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HomeMy WebLinkAboutCC Minutes 2006-05-15SRCC Minutes (Regular) 05/15/2006 Page 1 IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, MONDAY, MAY 15, 2006 AT 8:00 P.M. Regular Meeting: San Rafael City Council Also Present: Ken Nordhoff, Interim City Manager Gary T. Ragghianti, City Attorney Esther C. Beirne, Deputy City Clerk OPEN SESSION — COUNCIL CHAMBER — 5:00 PM Mayor Boro announced Closed Session item 1.a). Present: Albert J. Boro, Mayor Gary O. Phillips, Vice -Mayor Paul M. Cohen, Councilmember Barbara Heller, Councilmember Cyr N. Miller, Councilmember Absent: None CLOSED SESSION — CONFERENCE ROOM 201 - 5:00 PM — File 1-4-1a 1. a) Public Employee Appointment, Government Code Section 54957(b)(1) Title: Interim Chief of Police Mayor Boro announced that the City Council directed Interim City Manager Ken Nordhoff to negotiate a contract to engage former Police Chief Tom Simms (Roseville) as Interim Chief of Police for the City of San Rafael. OPEN SESSION — COUNCIL CHAMBER — 9:39 PM Mayor Boro announced Closed Session item 1.b). CLOSED SESSION — CONFERENCE ROOM 201 — 9:40 PM — File 1-4-1a 1. b) Conference with Labor Negotiators — Government Code Section 54957.6 Negotiators: Ken Nordhoff, Nancy Mackle, Lydia Romero, Donna Williamson Employee Organization (s): San Rafael Firefighters' Association San Rafael Fire Chief Officers' Association San Rafael Police Association San Rafael Police Mid -Management Association Confidential Unit Western Council of Engineers SEIU Miscellaneous & Supervisory Mayor Boro announced at 10:35 p.m. that no reportable action was taken. ORAL COMMUNICATIONS OF AN URGENCY NATURE: 8:27 PM a) Gerstle Park — Retaining Walls in the Public Right -of -Way: - File 9-1 x 9-3-40 Hugo Landecker stated that the Gerstle Park Neighborhood Association reviews plans for every project in the area and in the past year there had been three instances where retaining walls were constructed in the public -of -way without inspection, required engineering, City review or building permits. He indicated his Association's concerns were twofold: 1) the taking of public land for exclusive private use; and 2) City liability in the case of retaining wall failure. He believed that various City departments needed to communicate better with each other and participate in the public hearing process. His Association did not like being forced into a position of having to appeal a decision. Mr. Landecker requested that the City Council direct staff to generate a policy on retaining walls in the public right-of-way and that the City Attorney advise the City Council on the subject of liability of these retaining walls in the event of failure. Public Works Director Andy Preston stated he did not disagree with Mr. Landecker's comments. These were three of hundreds, if not thousands, of encroachments into the City right-of-way, mainly in the older areas with hillside streets, such as Gerstle Park, Bret Harte, etc. He indicated that the Public Works Department issues encroachment permits for work within the right-of-way for projects such as sidewalks, driveways, small areas of encroachment such as small retaining walls for landscaping purposes and small fences. Encroachment permits are also issued for excavations within the City right- of-way, mainly for pipelines, sewer lines, storm drains and utilities. Mr. Preston stated there was no written policy currently dealing with the larger encroachments into the City right-of-way, such as large retaining walls and buildings. He intended to work with the City Attorney's office to develop criteria and policy, subsequently returning to the City Council with a policy on how to deal with such situations, for adoption. SRCC Minutes (Regular) 05/15/2006 Page 1 SRCC Minutes (Regular) 05/15/2006 Page 2 b) Kids' Day America: - File 9-1 Lisa Hartnett stated that Kids' Day America International takes place at Davidson Middle School on Saturday, May 20, 2006, from 12:00 Noon to 3:00 p.m., and she invited all to attend. She explained that this worldwide event was a health, safety and environmental awareness day for children, and would benefit Wild Care. c) Lawsuit — Soccer Complex: - File 9-1 x 10-2 x 12-12 City Attorney Gary Ragghianti stated that with all of the lawsuits the City was currently spending time on, this was not one of them. Indicating it did not name the City, he stated that from pleadings he had seen it named two, and DOE defendants, and was brought by Mr. Shekou against individuals. Mr. Ragghianti stated that the City had no interest in this lawsuit in terms of the legal issues framed by the pleadings and was not a party to it. Mary Feller explained that the citizens present were in disguise to illustrate their fear of reprisal from the lawsuit that named up to 50 DOES. She indicated she was present in person because she could not get anyone to return her phone calls. She noted she had campaigned for Councilmember Cohen; however, had not received any response from him. Commenting that the public process of the City of San Rafael was broken, biased and poisoned, she stated that the City, through the Planning Department, had consistently acted, not as a neutral party, but as an advocate for the interests of Joe Shekou in implementing his agenda. Ms. Feller stated they were in possession of an email from former City Manager Rod Gould to Robert Herbst, sent before their community meeting was held, indicating that the City Council was behind the project. Ms. Feller stated that the City then issued a Negative Declaration of Impact on the proposed development that was clearly specious. Ms. Feller stated that Joe Shekou's retaliatory lawsuit against Robert Dobrin and Frances Nunez, and 50 other DOES, had poisoned the public process and should the public be afraid to speak up, the City of San Rafael essentially had no public process and no participation. She commented that the City of San Rafael had conveniently been struck with amnesia with regard to the Smith Ranch density exchange, the critical environmental studies and even the City's own previous General Plans in order to pave the way for the development and she believed this arrogance signaled to all developers that they could act with impunity. She requested that the City not do business with bullies. Mayor Boro stated that the City Council had had no discussion whatsoever on this project. Paula Kotzen stated she was present to speak out against the tactics of fear and intimidation from a large developer against citizens who had the courage to object to a project in a public forum. Elaine Reichert, Santa Venetia, stated she was very concerned with the sloppy environmental reports about Loch Lomond, the Quarry and especially, the Soccer proposal for the airport. Indicating that they cared about the wetlands, she stated they had been trying to restore the clapper rail habitat. She believed the project was inappropriate and should have been rejected at the beginning because of the density exchange made when the property was purchased. Mary Hanley stated she had made a list entitled "Partial List of Issues Dismissed, Downplayed, Unanswered or Overlooked." She noted the 200 page Negative Declaration, which was rushed through in 30 days, and when presented to the Planning Commission was still incomplete. Referencing the email from Mr. Gould, she stated that evidently Mr. Gould was speaking for the City Council when he stated it was an "excellent project." She noted the email was written on June 21, 2005 and they found out about it on June 22, 2005. She noted that Bob Herbst's email was dated June 16, 2005. Indicating that the community had been ignored in this process, Ms. Hanley stated her neighborhood contributes through volunteering — cleaning up medians, taking care of dredging issues, etc - and she requested that the City be honest and have integrity. She handed copies of the previously mentioned email from Rod Gould to the Deputy City Clerk. Jake Jakl read the contents of an email from Robert Herbst to Rod Gould on June 16, 2005 "Dear Rod, As you may know, we have made our final submission for the airport recreational facility. Joe and I both greatly appreciated the supportive message you left a few months ago when we made our original submission. We've run into a little friction from the County regarding the project, from a somewhat unexpected source: The County Parks and Rec people. We thought they would be supportive of new fields and facilities, but so far that has not been the case. Their McInnis Park staff member (Stephen Peterle) has stated he is opposed to the project, and he has written a negative letter to City Planning. I spoke with Mark Riesenfeld who is the acting Parks and Open Space Director (the position is currently unfilled) today, and followed up with the attached email. I wanted to bring you and Mayor Boro into the loop on this (could you please forward this email to him?). Any help or advice in establishing a positive dialogue with the County Parks and Rec people is greatly appreciated. Kind Regards, Bob Herbst." SRCC Minutes (Regular) 05/15/2006 Page 2 SRCC Minutes (Regular) 05/15/2006 Page 3 Mr. Jakl stated this email was answered by Rod Gould on June 21, 2005 as follows: "Dear Bob, I am flabbergasted that the County would put up barriers to your excellent project. Your letter to Susan Adams is well put and compelling on all points. I have a call into Mark Riesenfeld to ask for his reasons for this initial opposition. He promised to get back to me, but is deep in transition to retirement on the 30t". We on City staff are very supportive of your project. So is the City Council. I believe that the Planning Commission will also see its many merits. Nonetheless, change comes very hard in Marin. We have received a petition from Captain's Cove residents objecting to traffic and parking impacts that we will answer. We will reach out to the County and try to get it to step back and assess all that your project offers. Thank you and Joe for bringing it forward. It will make a lasting dent in the severe need for additional field space (especially all-weather fields) in North Marin and beyond. —Rod" Mr. Jakl stated it appeared everyone was well aware. Noting the positive attitude, he stated "what about a positive attitude for both sides" going forward. He expressed the hope that the Environmental Impact Report would be reinvestigated. Gordon Feller repeated Ms. Feller's comment that "the City of San Rafael had conveniently been struck with amnesia with regard to the Smith Ranch density exchange" and any of the documentation City officials were unable to find, they would provide. He indicated that critical environmental studies were being ignored and the City's previous General Plans had been structured in such a way to pave the way for this development. This arrogance signaled to all developers that they could act with impunity, which was unacceptable. They argued that rewriting history was not suitable in this case and was not something that should be done to suit the ambitions of a developer. Mr. Feller stated the City of San Rafael ought to send a very different message: "That the bullying of the electorate will not be tolerated and this project should not go forward." He stated their case was that the City should not do business with bullies and should consider slap suits like these bad for business, bad for San Rafael and for the general tenure of life in Marin County. He commented that the City should be committed to restoring faith in the policy process (in the public at large) and to bias the process in favor of any developer when it had not been concluded was bad policy, bad for business and did not attract the desired genuine public engagement in the policy process. Councilmember Cohen apologized to Mary Feller for not returning her call and stated he would be happy to talk with her at any time. Indicating he was concerned about the email in question, Councilmember Cohen stated he believed it prejudiced the public process to state in advance that the City Council supported a project they had not yet seen, had not taken any testimony on or reviewed the environmental document, as it had not yet been presented to them. He believed it was inappropriate, puts the public process in a bad light and an unfortunate error of judgment on Mr. Gould's part. CONSENT CALENDAR: Councilmember Miller moved and Councilmember Heller seconded, to approve the Consent Calendar, as follows: ITEM 2. Approval of Minutes of Regular Meeting of Monday, May 1, 2006 (CC) 3. Call for Applications to Fill One, Four -Year Term on the Design Review Board, Due to Expiration of Term of Board Member Anne Laird -Blanton, Architect (Term to Expire End of June, 2010) (CC) — File 9-2-39 RECOMMENDED ACTION Minutes approved as submitted. Approved staff recommendation: a) Called for applications to fill one, four-year term on the Design Review Board, due to expiration of term of Board member Anne Laird -Blanton, Architect, with term to expire end of June 2010; b) Set deadline for receipt of applications for Tuesday, June 6, 2006 at 12 Noon in the City Clerk's Office, Room 209, City Hall; and c) Set date for interviews of applicants at a Special City Council meeting to be held on Monday, June 19, 2006, commencing at 6:00 p.m. SRCC Minutes (Regular) 05/15/2006 Page 3 SRCC Minutes (Regular) 05/15/2006 Page 4 4. Call for applications to Fill Two, Four -Year Terms Approved staff recommendation: on the Planning Commission, Due to Expiration a) Called for applications to fill two, of Terms of Commissioners Larry Paul and Bruce four-year term on the Planning Scott (Terms to Expire End of June, 2010) (CC) — Commission, due to expiration of File 9-2-6 terms of Commissioners Larry Paul and Bruce Scott with terms to expire end of June 2010; b) Set deadline for receipt of applications for Tuesday, June 6, 2006 at 12 Noon in the City Clerk's Office, Room 209, City Hall; and c) Set date for interviews of applicants at a Special City Council meeting to be held on Monday, June 19, 2006, commencing at 6:00 p.m. 5. Resolution Authorizing the Interim City Manager RESOLUTION NO. 11952 — to Execute a Third Amendment to the Agreement RESOLUTION AUTHORIZING THE for Professional Planning Services with Lisa INTERIM CITY MANAGER TO Newman for Assistance as Project Planner for EXECUTE A THIRD AMENDMENT TO the Proposed 15 -Unit Residential Condominium THE AGREEMENT FOR Development Located at 524 Mission Avenue, PROFESSIONAL PLANNING Increasing the Budget for the Agreement from SERVICES WITH LISA NEWMAN $105,000 to $142,500 and Extending the Term of (DBA NEWMAN PLANNING the Agreement Through December 31, 2007, ASSOCIATES) FOR SERVICES with all Costs Reimbursed by the Project RELATED TO THE PROCESSING OF Developers Through Cost Recovery (CD) — PLANNING APPLICATIONS FOR THE File 4-3-418 x 13-16 PROPOSED CONDOMINIUM PROJECT TO BE LOCATED AT 524 MISSION AVENUE (Terms of Amended Agreement: Agreement extended from December 31, 2006 through December 31, 2007, with a total amended budget amount not to exceed $142,500. All costs to be reimbursed to the City through cost recovery from project applicants) 7. Resolution Authorizing the Naming of the Private RESOLUTION NO. 11953 — Internal Street Within the Academy Heights RESOLUTION APPROVING "LIVE Subdivision "Live Oak Way" (CD) — File 11-2 OAK WAY" AS THE STREET NAME FOR THE INTERNAL PRIVATE STREET WITHIN THE ACADEMY HEIGHTS SUBDIVISION (PO6-001) 8. Summary of Legislation Affecting San Rafael Approved staff recommendation: (CM) —File 116 x 9-1 SB 1404 — Parking Violations. Street Cleaning. Senator Machado. OPPOSE AB 2922 — Local and Moderate Housing Funds. Assembly Member Jones. OPPOSE 10. Monthly Investment Report for Month Ending Accepted the Monthly Investment April, 2006 (MS) — File 8-18 x 8-9 Report for month ending April 2006, as presented. 11. Update to the City's Investment Policy (MS) — Accepted Update to the City's File 8-9 x 8-18 Investment Policy report, as presented. 12. Report on Bid Opening and Resolution Awarding RESOLUTION NO. 11954 — the Contract for Fifth Avenue Bicycle/Pedestrian RESOLUTION AWARDING THE Pathway, Project No. 11051, to Ghilotti Bros. CONTRACT FOR FIFTH AVENUE Inc., in Amount of $ 356,702.80 (Bid Opening BICYCLE/PEDESTRIAN PATHWAY, Held on Tuesday, May 9, 2006) (PW) — PROJECT NO. 11051, TO GHILOTTI File 4-1-580 x 261 x 9-3-40 BROS. INC. IN THE AMOUNT OF $356,702.80 SRCC Minutes (Regular) 05/15/2006 Page 4 13. Resolution Authorizing the Director of Public Works to Enter Into an Agreement with Parisi Associates Transportation Consulting to Design Bicycle Facilities as Outlined in the San Rafael Bicycle and Pedestrian Master Plan Short -Term Projects (PW) — File 4-3-453 x 261 x 9-3-40 14. Resolution Authorizing the Economic Development Director to Execute a Professional Services Agreement with Joanne Webster for Management Services for the Downtown Business Improvement District (From July 1, 2006 — June 30, 2007) (RA) — File 224 SRCC Minutes (Regular) 05/15/2006 Page 5 RESOLUTION NO. 11955 — RESOLUTION ACCEPTING THE SCOPE OF SERVICES AND AUTHORIZING THE PUBLIC WORKS DIRECTOR TO ENTER INTO AN AGREEMENT WITH PARISI ASSOCIATES TRANSPORTATION CONSULTING FOR PROFESSIONAL ENGINEERING SERVICES IN AN AMOUNT NOT TO EXCEED $30,000 TO DESIGN AND STUDY THE BICYCLE PROJECTS OUTLINED IN THE SAN RAFAEL BICYCLE AND PEDESTRIAN PLAN SHORT-TERM PROJECTS RESOLUTION NO. 11956 — RESOLUTION AUTHORIZING THE ECONOMIC DEVELOPMENT DIRECTOR TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH JOANNE WEBSTER FOR MANAGEMENT SERVICES FOR THE DOWNTOWN BUSINESS IMPROVEMENT DISTRICT (FROM JULY 1, 2006 TO JUNE 30, 2007) AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None The following item was removed from the Consent Calendar at the request of Ms. Deborah Colby, for discussion: 6. REPORT ON TEMPORARY A -FRAME SIGN PROCEDURES (CD) — FILE 125 x 9-3-85 x 10-3 x 10-7 Deborah Colby stated she did not understand why the temporary A -frame sign procedures had been set aside other than that it was not sufficiently appealing to San Rafael business owners. She explained that her business is not in the downtown, being on Second Street, and is set so far back from the street that it cannot be seen, which was the reason she wanted and fought for the simple A -frame sign that would be visible to people driving by on this one-way street. Ms. Colby stated it appeared to be a simple matter of not very many people caring about the issue; however, in her situation it would make a huge difference in the visibility of her business and the cost of advertising her business. If it truly worked for a year and eight months, she did not see why a lack of interest should cause it to go off the books, rather it would make sense to have it remain even with only three people wishing to avail of it. Ms. Colby respectfully requested that the A -frame sign procedure be allowed to remain. She liked her sign and would very much like to be able to use it. Having a hearing problem, Ms. Colby stated her son would apprise her of the proceedings. Principal Planner Bill Meeker reported that following the last discussion of this item before the City Council, staff was directed to meet with the Business Improvement District Board to determine whether there was a means of making the program more appealing to business owners within the downtown area. Staff met with the business community representatives in early September of last year and many different alternatives were explored: Changing the requirements for the construction of the signage conceivably to make it a little easier for people to buy signs right off the rack without having to have something that did not conform to an industry standard; Waiving the requirement for the liability insurance coverage which some members of the business community within the downtown area felt was an onerous situation for them to deal with. The bottom line, however, was having gone through an hour long discussion on the item, there was not sufficient support within the downtown business community to warrant taking the issue any further. SRCC Minutes (Regular) 05/15/2006 Page 5 SRCC Minutes (Regular) 05/15/2006 Page 6 Mr. Meeker noted that a letter was attached to the staff report from Joanne Webster, Director, Business Improvement District, which basically verified staff's determinations subsequent to the discussion. To reiterate for the record, Mr. Meeker stated that the program really only applied to the downtown area. It was not a citywide program; the City Council on a 3:2 vote on the previous occasion extended it; however, there also was discussion about even not extending it at that point. The fact that only six permits were issued over the entire year and eight months of the program was somewhat telling with respect to its desirability in the business community and how much value it actually had in the community. Mayor Boro stated his recollection was that this was a trial to see how people reacted. Mr. Meeker stated this was exactly the case. Community Development Director Bob Brown stated that at the genesis of this discussion a few years ago there were a number of concerns. He indicated that very few cities allow A -frame signs; the primary reasons being: concerns about visual clutter, concern about access and liability on the sidewalks, together with the level of enforcement involved. Staff tried to balance all of these interests and give it a one-year trial. Mr. Brown stated there were concerns among the City Council members about the aesthetics and the sense of clutter on the sidewalk, and from the business community perspective, as they talked about creating some design criteria for these signs, they did not feel there was a uniform enough standard that would suit all the businesses downtown, and for that reason, they basically did not support the project. Mr. Brown stated there were a number of concerns, not just the fact that the business community could not reach consensus. With respect to Ms. Colby's concerns and needs, Mayor Boro inquired whether there was any other way she could provide sign identification on her site. Mr. Meeker stated that staff would be willing to work with Ms. Colby by physically going out to the property to ascertain whether there were any options that could be provided to her through the existing sign ordinance, absent using an A -frame sign. He added that staff was willing to work with anyone in the business community to try to improve their visibility. Mr. Brown stated there should be some more appropriate types of signage more oriented towards automobiles going by. He noted A -frame signs were much more geared to pedestrians and Second Street was not really a pedestrian way. These signs were much more suitable on Fourth Street which did have this type of pedestrian traffic; however, he believed there should be other sign solutions more visible to passing vehicles. Councilmember Heller wished to ensure that Ms. Colby understood the remarks made and suggested that Mr. Meeker give her his card so that she could call and have him or someone from the Planning Department look at the property. Indicating she had Mr. Meeker's card, Ms. Colby questioned whether this meant there was a chance the A -frame program would be reinstated. Mayor Boro clarified that this was a trial program to ascertain whether or not the signs were workable or whether there was a demand for them in the downtown, and based on the surveys taken and the information available, there was very little demand; therefore, the recommendation was that the trial be discontinued and the signs not allowed. Mayor Boro stated his question was whether there was another way to sign Ms. Colby's property that would be effective, and Mr. Meeker had agreed to visit the property. He noted Mr. Brown also pointed out that A -frames were primarily for pedestrian zones, which Second Street was not, and Ms. Colby needed something that would appeal to vehicles. He indicated that Mr. Meeker would be happy to visit and determine what could be recommended. Thanking the City Council, Ms. Colby agreed that she would deal with Mr. Meeker. Noting the language "take no further action to extend the program" and "If the program is permanently terminated...." in the staff report, Councilmember Phillips inquired whether the program was being permanently terminated or whether it was just not being extended. Mr. Meeker stated that the effect would be similar in that by not extending it, it became a null and void program and would be terminated, and staff would proceed to notify people who hold A -frame signs that the interim program had expired and they would be given a certain timeframe to remove the signs. If the City moved in that direction, Councilmember Phillips confirmed that the action taken did fall under the program "permanently terminated" and the signs would be removed. Mr. Meeker concurred. SRCC Minutes (Regular) 05/15/2006 Page 6 SRCC Minutes (Regular) 05/15/2006 Page 7 Councilmember Phillips moved and Councilmember Miller seconded, to accept the recommendation of staff to discontinue the pilot program for A -frame signs. AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None Mayor Boro confirmed that Mr. Meeker would be in touch with Ms. Colby with regard to working something out in connection with her sign requirements for her business on Second Street. The following item was removed from the Consent Calendar by Councilmember Phillips, for discussion 9. FISCAL YEAR 2004-2005 ANNUAL FINANCIAL AUDIT REPORT; THE GANN APPROPRIATION LIMIT REPORT; THE SINGLE AUDIT REPORT AND THE MANAGEMENT LETTER/REPORT (MS) — FILE 8-9 x 9-3-20 Without micromanaging, Councilmember Phillips stated that next year he would expect not to have to wait until nearly twelve months beyond the fiscal year to receive the report. Should anything prevent this from happening, he assumed the City Council would be informed so that they did not find themselves approving the 2005-2006 report a year from now. Finance Manager Cindy Mosser sincerely apologized for the lateness of the report. Understanding that it had been a busy period, Councilmember Phillips stated it was beyond what should be allowed. In the Recommendations to Management document, Councilmember Phillips noted under Fraud Policies and Procedures, "The City does not have formal written fraud policies and procedures" and the recommendation was that there be one. The City's Response was: "The City concurs that there is a need for policies and procedures. However, this is something that the City will work on as time permits." Councilmember Phillips suggested that in light of recent events the priority of this recommendation should be upped. Ms. Mosser stated this was responded to earlier in the year when the audit field work was done. The City had contracted with a firm to help with policies and procedures and staff was working on procedures throughout with payroll, credit card and fraud policies. Interim City Manager Ken Nordhoff confirmed that the City had someone under contract assisting in getting this done. Under New Pronouncements, Mr. Nordhoff stated this identified the kinds of things that sometimes impacted staff in getting the work done, i.e., new mandates by the Governmental Accounting Standards Board; the audit reports were not getting thinner and easier to read, rather they were getting thicker and more complicated. While this was not an excuse, he explained these were some of the issues staff had to deal with. Mr. Nordhoff stated that the field work was scheduled to commence on October 2, 2006 and it was anticipated that by the end of the calendar year everything would be completed. Councilmember Phillips stated that first hand he could appreciate the issue; however, receiving the report this far beyond year end was not meeting his expectations. Councilmember Phillips moved and Councilmember Miller seconded, to accept the Fiscal Year 2004-2005 Annual Financial Audit Report, accept the Gann Appropriations Limit Report, accept the Single Audit Report and Management Letter/Report. AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None COUNCIL CONSIDERATION: NEW BUSINESS: 15. CONSIDERATION OF DUAL ANNEXATION POLICY RELATED TO PROPOSED EXPANSION OF THE MOUNT TAMALPAIS CEMETERY (CD) — FILE 149 x 5-2 x 10-2 As Mount Tamalpais Cemetery was a client of his firm, Councilmember Phillips recused himself, SRCC Minutes (Regular) 05/15/2006 Page 7 SRCC Minutes (Regular) 05/15/2006 Page 8 due to a potential conflict of interest, and left the Council Chamber. Community Development Director Bob Brown stated that as they were aware, the County of Marin had been processing an application for expansion of the Mount Tamalpais Cemetery for approximately three years. He explained that the cemetery is in an unincorporated area of the County which was the reason for its being processed by the County. Mr. Brown reported that during the processing of the application it was discovered that the cemetery had an unauthorized connection to the San Rafael Sanitation District. The District had indicated its willingness to serve the property; however, would require that it be annexed to the Sanitation District and pay connection fees and penalties. He stated that the requirement to annex the cemetery property into the Sanitary District would trigger LAFCO's Dual Annexation Policy. He explained that this policy encourages what the County terms "urban scale development" such as development that would require sewer service to occur within cities and not in the unincorporated area. The Dual Annexation Policy in essence, gives the City the first right of refusal on annexing the property. Mr. Brown stated that at its meeting in February of this year, the County Planning Commission, as part of their evaluation of this application, sent a request to the City Council to indicate its interest in annexing the property or not. Using PowerPoint, Mr. Brown identified the district boundaries on maps: Identifying the location of the property in question, he noted the existing City of San Rafael boundary and the City's sphere of influence. He identified a portion of the cemetery property at the end of Fifth Avenue, and in addition, the Camgros and Duca properties, for which the City had an application for subdivision and annexation, together with other small lots adjacent to the cemetery that were in an unincorporated area. A second map depicted the sphere of influence in LAFCO for the sewer agencies. Mr. Brown stated that this map was a little different in that it showed the existing boundary of the San Rafael Sanitation District, including the Camgros and Duca properties, but excluding the cemetery property. Again, he stated it was in the sphere of influence of the San Rafael Sanitation District, but not included in the District currently. Mr. Brown stated that the question before Council was whether they were interested in invoking the Dual Annexation Policy in conjunction with the annexation of the cemetery property into the Sanitation District. He explained that the issue before Council this evening was not related to the development proposal of the cemetery, which was still before the County, and the County would have to make a determination on that application. Mr. Brown explained that the considerations that usually go into whether to annex a property or not were: Whether the annexation would be a logical, geographic extension of the City's boundaries; Whether the City could efficiently provide services to the property; The fiscal effects of the annexation; and The desire for land use control. On the first point, Mr. Brown stated that the property is at the terminus of Sun Valley. It had been in the City's Sphere of Influence with LAFCO for many years and the sphere of influence is defined as the ultimate likely boundaries of the City; therefore, staff believed it did meet the criteria in terms of a logical extension of the City boundaries. Mr. Brown explained that the City already provides first response by the Police and Fire Departments due to their proximity. He stated that both departments had indicated they get a very low volume of calls for this property per year, typically approximately four; therefore, the overall service needs were fairly low, and the site is almost entirely accessed from City streets In terms of the fiscal return, staff estimated that if the property were annexed to the City, there would be a transfer of approximately $18,000 in annual property tax, and although not a great deal, it was anticipated the City's service costs for the property would be fairly low. Therefore, in terms of fiscal return it was not an issue either way. Lastly, Mr. Brown stated the City could gain land use control if it were to annex the property; however, he wished to address two very important points concerning land use control, as it came to the heart of the neighborhood's concerns. Mr. Brown reported that the most controversial aspect of the cemetery master plan is the proposal to locate a permanent County morgue at this site. The County Coroner had proposed to lease a facility that would be constructed by the cemetery owner. He indicated that the City Attorney's Office, having researched this issue, had concluded that the City of San Rafael SRCC Minutes (Regular) 05/15/2006 Page 8 SRCC Minutes (Regular) 05/15/2006 Page 9 would not have land use control over a County facility whether it was on land owned or leased by the County. Therefore, ultimately, the decision to locate the County Morgue at the Mount Tamalpais Cemetery would be made by the Board of Supervisors in their review of a proposed lease. Mr. Brown stated that another controversial aspect of the proposed cemetery master plan was the rerouting of public access through the cemetery into the adjacent open space. He explained that for many years the public had used paved and dirt roadways and paths through the cemetery to gain access, during their hours of operation, to the ridge that divides Sun Valley and Terra Linda. Indicating that the owner originally proposed to reroute all public access to their eastern property line adjacent to the homes on Shannon Lane, Mr. Brown stated that the City's one concern was that this rerouting would be too steep to accommodate bicyclists. He reported that the City Attorney's Office researched this issue also and noted that the City could not compel the property owner to allow public access. However, should members of the public provide evidence of their access through the cemetery prior to 1972, it could be possible that they could obtain prescriptive access rights; however, this is an entirely separate matter from annexation or the development proposal that might in the future come before the City. Mr. Brown reiterated that the issue before the City Council this evening was how to respond to the County on whether or not the City is interested in annexing the cemetery property into both the City and the Sanitary District. Councilmember Cohen stated he was concerned about the issue of land use control and the County's use of this facility. If the City seeks to annex the property but does not have land use control over a County facility, then it would be a lose/lose situation for the City. Councilmember Cohen stated he would like to hear more about how much research had been done, particularly on the point that the County's right to go ahead and do this without any oversight by the City applied whether they build and own the facility, or it is built and they lease it. He invited the City Attorney's comments. Mr. Ragghianti stated there was no case that specifically addressed the issue of a lease that is proposed by a property owner who also builds to spec a building to be occupied by a public agency such as the County. The cases he had seen that had decided the preemption issue all involved property owned by the County. He indicated the most staff would be prepared to say at this time is that they were continuing to look at the issue (he had not had a chance to speak with Mr. Brown since he prepared his staff report); however, if there is no lease in effect at the time the property is annexed into the City, and if the property owner is proposing to build to County specs the County Morgue building, the City may very well be able to do something; he was just not certain yet. Indicating it was not an easy question to answer, Mr. Ragghianti stated that the standard applied is the extent to which the local regulations burden the public agency. Staff was not finished looking at the issue. Mr. Ragghianti indicated he would simply state that it is possible depending on what the actual relationship is between the property owner and the County at the time the annexation is effective, and not having looked at it, he did not know what this was yet. Mayor Boro stated he believed to continue with this discussion kind of violated the tone that Mr. Brown started with, i.e., speculation was beginning. Referring to an email received today from Tami Griffith, who was unable to attend this evening, Mayor Boro stated it contained a number of points, the final one of which read: "if it is annexed, our neighborhood voice will be stronger with our local City Council than it is with the County Supervisors." He indicated he believed this and also believed that should the County decide to pursue a use, the City would have to deal with it legally, politically, or whatever the case might be. However, the issue before Council this evening was whether or not this property should be dual annexed and this should be the focus of tonight's discussion rather than speculating on what might happen next. Indicating she believed in the dual annexation system, Councilmember Heller stated she sits on LAFCO and worked with this for approximately ten years and considered it healthy to do. She noted LAFCO did not want the "islands" of unincorporated land and they also tried to ensure that the lands were contiguous within the sphere of influence. She also noted that the sphere does indicate that it is the probable extension, and she did not envision going in any further direction than these lands of the cemetery. Councilmember Heller commented that she was quite familiar with it as she used live within 300 yards of the gates and walked the property many times, and if it were annexed she would favor having discussions with the owner as she believed he would perhaps be receptive to opening up some of the gates. She emphasized this was just conjecture on her part and she would vote to acquire the property. SRCC Minutes (Regular) 05/15/2006 Page 9 SRCC Minutes (Regular) 05/15/2006 Page 10 George Mills stated he was really pleased with the discussion because it got to all the critical issues. He noted Don Dickenson, after two sessions with the Marin County Planning Department stated: "if there is a property that should be under LAFCO and brought in to the City, this is one." Difficulties with traffic are usually dealt with by the San Rafael Police Department and this would clarify the situation. Mr. Mills stated that the recreation trails definitely needed help to work the connection between San Rafael and San Anselmo. The Fire and Police Departments were first response from San Rafael, and expressing surprise about the sewer issue, he noted they had the connection all these years; however, it had not been worked through. Believing drainage was the issue of the future, as more work took place and roads are improved, he questioned how drainage would impact San Rafael and San Anselmo. As a neighborhood, Mr. Mills stated they hoped the City would tie up the loose ends on the west side of town. He invited those in attendance from the Sun Valley Neighborhood who supported the annexation to stand. Diana Burdisso-Britting, Fifth Avenue, stated the cemetery was a wonderful neighbor with open access when she was growing up. She recalled as a child many instances when the police were called; they would arrive at the gate and because of the jurisdictional problems, would wait for the Sheriff's Department to arrive. Believing the property should be annexed to the City, she noted they were using City services and when push came to shove, wanted protection by the City but they also wanted to hide or retreat behind the County. She hoped it would be annexed into the City of San Rafael. Marjorie Sykes stated she favored the annexation, mainly because at one point someone hit her parked car there and as she was unaware it was in the County, she called the San Rafael Police Department, who responded immediately. However, on arrival, they indicated they were not supposed to be there and suggested she call the Sheriff's Department. Thomas Jacobs, Dollar House, stated he first visited the cemetery in 1957 or 1958 when it was completely open. It was a beautiful country walk with a dirt road that came from San Anselmo into the cemetery; Sunny Hills Orphanage was also there. He reported that historically, Dr. Henry DuBois donated the 112 acres to form Tamalpais Cemetery in the 1870s. His partner was Dr. Alfred Tallifer and they made a deal to split the proceeds from the sale of plots; however, the newspapers had a "hay day" because of two physicians owning a cemetery. Mr. Jacobs noted that in the far distant past the cemetery was way out of town but slowly the town had crept up to the gates and it was a natural progression now that there were issues between neighbors and the cemetery that it all become part of San Rafael; therefore, he spoke in favor of the annexation. Cindylu Janisen stated she agreed with everything in Tami Griffith's email. She noted that although the property taxes were only $18,000, it was a business; therefore, the City would receive Business License fees and she supported the annexation. Bob Rossi stated that the one issue that ties in to all of this is that of Sphere of Influence. He recalled that in 2004 he wrote to the Community Development Department in San Rafael out of concern that Sun Valley School was expanding, that the cemetery was expanding and there was a proposal relating to the Camgros/Duca development, which was applying for annexation at that time and could be still under consideration. He reported having received a response from the City of San Rafael Planning Department stating "we feel your pain" and with regard to the school he should contact the school. With regard to the fourteen houses, they were applying for annexation to the City, so perhaps when that went through it would be the City's responsibility; however, for the cemetery it would be necessary to go to the County. Mr. Rossi stated that the sphere of influence should include a sensible approach to cumulative impact in a one block area, and he supported annexation. Councilmember Heller inquired as to what would happen to the two other properties at the end of Fifth Avenue (Strange Family property and the Monument Shop). Responding, Mr. Brown stated that in this process, probably nothing. To get all in would involve the property owners having an option because they were not proposing development and annexation into the Sanitary District. He mentioned this to Mr. Peter Banning (LAFCO); however, had not received a formal response as to whether or not they could all be brought in together. Councilmember Heller inquired whether or not they would be brought in with no charge. She noted that the Strange family was interested; however, was not interested in paying any of the related fees. Mr. Brown stated he did not know whether it could be piggybacked on top of the other annexation, which was his question to Mr. Banning. He indicated he could have an SRCC Minutes (Regular) 05/15/2006 Page 10 SRCC Minutes (Regular) 05/15/2006 Page 11 answer by the Thursday LAFCO meeting. Councilmember Cohen stated he supported the dual annexation as it made good logical sense for the reasons submitted in writing by residents and by the neighborhood association. Harking back to his earlier comments and the comments of the last speaker, he stated he did not wish to create false expectations. He indicated that it was not necessarily the case that this would not have given the City authority over the School District's decision to remodel Sun Valley school and may or may not give authority over the County proposal to build a morgue on this property even if it were annexed. Councilmember Cohen stated this was his only hesitation and those issues were not before Council today; however, clearly, for all the reasons stated, pursuing annexation did make sense and it should be proceeded with. Councilmember Cohen moved and Councilmember Heller seconded, to direct staff to reply to the County that the City would pursue dual annexation of Mount Tamalpais Cemetery. Mayor Boro stated he appreciated the comments; however, there were many ways to address the issue. Noting the Planning Commissioner at the County stated on more than one occasion that he was tired of doing the heavy lifting for the City, Mayor Boro stated the City was tired of doing the heavy lifting for the County and the City would gladly take this on. AYES: COUNCILMEMBERS: Cohen, Heller, Miller and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT/ DISQUALIFIED: COUNCILMEMBERS: Phillips (due to potential conflict of interest) Councilmember Phillips returned to the Council Chambers. CITY MANAGER'S REPORT:: 16. None. COUNCILMEMBER REPORTS: 17. a) Legislative Committee: - File 9-1 Councilmember Heller reported that the Legislative Committee met with Assembly Member Joe Nation last week to discuss AB 2987 which was not very good for cities in its Telecommunication reform. She believed the City was opposed to it in its legislative program. b) Marin Telecommunications Agency: - File 4-13-101 Councilmember Miller distributed a report and Side Letter on the proposed new Cable TV Franchise Agreement with Comcast. Having worked with this issue for approximately five and a half years, he believed it to be the best possible agreement and much more than expected. Referring to page 5, Summary of PEG funding, he indicated it included $1 million for the INET. Page 6, Section 14.8 — Level Playing Field, he stated this was a very important item as it dealt with telephone companies coming in. He noted the franchise was for at least five years. He expressed the hope that subsequent to the meeting of Wednesday, May 17, 2006, the agreement would be signed and put in process immediately. Councilmember Miller explained that the items in the Side Letter were not covered in any other Comcast franchise. He noted FM radio would continue, and with regard to computers for Pickleweed, it was hoped to petition for a grant towards education and literacy as a public service. With regard to the 14.8 - Level Playing Field, Mayor Boro noted that in section (a) "the MTA is obligated to require a new cable operator to operate on terms and conditions that are not less burdensome to the new company than those imposed on Comcast" and inquired whether the City could continue to apply the franchise fee to a new company. Councilmember Miller stated that as long as Comcast did not pull out, that was correct. c) San Rafael Safe Routes to Schools Task Force: - File 9-1 x 11-1 x 9-2-1 Councilmember Miller reported that a San Rafael Safe Routes to Schools Task Force had been initiated by Linda Jackson, Principal Planner, a representative from Safe Routes to Schools and himself, and they hoped to have an entire task force in place which would SRCC Minutes (Regular) 05/15/2006 Page 11 SRCC Minutes (Regular) 05/15/2006 Page 12 include all public schools, with an invitation to private schools to participate. He believed a resolution of San Rafael's joining this task force would eventually be adopted. While most of the schools in the County had participated, Mayor Boro believed the majority of San Rafael schools had not, and he was pleased Councilmember Miller had initiated this process. He noted that Linda Jackson, being on the School Board in addition to being a great planner, would have some influence. d) State Legislature — Ballot Bonds: - File 9-1 x 9-4 Councilmember Cohen noted that since the last Council meeting a series of bonds had been placed on the ballot, and from people very close to the process, he wished to assure those who signed and/or collected signatures to qualify the Transportation Funding Act of 2006 that that had a very big impact. The timing of this getting done was directly related to the threat to drop the million signatures that had been gathered and qualify that measure for the ballot. He noted Friday, May 51" was the last day and the proponents were prepared to submit that measure. Councilmember Cohen stated it was no accident that Measure 1A on the November ballot would be the "soft" Proposition 42 fix, meaning the Proposition 42 money could only be taken twice in any decade, and once taken, had to be repaid in full before it could be borrowed again. In addition, there was $19.9 billion in Transportation bonds and approximately $10.5 billion in Education bonds, housing and levy money. Councilmember Cohen stated he had been invited to a signing ceremony tomorrow morning, May 16, 2006, at the east end of the Caldicott Tunnel with Senator Perata and Governor Schwarzenegger. Consistent with Council policy, because of the funds that would come to San Rafael and the County as a result of these bonds, he believed it would be appropriate for the City to consider taking a public position in support of those ballot measures once they are signed and officially to be placed on the ballot. There being no further business, Mayor Boro adjourned the City Council meeting at 9:39 p.m. to Closed Session 1.b). ESTHER C. BEIRNE , Deputy City Clerk APPROVED THIS DAY OF 12006 MAYOR OF THE CITY OF SAN RAFAEL SRCC Minutes (Regular) 05/15/2006 Page 12