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HomeMy WebLinkAboutCC Minutes 2007-10-15SRCC Minutes (Regular) 10/15/2007 Pagel IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL. MONDAY. OCTOBER 15. 2007 AT 8:00 P.M. Regular Meeting: San Rafael City Council Also Present: Ken Nordhoff, City Manager Gary T. Ragghianti, City Attorney Jeanne M. Leoncini, City Clerk OPEN SESSION — COUNCIL CHAMBER — 7:00 PM Mayor Boro announced Closed Session item. Present: Albert J. Boro, Mayor Paul M. Cohen, Vice -Mayor Barbara Heller, Councilmember Cyr N. Miller, Councilmember Gary O. Phillips, Councilmember Absent: None CLOSED SESSION — CONFERENCE ROOM 201 - 7:00 PM — file 1-4-1a Conference with Legal Counsel - Existing Litigation, Government Code Section 54956.9(a) Case Name: Eileen Carev v. Citv of San Rafael Marin Superior Court Case No. CV061953 City Attorney Gary Ragghianti announced that no reportable action was taken. ORAL COMMUNICATIONS OF AN URGENCY NATURE: 8:07 PM Sidewalk Replacement on Fourth Street: - File 12-18 x 9-3-40 Roger Pablow, Marin Bagel Company, Fourth Street, San Rafael, expressed concern that because it would still be the rainy season, the scheduled March, 2008 replacement of the existing sidewalk with red brick could be delayed, causing him further severe financial hardship because of the lack of parking for his customers. He proposed a postponement of the sidewalk replacement project until June 2009 to get his customers back into the habit of expecting to find a parking spot near his business. Andrew Preston, Public Works Director, confirmed that a meeting took place recently with property owners, residents and businesses; however, Mr. Pablow was not in attendance. Responding to some of Mr. Pablow's issues, Mr. Preston stated that the sewer project scheduled for completion in February, 2008, was three months ahead of schedule and would be completed within the next couple of weeks. The entire street would be open to traffic and parking in both directions throughout November and December, with the street improvement enhancements scheduled to begin in March, 2008. Regarding Mr. Pablow's comment concerning replacing concrete with brick sidewalks, Mr. Preston clarified that red brick on the corners would be removed and replaced with concrete sidewalk in this project, which was far more expeditious to install. City Manager Ken Nordhoff confirmed that Mr. Preston planned to provide a status report on the work done to date, bidding process, and the proposed schedule, at the City Council meeting of November 5, 2007 (Special Study Session). Mayor Boro suggested that Mr. Pablow attend this meeting. CONSENT CALENDAR: Councilmember Miller moved and Councilmember Phillips seconded, to approve the Consent Calendar, as follows: ITEM 2. Approval of Minutes of Regular Meetings of September 4 and 17, 2007 (CC) 3. Resolution Establishing Procedures for a Project Selection Process (PSP) Implementing San Rafael General Plan 2020 Land Use Element Policy LU -3 and Implementing Program LU -3a, and Repealing Resolution No. 11666; P07-15 (CD) — File 115 (2020) RECOMMENDED ACTION Minutes approved as submitted. RESOLUTION NO. 12364 — RESOLUTION REVISING PROCEDURES FOR THE PROJECT SELECTION PROCESS (PSP) IMPLEMENTING SAN RAFAEL GENERAL PLAN 2020 LAND USE ELEMENT POLICY LU -3 AND IMPLEMENTING PROGRAM LU -3a, AND REPEALING RESOLUTION NO. 11666 SRCC Minutes (Regular) 10/15/2007 Page t SRCC Minutes (Regular) 10/15/2007 Page 2 4. Resolution Approving and Authorizing the Mayor RESOLUTION NO. 12365 — to Execute First Amendment to the Amended RESOLUTION APPROVING AND Facility Use and Management Agreement AUTHORIZING THE MAYOR TO Between the City of San Rafael and the Marin EXECUTE FIRST AMENDMENT TO Bocce Federation for the Albert Park Bocce Ball THE AMENDED FACILITY USE AND Complex (CS) — File 4-3-275 x 9-3-66 MANAGEMENT AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND THE MARIN BOCCE FEDERATION FOR THE ALBERT PARK BOCCE BALL COMPLEX 5. Monthly Investment Report for Month Ending Accepted Monthly Investment Report September, 2007 (Fin) — File 8-18 x 8-9 for month ending September, 2007, as presented. 6. Resolution Accepting the City Council Guide to RESOLUTION NO. 12366 — Disaster Operations (MS) - File 13-11 RESOLUTION APPROVING THE CITY COUNCIL GUIDE TO DISASTER OPERATIONS 7. Resolutions: (MS) — File 9-3-87 1) RESOLUTION NO. 12367 — RESOLUTION AUTHORIZING 1) Authorizing Three Hours Free Parking in City THREE HOURS FREE PARKING Parking Facilities Located at 1550 Fourth IN CITY PARKING FACILITIES Street and at Garden Lane and Fifth Avenue LOCATED AT 1550 FOURTH Between November 23, 2007 and December STREET AND AT GARDEN LANE 31, 2007 AND FIFTH AVENUE BETWEEN THE DATES OF NOVEMBER 23, 2) Authorizing Parking Validations Redeemable 2007 AND DECEMBER 31, 2007 for Three Hours Free Parking in City Garages at Third and C Streets and Third and A 2) RESOLUTION NO. 12368 — Streets Between November 23, 2007 and RESOLUTION AUTHORIZING December 31, 2007 PARKING VALIDATIONS REDEEMABLE FOR THREE HOURS FREE PARKING IN CITY GARAGES AT THIRD & C STREETS AND THIRD & A STREETS BETWEEN THE DATES OF NOVEMBER 23, 2007 AND DECEMBER 31, 2007 8. Resolution Authorizing the City Manager to RESOLUTION NO. 12369 — Execute an Agreement Between United RESOLUTION AUTHORIZING THE Concordia Companies, Inc. and the City of San CITY MANAGER TO EXECUTE AN Rafael to Offer a Dental Program for all Eligible AGREEMENT BETWEEN UNITED Employees and their Dependents, Effective CONCORDIA COMPANIES, INC. AND January 1, 2008 through December 31, 2009 THE CITY OF SAN RAFAEL (MS) - File 7-1-49 REGARDING THE DENTAL PROGRAM FOR ALL ELIGIBLE EMPLOYEES AND THEIR DEPENDENTS (From 1/1/08 — 12/31 /09) 9. Resolution Authorizing the Mayor to Execute an RESOLUTION NO. 12370 — Agreement Between the City of San Rafael and RESOLUTION AUTHORIZING THE Jeffrey and Nathalie Forgan re Future MAYOR TO EXECUTE AN Proceedings for Annexation of the Lands of AGREEMENT BETWEEN THE CITY Forgan at 130 Deer Park Avenue, APN 016-041- OF SAN RAFAEL AND JEFFREY AND 02, to the City of San Rafael (PW) - File 5-2-114 NATHALIE FORGAN RE FUTURE PROCEEDINGS FOR ANNEXATION OF THE LANDS OF FORGAN AT 130 DEER PARK AVENUE, APN 016-041- 02, TO THE CITY OF SAN RAFAEL AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None SRCC Minutes (Regular) 10/15/2007 Page 2 SRCC Minutes (Regular) 10/15/2007 Page 3 SPECIAL PRESENTATION: Leqislative Update by State Senator Carole Miqden: - File 9-1 Indicating that Governor Schwarzenegger had just completed his bill signing, State Senator Carole Migden stated she was pleased to report that with regard to excess ERAF monies (a bill she carried for the Marin County Board of Supervisors), a settlement had been reached with the Administration which retains $2 million annually in Marin County indefinitely, realizing $105,000 annually for San Rafael. Senator Migden expressed appreciation for Mayor Boro's invitation to tour with him, particularly looking at the Canal neighborhood, small business and neighborhood climates in San Rafael. She stated all appreciated his leadership with regard to the unannounced ICE (Immigration and Customs Enforcement) raids and she would like to work cooperatively with him in this regard. Indicating that sadly, funds earmarked for Marin Flood Control got caught up in the unpleasant larger water wars, Senator Migden stated the State of California was under instruction to do something major; therefore, all parties were trying to negotiate what might be the right balance for water supply and storage. With California growing at a rate of approximately 500,000 annually, everyone was on notice that keeping pure water for human consumption, and the availability of supplies for the future were critical issues. She pledged to seek this money for Marin County in the next year. Reporting that she had an office in San Rafael, Senator Migden stated that through her aide, Suzanne Dunwell, they had succeeded in getting Caltrans to fund the feasibility study for the Canal Bridge. She indicated there would be a study to determine cost, priority, etc., and she was pleased that at their urging, Caltrans was agreeable to do this. Senator Migden noted the concrete achievement of obtaining the Proposition 1 B money to do the much focused upon widening of the Highway 101/580 interchange, in addition to improvements needed at Doyle Drive, the Novato Narrows and in the Petal uma/Rohnert Park area. Commenting that she was representing Marin County's issues well, Senator Migden stated there was disappointment this legislative year for not achieving comprehensive health reform. She stated she would represent the district in continuing discussions and evolution of a final health plan. Senator Migden stated she had assisted Fairfax with needed FEMA monies, together with town by town and city by city work to help interface with the State and Federal governments in the instances where they could be sought out for assistance. Regarding the Huffman/Migden San Quentin Bill, in response to Councilmember Cohen's question on status, Senator Migden stated it fell into disfavor because some larger Herculean issues remained unsolved; however, she and Assemblymember Huffman would confer to ascertain whether this was permanent. She commented that they were always aware it was a chance to try to convince state authorities to relocate the correctional institution. Having followed the water discussions closely, Councilmember Cohen encouraged Senator Migden to speak with Senator Perata regarding setting aside more funds for desalinization. Expressing thanks to Senator Migden, Mayor Boro stated that in late November, he would be happy to arrange to take her around the City of San Rafael. 10. Consideration of: (PW) — File 2-11 x 9-3-40 a) PROPOSED ORDINANCE DELETING FROM THE SAN RAFAEL MUNICIPAL CODE CHAPTER 1.04 ENTITLED "SIDEWALKS, DRIVEWAY APPROACHES, CURBS AND GUTTERS," CHAPTER 11.06 ENTITLED "USE OF PUBLIC RIGHT-OF-WAY," AND CHAPTER 11.08 ENTITLED "EXCAVATIONS IN STREETS AND OTHER PUBLIC PLACES," AND ADDING NEW CHAPTER 11.04 TO THE SAN RAFAEL MUNICIPAL CODE ENTITLED "ENCROACHMENTS IN THE PUBLIC RIGHT-OF-WAY", AND b) PROPOSED RESOLUTION ADOPTING STANDARD SPECIFICATIONS AND REQUIREMENTS FOR THE DESIGN, INSTALLATION AND MAINTENANCE OF ENCROACHMENTS IN THE PUBLIC RIGHT-OF-WAY Mayor Boro declared the public hearing opened. Having financial interest in both communications companies and Pacific Gas & Electric, Mayor Boro recused himself, turned the meeting over to Vice -Mayor Cohen and left the Council Chambers. SRCC Minutes (Regular) 10/15/2007 Page 3 SRCC Minutes (Regular) 10/15/2007 Page 4 Public Works Director Andrew Preston reported that the City Clerk had distributed this evening a revised ordinance with revisions on pages 24 and 25. He explained that on page 24 under Division 7, the former language indicated that the entire ordinance would be published in the newspaper; however, he confirmed that a summary only would be published. Referring to page 2 of the resolution, Mr. Preston explained that a resolution is effective immediately on adoption by the City Council. If adopted this evening, this resolution would be effective prior to the effective date of the ordinance; therefore, he recommended the following language be inserted at the end of the second to last paragraph of the resolution: "effective upon the effective date of such ordinance." Therefore, this resolution would be effective thirty days after the final adoption of the ordinance — December 5, 2007. Mr. Preston introduced attorney Lisa Goldfien and Eric Davis, Deputy City Attorney who had spent many hours working on this ordinance. In updating the existing ordinance, Mr. Preston explained that the following Sections were being deleted: Chapter 11.04 - Sidewalks, Driveway Approaches, Curbs and Gutters; Chapter 11.06 - Use of the Public Right -of -Way; Chapter 11.08 - Excavations into the Public Right -of -Way. New Chapter 11.04 was being added, entitled: "Encroachments into the Public Right -of -Way." Noting the new ordinance was in two parts, Mr. Preston explained that the actual ordinance dealt with the time, place and manner of encroachments into the right-of-way and the second part was a resolution, including Exhibits A, B and C, dealing with above -ground encroachments, excavations, curb and gutter and sidewalks. These were the design requirements and were being adopted separately by resolution to allow for change, if any, in the future. Mr. Preston reported that as explained in the ordinance, Encroachment was defined as everything that goes upon and over and under the public right-of-way, and was divided into four different categories: Maior Continuinq Encroachment — Intended to continue for an indefinite period of time and also provide some benefit to the City and the general public: • Fences, walls higher than three -feet above natural grade which provide protection to a public street or pedestrian path. • Walls, abutments, driveways and stairs on properties mainly on hillsides. Adding on -street parking to a hillside property which was sitting above the street, it could be necessary to carve out some of the hillside to provide increased parking for the benefit of the public. Doing this would necessitate building a retaining wall, which would probably be in the public right-of-way, thereby falling under "Major Continuing Encroachment." With a downhill property it could be necessary to build a concrete abutment, which would also be in the public right-of-way as there would be some type of deck or bridge going out to the property. Mr. Preston reported that the Major Continuing Encroachment process required an additional legal instrument, i.e., a revocable license, which would go with the property and be recorded at the Marin County Recorder's Office. Therefore, in the future, should that property be sold, the next owner would have the responsibility of ensuring that the revocable license was continued. Mr. Preston explained that on receipt of an encroachment application, Public Works would now assume the responsibility of sending out notices to all residents within a 300 -foot radius, also noticing the Homeowners Association for that neighborhood. The application is also submitted to the Planning Department for their review; comments are synthesized, and the conditions for the permit established. Should the permit be denied, an appeal process was available. Minor Continuing Encroachment — This was intended to extend for an indefinite period of time; however, it concerned small encroachments that had no, or little, impact on the public health and safety or public right-of-way. Being low-level landscaping, a front yard extending to the back of the sidewalk, that area would be within the public right-of-way and require a continuing encroachment. Also included: • Walls less than three -feet within the public right-of-way; • Boulders, concrete flatwork, and any type of landscaping areas in front of houses; • Bicycle and newspaper racks; SRCC Minutes (Regular) 10/15/2007 Page 4 SRCC Minutes (Regular) 10/15/2007 Page 5 • Awnings and minor architectural features extending more than four feet into the public right-of-way. Explaining the four feet, Mr. Preston stated that under the exceptions, architectural features less than four feet were excepted. Explaining the process, Mr. Preston stated that some could be over the counter permits, while the more complicated would have to be reviewed; however, they had to be acted upon within 30 days. Temporary Encroachment — For a limited, specified period of time, including: • Debris Boxes; • Scaffoldings; • Replacement of sewer laterals; • Curb/gutter to sidewalk or driveway approach; • Temporary construction fencing. Mr. Preston stated this was a fairly straightforward type of encroachment and an over-the- counter process at Public Works. Utilitv/Special District Encroachment — These involve all the utility companies, PG&E, AT&T, Comcast, San Rafael Sanitation District, Las Gallinas Valley Sanitary District and MMWD. Most of the permits issued under this category are for underground excavations and most are over- the-counter permits. Mr. Preston reported that those to be looked at more thoroughly were the new type of above- ground facility encroachments such as the proposed AT&T's Project Lightspeed, which would have above -ground facilities placed within the public right-of-way. Public Works would take the responsibility of noticing all owners and residents within 300 feet, and the Homeowners Association, and take comments. These comments would then be discussed with the utility company to resolve any issues before issuing the encroachment permit. In the case of a denial, an appeal process would be available. Exceptions from the above -ground facilities included utility poles and utility anchors and cabinets less than four feet. Reauired Permits — Mr. Preston reported that permits are required for all work within the public right-of-way. Part of the permit included the Revocable License Agreement for major encroachments and every permit also had to carry insurance and indemnifications, together with the criteria mentioned in the ordinance. Mr. Preston indicated that should someone build something within the right-of-way subsequent to passage of the ordinance and failed to obtain a permit from Public Works, this would be deemed a public nuisance and could be abated using normal Municipal Code procedures. Exceptions — Referring to the ordinance - page 6 - Section 11.04.030.020 — C — Mr. Preston quoted: "Encroachments existing prior to the effective date of this chapter.." and stated that every encroachment within the public right-of-way currently would receive an automatic exception from this ordinance. He explained that in San Rafael there could be thousands of encroachments into the right-of-way (5,000 — 10,000), and he was not recommending attempting to find all of these; therefore, they were being excepted. However, he indicated the next sentence was very important as it gave Public Works the ability to require encroachments for those deemed inappropriate: "....however, that nothing in this chapter shall preclude the Director from requiring an appropriate encroachment permit for or removal of any such pre- existing encroachment where the Director determines the encroachment adversely affects the safety, capacity or integrity of the City's right-of-way." Mr. Preston indicated this was intentionally added to afford the ability in the event of large encroachments. Mr. Preston stated that other exceptions were fairly straightforward, i.e., maintenance and repair of pipes from any utility company or special district, emergency street cuts, tree work, sidewalk cafe and restaurants (already covered under the code for outdoor dining), street closure for special events, awnings, signs, eaves or other minor architectural features of less than four feet. He noted that the tops of buildings on Fourth Street or Fifth Avenue were always over the right- of-way; therefore, anything less than four feet was excepted. Mr. Preston explained that the resolution covered the design requirements for encroachments — Exhibits A, B and C. Exhibit A — Above -Ground Encroachments — Mr. Preston explained this was a list of requirements to be complied with by all above -ground encroachments. • They had to be consistent with ADA (Americans with Disabilities Act) and Title 24 of the California Building Code. SRCC Minutes (Regular) 10/15/2007 Page 5 SRCC Minutes (Regular) 10/15/2007 Page 6 • Unobstructed from traffic sight lines in accordance with the FHWA manual. • They should be finished in a graffiti resistant earth -tone paint. • Any work within a tree drip zone should be evaluated by the Public Works office, with additional comments added accordingly. • Cannot be located in front of any building entrances. • Cannot be adjacent to historical landmarks. • Need to be set five feet (5) back from existing facilities, such as fire hydrants, street furniture, etc., and eighteen inches (18) back from the face of the curb. Exhibit B — Excavations in the Public Riqht-of-Wav — Mr. Preston stated this was the standard bread and butter type of encroachment excavations, mainly involving utility companies and special districts. There were no substantial changes in this ordinance from the previous ordinance as far as excavations were concerned. The San Rafael Sanitation District and Las Gallinas Valley Sanitary District had reviewed the ordinance and had no comments to add. Exhibit C — Curbs, Gutters, Sidewalks, Drivewav Cuts, etc. in the Public Right-of-Wav - Mr. Preston stated these were the routine permits issued daily in Public Works, and no substantial changes had been made. Mr. Preston noted that both Exhibits B and C required insurance and indemnification from the property owner or contractor. Mr. Preston reported that considerable outreach had been carried out, including two study sessions with the City Council and public, together with many conversations and meetings, especially with AT&T, and correspondence with PG&E and Comcast, and their comments had been incorporated into the ordinance. With regard to Minor Continuing Encroachments - low level landscaping - Councilmember Miller inquired whether the pots, boxes and overhangs of flowers along Fourth Street would come under this heading. Mr. Preston responded affirmatively. As the City's representative on the MTA, Councilmember Miller inquired whether there were any differences or expansions of San Rafael's ordinance compared to what was offered by the MTA. Commenting that San Rafael's was bigger and better, Mr. Preston explained that the ordinance covered all encroachments in the public right-of-way, not just focusing on Project Lightspeed. Indicating that he had been corresponding with Greg Stepanivich during the development of the ordinance, Mr. Preston reported he had his list of conditions for the Project Lightspeed boxes and other above -ground facilities, and both the City's and Mr. Stepanivich's lists were synthesized. He noted that conditions could only be in accordance with the requirements — time, place and manner; therefore, many items MTA was developing in their long laundry list did not come under that qualification. Councilmember Miller confirmed that San Rafael's ordinance did incorporate all the conditions staff and the City Attorney's office deemed appropriate for inclusion. Under Minor Continuing Encroachment — Newspaper Racks - Councilmember Heller inquired whether there were standards for these racks and if they failed to meet City standards, whether the responsible party could be required to remove and upgrade them. Deputy City Attorney Eric Davis did not believe the City had any specific standards. In terms of rights for newspaper racks, he stated there were court cases addressing their First Amendment rights to be in the right-of-way and while the City could establish some time, place and manner regulations, to his knowledge, up to this point, specific regulations had not been established. Councilmember Heller commented that they looked terrible. Mr. Davis stated it had pretty much been recognized by the courts that they had a right to be there. With regard to Utility/Special District Encroachment, Councilmember Heller stated she was unclear as to the specifics of the "not less than 4 -feet in size." SRCC Minutes (Regular) 10/15/2007 Page 6 SRCC Minutes (Regular) 10/15/2007 Page 7 Mr. Preston explained it was 4 cubic feet in volume — 4 -feet high, 1 -foot wide and 1 -foot deep. Councilmember Heller noted language in the ordinance with regard to attempting to work out questions or problems with neighbors by noticing and then trying to get the two sides to sit down together; however, with regard to Project Lightspeed, she inquired whether this could be denied. Mr. Preston stated this would depend on the criteria and staff's evaluation, and should there be a belief that it was unsafe, the application would be denied. They then had the right to appeal to the City Manager to overturn the Public Works Director's decision. With regard to the provision in the ordinance for existing prior conditions, Councilmember Phillips inquired as to whether or not there were any encroachments staff was aware of wherein, subsequent to the adoption of this ordinance, they believed it appropriate to exercise the rights under this provision to correct this encroachment. Mr. Preston explained that currently there was an encroachment at 162 Greenwood Avenue that was being resolved with the assistance of the Planning Department. Part of the conditions of approval required that wall to be cut down to 5 -feet in height and a Major Continuing Encroachment would also be necessary, together with insurance indemnification and entering into a Revocable License Agreement. Regarding the recently resolved issue where a fence had been built into the right-of-way and essentially a portion of it had been appropriated as private property, Vice -Mayor Cohen inquired whether the language in the ordinance, including the phrase "adversely affecting safety, capacity or integrity of the City's right-of-way" was sufficiently appropriate to allow a similar situation to be remedied in the future. Believing this to be a site on Convent Court, Mr. Nordhoff explained this was an open space issue rather than a right-of-way issue. Mr. Preston stated the Convent Court site was an open space case, which had been resolved by relocating the fence back to the property line. Vice -Mayor Cohen stated his question was that should an identical situation be discovered in another location two months after the effective date of the ordinance, whether the City would be in a position to address it or whether it would be considered grandfathered in. Attorney Lisa Goldfien stated this was not primarily what this section was directed to; however, she believed the provision could be interpreted that if it adversely affected the capacity of the City's right-of-way, i.e., should it block off a portion of the City's right-of-way in a way deemed adverse to the public interest, it would be included. She indicated that this provision would allow the Public Works Director either to require the encroachment to be removed, or some type of permit issued with conditions for public access, etc. Vice -Mayor Cohen stated his recollection was that it was adjacent to open space; however, the encroachment took place, which the map indicated, in the right-of-way. Mr. Nordhoff emphasized that particular situation was not in the right-of-way, rather it was an open space issue. Staff tried to work with the property owner, not germane to the encroachment ordinance, about resolving moving the fence that would have required a zoning amendment and a number of other processes to make that compliant. He indicated that the property owner chose not to participate in those processes and obtain the appropriate entitlements; therefore, they were required to move the fence, which they did. Mr. Nordhoff stated that should a similar circumstance be encountered, it would be approached in the same way; however, if it was not in the right-of-way, staff would not be looking to this ordinance to resolve the situation. Vice -Mayor Cohen questioned how limiting the statement "the encroachment adversely affects safety capacity or integrity of the City's right-of-way" was. Deputy City Attorney Eric Davis explained that the purpose was to limit the requirements for obtaining a permit. In his opinion, in no way did the language grant some type of property right to someone who had located something in the City right-of-way, and there was no way the law would recognize a proscriptive right or some adverse possession right to take the City's property away. He believed the intention was to state that the City would not require permits for all existing encroachments; however, a permit could be required should certain situations occur. Mr. Davis stated that in the event a situation did not quite fit those categories, it did not mean they had a right as a matter of law to be there. The ordinance could be amended later to require removal or a demand could be made for removal. Although they had no right to be there, the ordinance just indicated that a permit would not be required for an existing SRCC Minutes (Regular) 10/15/2007 Page 7 SRCC Minutes (Regular) 10/15/2007 Page 8 encroachment. He confirmed that no property rights were created as a result of an existing encroachment in the City right-of-way. Recognizing the intent was not that everyone without an encroachment permit would be required to procure one, Vice -Mayor Cohen stated he was looking for some assurance that should an encroachment be discovered that needed to be addressed, the language adopted in the ordinance did not limit the City's ability to address such a situation. Mr. Davis stated that in his opinion the only way City property could be given away was through a deed and he did not believe this ordinance had the effect of granting property rights. Vice -Mayor Cohen declared the public hearing opened. Dick Sadler, 38 -year San Rafael resident, reported that he attended the Study Session held in May, 2007, describing the proposed ordinance, and at staff's suggestion, three days later he submitted a memo outlining his remarks at that meeting. He was hopeful he would hear back from Public Works about the work in progress, and having contacted the department, was informed they had been instructed by Council not to let the citizen know what was underway. This, he stated, struck him as a rather strange way to encourage public participation in San Rafael's civic affairs. Mr. Sadler commented that but for the City Clerk's office he would not have received notification that this ordinance was on this evening's agenda. Referring to page 6 — C. of the ordinance, Mr. Sadler stated that the Public Works Director was not an attorney; therefore, he would modify the language to read: ...."where the Director and/or City Attorney determines the encroachment adversely affects the safety, capacity or integrity of the City's right-of-way, or City's liability." This was a suggestion he emphasized at the last meeting. He was pleased staff accepted a lot of his suggestions; however, these two changes were necessary in Item C. Mr. Sadler indicated he raised the question at that meeting of whether this new ordinance grandfathered everyone who had already been granted encroachments; however, he was not given an answer, and only learned the answer to that question ten minutes ago, when Mr. Preston indicated that everything granted in the past was grandfathered. He indicated that two sites he discussed in May represented a significant liability for the City of San Rafael. Noting his memo was submitted to the City Manager, City Attorney, City Clerk and City Council, Mr. Sadler pointed out that at the bottom of page 1 he requested the City Attorney to look into whether the California Supreme Court Baldwin decision had any relationship at all to these two sites on Mountain View Avenue (#7 and #11) that had been granted encroachments. In his opinion, the encroachments established were requiring those who normally used the path on that side of Mountain View to walk onto the street, because of a hedge, boulders and trees in the City right-of-way. He noted the new ordinance contained his suggested language - pedestrian walking path - however, it was impossible to walk on the other side of the street because cars were parked diagonally between Mountain View and Linden Lane, and the children going to Coleman School were forced out into the street. He stated this needed to be rectified before an accident happened, because of owners being allowed to expand their vegetation and lawn into the public right-of-way. Referring to page 7 — A. - addressing Mr. Preston, Mr. Sadler inquired as to what a good example would be of why he would grant a waiver for the new applicant to acquire insurance. Referring to page 11 — B. — Mr. Sadler stated this specified the requirement that the applicant was to be aware of and comply with state and federal regulations, and he questioned whether the City had the same responsibility to not only be aware of, but to let the applicant know the regulations. Referring to page 19, Mr. Sadler noted the first paragraph indicated that "... the Director shall cause a Revocable License Agreement to be recorded in the Office of the Marin County Recorder." Noting these applications were done for the benefit of the permittee, he questioned whether the permittee rather than the City of San Rafael should pay the $80 to record the document. He suggested that since it was working to the benefit of the permittee, the permittee pay the recording fee. Mr. Sadler stated that Section 11.04.050.060 indicated what should be done when a property was sold with a Revocable License Agreement, and he questioned what mechanism was in place to ensure the new Revocable License Agreement would be executed. Huao Landecker, Gerstle Park Neighborhood, stated Mr. Sadler hit the nail on the head on a number of cases. He reported having requested through Public Works that he be involved in the drafting of the ordinance; however, it surprised him to learn this evening that there had been SRCC Minutes (Regular) 10/15/2007 Page 8 SRCC Minutes (Regular) 10/15/2007 Page 9 two study sessions, and it was just by chance that he found out about this evening's public hearing. Addressing the ordinance itself, Mr. Landecker stated he would like to see notification of neighbors, or at a minimum, the Homeowners Association, for any new encroachment permit or license for above -ground work. He noted that in the past there had been a number of cases of encroachments in the neighborhood, the neighborhood complained to Public Works; however, their experience was that nothing ever got abated, rather it was business as usual, the fee was paid and a permit granted. Mr. Landecker also noted that on a number of occasions a complaint was made; however, there was no enforcement. He believed, therefore, the neighborhood association, at a minimum, or nearby neighbors, should be notified of new encroachments. Mr. Landecker reported that in his neighborhood, and probably throughout the City, the front property line of almost all properties was set back from the sidewalk and there was a new mentality in San Rafael where people stated "what's mine is mine, but what's yours is mine also." They put their new front fences right up to the sidewalk, in essence claiming public property for their own personal use, which he considered wrong. Commenting that these planter strips were a community asset, making the community pretty, Mr. Landecker believed they were vital for the community and he noted complaints to City Hall had zero enforcement. With regard to fences 3 -feet or less as being exempt from encroachments, Mr. Landecker stated this conflicted with paragraph 11.04.030.010 — page 6 — D. in that a 3 -foot high fence restricted the right-of-way from public usage. Regarding special requirements for encroachment permits to construct sidewalks, curb, gutters and driveway approaches, Mr. Landecker stated that the ordinance as drafted required that any encroachment be maintained; however, it did not specify the cause for requiring maintenance. He suggested that perhaps this could be damage from street trees, explaining that in the event of someone getting an encroachment permit to put in a sidewalk, curb and gutter, etc., and this was lifted up by a street tree, the property owner would be stuck. Mr. Landecker stated current policy was that if a street tree caused the damage, the City paid for it; likewise if the property owner damaged it, he paid for it, and he believed some thought should be given to the curb and gutter aspect. With regard to indemnification requirements, Mr. Landecker did not believe the ordinance was quite clear. He noted indemnification could be required for new construction and during the construction phase; however, it appeared to him there were situations, past and present, that should have some type of indemnification into perpetuity. He noted Mr. Preston mentioned 162 Greenwood with a very extensive retaining wall system built in the public right-of-way; however, should that wall, which was not built with building permits or went through the inspection process, fail, he believed the City would be liable. Noting comment was made this evening regarding existing encroachments, Mr. Landecker stated an encroachment was an encroachment, and well defined, and he did not see how an existing illegal encroachment could be grandfathered in. It was a complaint driven process and while there were a lot of existing encroachments, he believed some needed to be looked at. Reporting that the Gerstle Park Neighborhood Association reviews plans for all new projects in the neighborhood, Mr. Landecker recalled a situation approximately a year ago where a neighbor believed his property line extended all the way to the edge of the road. He constructed a retaining wall of concrete rubble approximately four feet high, which Mr. Landecker believed was an encroachment and needed to be addressed. Will Riqnev, Director, External Affairs, AT&T, Bay Area, thanked Councilmember Miller, City Manager Ken Nordhoff, Public Works Director Andy Preston and Deputy City Attorney Eric Davis for leading them through the process, the result of which was a product they could live with. Directing attention to pages 7 and 8 of the proposed ordinance — 11.04.030.040 - Indemnification - Mr. Rigney stated their attorneys believed the indemnification as described in the ordinance was overbroad. Opinions from the Attorney General's Office in the 1950s had been provided, which point out that any type of indemnification is in violation of California Public Utilities Act 7901. He hoped the City would take a re -look at indemnification; his attorneys would be in contact with the City Attorney's office to see if common ground could be found in this particular area. Referring to page 8 — Section 11.04.030.050 — General Construction Standards — D. & E. — Mr. Rigney stated that with regard to Item D. - undergrounding of facilities - they believed clarity SRCC Minutes (Regular) 10/15/2007 Page 9 SRCC Minutes (Regular) 10/15/2007 Page 10 was needed to ensure that existing and future Telco boxes that could not be undergrounded would be allowed to be constructed above ground in undergrounding districts. Regarding Item E. — use of poles by the Director — they believed clarity was also needed to ensure that pole usage was in compliance with the applicable JPA (Joint Pole Authority) rules, and also the 1996 Telco Act regulations associated with pole usage. Again thanking the City for working with them, Mr. Rigney stated they believed the product was good and one they could work with and with minor edits, was close to finality. He stated they looked forward to bringing Lightspeed, and the benefits it would provide, to the citizens of San Rafael very quickly. There being no further comment from the audience, Vice -Mayor Cohen closed the public hearing. Mr. Preston noted Mr. Sadler mentioned that most of his earlier comments were incorporated into the revised ordinance. Also at the Study Session of September 17, 2007, Mr. Sadler commented that private use of the right-of-way was unacceptable; however, the comment from staff at the time was that historically, they had been allowed, and no change was proposed. This was brought to the attention of the public and the City Council at that Study Session and that opinion had not changed. With regard to the portion of Mountain View Avenue referred to by Mr. Sadler, Mr. Preston reported this did not have curb, gutter or sidewalk, whereas, the upper portion of Mountain View Avenue did. He stated that a street without a defined curb, gutter and sidewalk was always an issue with regard to children walking to school and he was a great advocate of developments having curb, gutter and sidewalk. Mr. Preston stated he was strongly trying to urge that neighborhood to form an Assessment District to install curb, gutter and sidewalk along that section of Mountain View Avenue. Having been notified of boulders within the passway, Mr. Preston reported he sent a crew to investigate; however, they were unable to locate any boulders. They would investigate further. Referring to page 7 — Waiver of Insurance — Mr. Preston explained the reason this was included in this section was not to have a waiver of insurance of private parties or contractors obtaining permits, rather it was focused towards utility companies and special districts known to have insurance. This section, therefore, gave the Director the approval to waive the insurance requirement with this in mind, and was never intended to be for any private party or resident. With regard to page 11 B. and Mr. Sadler's comments about the City having knowledge of state and local laws, Mr. Preston confirmed the City did have that knowledge and ensured that through the inspection of any encroachment into the right-of-way, they were adhered to. Staff enforces all the ADA, CBC and building requirements as well as the standard specifications for installations in the right-of-way. Mr. Preston agreed with Mr. Sadler on the question of recordation fees in connection with a Revocable License Agreement. He stated that applicants for this major encroachment would be charged the cost of the staff person's time to process the permit and this fee could be added. Because the Revocable License was being recorded in the County of Marin, it became a condition of that sale and the realtor must disclose that condition as part of the sale of the property. It was then up to the new property owner to follow through and get a Revocable License Agreement. With regard to Hugo Landecker's comment regarding notification to the Homeowners Association for any above -ground work, Mr. Preston stated it would be extremely onerous if for every encroachment permit, including minor encroachments, everyone within 300 feet and the Homeowners Association had to be notified, and staff was not recommending this. Staff recommended noticing Major Continuing Encroachment permits; however, small landscaping and walls were unnecessary and inappropriate. With regard to enforcement, Mr. Preston stated that subsequent to conducting more research he would get back to Mr. Landecker. Concerning the property line at the back of the sidewalk and Mr. Landecker's suggestion of not maintaining that 2 -foot area, Mr. Preston stated it made common sense for the property owner to extend their landscaping down in front of that 2 -foot strip. He commented that his 91 year-old mother-in-law's property line in Terra Linda was two -feet behind her back of sidewalk; her landscaping came down the back of the sidewalk and looked great; therefore, he did not wish to have property owners in this situation obtain encroachment permits. Mr. Preston noted there were thousands of such properties in Terra Linda and San Rafael with this little two -foot landscaped strip and he would prefer to see a little retaining wall, some landscaping and SRCC Minutes (Regular) 10/15/2007 Page 10 SRCC Minutes (Regular) 10/15/2007 Page 11 irrigation and the area maintained properly rather than a two -foot area not maintained by anyone. He suggested therefore, that that part of the exception be left as is. With regard to damage to street trees, Mr. Preston stated Public Works would be working on a street tree ordinance in the next six to twelve months and this issue would be dealt with at that time. With regard to the 162 Greenwood Avenue retaining wall, Mr. Preston stated the property owner was being required to take out indemnification. Indicating that he had no knowledge of the 4 -foot high rubble retaining wall in Gerstle Park, Mr. Preston stated that if built on the person's own property and not in the right-of-way, four feet high was the maximum height without a permit. With regard to Mr. Rigney's (AT&T) comments regarding Indemnification on page 7, Mr. Preston stated this only dealt with Minor Encroachment Permits. His fell under the utility and special district permit; therefore, this would not apply. Deputy City Attorney Davis reported that staff was provided with an opinion AT&T's counsel received from the Attorney General, which was old and with which staff did not agree. Staff's opinion that the Public Utility Code Section 7901, which indicates cities had the power to regulate the time, place and manner of telephone encroachments in the right-of-way included as part of the manner, a right to require indemnification, and they believed this reasonable. He explained that the City's franchises with PG&E and Comcast had indemnification provisions and staff believed it was in fact a reasonable time, place and manner to require indemnification. The criticism that it was over broad was not very specific. In response to comments made about a previous draft of the indemnification, it had been narrowed and staff believed it reasonable at this point in time. In response to Mr. Landecker's comment concerning whether the indemnification provisions only applied during construction, Mr. Davis stated they also applied to the ongoing existence of those encroachments in the right-of-way. With regard to Mr. Sadler's opening comment regarding receiving a directive from City staff that the City Council had somehow directed not to involve the public in this process, Mr. Nordhoff stated he did not know where this came from and if that were the case, he would like to apologize to Mr. Sadler. He stated the City was very transparent and open in these processes and would fully expect to have as much public participation as anyone would want to offer. Vice -Mayor Cohen suggested that Mr. Nordhoff have a conversation with Mr. Sadler to get some specifics, as from his understanding of how the City operates, this was a miscommunication and he would like to find out how it happened. Referring to page 8, Councilmember Heller noted Mr. Rigney had some questions on Items D and E. Mr. Preston stated he had re -read these and did not recommend any changes in either. Attorney Lisa Goldfien stated staff talked to AT&T's attorney about these provisions and she concurred with Mr. Preston on Item D. that the ordinance still maintained some flexibility to allow above -ground installations where it was not possible to underground. With regard to the request that any requirements for poles be in conformance with the Joint Pole Authority, Ms. Goldfien stated staff's opinion was that it was not mandatory and it did not seem helpful or preferable from the City's point of view; therefore, it was decided not to do it. With regard to Item D. — Page 8 — Vice -Mayor Cohen stated he did not see waiver language for a situation where perhaps a Project Lightspeed box would need to be placed above -ground. Ms. Goldfien stated this language could be clarified if necessary. Vice -Mayor Cohen stated it was not that he wished to encourage these boxes; however, from AT&T's perspective he could grasp how this language would seem to suggest that in those districts where utilities had been undergrounded, they would be precluded from installing a box above ground. Ms. Goldfien suggested adding language to the effect that nothing in this paragraph was intended to require the undergrounding of facilities where it was determined infeasible. Vice -Mayor Cohen stated he understood AT&T's concern and wished to ensure it was addressed somehow. Councilmember Miller suggested that Mr. Preston initiate contact with the Dominican/Black Canyon Neighborhood Association, discuss the problems on Mountain View Avenue and how SRCC Minutes (Regular) 10/15/2007 Page 11 SRCC Minutes (Regular) 10/15/2007 Page 12 they could be remedied, and suggest working in partnership with the neighborhood on this project. He requested that staff immediately evaluate the complaint from Mr. Landecker concerning the rubble retaining wall in Gerstle Park, perhaps enlisting the assistance of Mr. Landecker regarding its location. Should it be found to affect the safety, capacity and integrity of the City's right-of-way or should there be any suggestion of liability, consideration could be given to evoking the ordinance. Complimenting staff on the ordinance, Councilmember Miller stated it far surpassed anything considered by the MTA because they restricted themselves. San Rafael took the good things from the past, crafting an ordinance for 2007. He was aware of the work, partnerships and discussions that took place with neighbors and other cities and he offered his congratulations. Noting most property owners were unsure of where their properties started and ended, Councilmember Heller inquired as to how this could be clarified for them. Responding, City Attorney Gary Ragghianti stated that frequently people did not know where their property lines were and without an ALTA (American Land Title Association) policy, or a survey done at the time of the purchase, the only information available were the Assessor's Parcel Maps and Legal Description, and unless one was particularly astute or energetic at looking at legal descriptions, one would not know. He believed it was clear that no one made a representation in the sale of their property unless they specifically intended or knew that the boundaries were not what they appeared to be, such as fences, which often happened throughout the County, as not being on the property line, and frequently people did not know this until there was a survey. Mr. Ragghianti expressed caution about what it was the City obligated the homeowners to do in connection with the purchase. The City does Residential Building Reports in connection with each sale and the law required listing code deficiencies, etc., however, a determination is not made as to where the property lines are. He concurred with Mr. Preston that if a Revocable License was recorded it would show up in title and as a result of that there was constructive notice on all those who had a copy of the "prelim." He indicated that a lot depended on the disclosures made by the agents and sellers of the property and how elaborate or expansive they were. He believed the more expansive the better protection for everyone. Mr. Ragghianti stated he wished to make this clear so that the City did not get into the business of trying to tell property owners what they should do in connection with the sale of a property. Noting a comment regarding Exceptions, Vice -Mayor Cohen assumed that the language concerning adversely affecting the safety of the City's right-of-way covered issues of liability that could be raised. In staff's opinion, if a liability condition was created, it could be considered unsafe and require a permit. With regard to Mountain View Avenue and people having to walk in the street, Vice -Mayor Cohen inquired whether the City had liability for such a situation if brought to its attention. Mr. Davis stated the question was whether it would be determined to be a dangerous condition on public property and in a general way, he believed it depended on the specifics of the particular situation. He believed there was an issue as to whether or not it was a dangerous condition, whether the City had knowledge of it or whether it was causing conditions that put people at risk; however, he was unsure whether it applied in this particular case. Vice -Mayor Cohen urged that City staff investigate this particular situation and try to make a determination about whether or not the City had some exposure. The title of the ordinance was read "AN ORDINANCE OF THE CITY OF SAN RAFAEL DELETING FROM THE SAN RAFAEL MUNICIPAL CODE CHAPTER 11.04 ENTITLED "SIDEWALKS, DRIVEWAY APPROACHES, CURBS AND GUTTERS", CHAPTER 11.06 ENTITLED "USE OF PUBLIC RIGHT-OF-WAY", AND CHAPTER 11.08 ENTITLED "EXCAVATIONS IN STREETS AND OTHER PUBLIC PLACES" AND ADDING NEW CHAPTER 11.04 TO THE SAN RAFAEL MUNICIPAL CODE ENTITLED "ENCROACHMENTS IN THE PUBLIC RIGHT-OF-WAY" (as amended) Councilmember Miller moved and Councilmember Phillips seconded, to dispense with the reading of the ordinance in its entirety and refer to it by title only, and pass Charter Ordinance No. 1862 to print by the following vote, to wit: AYES: COUNCILMEMBERS: Heller, Miller, Phillips and Vice -Mayor Cohen NOES: COUNCILMEMBERS: None DISQUALIFIED/ ABSENT: COUNCILMEMBERS: Mayor Boro (due to potential conflict of interest) SRCC Minutes (Regular) 10/15/2007 Page 12 SRCC Minutes (Regular) 10/15/2007 Page 13 With regard to Page 8, Paragraph D — Mr. Preston read the following language into the record to be added to this paragraph: "Nothing in this paragraph shall be deemed to require the undergrounding of such a facility where undergrounding is determined by the Director to be infeasible." Councilmember Heller moved and Councilmember Phillips seconded, to adopt the Resolution: RESOLUTION NO. 12371 — RESOLUTION ADOPTING STANDARD SPECIFICATIONS AND REQUIREMENTS FOR THE DESIGN, INSTALLATION AND MAINTENANCE OF ENCROACHMENTS IN THE PUBLIC RIGHT-OF-WAY (as amended) AYES: COUNCILMEMBERS: Heller, Miller, Phillips and Vice -Mayor Cohen NOES: COUNCILMEMBERS: None DISQUALIFIED/ ABSENT: COUNCILMEMBERS: Mayor Boro (due to potential conflict of interest) Vice -Mayor Cohen thanked the members of the public in attendance for their dedicated involvement in the process. He complimented and congratulated staff for a lot of work and detail. CITY MANAGER'S REPORT: 11. None. COUNCILMEMBER REPORTS: 12. None. There being no further business, Vice -Mayor Cohen adjourned the City Council meeting at 9:45 p.m. JEANNE M. LEONCINI, City Clerk APPROVED THIS DAY OF , 2007 MAYOR OF THE CITY OF SAN RAFAEL SRCC Minutes (Regular) 10/15/2007 Page 13