasions as she was aware he had lived in the neighborhood for some time
and that he might know about the property. She reported that Dick Cerutti, who built his house
on Convent Court in 1961 and had been there through the building of their house, remembered
that the fence had always been there, as did others who had lived on Convent Court for 40
years.
As one who lives in the house, Ms. Ballas stated she wished to underscore what an incredible
pain it was to have the teenagers and overnight campers in the area at the top. She
commented on how much cleaning up they do and how much noise invades their space and the
open space, how in the middle of the night car doors bang and she observes people urinating.
She believed this would all be further hidden from the possibility of being able to patrol the
situation; the danger was not so much that people camped there, rather the fire hazard from
those carelessly throwing cigarettes, etc., which was a real danger to all on Convent Court.
She requested that Council consider what would happen should the existing barrier be
removed.
Carole George, Convent Court, reported observing cars racing up the street and on getting to
the top and realizing it was a dead end discouraged a lot of high school children from parking,
etc. She noted Mr. Sadler indicated the fence was a bright color; however, she stated it was
very natural and blended in, and she was in favor. Should the City Council for any reason not
wish to have the fence there, she believed the homeowners should be reimbursed for the
expense of the fence.
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Mayor Boro clarified that Trudy Rucker, previous speaker, did not reside at 140 Convent Court.
Doctor Marleen Smith stated they were not interested in purchasing the land or making any
claims to it.
There being no further comment from the audience, Mayor Boro closed the public hearing.
Mayor Boro confirmed with Mr. Preston that the survey would cost approximately $3,000. He
noted comments regarding the Fire Department being satisfied with what was being done there,
and if the fence were down something would have to replace it because of the potential
problems of cars going down a cliff. Mr. Preston stated there was a very steep incline, similar to
a precipice down a ravine where the fence presently was, and should the fence not be there
some type of barrier would have to be installed to prevent vehicles from backing up. He noted
the appellant indicated that in the historical past this had been used for dumping materials down
the slope and also for stopping vehicles, as school children “hanging out” there could quite
easily drive over the edge. Should the fence be removed, Mayor Boro inquired whether a
barrier would be installed. Mr. Preston stated some type of metal guardrail/barrier would be
installed. Mayor Boro recalled wooden or metal gates were used in other parts of the City to
prevent people from hurting themselves or dumping.
Mayor Boro reiterated that he knew the original owners, one of whom was still alive. Referring
to page 4 of the staff report, he indicated he was trying to understand about the hearsay
statement versus the facts – what happened between 1965 and 1970 – and he really did not
recall. He noted from testimony that it was used at that point privately before the City acquired
it, and he inquired as to what impact that had on this matter.
Deputy City Attorney Eric Davis stated that if the property owner could demonstrate that there
were five years of use before the City acquired ownership and they paid the taxes, they could
acquire title by adverse possession. As he read the law, they could not demonstrate they had a
right to a prescriptive easement because it was not possible to acquire a prescriptive easement
by enclosing an area. Although it could be more satisfactory to know exactly when the fence
first was erected, Mr. Davis was unsure it would get the situation to where it needed to be,
which was whether or not the four conditions for granting an exception had been satisfied. He
suggested that perhaps information about when the fence first was erected would provide
information as to how long the fence or something like the current fence had been there, and
perhaps it did, as suggested, go to the first of the conditions; however, he did not believe it
necessarily would answer all four.
Mr. Davis explained that the City Council was being requested to evaluate the facts, weigh the
evidence and determine whether or not those findings could be made under each of the four
conditions, and if they could, the City Council could direct staff to return with, as suggested, a
resolution with those findings and a proposed agreement, because in the one instance where
this was done before (1984) there was an agreement which provided, for example, insurance
indemnification and a payment for the use of the property. Should the City Council be inclined
to go in that direction he suggested directing staff to limit an agreement for the period in which
these persons would own the property and not something that became perpetual, as in effect,
by Council agreeing to their use of the property, enclosed as it is, it became a vestige of City
ownership with no possession by the City. Mr. Davis stated a benefit strongly argued was that it
provided a barrier the City would otherwise have to erect and it could provide additional
benefits.
Should Council make the findings and direct staff to prepare an agreement Mr. Davis suggested
directing them to consider including some limits on the term of the agreement.
Mayor Boro stated that attempts should be made to contact the original property owner to
obtain some sense of what was happening during the period 1965-1970. He explained the staff
report indicated that if it had been used prior to 1970 for five years, that had some bearing, and
he was attempting to ascertain the historical use on this site. Inquiring as to the cost of making
the site safe, he noted the property line was unknown and since the City had taken an initiative,
it should know where its property line was. Commenting that neither the City nor the property
owner raised this issue, he suggested Mr. Sadler, who did raise it, should be responsible for the
cost. Mayor Boro stated that the cost of creating a barrier should also be understood, together
with the tradeoffs, as in removing the fence something needed to be put in its place to protect
the property adjoining the open space; therefore, it was important to ascertain the property line.
Returning to the four conditions, Councilmember Miller stated the first condition of extraordinary
and exceptional circumstances was met, i.e., the circumstances of health and safety and the
City’s liability because of that.
Regarding no adverse impact on the enjoyment of the property (open space), Councilmember
Miller stated there was no adverse impact on the enjoyment of the property as there was a way
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to enter the open space. There was no detriment, rather a benefit to open space, by ridding it
of fire dangers, etc., with no interference with public access to open space. He believed the
four criteria were met; however, he was in favor of obtaining the historical information so that
the findings made would have some strength.
With regard to setting the precedent of putting a fence on public property, Councilmember Miller
believed with these exceptional and extraordinary circumstances no other property was the
same. He considered the appellant’s presentation very persuasive with regard to meeting the
four conditions, and this, combined with ascertaining the historical data, was a solid way to
proceed.
Should someone trip and fall within the fenced-in area, Councilmember Phillips inquired as to
whom they would sue.
Commenting that perhaps the only person who could answer this was the person who tripped
and fell, Deputy City Attorney Eric Davis stated that in the 1984 case where this was agreed to,
the agreement for the use of the open space included a provision for indemnification and
insurance. Any property the City entrusted to someone else’s use potentially could result in a
suit against the City, whether or not the fence were there.
Indicating he was leaning towards Councilmember Miller’s reasoning with regard to the
exceptions, Councilmember Phillips noted it would cost a lot of money to assume the space
should the appeal be denied, and with what result. He stated it appeared to him that it would be
moving from a rather attractive fence to an unattractive guardrail, and with $3,000 for the
survey, the total expenditure could be $10,000. This was not achieving much, other than
perhaps a detriment to all involved; he did not see this as an area where people would be
deprived of open space, and was satisfied with the exception that addressed this. While he was
not in favor of selling open space, following the reasoning, to sell this particular site would make
some sense, as he believed it could be beneficial to the parties involved. He did not see 300-
feet as a significant encroachment upon the principle of open space; therefore, this would be his
first preference. Second, would be to grant the exception in this unique situation.
Councilmember Heller confirmed that Councilmember Phillips suggested selling the plot of land.
She thanked Dr. Smith for permitting her to visit the property today. She stated she would like
to know the history and if it had been privately used for five years before being sold to the City
as open space, that would be something to work with. She indicated she could not get past the
fact that this was the public’s open space and did not believe it could be given to a private party;
however, she could contemplate selling a small portion for a small amount of money should this
be possible. Should the City require the fence to be moved to follow the line, Councilmember
Heller stated a survey should be carried out at the City’s expense. She believed there should
be a barrier in place as it was absolutely unsafe.
From a common sense perspective, Councilmember Cohen stated that staff had given this
matter way more time than it deserved and he was not aware of anyone being harmed by this
over the past 40 years. Indicating he could not make these findings, he stated that from the law
as explained, what happened in those five years prior to the City acquiring title did not really
matter as a prescriptive easement was not under discussion because they had taken
possession of the land. He agreed there were exceptional or extraordinary circumstances and
not too many other cases in the City where public open space had been fenced for 35 or 40
years; therefore, he could make that finding. However, the exception this was necessary for
preservation and enjoyment of a substantial property right of the owner assumed the
conclusion. To make that finding it had to be assumed the owner had a substantial property
right to public open space and he could not make that finding.
Regarding whether granting of the exception would be detrimental to the public welfare,
Councilmember Cohen stated he could probably live with that finding; however, he disagreed
that granting the exception would not interfere with public use of or rights to open space lands.
We explained that access to other open space lands was not under discussion, rather a private
property owner fencing an area that was public property and denying the public use to it. As
unpleasant as some of the testimony received this evening was, he stated it spoke to exactly
that – if the fence was not there people would visit and park, etc., on land they owned.
Although it could be unpleasant to live adjacent to public space as people had a habit of using
it, and in some instances in undesirable ways; however, the fact remained that fencing publicly
owned open space was denying the public use of the rights to open space lands and he could
not support those findings.
Mayor Boro inquired whether the fence was for safety or whether there would be another type
of fencing that would prohibit the public from using the land in any event.
Mr. Preston stated that some type of barricade or fence would need to be erected to prevent
people from going over the edge of the ravine.
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Mayor Boro suggested that the history of the site be determined, staff explore the ability of the
City to sell under existing ordinances, with which philosophically he had a problem, carry out the
survey and should the fence be removed, ascertain what needed to be done and the cost. He
realized a lot of time, effort and money was being spent on something that people might believe
was a principle; however, sometimes practicality as well as principle had to be evaluated.
Councilmember Cohen stated he would have no objection to selling the property, noting that in
general, he did not wish to sell public open space. He indicated this was not something that
would see broad usage and while he understood Dr. Smith might not wish to purchase it, he
believed this was because they had been using it without purchasing it for a number of years.
He believed this would resolve the issue and regarding the points made by Councilmember
Miller, he did not believe the public would suffer greatly. He would be supportive of this as a
means of resolving the issue and would be happy to have staff explore the issue.
Noting the hearing had been closed, Mr. Davis inquired whether Council wished to continue the
item to a later date for a report from staff; however, not reopening the hearing. Mayor Boro
concurred on both issues.
Indicating he would procure the name of the person who owned the property so that staff could
contact her, Mayor Boro stated staff could also explore getting the survey done to determine the
property line, ascertain whether it was possible or not to sell the land under existing ordinances
and the cost of securing the site should the fence be removed.
Councilmember Heller wondered whether there was a small portion of Dr. Smith’s property,
below the level part, that could be traded for this plot.
Mr. Preston suggested in the first analysis contacting Dr. Smith to ascertain her interest in
purchasing the property, and if so, the owners would be required to prepare a plat map and
legal description of the property to bring to the City Council. He indicated they would have to
hire their own land surveyor to carry out the survey of the portion of the property they wished to
purchase, as it made sense to carry out both surveys simultaneously to avoid a duplication of
costs.
Mayor Boro stated that first the ability to sell needed to be ascertained, and if so, it would make
sense to contact Dr. Smith to find out whether she was at all interested in purchasing. He
suggested holding off on the survey pending this, and in the interim pursue the cost of building
a barrier.
Mayor Boro stated the item would be carried over to the City Council meeting of March 7, 2005.
COUNCIL CONSIDERATION:
NEW BUSINESS:
9. CONSIDERATION OF RESOLUTION APPROVING THE FORM OF AND AUTHORIZING THE
EXECUTION AND DELIVERY OF A PURCHASE AND SALE AGREEMENT AND RELATED
DOCUMENTS WITH RESPECT TO THE SALE OF THE SELLER’S VEHICLE LICENSE FEE
RECEIVABLE FROM THE STATE; AND DIRECTING AND AUTHORIZING CERTAIN OTHER
ACTIONS IN CONNECTION THEREWITH (CM) – FILE 8-13-11 x 8-5 x 9-3-11
Assistant City Manager Ken Nordhoff stated the State owed the City of San Rafael
$969,041.25, due to borrowing that money in fiscal year 2003-2004 – a bad thing. He reported
that the City was proposing to sell that receivable through a series of documents, purchase and
sale agreements, etc., for no less than 90 cents on the dollar, which would produce $872,000 to
the City’s good – a good thing to do. Mr. Nordhoff stated it was even a better thing to do when
considering the budget discussions of the past couple of months, and he recommended Council
adopt the Resolution.
Councilmember Cohen moved and Councilmember Heller seconded, to adopt the Resolution.
RESOLUTION NO. 11706 – RESOLUTION APPROVING THE FORM OF AND
AUTHORIZING THE EXECUTION AND DELIVERY OF A
PURCHASE AND SALE AGREEMENT AND RELATED
DOCUMENTS WITH RESPECT TO THE SALE OF THE
SELLER’S VEHICLE LICENSE FEE RECEIVABLE FROM THE
STATE; AND DIRECTING AND AUTHORIZING CERTAIN
OTHER ACTIONS IN CONNECTION THEREWITH
AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro
NOES: COUNCILMEMBERS: None
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ABSENT: COUNCILMEMBERS: None
COUNCILMEMBER REPORTS:
10. None.
There being no further business, the City Council meeting was adjourned at 11:11 p.m.
____________________________
JEANNE M. LEONCINI, City Clerk
APPROVED THIS ______ DAY OF __________, 2005
___________________________________
MAYOR OF THE CITY OF SAN RAFAEL
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