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HomeMy WebLinkAboutCC Minutes 2008-03-17SRCC Minutes (Regular 03/17/2008 Page 1 IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, MONDAY, MARCH 17, 2008 AT 8:00 P.M. Regular Meeting: Present: Albert J. Boro, Mayor Cyr N. Miller, Vice -Mayor San Rafael City Council Greg Brockbank, Councilmember Damon Connolly, Councilmember Barbara Heller, Councilmember Absent: None Also Present: Ken Nordhoff, City Manager Robert F. Epstein, City Attorney Esther C. Beirne, City Clerk OPEN SESSION — COUNCIL CHAMBER — 4:00 PM Mayor Boro announced Closed Session items. CLOSED SESSION — CONFERENCE ROOM 201 - 4:00 PM 1. a) Conference with Legal Counsel - Existing Litigation Government Code Section 54956.9(a) Case Name: Ulf Moren and Carolvn Moren v. Citv of San Rafael Marin County Superior Court Case No. 071984 b) Conference with Labor Negotiators — Government Code Section 54957.6(a) Negotiators: Jim Schutz, Leslie Loomis, Cindy Mosser, Nancy Mackie, Ken Nordhoff Employee Organization(s): San Rafael Fire Chief Officers' Assn. Western Council of Engineers San Rafael Firefighters' Assn. Assn. of Confidential Employees San Rafael Police Mid -Management Assn. SEIU Miscellaneous & Supervisory San Rafael Police Assn. SEIU Child Care Unit Unrepresented Management Unrepresented Mid -Management Elected City Clerk and Elected Part -Time City Attorney City Attorney Robert Epstein announced that no reportable action was taken. ORAL COMMUNICATIONS OF AN URGENCY NATURE: 8:02 PM a) 33 San Pablo Avenue Proiect: - File 9-1 John Mosher, signatory to Friends of the Civic Center Neighborhood letter dated March 1, 2008, submitted to the Planning Commission and City Council stated that when they purchased their home four years ago, they did their due diligence and accepted the office building in their midst. He stated it was confirmed at the Planning Commission meeting of March 11th that the traffic studies upon which this proposal relied for approval did not account for the large public safety building planned directly across the four-way stop light. It was inevitable that once both of the 60,000 square -foot complexes were built and occupied, both funneling traffic toward an already severely congested intersection, traffic would grind to a stop. Mr. Mosher believed that in this prominent location the proposed boxy wood frame building was so large and out of character to everything around it, it would immediately hem in and diminish the visual impact of the gentle lines of the Civic Center against the surrounding hills. b) War in Iraq: - File 9-1 John Jenkel, Graton, invited the City Council to support ending undeclared wars. SRCC Minutes (Regular) 03/17/2008 Page 1 SRCC Minutes (Regular 03/17/2008 Page 2 CONSENT CALENDAR: Councilmember Miller moved and Councilmember Brockbank seconded, to approve Consent Calendar items 2 through 14, with the exception of item #7, as follows: ITEM 2. Approval of Minutes of Regular Meeting of March 3, 2008 (CC) 3. Call for Applications for Appointments to Fill Three, Four -Year Terms on the Measure 'S' Citizens Oversight Advisory Committee to the End of April, 2012, Due to the Expiration of Terms of Gladys Gilliland, Lisa Goldstein Fait, and Jacqueline Deane Schmidt (CC) — File 9-2-58 RECOMMENDED ACTION Minutes approved as submitted. Approved staff recommendation: a) Called for applications to fill three, four-year terms on the Measure 'S' Citizens Oversight Advisory Committee, to expire the end of April, 2012; b) Set deadline for receipt of applications for Tuesday, April 15, 2008 at 12:00 noon in the City Clerk's Office, City Hall, Room 209; c) Set date for interviews of applicants at a Special City Council meeting to be held on Monday, April 21, 2008, commencing at 6:30 p.m. 4. Resolution Approving Recipient of the Richard P. RESOLUTION NO. 12441 — O'Brien and Mary Ferrario O'Brien Citizen of the Year RESOLUTION APPROVING PATRICIA Award (CD) — File 262 x 9-3-85 GARBARINO AS THE CITIZEN OF THE YEAR FOR 2008 5. Authorization for Recruitment of a Planning Manager Approved staff recommendation. Position in the Community Development Department (CD) — File 9-3-85 6. Keith Meloney, Contempo Marin, stated that Contempo Marin residents supported the City's position on Proposition 98 as they did with Measure 'S" . While they could never thank the City sufficiently for all it had done for them, they could demonstrate their appreciation by offering whatever support they possibly could. Resolutions Regarding City Council Positions on 1) RESOLUTION NO. 12442 — Ballot Initiatives Related to Eminent Domain: (CM) — RESOLUTION IN OPPOSITION TO File 9-4 x 116 x 9-1 PROPOSITION 98 1) Opposing Proposition 98; and 2) Supporting Proposition 99 2) RESOLUTION NO. 12443 — RESOLUTION IN SUPPORT OF PROPOSITION 99 7. Mayor Boro recused himself from the following item because of a potential conflict of interest, due to his having a financial interest in PG&E. He passed the Chair to Vice -Mayor Miller and left the Council Chambers. Bruce Baum, Green Coalition for Responsible Waste and Resource Management, commended the City on its work in obtaining a grant from PG&E and supported the City with regard to Climate Change. Noting it was not just about methane, he indicated that the organics that could be diverted from the landfill could also be used as a valuable resource that could go back into the land. He believed it important to broaden the scope of what was done with organics, and he supported participating with Central Marin Sanitation Agency (CMSA) in figuring out how energy could be generated and a little further composting. SRCC Minutes (Regular) 03/17/2008 Page 2 SRCC Minutes (Regular 03/17/2008 Page 3 Sue Spofford, Sustainable San Rafael, concurred with Mr. Baum's comments. Councilmember Brockbank moved and Councilmember Connolly seconded, to adopt the Resolution. Resolution Directing the City Manager to Issue a Request for Proposals for a Methane Capture Feasibility Study Within the City of San Rafael and Areas Served by Marin Sanitary Service and the Central Marin Sanitation Agency, and Authorizing the City Manager to Accept $20,000 Grant from PG&E to be Utilized for Such Study (CM) — File 13-1 x 4-3-32 RESOLUTION NO. 12440 — RESOLUTION DIRECTING THE CITY MANAGER TO ISSUE A REQUEST FOR PROPOSALS FOR A METHANE CAPTURE FEASIBILITY STUDY WITHIN THE CITY OF SAN RAFAEL AND AREAS SERVED BY MARIN SANITARY SERVICE AND THE CENTRAL MARIN SANITATION AGENCY, AND AUTHORIZING THE CITY MANAGER TO ACCEPT $20,000 GRANT FROM PG&E TO BE UTILIZED FOR SUCH STUDY AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller & Vice -Mayor Miller NOES: COUNCILMEMBERS: None ABSENT/ ABSTAINING: COUNCILMEMBERS: Mayor Boro, due to potential conflict of interest. Mayor Boro returned to the Council Chambers Mayor Boro welcomed Boy Scout Troup 76 and Scoutmaster Jesse, from Terra Linda, who were in attendance this evening. 8. Resolution Authorizing Agreement with Petty's Full Line Vending Services (CS) — File 4-3-477 x 9-3-65 9. Monthly Investment Report for February, 2008 (FIN) — File 8-18 x 8-9 10. Resolution Authorizing the City Manager to Execute a Contract with Walker Parking Consultants/Engineers, Inc. in an Amount Not to Exceed $111,250 for Consultant Services Related to Correction of Structural Damage in City Parking Facilities (MS) — File 4-3-474 x 9-3-87 11. Resolution Approving Use of State of California Office of Traffic Safety Grant Funds in the Amount of $5,000.00 for "Click It or Ticket" Seatbelt Compliance Enforcement Campaign May 12, 2008 — June 1, 2008 (PD) — File 9-3-30 12. Resolution Authorizing the Director of Public Works to Amend an Agreement for Professional Services with Kimley-Horn & Associates, Inc. to Expand the Scope of Work for the Fifth and Irwin and Fifth and Lincoln Signal Improvements, in the Amount of $9,600 (PW) — File 4-10-351 x 11-10 x 4-17-191 (NC) RESOLUTION NO. 12444 — RESOLUTION AUTHORIZING AN AGREEMENT FOR VENDING SERVICES Accepted Monthly Investment Report for month ending February, 2008, as presented. RESOLUTION NO. 12445 — RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH WALKER PARKING CONSULTANTS/ENGINEERS, INC. FOR CONSULTANT SERVICES RELATED TO CORRECTION OF STRUCTURAL DAMAGE IN CITY PARKING FACILITIES IN AN AMOUNT NOT TO EXCEED $111,250 RESOLUTION NO. 12446 — RESOLUTION APPROVING USE OF STATE OF CALIFORNIA OFFICE OF TRAFFIC SAFETY GRANT FUNDS IN THE AMOUNT OF $5,000.00 FOR "CLICK IT OR TICKET" SEATBELT COMPLIANCE ENFORCEMENT CAMPAIGN — MAY 12, 2008 THROUGH JUNE 1, 2008 RESOLUTION NO. 12447 — RESOLUTION AUTHORIZING THE DIRECTOR OF PUBLIC WORKS TO AMEND AN AGREEMENT WITH KIMLEY-HORN & ASSOCIATES, INC. TO DESIGN SIGNAL IMPROVEMENTS FOR THE INTERSECTIONS OF FIFTH AVENUE AND SRCC Minutes (Regular) 03/17/2008 Page 3 13. Resolution Authorizing Temporary Closure of Downtown City Streets to Accommodate Great American Blues & Barbeque Festival Event on Saturday, September 13, 2008, from 6:30 a.m. until 9:00 p.m. (RA) — File 11-19 SRCC Minutes (Regular 03/17/2008 Page 4 LINCOLN AVENUE, AND FIFTH AVENUE AND IRWIN STREET RESOLUTION NO. 12448 — RESOLUTION AUTHORIZING THE TEMPORARY CLOSURE OF CITY STREETS FOR THE THIRD ANNUAL GREAT AMERICAN BLUES & BBQ FESTIVAL ON SATURDAY, SEPTEMBER 13, 2008 FROM 6:30 AM — 9:00 PM 14. Noting the earlier street closures could have an impact on traffic, Mayor Boro stated that with Council approval, he had requested staff to proceed, with the understanding that a report would be submitted at the City Council meeting of May 5, 2008, at which time the issue could be revisited if necessary. Resolution Authorizing the Time Change of the Temporary Closure of City Streets for the Downtown Farmers' Market Festival on Thursday Evenings —April 3 — September 25, 2008, to 4:00 p.m. — 9:00 p.m. and Amending Resolution No. 12424 (RA) — File 11-19 RESOLUTION NO. 12449 — RESOLUTION AUTHORIZING THE TIME CHANGE OF THE TEMPORARY STREET CLOSURE FOR THE DOWNTOWN FARMERS' MARKET FESTIVAL ON THURSDAY EVENINGS, APRIL 3 — SEPTEMBER 25, 2008, TO 4:00 PM — 9:00 PM AND AMENDING RESOLUTION NO. 12424 (Report regarding the traffic impact to be submitted at the May 5t" Council meeting) AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None SRCC Minutes (Regular) 03/17/2008 Page 4 SRCC Minutes (Regular 03/17/2008 Page 5 SPECIAL PRESENTATION: 15. PRESENTATION OF RESOLUTION TO THE RECIPIENT OF THE RICHARD P. O'BRIEN AND MARY FERRARIO O'BRIEN CITIZEN OF THE YEAR AWARD (CD) — FILE 262 x 9-3-85 Mayor Boro explained that each year at the State of the City Dinner, which is held in conjunction with the Chamber of Commerce, the City honors the Employee of the Year, to be identified on April 3, 2008 and the Citizen of the Year, chosen by a sub -committee chaired by Community Development Director Bob Brown, and including two Councilmembers. He reported that this award was made possible through a generous donation honoring the late Richard O'Brien, who was a member of the Planning Commission for many years, and he invited Dick's wife Mary and her two sons, Jim and Rick to the podium. Mayor Boro announced that Patty Garbarino was this year's recipient of the award. Indicating that the resolution addressed the many things Ms. Garbarino had done in her lifetime in San Rafael Mayor Boro quoted: "Patty's community service has been long tenured and broad, including being program manager for Project Workability, matching special education students with employment, being a Special Needs instructor, coordinating the Kids Count bond initiative for San Rafael schools, serving as President of the San Rafael Public Education Foundation, and serving on the board of directors of the San Rafael Chamber of Commerce (including twice as chairperson), the Rafael Theater Renovation Board, Marin Ballet, Catholic Youth Organization, and the Marin Conservation League; and Patty was an active supporter of the Measure A transportation campaign and the City's Measure S Campaign; and Patty's professional and personal passion has been in recycling and resource conservation, including being the first female president of the California Refuse Removal Council; and Patty has previously been honored as an inductee into the Marin Women's Hall of Fame and a recipient of the Soroptomist Society's Women Making a Difference Award." On behalf of the San Rafael community, City Council and all present this evening, Mayor Boro congratulated and thanked Ms. Garbarino for all she does for San Rafael. Accepting the award Ms. Garbarino stated she was the luckiest person in the world to have grown up in San Rafael in a family that was such a strong part of the community. Expressing thanks she stated it was important to keep celebrating this magnificent community. Mayor Boro stated that the Resolution would be formally presented to Ms. Garbarino at the State of the City Dinner on April 4, 2008. Mayor Boro paused the City Council meeting to honor Patty Garbarino at a reception in City Hall lobby. COUNCIL CONSIDERATION: NEW BUSINESS: 16. RECOMMENDATION FOR COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) PROPOSALS FUNDING YEAR 2008-2009 (RA) — FILE 147 Economic Development Coordinator Katie Korzun explained this was the tenth year doing Community Development Block Grants. She noted the City had a cooperative agreement with the County of Marin whereby the City had the ability to direct where the funds go in cooperation with the County. She explained that 15% of the total grant is given to the County and the Local Area Committee, ably personed by Councilmember Miller for a number of years, makes a recommendation as to what happens with the public facility money. The remaining 85% is allocated to housing and capital projects selected by Council. SRCC Minutes (Regular) 03/17/2008 Page 5 SRCC Minutes (Regular 03/17/2008 Page 6 Ms. Korzun clarified that San Rafael receives approximately 40% of the total grant. Some is given to the County for administration — 15% for public service and the remaining 85% is allocated by the City. She noted that this year there was a return of approximately $14,000 from housing allocations that were not spent last year; therefore, the total San Rafael allocation was approximately $514,000. Reporting that priorities were set up as to where the money goes, Mr. Korzun explained these were: 1) City of San Rafael Projects; 2) They have to fulfill the requirements of the Housing and Community Development Act of 1974 (HUD Regulations); 3) Affordable housing projects or community facility related projects; and 4) Projects that would move ahead quickly, i.e., projects that would spend the money and not leave them in the pipeline. Noting a total of 8 projects requested money this year, Ms. Korzun reported that staff was recommending five: 1) City of San Rafael Public Facilities Accessibility Improvements (ADA) - $300,000 set aside under court order from the federal government; 2) Fair Housing Program; 3) County Housing Authority Rehabilitation Loan Program; 4) Buckelew Rogers Greene Apartments; 5) Lifehouse Sunrise Il. Reporting that having dealt with the City project, Fair Housing and County Housing, there were insufficient funds to do more than one project, Ms. Korzun stated the suggestion therefore, was to fund all of the Lifehouse Sunrise project - a group home for the physically and mentally disabled. The remaining money would be allocated to Buckelew Rogers Green Apartments — apartments rented to those with disabilities and very low income. She believed this could be leveraged with Block Grant moneys and money Buckelew has set aside so that the total project could be funded. Councilmember Connolly noted that Marin Ventures was one of the applicants that did not make the cut this time. Familiar with this organization, he indicated it was very strong and important and he expressed the hope that it might be considered in the future. Regarding the 15% Public Services distribution amount of $77,205, Councilmember Miller stated that out of twelve applications, nine were funded. With requests totaling $299,655, he noted only $77,205 was available for distribution. He also called attention to the fact that the amount going into public services would continue to decrease to the point of perhaps having nothing to distribute in approximately two to three years. Councilmember Miller noted that a lot of people do not even ask for funds because they are aware nothing is available. Councilmember Miller moved and Councilmember Heller seconded, to adopt the Resolution. RESOLUTION NO. 12450 - RESOLUTION RECOMMENDING COMMUNITY DEVELOPMENT BLOCK GRANT PROJECT FUNDING FOR THE YEAR 2008-09 TO THE MARIN COUNTY BOARD OF SUPERVISORS AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None SRCC Minutes (Regular) 03/17/2008 Page 6 SRCC Minutes (Regular 03/17/2008 Page 7 APPEAL HEARING: 17. Appeal Hearinq — RE: 8 PORTOFINO ROAD. 4 PORTOFINO ROAD. AND 154 CANAL STREET: APPEAL OF THREE CONDITIONALLY APPROVED TIDELANDS PERMITS FOR CONSTRUCTION/MODIFICATION TO EXISTING DOCKS: APN'S: 017-191-28. -29 AND 30: LARRY LUCKHAM. APPELLANT: FILE NO. AP06-001 (CD) — FILE 273 x 9-3-85 Mayor Boro declared the public hearing opened. Community Development Director Bob Brown explained that this was an appeal of a unanimous Planning Commission decision regarding three Tideland Permits. This type of permit matter had never been before the City Council previously. Tideland permits were created in the 1970s to regulate bay fill, but also include the installation of pilings and docks. Mr. Brown reported that these applications are typically processed by Mr. Preston's Public Works Department; however, he (Mr. Brown) took over the appeals when Senior Engineer, Scott Schneider, left the City's employment. Indicating he would not make a long presentation, Mr. Brown figured that if the 260 page staff report was laid end to end, it would be longer than the docks in question. Mr. Brown stated that at its core, this was a dispute over dock ownership and water rights in a private basin. These matters were supposed to be controlled by the Newport Boating Association; however, that organization had been inactive for some time. He indicated that one of the property owners, Mr. Luckham at 154 Canal Street, modified the common use docks, which eliminated a dock that had been used previously by owners of 4 Portofino, and he contends his ownership of the docks due to his past maintenance of them. Mr. Luckham also suggests that the private dock at 8 Portofino projects further into the basin than those across the way, and that it should be required to be moved closer to the shore since it was recently replaced, thereby freeing up more space for a new dock to be built at 4 Portofino. Mr. Brown showed slides that demonstrated the changes and the recommendation of the Tidelands Fill Committee. He noted that Mr. Luckham suggested in his Points of Appeal that reducing the length of the fingers would not create a safe mooring for his sailboat. Staff noted that should this prove to be true, there was an opportunity, if Mr. Luckham would choose to apply for an additional Tideland Permit, to potentially extend a finger dock (identified on the slide) if it did not have navigability issues with the user of another portion of the dock (identified); however, that could be a future application to respond to the mooring of Mr. Luckham's boat. Mr. Brown noted Mr. Luckham's last point was that the dock that was rebuilt at 8 Portofino be moved back closer to the shoreline. Mr. Brown reported that the Assistant City Attorney advised both the Tideland Fill Committee and the Planning Commission that it was not the City's responsibility to adjudicate issues of dock ownership or water rights within this private basin. Therefore, the Tideland Fill Committee and the Planning Commission found that the actions which limited water access to the property at 4 Portofino were caused by the changes made by Mr. Luckham, and that it was appropriate to require that he modify those changes made to allow his neighbor to build a new dock, and that the dock at 8 Portofino should be allowed to be reconstructed in its historic location. Mr. Brown stated that the Assistant City Attorney would comment on some of the legal issues raised by Mr. Luckham's appeal. Assistant City Attorney Gus Guinan stated he would respond to some of the comments raised by the Appellant's attorney, Mr. Sorensen, in his letter of March 3, 2008. Referring to II and IV — Permit Streamlining Act - Mr. Guinan reported that Mr. Sorensen in effect stated that the failure of the Tidelands Committee to act within a sixty day period meant that the permit applied for by Mr. Luckham was deemed approved. Mr. Guinan explained that the Permit Streamlining Act is a portion of the state's planning and zoning law; however, the ordinance in this issue is not really the Tidelands Planning Ordinance, rather it is literally entitled "The Dumping, Dredging and Construction with Entitled Waterways Ordinance." It is not a zoning ordinance, nor a planning design ordinance, rather it is a Public Works administered ordinance determining whether the placement of fill or docks in title waterways of the City of San Rafael would cause pollution, impact flooding or impact navigability of the SRCC Minutes (Regular) 03/17/2008 Page 7 SRCC Minutes (Regular 03/17/2008 Page 8 waterways However, Mr. Guinan indicated, for the sake of argument, that even if the Permit Streamlining Act did apply, the permit deemed approved trigger of the Permit Streamlining Act was not activated here. The Permit Streamlining Act requires, before a project or permit could be deemed approved, that adequate reasonable notice must be given to those involved or might have an interest. The notice given by the City did notify adjoining property owners and persons across the canal that in fact, this hearing would take place and the date and time of such hearing. What it did not include was the fact that if, in fact, no action was taken by the City within a set period of time, the permit would be deemed approved. Mr. Guinan stated that such failure was fatal to the argument that the appellant's lawyer was making, because without giving that adequate notice, the Permit Streamlining Act's provision dealing with deemed approved when an Agency does not take action within a certain time limit, does not occur. Mr. Guinan noted the case Mahon v. Countv of San Mateo in which this very issue was decided by the First District Court of Appeal for the State in 2006. Mr. Guinan reported that the appellant's second argument in Section III of Mr. Sorensen's letter, addressed the Tidelands Ordinance and the analogous provision that within forty-five days of non -action, the permit application would be deemed approved. Indicating it needed to be understood that this was a very contentious matter, Mr. Guinan stated there were five hearings over the period of a year during which several times, the hearing early on was continued at the request of one or more of the applicants. The hearing was subsequently continued because of requests for additional information, including the committee's request for a marine expert to provide expert testimony regarding navigability of the docks as reconfigured by the appellant. He stated that all of this information was required in order for the Tidelands Committee to make a meaningful determination as to the proper approach for three applications in one limited tidal basin to ensure that the navigability for each of these docks was maintained. Navigability was the only issue the Tidelands Committee was looking at. With regard to the Tidelands Ordinance, Mr. Guinan stated that its provision for the automatic approval of the permit, should the City not take action from the filing date, which is defined as the last date of submission of material necessary to determine the application, was very analogous to the Permit Streamlining Acts deemed approved without the Agency taking action provision. Mr. Guinan stated that when the Court in Mahon v. San Mateo Countv determined that the failure to give notice meant that the permit could not be deemed approved, it based its decision on due process considerations annunciated by previous cases. The same due process argument could be made with regard to the Tidelands Permit Ordinance. The notice given to all of those by the City did not indicate that failure of the City to take any action within the forty-five day period would mean that the permits were deemed approved. Arguably, Mr. Guinan stated that the same due process flaw appeared with regard to the City's ordinance. In summary, Mr. Guinan stated that under Section 17.10.040(7) — Expiration and Extension of Permits — that provision stated very clearly that the permit shall expire one year from the effective date of approval. It did not state "from the date of approval", it stated "from the effective date of approval." Therefore, even if one were to state that whether it be by the Permit Streamlining Act, with the 60 -day limit, or by the City's Tidelands Ordinance, under the 45 -day limit, this permit was deemed approved. Mr. Guinan stated it was deemed approved by the applicant's own admission back in July, 2006. If it only lasted one year, in July 2007, it would have expired. He indicated that in order to construct a dock such as this, it was not only necessary to obtain the Tidelands Permit, which is a review by the Public Works Department, but based upon this, a Building Permit has to be pulled within the time the Tidelands Permit is viable. Mr. Guinan stated that at the end of the one-year period, the Tidelands Permit expires and the process would have to begin once again before an applicant could obtain a building permit to build such a structure. Mr. Guinan stated that for the reasons annunciated herein, staff did not believe this permit was deemed approved. Staff believed the notice given was fatal. Under the Permit Streamlining Act, the applicant had the option to give notice, which was not done, and the proper procedure, if in fact, the appellant felt his permit was deemed approved, was to apply for a building permit, and upon refusal, take a writ at that time. This was not done and staff believed it was fatal to his application. Councilmember Heller stated she understood it was simply the docks that were under consideration and what to do about them. She clarified that the City Council had nothing to do with the ownership of the SRCC Minutes (Regular) 03/17/2008 Page 8 SRCC Minutes (Regular 03/17/2008 Page 9 dock this evening, rather this would be decided in a court of law. She inquired whether approval of the Tideland Permit was being considered this evening or whether it was a separate item to be evaluated by staff. Mr. Guinan confirmed it was under consideration this evening. It was being raised as one of the grounds for appeal from the grant of a conditional permit. Mr. Guinan noted that subsequent to completion of the public hearing, Council deliberations and action, staff requested that the matter be referred back to them to prepare revised resolutions taking into consideration all comments and facts, to be returned for ratification by the City Council on the Consent Calendar at the City Council meeting of April 7, 2008. Understanding this was a long drawn out issue, Mayor Boro requested that all parties refrain from personal issues and deal with the facts as presented, which would facilitate the meeting for all concerned. Neil Sorensen, attorney for the appellant Larry Luckham, expressed thanks to the City Council for taking the time to read the voluminous package, which was important to Mr. Luckham and those present this evening. He indicated he would limit his remarks to the legal issue just explained by Mr. Guinan and subsequently, Mr. Luckham would address the other issues raised by the appeal. Mr. Sorensen stated he understood the City Council received his March 3, 2008 letter, (which incorrectly stated March 3, 2007), setting forth the basis for their argument that the City delayed in taking action on Mr. Luckham's permit, and that that delay caused an automatic approval of that permit. He indicated he would limit himself to the San Rafael City Ordinance, not the Permit Streamlining Act specifically, as he believed he had covered this sufficiently in his letter. Indicating that his letter set forth a very detailed chronology, Mr. Sorensen stated he would focus on some very brief and pertinent facts he believed told the entire story: March 10, 2005, when Mr. Luckham submitted his second Tidelands Permit application to the City, at the City's request — shortly thereafter, April 14, 2005, the City wrote to Mr. Luckham informing him that the application was incomplete and requested some items. He indicated this was the only time it would be seen anywhere in the record where the City stated the application was incomplete and could not be accepted for filing. There was no point until the application was already complete and approved that this occurred. April 28, 2005 — Mr. Luckham submitted the information requested by the City. 30 days went by and Mr. Luckham was not contacted informing him the City had insufficient information. Mr. Sorensen indicated this was an important time period because under the law, this meant the application was now complete and it could not later be determined to be incomplete. He indicated that under the law, once an application was complete, it was not possible to request further information. May 28, 2005 — Application complete — subsequently the City held two noticed public hearings before the Tidelands Committee. Notices went out to all neighbors within 300 feet. Certain neighbors attended the hearings. Both hearings were continued with no action taken by the City. Mr. Sorensen stated that in fact, the City waited until October, 2005, before doing anything else. Indicating this was too late under the City Ordinance, he indicated that Municipal Code Section 17.10.040 had a forty-five day time limit which would have started back in May. Calculating this forty-five day time limit from approximately May 28, 2005 showed the application would have been approved as of July 12, 2005. Mr. Sorensen stated it was important to note that staff did not dispute any of these facts. They claimed a couple of things that somehow excused the City's delay: Mr. Luckham's application was somehow linked to the applications for 4 Portofino and 8 Portofino. Not having looked into this issue, for the sake of argument, assuming this to be correct, there was nothing in the record to support this assertion. He indicated that Mr. Luckham's application was made on a separate application form. It was noticed separately and the City always treated it as a separate application and it was being treated as a separate application this evening in that there were three separate resolutions. Mr. Sorensen stated also that there was nothing in the statutes or even state law that allowed the City to combine an SRCC Minutes (Regular) 03/17/2008 Page 9 SRCC Minutes (Regular 03/17/2008 Page 10 application for completeness purposes. Explaining that the law was very clear, he stated that staff had thirty days from receipt to review an application and indicate whether it was complete, not whether that application and others down the street were complete. Therefore, he believed that argument failed. Apparently, based on a brief remark from a Planning Commissioner, staff was now asserting that this Tidelands Permit, if it was approved by default in July, 2005, had somehow expired because a year had gone by. Mr. Sorensen commented that this argument reminded him of the parable where the boy killed his father and proceeded to complain he was an orphan. He stated that if the City caused the delay in this instance, and not one, but close to two years, and was now indicating that although it caused the delay, since Mr. Luckham did not apply for a Building Permit, he was out of luck, and he did not believe this was the law. He believed the City was familiar with the fact that permits were appealed constantly from the Planning Commission, be it Use Permits, Tentative Maps or Development Plans. The time limits did not commence until dealt with and were in limbo while in the appeal process, which occurred in this case. In conclusion, Mr. Sorensen reported that the law states there is a forty-five day limit and once the application is complete and accepted for filing, the forty-five days start. In this case the forty-five days ran before the City took any action. He requested that at the conclusion of the meeting the City Council confirm this application was approved by operation of law without a condition requiring the berths to be rearranged or moved. Larry Luckham, Appellant, 154 Canal, urged the City Council to give serious and careful consideration to the arguments presented by Mr. Sorensen. Regarding the suggestion mentioned in the staff report that at the February 22, 2006 hearing he requested a continuance, Mr. Luckham stated the implication was that a continuance occurred at that time. While he requested a continuance at the beginning of that hearing, the Chair and Deputy City Attorney discussed the matter and it was denied; therefore, no continuance existed and he had never requested a continuance of the hearings for the process as it went forward. Likewise, with regard to the question of the linkage between his application and the other two pending, Mr. Luckham agreed with Mr. Sorensen that there was no reason why given the completeness of his application it should be held hostage to submission of materials to complete someone else's permit. Mr. Luckham stated the argument that because a year had elapsed since he deemed the permit approved by default and did not apply for a building permit was somewhat ludicrous. There was a provision in the Tidelands ordinance for an appeal. An appeal to the Planning Commission was timely filed, the hearing took place, and this evening's appeal was based on the results of that hearing. He reiterated that all those appeals were timely filed and in his view, tolled any further counting of time until a final decision by whatever body was making that decision. Returning to other points in the staff report which he had pointed out in some cases in the past, Mr. Luckham indicated these points were stated in the staff report as though they were factual and in fact, were not. Regarding the community nature of the dock system, Mr. Luckham explained that at one point in the far distant past four of the houses on the basin shared a community dock — meaning those four owners shared a dock that was built by the original developers and over a period of years, jointly maintained and eventually replaced. The fifth owner — 8 Portofino, the first house developed on the basin — built a dock when no others existed and no other homeowners were present to consult regarding how and where it was built, and the legacy of that was being dealt with currently. Mr. Luckham reported that the four-way community dock existed through 1992 when there was a dredge of the basin and the canal and a meeting between the then five owners, of which he was one, to talk about amongst other issues, replacement of the dock systems. The then owners of 8 Portofino asserted very early in that meeting that they had a private dock and were not interested in participating in any type of community dock effort. One of the four remaining owners (4 Portofino) indicated he did not wish to participate in building a new dock at all and would not put any money or labor effort towards it. Indicating that the dock built in 1992 was built in two parts, Mr. Luckham explained that one part was shared by two owners — 3 Capri and 150 Canal. They shared the expense and over the years, shared SRCC Minutes (Regular) 03/17/2008 Page 10 SRCC Minutes (Regular 03/17/2008 Page 11 the maintenance. The final piece was built by him (Mr. Luckham), and included the part that forms what is called a headwall, as well as three fingers, creating two slips. From 1992 until the recent modification, he was the only owner and user of that piece of dock. He noted the former owner of 4 Portofino had prior to the replacement of the dock system moved his boat to the Richmond Yacht Club, and it never returned. Mr. Luckham reported that Mr. Ferguson, the current owner of 4 Portofino, asserted from the beginning that when he purchased his home, he purchased it with a dock, and he (Mr. Luckham) did not believe Mr. Ferguson believed that himself — it was not the case. He indicated he stated this partly because he spoke to both the seller's broker and Mr. Ferguson's broker at the time. Mr. Luckham reported they inquired about the situation of the docks and he explained that the owner of said property, the seller, did not have a dock on the basin. Having been asked whether something could be worked out, he indicated that something could; however, this never happened, and the situation had developed into a contest over whether or not part of the dock he built and paid for belonged to Mr. Ferguson. Mr. Luckham reported that in June 2005, after a considerable amount of time attempting to work out an arrangement whereby some sharing of the space could be done equitably and fairly, he concluded this was not going to be possible. He indicated that with notification in writing to all parties involved on the basin, he elected to reduce and move the portion of the dock he built in 1992. He indicated he did this because he never contested Mr. Ferguson's right to have a dock on the water or to have the space in front of his house, although this was not traditionally the space used by 4 Portofino. However, at the time, the docks he had built were in the way and the only way for Mr. Ferguson to build his own dock was for Mr. Luckham to move his out of the way, which he did. Mr. Luckham concurred with the staff report and some submissions by the parties that suggested the location of the 8 Portofino dock was historical. He indicated they also asserted that that historical location had never before caused a problem, which was not correct. He explained this had been a problem ever since the configuration prior to his move went into effect. The material he submitted contained a letter he had written in 1997, having lived in his house for many years and having had difficulty maneuvering his boat in and out past a boat at 8 Portofino, requesting that the owners of 8 Portofino either consider moving their dock back a couple of feet or lengthen it so that additional dock space would be available and they could keep the boat further out and it would not block access to that corner space. Confirming he was now in the center space, Mr. Luckham stated this was not the way it had been up until the reconfiguration he did in June of 2006 when he used berth 1, and referring to a slide he identified his two boats. He indicated that historically, he was the one having difficulty with the location of the dock at 8 Portofino. Mr. Luckham stated that throughout the contentious permit process and hearings over the docks, basin and navigability, there had never been a clear picture of where the docks were relative to the property lines, because the basin had never been surveyed. At one point, when it appeared to the Tideland Fill Committee that it would be difficult, if not impossible, to resolve some of these issues without a more accurate indication of where the docks lay relative to property lines, the Public Works Department obtained a quote from surveyors for more than $5,000, and the City, quite correctly, chose not to spend that amount of money to resolve what amounted to a private permit issue. Instead, staff attempted to create an accurate representation by overlaying an orthographic projection on an aerial photograph; however, that was not very accurate and he went ahead and paid to have it surveyed himself. Mr. Luckham stated that a copy of that survey by Marin Engineering was included in this evening's packet of materials. He indicated that Mr. Blakely contended the survey was not accurate and there were flaws for various reasons. He (Mr. Luckham) reviewed the survey, Marin Engineering reviewed the survey from their field notes, and a letter was included from them attesting to the accuracy of the survey. Drawing Council's attention to the navigability issue within the basin, Mr. Luckham explained that the navigable area of the basin in common sense terms is the waterway area that exists in the center area demised by that one long dock on the eastern side and the shorter dock originating from 8 Portofino. If there was an equitable distribution of navigable area within the basin, common sense would dictate that the setback, or in this case, projection, from the two side property lines of those two docks should be equal, or at least a rough approximation of equal. As the survey would indicate, the long dock on the east side was not parallel to the property line - he requested Mr. Brown to identify the inner corner where berth 3 occurs — and explained that the dimension to the side property line there was 14.9 -feet. At the SRCC Minutes (Regular) 03/17/2008 Page 11 SRCC Minutes (Regular 03/17/2008 Page 12 outer end of that long dock the dimension was 9.9 -feet Mr. Luckham reported the survey demonstrated that the inside edge of the dock at 8 Portofino — the basin waterside of that edge — was 22.9 -feet from the property line; therefore, the dock at 8 Portofino had for some time taken between 8'/2 and 13 more feet of the navigable area of the basin than the eastern dock. If it were not for that, this issue would not be before the City Council, as getting a boat in and out of the space at berth 1 would be a simple matter. The obstruction to access to berth 1 was not the length of the fingers on the center dock, rather a boat position directly before berth 1 at the 8 Portofino dock. In the permit process that had gone forward, Mr. Luckham noted the Tideland Committee had been focused on navigability. They concluded that to achieve navigability to the berth 1 space was a simple matter of reducing the length of that western finger on his dock by 9 or 10 -feet. Indicating this was not the proper solution, Mr. Luckham stated the proper solution was pulling the dock at 8 Portofino back. Stating the argument that it occupied its historical location did not hold water, Mr. Luckham explained this was because both his permit application and the 8 Portofino application were being held to the current standard of the Tidelands ordinance and permit process. They were being required to address navigability; however, accepting without question the historic location of the 8 Portofino dock exempted it from meeting the current standard. He stated the way this works, almost universally, was that when replacing a building perhaps built in 1957, 1957 codes could not be used; rather it would be required to be built to 2008 codes. Mr. Luckham stated he was being held to the navigability requirements of the current 2008 version of the Tidelands ordinance. If the historic location of the 8 Portofino dock were accepted, it was simply exempted from meeting that requirement, and he did not believe this was an acceptable application of the ordinance. Bruce Blakelv, 8 Portofino, stated that Mr. Luckham was trying to confuse the City Council. Indicating this was a simple matter, he explained that Mr. Luckham did not like the house he bought and did not like the dock he bought some fifteen years ago and was trying to change the configuration in order to achieve something different from that purchased. He believed it ironic, if not hypocritical, of Mr. Luckham and his lawyer to suggest that these three issues should not be considered together when in fact, he (Mr. Blakely) and his wife were informed by both the City's senior engineer, Mr. Schneider, and the Assistant City Attorney, Mr. Guinan, that a permit was not needed in order to repair their dock, and it was only because Mr. Luckham demanded they go before the Tideland Fill Committee that they ever got involved and mired in this particular dispute. Indicating that over two-thirds of the neighbors in the Newport development signed the petition in order to request the City Council deny the appeal and establish that the Tideland Fill Committee's ruling was correct, Mr. Blakely stated Mr. Brown was providing to the City Council a copy of the most recent signatures of the petition obtained today and yesterday, which updated the documentation provided to the City last week. He stated that over 66% of neighbors in the development who had access to the water requested that the City Council deny Mr. Luckham's appeal and request that the dock configuration be reinstated as it was before Mr. Luckham decided to rearrange the dock configuration. Regarding the situation at 8 Portofino, Mr. Blakely reported that he and his wife moved into the property in May, 2003, and their home had the private dock described by Mr. Brown, which was separate from the three slips belonging to the properties on the corners of Capri and Canal, Portofino and Canal and located on the Canal. The other homes shared the docks at the most southerly portion of the basin. He reported that his dock was installed in 1960 and the permit application for approval was merely to allow them to repair their dock which was falling into the basin, collapsed, needed repair and which they advised all their neighbors they were going to repair. Mr. Blakely reported that they repaired their dock in March, 2004. Prior to that time they were advised by their neighbors that their dock posed a hazard. It was sinking, not safe, taking on water, required constant pumping, decking was rotted, it was dangerous for anyone walking the dock and the heavy gangway which led from the shoreline onto the dock was actually breaking through and in danger of falling into the basin. Needing to repair the dock, they asked their neighbors whether it was acceptable if they repaired their dock, and all of them agreed they wanted the dock repaired. Having consulted Mr. Luckham, he advised them they should repair their dock for the benefit of the community; however, he now was trying to punish them for repairing their dock, done with his knowledge, consent, approval and endorsement. SRCC Minutes (Regular) 03/17/2008 Page 12 SRCC Minutes (Regular 03/17/2008 Page 13 Reporting they informed their neighbors in March, 2004, they intended to repair the dock, Mr. Blakely stated that Mr. Luckham, in particular, encouraged them to do so. He was fully aware of their plans, raised no objections and offered encouragement. Mr. Blakely stated that their dock, which had been in exactly the same location for the past forty-seven years, imposed no additional navigation burden than it had since long before Mr. Luckham purchased his property. Inviting Mr. Brown to identify the portion of the dock that was slightly different from before the repair, he explained there was a small area of 8' x 4' at the far northern end of the dock which they added inward from the original dock in order to provide additional flotation so that the dock would not sink or pose a hazard. Other than that small rectangle of 4' x 8' at the far end of the dock, inboard from the dock and posing no additional navigational burden, the dock was in exactly the same spot as it was when they purchased the property and in exactly the same spot as it had been for the past forty-seven years. The portion added was inboard so as not to pose any burden on navigation; it was put in exclusively to provide additional flotation. Reporting that all of their neighbors, with the exception of Mr. Luckham, recognized there was no problem with the configuration of the dock before Mr. Luckham unilaterally took action in order to cut the dock up and move it over, taking Mr. Ferguson's dock in front of his property, Mr. Blakely stated that now Mr. Luckham came to the City Council in an effort to obtain something through the governmental process that he did not purchase with his house, and he believed this was an abuse of the process and an effort to induce the City Council to do something it had no prerogative or ability to do. Indicating that Mr. Luckham claimed he only had thirty-four feet of dock space, Mr. Blakely stated that although he did not mention it this evening, he did mention it in the material he submitted to the City Council. Stating this was clearly false, Mr. Blakely explained that Mr. Luckham had a minimum of forty- two feet of dock space and had plenty of space for his boat, which was not an operational boat. He could have additional space if he moved his headwall dock back towards his own home. Moreover, it was entirely within Mr. Luckham's ability to resolve this issue on his own without bothering his neighbors. He could remove the western finger of his dock, which would provide an additional four feet of space, and he could also side tie his boat as is done on all of the Canal waterfront properties. He noted those owning docks on the main canal all had side docks, not berths, and Mr. Luckham could use a side dock in lieu of a berth. Mr. Blakely noted Mr. Luckham admitted he did not need to have a second finger and could side dock. Directing Council's attention to the Planning Commission meeting minutes from November, 2007 (page 17), Mr. Blakely noted Mr. Luckham was asked specifically by Commissioner Kirchmann whether he needed both fingers and he specifically answered that he did not. Mr. Blakely stated that requesting them to move their dock was not the solution. He explained that Mr. Luckham was aware of what he was buying when purchasing his property. He knew what area he had, was aware their dock was there, it was predated to his purchase of the property, and interestingly, Mr. Luckham who has the central slip spot was the only person objecting to the fact that they had a dock at 8 Portofino. He noted Mr. Ferguson, who had the dock space closest to his and who resided at 4 Portofino, had no objection to the dock and just wanted things returned to how they were before. Summarizing, Mr. Blakely stated: 1) It was completely within Mr. Luckham's power to resolve this problem on his own by eliminating his western finger; 2) Their dock imposed no additional burden than it ever had for the past forty-seven years; 3) Mr. Ferguson agreed he wanted the docks restored to their original configuration, despite the fact that he would be most impacted if there were a breach of navigation; 4) The entire neighborhood, with the exception of Mr. Luckham, wanted the City Council to deny the appeal; and 5) Mr. Luckham wanted something other than what he purchased with his house. Having had a lot of email contact with Mr. Luckham, Mr. Blakely analogized that while he would love to have a two-story house, he did not purchase a two-story house, nor did Mr. Luckham purchase a private dock at 8 Portofino; therefore, he had no right or privilege to request that they remove their dock when all they did was repair it with his knowledge and endorsement. SRCC Minutes (Regular) 03/17/2008 Page 13 SRCC Minutes (Regular 03/17/2008 Page 14 Mr. Blakely requested that the Planning Commission's decision upholding the Tideland Fill Committee's approval of their application to repair the dock be upheld, that Mr. Luckham's appeal be denied and that Mr. Luckham be ordered to return the dock configuration to its original state so that the harmony of their neighborhood could be restored. Lilian Trac, 8 Portofino, believed there were three main issues before the City Council this evening: 1) Does repair of their dock at 8 Portofino impact navigability? 2) Other than Mr. Luckham, were their neighbors objecting to their dock location? 3) Was Mr. Luckham's safe mooring of his boat dependant upon the relocation of their dock? Believing the response to the first question to be negative, Ms. Trac explained that they repaired their dock in exactly the same location as it had always been in and it posed no more of a navigation issue than it did historically. They added the flotation inboard of the navigable basin because they did not want to inconvenience their neighbors nor hurt the navigability of the basin. On the second issue, she believed that with the exception of Mr. Luckham, no neighbors objected. She concurred that Mr. Ferguson who resided at 4 Portofino and who would be most impacted by the location of their dock, supported the historical location of the dock. Thirdly, with regard to safe mooring of Mr. Luckham's boat, she believed it important that he be able to secure his boat and he could do this on his own. Ms. Trac explained he had 22 -feet in length for the actual berth, together with an 8 -foot headwall. He could choose to side tie his boat and moving his headwall dock closer to shore would afford him the thirty-four feet he indicated he needed in order to safety moor his boat. For the above reasons, Ms. Trac expressed the hope that the City Council would vote to uphold the Tideland Fill Committee and Planning Commission's approvals of their dock. Sam Ferguson, 4 Portofino, stated this had been a horrible issue for their neighborhood for close to four years, and believing Mr. Luckham had led this fight in the community over very little, he indicated there was a real united front in the community to resolve the issue. Indicating that Mr. Luckham used a now revoked permit in July, 2004 to do major modifications on the marina at Capri, Portofino, Mr. Ferguson stated they no longer had use of their dock or access through their gangway, which was in place for almost forty years. They had been unable to access the water or get a boat. Mr. Luckham had refused to comply with the City's request to revise his major modifications carried out with a revoked permit, issued in 2004. Mr. Ferguson displayed a blown up copy of the original permit which Mr. Luckham did all of the modifications with, and which stated "replace two piles at a private mooring dock." He indicated that the modifications done were identified in material he submitted to the City Council. Mr. Ferguson believed that if the City Council could actually see some of the issues neighbors were contending with, they would have a better understanding. He indicated that for the time Mr. Luckham had been at his location, he had fought any building of the Newport Boating Association and had been tough to deal with. His contention was that he had a lot of control over the waterfront behind their homes; however, that waterfront, known as Parcel A, was a property they all shared cost in, i.e., all homes shared equally the common expenses, such as dredging. Mr. Ferguson read a document written by his lawyer: "The genesis of this matter for the Tidelands permit by Mr. Luckham on July 27, 2004 described the work replacing two piles at a private mooring dock. The record before the Council is replete with photographic and narrative descriptions of the actual work and magnitude of the unpermitted work performed by Mr. Luckham which remains in place to -day. Through communications to the Council, dated March 3, 2008, Mr. Luckham has sought to cloud the issues before the Council in addressing those matters. The appellant described the core issue as a civil dispute. While there may be a civil dispute between Mr. Luckham and his neighbors, it is clear the City SRCC Minutes (Regular) 03/17/2008 Page 14 SRCC Minutes (Regular 03/17/2008 Page 15 via the Tideland ordinance, Title 17, has jurisdiction to exercise police powers in reference to construction along the canal. City staff has been caused to go to great lengths of documentation and application for the City of San Rafael Municipal Code 17.10 — subsequent regulations, constructing docks and other matters related to the title properties. There is no question that pursuant to provisions without limitations, 17.10.040, the City has a right to ensure that title property owners retain navigability and the ability to safety moor their vessels. Among the requirements of this construction, is the encroachment of tidelands in a minimum necessary to achieve the purpose of work that is proposed. Construction that will not unduly and unnecessarily inhibit navigation access to public tidelands or use. Here is the evidence before the Council demonstrated in the findings because they cannot be made by the appellant because his construction activities have not been conforming to the City code. Not only has Mr. Ferguson been denied the navigability and had the encroachment issues exceeding those necessary to actually fulfill the work, but his rights as a property owner had been affected. In this document Mr. Luckham attempts to obscure the issues to the Council discussing various issues like vessel, navigability, etc. Common sense and evidence before the Council demonstrate the narrowness and access to 4 Portofino created by the appellant, Mr. Luckham. The unpermitted construction activities eliminated navigability and safe mooring of a vessel at 4 Portofino and Mr. Luckham's new construction activities have eliminated a fair access to the marina. Although it appears the Permit Streamlining Act issue has been disposed by the City Attorney, the continued attempt of Mr. Luckham to cloud the matters has affected the overall outcome of this case. In conclusion, on behalf of the owners of 4 Portofino, Sam Ferguson and Laura Albini, I respectfully request the appeal be denied. Furthermore, Mr. Ferguson requests that the City have the jurisdiction to maintain his historical use of the waterfront." Angie Traeger, Canal Street, stated that although she had not read all of the submissions to the City, she had read the Blakely/Trac submission. Commenting that she and her husband were notable omissions from the petition, she indicated they strongly agreed with the statements from the Blakely/Track household; albeit not everything. Ms. Traeger stated they did not support Mr. Luckham's unilateral dismantling of the docks and were disappointed with the lack of conflict resolution. She commented that it was tempting to say the three or four feet in question were just not worth it and it would be better to resolve the situation and return to the tranquil, friendly neighborhood. Indicating that she and her husband disagreed with the application of navigation issues, Ms. Traeger stated that visually from her back yard and from Google satellite images, it appeared the entire system had shifted towards the east. The survey data that the Luckham household submitted supported that and she requested that in considering the facts, the City should perhaps request an alternate survey rather than relying on drawings and photographs which were not necessarily accurate. Ms. Traeger stated she was happy the 4 and 8 Portofino households agreed on their proposals; however, leaving the configuration as it was now opened them up to future conflicts. She believed that having the 8 Portofino dock potentially block the 4 Portofino dock invited more conflict in the future and she would like the future residents of the basin to have a friendly tranquil neighborhood and eliminate the source of conflict. Ms. Traeger suggested that the City evaluate the future navigability of the basin and the relationship of the neighbors so that they could all have the neighborhood they would like to have in the future. John Gonzales, 13 Portofino, stated he had a dock but was not part of the basin Mr. Gonzales confirmed he was a member of the Newport Boating Association by virtue of the fact that it was part of the grant deed. He stated that all the properties in the neighborhood had pretty much a consistent allocation of a minimum of 32 -feet of dock space and it would be exceptional that 4 Portofino would not enjoy that same benefit as part of the Newport Boating Association. It was amazing to him that this issue had gone as long as it had and while he understood the constraints of the City Council to adjudicate the matter, he believed it appeared to be a land grab by one party against what had been an historical situation that had been in place for many years. SRCC Minutes (Regular) 03/17/2008 Page 15 SRCC Minutes (Regular 03/17/2008 Page 16 Arlene Secoskv. 3 Capri Court, stated she wished they were back in the days when they had adjoining docks and could visit with each other during more harmonious times. She urged the City Council to listen to the Tideland Committee and deny the appeal. She indicated that she and Sam Ferguson were working very hard to resurrect the Newport Boating Association and that matters such as this would not have to go before any Planning Commission or City Council. She noted that she and most of her neighbors signed a petition urging denial of the petition. Mayor Boro invited Mr. Brown to identify on the slide and explain how 4 Portofino had access. Mr. Brown stated he was not aware of over time how these communal docks were shared. Indicating that at the time of the displayed slide, Mr. Luckham indicated he was using both berths. Mr. Brown believed that in the past the property owner at 4 Portofino had the use of at least one of the two berths. He identified the gangway to 8 Portofino for their private dock. Mayor Boro requested Mr. Brown to display the slide identifying the four feet axed off. Mr. Brown identified the dock with 11 -feet of the finger dock removed, which would provide 4 Portofino with reasonable access. Mr. Brown confirmed for Councilmember Heller that 4 Portofino would have to add their new construction. Mayor Boro inquired whether the resolutions before the City Council would affect that type of layout. Mr. Brown stated it would remove the last portion of the finger (11 -feet), which would provide better access to a new dock at 4 Portofino. As mentioned earlier, Mr. Brown identified where the entire dock structure could be moved closer to the shore so that the issue of the length of the finger was not as much of a problem. Another alternative, was moving the 8 Portofino dock closer to the shore; however, to leave the docks roughly in their current, historical, configuration in terms of their proximity to the shore, the suggestion of the Tideland Fill Committee and Planning Commission was to limit the length of the finger. Councilmember Heller inquired whether the Newport Boating Association had any power over the docks and owners. Mr. Brown stated they did previously; however, they had been inactive for a number of years; therefore, in that void, individual property owners had been left to their own devices. He believed that resurrecting that Association would afford authority over the docks. Councilmember Miller stated he looked at this issue in terms of the dispute with its constants and variables. Constants: 8 Portofino had always been there — it had just been repaired. The green part would be returned to what had been there before. Variable: Dock construction by Mr. Luckham. He noted the navigation, while not the greatest, worked fine. Under the old condition, every house had an access to the water; this was always the intent and should be there. He believed staff's recommendation of reducing the finger and/or moving the dock closer would resolve the problem, returning to the original configuration. This was very reasonable and his preferred solution. Councilmember Heller stated she had the opportunity of viewing the situation from 4 and 8 Portofino and could also see 154 Canal Street. She also had seen the docks on Sorrento and how they were side tied with everyone sharing. Noting these were very small inlets, she believed the neighbors needed to share, and although this was one of the smaller ones, it did work for many years. She considered that not allowing 4 Portofino to have a dock, which was originally there, was not right, and she would vote to uphold the Planning Commission's decision on this item. Councilmember Connolly, commending both sides on great presentations, stated that as a lawyer he recognized that disputes arose. The level of preparation was very evident, as were the strong feelings on both sides. He did not have the opportunity of looking at the properties first hand; however, he believed he did have an abundance of information, and saw no evidence at this point to overturn the Planning Commission's decision. Therefore, he would vote in favor of upholding the Planning Commission's denial SRCC Minutes (Regular) 03/17/2008 Page 16 SRCC Minutes (Regular 03/17/2008 Page 17 of the appeal. Councilmember Brockbank agreed with comments made by previous Councilmembers Mayor Boro stated he too agreed with these comments. He appreciated both sides and expressed thanks to all for being civil to each other. He was aware of the length and contentious nature of the issue and it appeared to him that 4 Portofino should have access to the water. While he heard Mr. Luckham's descriptions of what he did, permitting, etc., he also heard Mr. Guinan state that during the period of time, even with expirations and tolled, work continued without a building permit, which was not sought. Mayor Boro stated it appeared to him that perhaps at one point Mr. Luckham saw an opportunity to enhance his property and did so; however, it was now being challenged because other property owners felt they had lost access. He believed the intent was that each of the property owners should have access and would, therefore, support the recommendation of the Planning Commission and denial of the appeal. City Attorney Robert Epstein requested that Council's motions take the appropriate action this evening, but also request that staff return with Consent Calendar resolutions at the meeting of April 7, 2008, that memorialize the action taken this evening, so that tonight's comments could be included, if deemed appropriate. 1) Councilmember Miller moved and Councilmember Heller seconded, to adopt the resolution. RESOLUTION NO. 12451 — RESOLUTION AFFIRMING A CONDITIONALLY APPROVED TIDELAND PERMIT FOR DOCK CONSTRUCTION AT 4 PORTOFINO ROAD — APN: 017-191-28 AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 2) Councilmember Heller moved and Councilmember Connolly seconded, to adopt the resolution. RESOLUTION NO. 12452 — RESOLUTION AFFIRMING A CONDITIONALLY APPROVED TIDELAND PERMIT FOR DOCK CONSTRUCTION AT 8 PORTOFINO ROAD — APN: 017-191-28 AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 3) Councilmember Connolly moved and Councilmember Brockbank seconded, to adopt the resolution. RESOLUTION NO. 12453 — RESOLUTION AFFIRMING A CONDITIONALLY APPROVED TIDELAND PERMIT FOR DOCK CONSTRUCTION AT 154 CANAL STREET — APN: 017-191-28 AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None Mayor Boro expressed thanks to those attending and to those who made presentations. CITY MANAGERS REPORT: 18. None. SRCC Minutes (Regular) 03/17/2008 Page 17 SRCC Minutes (Regular 03/17/2008 Page 18 COUNCILMEMBER REPORTS: 19. Boards and Commissions: - File 9-1 Councilmember Brockbank reported having attended the Board of Library Trustees and Planning Commission meetings on Tuesday last in an effort to continue to familiarize himself with the work of these bodies. Marin Independent Journal Article of Sunday. March 16, 2008:- File 9-1 Regarding a comment attributed to him at the Peace March in San Rafael on Saturday and reported in a Marin Independent Journal article of March 16, 2008, Councilmember Brockbank indicated he did not state he had been denied the opportunity to discuss anything, rather he was aware he had the ability to state anything he wished under Councilmember Reports. He did state however, that he was somewhat surprised to find City policy indicated three votes were necessary to agendize an item and did suggest that should someone wish to have an item placed on the agenda they come and ask that it be agendized to see whether there would be three affirmative votes. He did not wish to be perceived as being unhappy or speaking negatively about the City. Councilmember Brockbank stated that at some future point he would urge consideration of what other cities did and why San Rafael developed its current practice. Having been requested by a reporter to respond to Councilmember Brockbank's remarks, Mayor Boro stated that consistent with past discussions with Councilmember Brockbank, he commented that San Rafael did take up a state resolution because it had a direct impact on some residents with respect to affordable housing. It was something the City wished to protect; therefore, even though it was at the state level, it was important Council's feelings be represented and conveyed to the voters of San Rafael. Regarding City action taken on the Patriot Act, Mayor Boro explained this was done because there was a direct impact on City staff as to how they would interact with the federal government should the FBI (Federal Bureau of Investigations) request information, as well as informing residents should questions be raised. He recalled that a protocol was worked out which the federal government liked very much and adopted. Mayor Boro noted both these issues had direct impact on San Rafael. Mayor Boro indicated he informed the reporter that in his opinion, it was not prudent to use staff or Council time addressing issues that everyone might have a concern about, but about which the City Council could do nothing. He would work with the City Attorney to perhaps refine past practices and policies, and that could be the time to discuss what happens elsewhere. Mayor Boro stated should Councilmember Brockbank wish to agendize an item, he could raise the issue and with three favorable votes, staff would be directed to research the item. He noted Councilmember Brockbank had not been precluded from doing this, rather he had not chosen to do so. Believing that inviting people into the Council Chambers would change how some Councilmembers might feel, he considered an affront to the City Council. Mayor Boro stated he indicated to the reporter that the role of this Council was to ensure fire engines were on the streets, pot holes filled, police were available, and to provide the services people expected, and he did not believe San Rafael residents looked to the San Rafael City Council to deal with issues outside of the purview of city government. Councilmember Brockbank stated it was not his intention that anything he stated, publicly or privately, should be an affront to the City Council. He wished to clarify that the reporter's call today to Mayor Boro had nothing to do with his statement at the March on Saturday. Mayor Boro stated the reporter directly quoted Councilmember Brockbank and invited him to discuss it. Councilmember Brockbank stated this issue had been floating around for some weeks and months. A group starting a "Campaign to Restore Democracy" which he heard about for the first time some weeks ago, wanted City Councils to take positions on state and national issues. They had uncovered a forty-one year old California Supreme Court case in which the relevant line was "it is one of the functions of local government to represent constituents before state and federal elected officials" and since this was an unreversed California Supreme Court opinion, it did not mean it had to be done, rather it was a function and something that could be done, and taking that opinion, they were urging people to do so. While he would not agree it was accurate he was encouraging people to come before the City Council, Councilmember Brockbank explained that when he is requested to introduce something before the City Council, he explains the policy and that he cannot speak to more than one Councilmember at a time without violating the Brown Act. However, should this person wish to see something on the agenda, they should appear before the Council, request that it be agendized and SRCC Minutes (Regular) 03/17/2008 Page 18 SRCC Minutes (Regular 03/17/2008 Page 19 ascertain whether there are three assents. Speaking for himself, Mayor Boro stated that if he believed in something strongly enough, even anticipating a 4:1 vote, he would still bring it up. Contempo Marin: - File 9-1 x 3-2-97 Councilmember Connolly reported that on Tuesday, March 4, he attended a meeting of the Contempo Marin Homeowners Association which was attended by several hundred people. Channel 7 News recorded a story regarding the dispute between the residents and owner and he was amongst those interviewed for the feature. Communitv Choice Aggreqation: - File 9-1 x 271 Councilmember Connolly reported that on March 6`h, he, Councilmember Miller and City Manager Nordhoff attended a Community Choice Aggregation (CCA) Task Force meeting. A draft business plan for CCA was discussed, comments were provided, and a new version of the business plan should be forthcoming. Joint Powers Authoritv Oversiqht Committee (MCCMC): - File 9-1 Councilmember Connolly reported that also on March 6th, he attended the Joint Powers Authority Oversight Committee meeting, at which he learned a lot about street lights and taxicab permitting. West End Homeowners Association: - File 9-1 Councilmember Connolly reported that he and Councilmember Brockbank attended the West End Homeowners Association meeting on March 10th which was very worthwhile. Climate Change Action Plan - Green Teams: - File 9-1 x 13-1 Councilmember Connolly reported that this morning he and Mayor Boro met with staff to consider applications for appointment to the Green Committee and Green Teams. There were 30 high quality applicants, some of whom would be interviewed, with subsequent recommendations to Council. Light Brown Apple Moth SDravincr - File 9-1 x 13-1 Councilmember Connolly requested that the City Council consider adopting a resolution opposing spraying for the Light Brown Apple Moth. He noted other jurisdictions, including Fairfax, San Anselmo, Mill Valley, Corte Madera and Sausalito, had either passed or were considering no -spray resolutions. Alternatively, or perhaps in addition, he believed the City Council should consider supporting proposed state measures that called for a ban on the spraying of pesticides pending further study on health effects. Assemblymember Huffman had proposed AB 2765 in this regard. Councilmember Connolly understood there were no current plans to spray over San Rafael; nevertheless, he believed aerial spraying was proposed to begin in Marin in the Spring of 2008, and given the level of concern in the community, San Rafael should consider joining with other local communities in voicing its opinion. In the interest of pursuing the most effective method of dealing with this issue, Mayor Boro suggested that it be evaluated and brought back for Council consideration. Councilmember Miller believed whatever San Rafael did should be in conjunction with Assemblymember Huffman. Councilmember Connolly indicated he would be willing to modify his suggestion to consider both methods. City Manager Ken Nordhoff reported that Assistant City Manager Jim Schutz had done a lot of research on this issue and was prepared to either recommend support for a series of bills or a City resolution. Mayor Boro suggested Councilmember Connolly work with Jim Schutz to assess the situation and make a recommendation. Having attended several hearings on this issue where it was indicated San Rafael was not on the list for spraying, Councilmember Brockbank stated he learned very recently that a small section along the 1 580 corridor was included. He stated the question therefore, was whether San Rafael should adopt a resolution similar to other cities where spraying was definitely indicated, or not. Mayor Boro stated this was the reason he suggested evaluating a resolution as well as the legislation. Mr. Schutz noted that although each of the five bills stated something different, they were complimentary. SRCC Minutes (Regular) 03/17/2008 Page 19 SRCC Minutes (Regular 03/17/2008 Page 20 Councilmember Connolly stated he was not convinced that spraying would necessarily honor City boundaries. There was City Council consensus that the item be returned to the City Council meeting of April 7, 2008 for consideration. Planning Academv: - File 9-1 x 9-3-85 Noting the Planning Academy was a "run away, best seller", Councilmember Heller expressed the hope that the Community Development Department would apply to the League of California Cities for an award. Mr. Brown noted the deadline for applications was April 10tH Dovle Drive: - File 9-1 x 112-2 x 11-16 Noting the Golden Gate Bridge District had a disagreement with San Francisco regarding Doyle Drive, Mayor Boro reported that it was agreed to implement the Congestion Pricing Fee, amount and date to be determined, as long as the money collected would be used to enhance transit type improvements within the Golden Gate corridor, under the control of the Bridge District. He noted Doyle Drive was not under the control of the Bridge District. There being no further business, Mayor Boro adjourned the City Council meeting at 10:40 p.m. ESTHER C. BEIRNE, City Clerk APPROVED THIS DAY OF 12008 MAYOR OF THE CITY OF SAN RAFAEL SRCC Minutes (Regular) 03/17/2008 Page 20