HomeMy WebLinkAboutCC Minutes 2008-12-01SRCC Minutes (Regular) 12/01/2008 Page 1
IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL. MONDAY. DECEMBER 1. 2008 AT 8:00 P.M.
Regular Meeting:
San Rafael City Council
Also Present: Ken Nordhoff, City Manager
Robert F. Epstein, City Attorney
Esther C. Beirne, City Clerk
OPEN SESSION — COUNCIL CHAMBER — 7:00 PM
None.
CLOSED SESSION — CONFERENCE ROOM 201 — 7:00 PM
None.
ORAL COMMUNICATIONS OF AN URGENCY NATURE:
None.
CONSENT CALENDAR:
Present: Albert J. Boro, Mayor
Cyr N. Miller, Vice -Mayor
Greg Brockbank, Councilmember
Damon Connolly, Councilmember
Barbara Heller, Councilmember
Absent: None
8:00 PM
Councilmember Miller moved and Councilmember Heller seconded, to approve the Consent Calendar as follows.
ITEM
Approval of Minutes of Special Jt. Meeting of June 4,
Sp. Jt. Dinner Meeting with Park and Recreation
Commission of November 13, and Special and Regular
City Council Meetings of November 17, 2008 (CC)
SECOND READING AND FINAL ADOPTION OF
ORDINANCE NO. 1869 - "An Ordinance of the City
Council of the City of San Rafael Amending Title 15 —
Subdivisions Adding Section 15.01.150 to Address a
One -Year Time Extension to Approved Subdivision
Maps and Related Planning and Land Use Approvals
(P08-006)" (CD) — File 10-3 x 10-2 x 5-1
Resolution Authorizing the City Manager to Execute the
Memorandum of Understanding Between the City of
San Rafael and the Marin County Transit District
Allocating and Delegating Responsibilities for Local
Serving Bus Stops within the City of San Rafael (MS) —
File 143
4. Resolution Authorizing the Acceptance of Grant of
Easement for the Storm Drain at the Sun Valley
Elementary School Property (PW) —File 2-4-37 x 9-3-40
RECOMMENDED ACTION
Minutes approved as submitted.
Approved final adoption of Ordinance No.
1869.
RESOLUTION NO. 12625
RESOLUTION AUTHORIZING THE CITY
MANAGER TO EXECUTE THE
MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY OF SAN RAFAEL
AND THE MARIN COUNTY TRANSIT
DISTRICT ALLOCATING AND
DELEGATING RESPONSIBILITIES FOR
LOCAL SERVING BUS STOPS WITHIN THE
CITY OF SAN RAFAEL
RESOLUTION NO. 12626
RESOLUTION AUTHORIZING THE
ACCEPTANCE OF GRANT OF EASEMENT
SRCC Minutes (Regular) 12/01/2008 Page 1
Resolution Authorizing the City Manager to Submit an
Application for $862,768 in FY 08-09 Proposition 1 B
Funds and to Adopt the San Rafael Proposition 1 B
Streets and Roads Program Budget (PW) —
File 276 x 9-3-40
SRCC Minutes (Regular) 12/01/2008 Page 2
FOR THE STORM DRAIN AT THE SUN
VALLEY ELEMENTARY SCHOOL
PROPERTY
RESOLUTION NO. 12627
RESOLUTION AUTHORIZING THE CITY
MANAGER TO SUBMIT AN APPLICATION
FOR $862,768 IN FY 08-09 PROPOSITION
1 B FUNDS AND TO ADOPT THE SAN
RAFAEL PROPOSITION 1B STREETS AND
ROADS PROGRAM BUDGET
AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
PUBLIC HEARINGS:
6. Public Hearing — MT. TAMALPAIS CEMETERY (2500 FIFTH AVENUE) 50 -YEAR MASTER PLAN AND
PREZONING OF THREE CONTIGUOUS PROPERTIES FOR ANNEXATION TO THE CITY OF SAN
RAFAEL (2450, 2452, 2468 FIFTH AVENUE) CONSISTING OF REQUESTS FOR APPROVAL OF A
MITIGATED NEGATIVE DECLARATION, ANNEXATION/PREZONING. MASTER USE PERMIT AND
ENVIRONMENTAL AND DESIGN REVIEW PERMIT (CD) — FILE 10-3 (1) Mt. Tamalpais
Mayor Boro declared the public hearing opened.
Lisa Newman, Planning Consultant, explained that the Mount Tamalpais Cemetery project consisted of a 50 -
year masterplan for the cemetery to be implemented over phases. It consists of annexations to the City for
prezoning and annexation of the cemetery site, a Master Use Permit and Environmental and Design Review
permit. Coincident with that, the City initiated prezoning and annexation of the three adjacent properties
along Fifth Avenue: two single-family homes and the monument commercial use. For all of these
applications City staff prepared a Mitigated Negative Declaration.
Using PowerPoint Ms. Newman identified the project location at the end of Fifth Avenue together with the
three contiguous properties.
Ms. Newman explained that the project had a long history. Initially, applications were filed with the County of
Marin and during the course of the County's consideration it was determined that it would be more
appropriate for the City to consider annexation and process the applications. She reported that during the
County hearing process one particularly controversial aspect of the project was the incorporation of a
permanent facility for the County Coroner, which had now been eliminated. In 2007, the applicant brought
the applications to the City and as the site and adjacent parcels are served by the City under its sphere of
influence and are in the City's urban service area as well as being served by the San Rafael Sanitation
District, annexation into both agencies' jurisdiction is proposed.
Ms. Newman reported that the Master Use Permit and Design Review Permit for the cemetery deal with a
number of items, the Master Use Permit being the tool used to implement the phasing proposals of the
project. The first phase, which would occur within the first few years, would be to construct two or three
mausoleums at the site, as well as related roadway improvements. Phase II was a proposal for relocation of
the existing chapel at the site and expansion of the office near the entrance gate, and Phase III includes all
the other improvements contemplated — nineteen additional mausoleums scattered throughout the site and
other roadway and landscaping improvements.
Indicating that the Design Review Permit involves a number of conditions of approval, Ms. Newman stated
that one of these pertained to installing landscaping adjacent to the last two proposed mausoleums in the
Angels Garden area, which is adjacent to the Ray Court neighborhood, the purpose of which was to provide
screening in the future. The conditions also called for easements, emergency access and open space to be
recorded during that period. She indicated that Environmental and Design Review permits would also be
required for subsequent phases of the project, noting the permit under consideration this evening would
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approve the improvements for Phase I; however, Phases II and III improvements would only be approved this
evening at the conceptual level of detail, with subsequent permits being required in the future.
Ms. Newman displayed graphics in the plan set depicting the phasing proposal.
Ms. Newman reported that during the Planning Commission hearing process a number of issues were
considered, including the 50 -year timeframe of the project and its implementation through the Master Use
Permit, and the visibility of facilities from offsite locations was discussed at length. She indicated that clearly,
the primary area of concern was public access through the site from Fifth Avenue. After two hearings, the
Planning Commission arrived at the conclusion to recommend approval to the City Council on a 5:1:1 vote.
Ms. Newman stated that in the course of the planning process the owner offered to dedicate easements:
- Emergency access, which would essentially legitimize the informal practice of emergency vehicles using
Tamalpais Avenue to connect from Sunny Hills school in San Anselmo through the site to Fifth Avenue;
- Easements that had been negotiated with the landowner by the Marin County Open Space District for
public open space access. These would be in the northern and northwestern areas of the site and
consist of a couple of different means.
Photographs were displayed and discussed, and locations identified — Attachment 5 of the staff report. She
indicated that clearly the desire of neighbors was to provide continuous bicycle and pedestrian access from
the Fifth Avenue entrance through to the other offsite locations.
Ms. Newman stated that City staff had gone to lengths to research and understand the City's ability to require
pubic access easements. The City Attorney had provided a memorandum of his research. To summarize,
Ms. Newman stated that state law provides strict limitations on the City's ability to impose a requirement for
public access easements and also, staff was unable to conclude that there was a nexus between the
proposed plan improvements and the desire for public access easements to be required.
In conclusion, Ms. Newman stated that staff recommended conditional approval of the project applications
based on the fact that a Mitigated Negative Declaration had been prepared consistent with CEQA (California
Environmental Quality Agency) and that all potential, in this case, geologic and cultural resource impacts
identified could be mitigated to a less than significant level. The project was found to be consistent with the
General Plan and implements General Plan policy to incorporate areas in the County that were contiguous to
other City properties. The proposed zoning district of planned development for the cemetery property was
appropriate, given its size and the uniqueness of the use, and also the proposed zoning of R5 for the three
adjacent properties was consistent with the plan designation and the types of uses in the surrounding
neighborhood.
Mr. Kamphausen, owner of Mt. Tamalpais Cemetery, stated they had the very unusual experience of eight
years of attempting to obtain permits. They had encountered numerous problems and issues with this very
unique and oldest continuous business in Marin County. They had expended a great amount of money and
time, answered a lot of questions and were trying to run a business, be a good neighbor and a good part of
the community; however, there were a few people who did not respect private rights.
Mr. Kamphausen reported that they had been negotiating for approximately three — four years with Marin
Open Space on trails, who proposed they purchase a portion of the adjacent Draper property and allow for a
zigzag trail from the northwest area to the top and over to the Redhills trail. He reported having talked
extensively to Mr. Draper who indicated he had no intention to work with the County to release anything. Mr.
Kamphausen stated they then took it upon themselves to cut a trail up a very steep area, to see whether it
could be done, and this was now being used to traverse from the Redhill trail over to the open space. He
indicated that the two major problems were bicycles and people walking dogs. He believed in personal
property rights and being able to run a business and he was unsure whether another business could survive,
as they had, through a situation such as this, noting they had been deprived of income from a rental unit.
Income from the death care business had dropped drastically, the cremation rate had increased
tremendously — they provide that service — however, they also provide mausoleum space for those wishing to
have it. They had lost business and had families move from the cemetery to other areas because they could
not provide the service and it had been difficult not having a quality facility in a very high-end quality
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community, which was not the way he liked to run a business
Referring to an accusation that water drainage from the cemetery was killing fish in an adjacent creek, Mr.
Kamphausen reported they had since found out that the overflows from three swimming pools drain into that
creek, and he believed chlorine would do a lot more harm to fish than water from the cemetery.
Concurring with staff's recommendation in this evening's staff report, Mr. Kamphausen stated they believed
they were a very integral part of the neighborhood and wanted to be a good neighbor. While they wanted to
have the trails open, they also wanted to have respect for those owning property in the cemetery. He
anticipated a good 300 years of life for the cemetery, which perhaps, could be double, and they wanted to
work with the City and community as long as the business was economically viable.
Georae Mills stated that as past Chairman of the Sun Valley Neighborhood Association he had been involved
in negotiations both with the County and City and appreciated a lot of what had happened, noting most of the
issues had been settled, with the exception of the access issue.
Mr. Mills read a letter he had submitted to -day to Mayor Boro: "In a 50 -year plan, providing pedestrian and
bicycle access through the cemetery respects long-standing historical precedents and addresses recreational
needs that cannot be ignored. Many Sun Valley neighbors who had used these trails responsibly for years
were shocked when entry was blocked two years ago.
Here are two alternatives that I hope will lead to a win-win resolution of the access issue:
Alternative One — Oversight Committee: Once the cemetery is annexed to the City, the simplest and least
expensive way to provide public access is to ask Mr. Kamphausen to reinstate the public access closed off
two years ago, and have the City establish an Oversight Committee to monitor public use, addressing Mr.
Kamphausen's concerns about bicyclists interrupting burial services and vandals damaging property, and
also the issue he spoke of about how to deal with dog walkers.
Alternative One would bring the community together to work out behavioral problems and not require
expensive new trails.
If Alternative One is not possible, a second Alternative would be to create a Western Boundary Trail
Advisory Committee. Part of the history of this is that San Anselmo has been working for years to work out
access because they did not really have access. The people from Sun Valley and San Rafael had access
that was not a concern until two years ago when it was closed off, so we are late in getting into this game.
If, after annexation Mr. Kamphausen wishes to continue his ban on recreational access through the
cemetery, the City would establish a Western Boundary Trail Advisory Committee to develop new access
trails to San Anselmo and Marin Open Space. The committee would include representation from the
cemetery, the City, the neighborhood and Marin Open Space District.
Alternative Two would create a committee to address the planning and expenses of creating new pedestrian
and bicycle trails. The committee would build upon the plan for a floating easement on the northern portion of
the cemetery negotiated by Mr. Kamphausen and David Hansen of the Marin Open Space District.
urge the Council to adopt Alternative One by which the community regains access through the cemetery at
the same time that the owner's concerns are addressed. Again, this is the simplest and least expensive
way."
Mayor Boro requested that speakers limit their comments to three minutes.
Art Reisman, Sun Valley resident, stated that he did not understand what the issue was in reality. He had
been a runner for many years and had run through the cemetery to the open space, or from Elizabeth Way,
across Ridge Road and down through the cemetery. He could not state that bicyclists never used that
access; however, in all the years he had been running he had never seen one. Having run all year round, he
had observed very few people going up or down through the cemetery; therefore, as a casual observer of the
politics of the issue, he did not understand all the issues that had delayed Mr. Kamphausen's permit process.
He recalled that the neighborhood association raised all kinds of objections to the coroner's facility being
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located there, which appeared ridiculous to him, the net result of which had been a slowing down of the entire
process resulting in loss of business and lots of money expended. He believed that was when public access
was closed, which appeared very clear to him to be "pay back" to the neighborhood for creating problems for
this business. While he could understand the motivation, Mr. Reisman hoped Mr. Kamphausen would
change his mind, assuming the City did not have the power to oblige him to reopen the access. Rather he
hoped he could be persuaded that as a good neighbor it would be in Mr. Kamphausen's best interest to
reintegrate the cemetery with the community.
Abbey, Sun Valley resident, speaking from the angle of a parent with small children, stated that in 2002, she
had a child at the jogger/stroller age and almost every day at approximately 4:30 or 5:00 p.m. she would take
the stroller, walk through the cemetery and up the hill, returning through Elizabeth Way and she noted that
those walking through were very respectful. Having attempted to take her jogger/stroller up the hill behind
the school, she indicated it was too steep. Now that her children were older (5 and 7), in the past couple of
years on attempting to take them up the hill above the school, they fall; therefore, not having access through
the cemetery cut out a few years when children were young because the alternate routes did not work. While
as a business owner herself she empathized with Mr. Kamphausen, her personal testimony from having
walked every day on the route was that she did not see disrespect or trouble from others passing through the
property. As a parent, she would like to see the access reinstated.
Roger Roberts, Marin Conservation League, stated they had been interested in this case because of the trail
access problem and the public access issue, which went back many years. They supported the alternatives
proposed by Mr. Mills as an interim solution. In addition, he requested the City Council to allow for the
necessary research to be done over the Phase I two-year period to determine what the prescriptive rights
really were. There had not been a real serious attempt to determine the prescriptive rights and to find the
people who used that prior to 1972, which would take time. Mr. Roberts suggested that the City Council
approve the project in such a way that they could work with the local community in developing the information
necessary to show the prescriptive rights that could exist prior to 1972 that would enable the continued public
access through the cemetery.
Alex Burnham, Sun Valley resident and Access for Bikes President, stated he was one of the riders
disenfranchised when Mr. Kamphausen chose to close the access. He agreed with Mr. Mills' Alternative
One, and would like to see the City Council give it consideration. He believed that at this point the only way
for anyone living in Sun Valley to get up on the ridge was to go up Elizabeth Way. The alternatives with the
floating easements on the west side through San Anselmo did nothing for those in Sun Valley; therefore, he
would like to see some access reinstated to get to the ridge. Mr. Burnham stated he understood that David
Hansen had been speaking about an alternative and looking at alternatives outside of his property, which
would include the existing trail that hikers and dog walkers currently use. He believed that if Alternative One
did not work, the idea of prescriptive rights should be explored.
Gary Ford, San Rafael, stated it appeared that the issues facing the City Council as they pertained to public
access were pretty black and white. Indicating that both of his parents were buried at this cemetery, he visits
two or three times monthly. Approximately three months ago while at the edge of one of the roads near the
maintenance shed a bicyclist behind him literally "flew off the mountain" and had he (Mr. Ford) been ten feet
to his left he would have been hit hard and hurt. Having paid to have his parents buried at the cemetery, he
believed the purpose of the cemetery was to bury the dead and allow those who visit to have that space, and
there was no function whatsoever for jogging, open space or picnics. He agreed that the public access
should be banned and the City work with the various parties concerned regarding alternative public access.
Paul Kerfman, San Rafael, stated that he discovered Mount Tamalpais Cemetery by riding his bike through it,
subsequently, his mother -in law was interred there. As a former member of the Bicycle and Pedestrian
Access Advisory Committee for the City of San Rafael, he indicated he volunteered his time on that
committee to support pedestrian and bicycle access for maximum safety. He noted he was also active on the
Safe Routes to Schools program with Sun Valley School.
Indicating that this trail served more than Sun Valley, Mr. Kerfman stated it served all of Central San Rafael.
It provides access up to the Terra Linda Ridge and was quite important for the neighborhoods beyond Sun
Valley. While he respected Mr. Kamphausen's need for a place to have a solemn business and to have a
place where his mother-in-law could be, he also believed that public access was also important.
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Mr. Kerfman questioned whether the Negative Declaration had taken a look at the recreation, what the
required mitigation was for public access in the Negative Declaration, and whether mitigation was in place. If
not, he would be curious to know why. He noted in the masterplan that Phase One was on top of the current
bicycle access, and by adopting the proposed Alternative One, that would be eliminated by the first phase of
construction. Therefore, the trail going along the west side really did not serve the interests of those getting
from Central San Rafael. He believed a number of issues still had to be resolved.
Margie Svkes, San Rafael, stated that between 1976 and 2006 she walked twice daily through the cemetery
and up to the ridge and never encountered anything disrespectful. While no one wanted Mr. Kamphausen
not to have his business, she would like to be able to return to walking up to the open space through the
cemetery.
Frank Conwav, Vice -President, Sun Valley Neighborhood Association, echoed some of the sentiments
expressed earlier concerning the beauty of the cemetery and the importance with respect to accessing the
open space and Sunny Hills. Regarding some of the conduct of bicyclists, he stated that in September 2005,
there was an agreement between Mr. Kamphausen and David Hansen of Marin County Open Space, in
which Mr. Kamphausen agreed to provide an easement from the valley floor of Sunny Hills boundary to the
front gate of the cemetery. He inquired whether the activity that caused Mr. Kamphausen to rescind that
agreement was of such recent vintage that it did not predate September 2005, but had suddenly arisen. If so,
that suggested that if that activity existed it was something that could be very easily managed, controlled and
prevented. He believed it was in everyone's best interest to consider the community surrounding the
cemetery and the desire of many people to respectfully pass through the cemetery to gain access to open
space.
Mark Jackson, Cedars of Marin, stated they owned the 20 -acre property to the south of the cemetery. As a
cemetery neighbor, he believed Mr. Kamphausen provided a great service to the County and had made
considerable efforts to comply with making concessions to neighbors on a plan which had been approved by
the County before being submitted to the City. As a neighboring property he indicated that compelling access
over a private property concerned them with regard to going forward should they have plans for their
property.
Sharon Fox, Sun Valley, stated that her family had been a beneficiary of the care Mr. Kamphausen had taken
with the cemetery. As an environmentalist, she indicated she had been on the Board with former Vice -
President Al Gore of the largest environmental organization for children in the world — Kids Face. She noted
an incredible devaluing of the water life and algae in her creek, which no longer was the creek she
remembered as a child. While she was not sure whether it was a result of the cemetery, looking over some
of the history of the project, in addition to the access, she was very concerned that the project was not as
environmentally vetted, as it should have been.
Ms. Fox stated that a lot of things had to be looked at in making such an impact in a neighborhood.
There being no further comment from the audience, Mayor Boro closed the public hearing.
With regard to the Negative Declaration, Ms. Newman explained that it explored two aspects of recreation;
however, they pertained to the potential for the project to increase the need for recreational facilities. They
did not pertain to the project being a cemetery that was expanding facilities that were consistent with its
ongoing use over time.
As was indicated, Ms. Newman stated considerable discussion took place, particularly with the County, and
the City's environmental study brought forward some of the County's research, on offsite drainage and
flooding, and it was concluded that these issues had been fully explored and there were no significant
potential impacts.
With regard to access, Ms. Newman stated it did change. She explained that originally Mr. Kamphausen had
agreed in 2005 in a letter communication with David Hansen at the Open Space District, to allow public
access across Tamalpais Avenue; however, he had changed his mind.
In response to Mr. Roberts' comment, Mr. Epstein, City Attorney, clarified that he did not want his inclusion of
some reference to the law of implied dedication and possibility of prescriptive rights to be misconstrued in the
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sense that he did not believe it the City's province to conduct some investigation in that regard. A couple of
different committees were proposed and one comment suggested that the City should somehow participate in
this. He indicated that the point of including the information about it in his memorandum was simply to make
the City Council and the public aware of the alternate mechanism the public might have to establish the
access it sought; however, based on research it was not a cause of action that the City would have standing
to pursue, even if interested in doing so. Therefore, if committees were being considered he suggested that
this not be something assigned to a City sponsored committee.
In response to Mr. Roberts' question regarding prescriptive rights, Councilmember Brockbank inquired
whether they could be claimed later and who had the burden of developing evidence on these.
Mr. Epstein explained that the question with respect of prescriptive rights in this narrow area of whether a
public easement right was impliedly dedicated by a property owner's lack of action when the necessary
elements of prescription were met, requires that the person or people attempting to establish the access
prove that the elements were met prior to 1972, which could sound a little odd, but arises from a case from
back then and changes made by the legislature to state law that were prospective from 1972 forward. He
indicated there had been cases brought — - some were cited in the memo — - by individuals and groups that
had sought public access in other areas of California, sometimes successfully, demonstrating the elements
through testimony or other evidence, of use prior to 1972. Mr. Epstein stated that in reviewing this he
considered the question that should the legislature leave the law where it was, someday realistically, there
would not be any ability to bring such cases because evidence would not be around at some point. He
indicated that presumably there were still people in San Rafael who would be familiar with what the use of the
property was more than thirty-five years ago.
Councilmember Brockbank clarified that nothing being done this evening would prevent a possible claim by
someone later if they came forward with evidence that they used this and wanted to develop a prescriptive
rights case; however, he believed Mr. Epstein's earlier answer was that it was not the responsibility of the
City to develop that evidence, contrary to what Mr. Roberts requested.
Mr. Epstein stated this was correct and in response to a remark made by Mr. Ford, he believed it important to
make clear that the City had not banned public access. The property owner had taken whatever action he
had taken; the question presented to the City was whether the City could exact a requirement of public
access as a condition of the land use entitlements being sought, and the answer was provided on this also.
Regarding the proposals in Mr. Mills' letter dated December 1, 2008, Councilmember Brockbank inquired as
to when Mr. Mills' proposals were made and what the response, if any, was by Mr. Kamphausen or staff.
Mr. Brown, Community Development Director, confirmed that staff received Mr. Mills' proposals today.
Regarding the first proposal, Mr. Brown believed it had been clear for some time to Mr. Kamphausen that the
neighborhood would very much like to reestablish public access across his land; however, Mr. Kamphausen,
at least for the last couple of years, had been clear in his indications that he would not allow this.
Noting Mr. Kamphausen mentioned that bicycles and dogs were the problem, Councilmember Brockbank
inquired whether they could be banned while retaining the right of walkers and joggers.
Mr. Epstein stated that the question as to in what fashion to restrict the property fell to the property owner;
therefore, this would be a question to direct to Mr. Kamphausen should Mayor Boro deem it appropriate this
evening or otherwise. It was not something the City had the ability to control.
Noting one of the speakers inquired about mitigating recreational rights, Councilmember Brockbank inquired
whether as a city, San Rafael had an obligation to mitigate the loss of public access that was previously
voluntarily provided by a private property owner.
Mr. Brown stated that if this were a dedicated public trail / public access, it would be taken into account;
however, the fact that this was never officially dedicated, but had been an informal situation, it was entirely
up to the property owner to continue it or not. It was not a CEQA impact nor a City considered impact in this
process.
Mayor Boro invited Mr. Kamphausen to read the letter submitted by Mr. Mills.
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Councilmember Miller stated that he heard the concerns of the neighborhood and Mr. Kamphausen. Noting
Mr. Kamphausen indicated Alternative One was not acceptable, he invited him to look at Alternative Two, to
somehow work together to find a way to get bicycles either through or around the cemetery.
Believing the issue came down to public access and what existed previously, Councilmember Connolly
requested further detail on what was there before and why the circumstances changed in 2005/6, what type
of outreach was done in the neighborhoods to hear concerns, and through this proposal, how much more
difficult access would be.
With regard to the County's review process, Lisa Newman reported having reviewed their record and
supplying it to the Planning Commission as part of their hearing process. She explained that the County had
active involvement in the Open Space District working to negotiate trail connections and was going to
memorialize the pre-existing public access along Tamalpais Avenue, all the roads in the cemetery and a new
trail connection. There was a written agreement and the proposal, although the County never completed
their action on the project, to require those things as conditions of approval, and to a certain extent, this was
supported by County General Plan policy. This was through 2005-2006; however, as indicated, in 2007 the
application came to the City. Staff had heard many comments and assertions that this was some type of
response to the controversies that arose during that public hearing process; however, they were not
participants in that process.
With regard to the public review process, Ms. Newman reported that it started off with a neighborhood
meeting facilitated by staff; however, Mr. Kamphausen was available to describe the project and answer
questions. This was prior to Design Review Board. Two hearings were held before the Design Review
Board and two hearings took place before the Planning Commission before bringing the item to the City
Council.
Mr. Brown added that over the past year and a half there had been a number of opportunities to meet with
the neighborhood. Staff understood all the issues which had been articulately identified, and as was heard
this evening, had been able to march through every single issue (those the City could control from a design
and land use standpoint), he believed to the satisfaction of the neighbors. The one issue staff could not
address legally was the closure of public access.
Ms. Newman added that staff had also worked closely with the Open Space District staff. A number of
meetings were held with them at the site, together with numerous consultations to try to coordinate their
efforts and support them. She noted that a staff member was in the audience this evening and could provide
input as needed.
Councilmember Connolly inquired whether there had been any analysis about what the actual impact on
access had been, i.e., what existed before versus what was now being proposed. He believed some
legitimate issues had been raised this evening about the alternatives being more onerous.
Mr. Brown agreed that previously one could ride a bicycle through the cemetery up to the ridgeline, while
today, this could only be done on City streets. Staff did not know exactly how many bicyclists used the
property previously.
Having resided close to the cemetery since 1978 Councilmember Heller stated she was saddened to know
that the neighborhood could not use the property any more, noting that in the early 1980s the children on
Shannon Lane walked through the cemetery to Redhill. She had walked the property frequently, was sad to
have moved away from it and did not like to see the access cut off from the children. While she respected
the property owner's rights and decision-making, she wished it could be changed.
Mayor Boro invited Mr. Kamphausen to comment having reviewed the memorandum from Mr. Mills.
Mr. Kamphausen clarified that no agreement was made with the County Open Space, rather the proposal
was that if people came through that area and if the road through Sunny Hills was paved, only then would
any type of agreement be made. He noted also the consideration of access for Cedars, and another situation
of coming in the main gate, going beside a mausoleum and up the road, which became impossible because
of the ditch and a very narrow road.
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Regarding Mr. Mills' memorandum, Mr. Kamphausen stated they had proposed two accesses, explaining that
a trail could be located from behind Sun Valley School which would be an adequate and safe trail to walk,
making it easy to connect the open space above it. He noted the concern for users always had been to
access the open space above the cemetery and it had never been, until just recently, to go through cemetery
property. While it was not their desire to prohibit people from enjoying the cemetery the abuse concerned
them, which he believed was brought about by some members of the Sunny Hills group.
Mr. Kamphausen stated he had expended money and effort to put trails in and was willing to work with the
open space he had. He noted that until two meetings ago the question of access all through the cemetery
never existed. He believed there was a way to work the issue out; however, he questioned whether the
neighborhood would work with them and provide anything in return, or whether they would remain
demanding. He noted the customer had to take precedence.
Mayor Boro suggested that the City Council consider Alternative Two — to form a committee, not to include
the cemetery, to explore access from behind Sun Valley School, through some private property and up to the
County open space to ascertain whether it would be feasible and practical. He believed the committee
should include Carlene McCart, Community Services Director, possibly a member of the Park and Recreation
Commission, someone from the County, a San Rafael Councilmember, Mr. Mills and one other member of
the neighborhood. The Committee would explore whether there was a way to develop access outside of
using the cemetery property; this would be worked on separately from this evening's action. Mayor Boro
believed the City Council did not have the ability to force anything on Mr. Kamphausen, as it would be
unproductive and it made sense to ascertain whether there was another way to accomplish access.
There was Council consensus to go forward with Mayor Boro's Alternative Two proposal. Councilmember
Heller agreed to serve as the City Council representative on the proposed committee.
Mr. Nordhoff stated that in light of this proposal, since there was not an item related to the alternatives put
forward by Mr. Mills included in this evening's actions, staff would like to put this proposal into a report to be
brought back for Council consideration. He indicated that staff favored memorializing this in a separate
action item for consideration on a future agenda, setting the scope of work, the participants, timeline, etc.
Councilmember Miller moved and Councilmember Heller seconded, to adopt the Resolution.
1) RESOLUTION NO. 12628 - RESOLUTION ADOPTING A MITIGATED NEGATIVE DECLARATION
FOR: 1) AN ANNEXATION/PREZONING TO PLANNED DEVELOPMENT
(PD) DISTRICT (AX07-001), MASTER USE PERMIT (UP08-031) AND
ENVIRONMENTAL AND DESIGN REVIEW PERMIT (ED07-010) TO
APPROVE A 50 -YEAR MASTER PLAN FOR THE MT. TAMALPAIS
CEMETERY THAT WOULD PERMIT CONSTRUCTION OF 22 NEW
MAUSOLEUMS, EXPANSION OF THE EXISTING 1,060 SQUARE
FOOT, ONE-STORY OFFICE BUILDING TO A 8,400 SQUARE FOOT
TWO-STORY CHAPEL/OFFICE BUILDING AND NEW PARKING, ROAD
AND LANDSCAPE IMPROVEMENTS LOCATED ON A 56.8 -ACRE SITE
AT 2500 FIFTH AVENUE; APN: 177-240-03; AND 2) A CITY -INITIATED
REQUEST TO PREZONE THREE CONTINGUOUS DEVELOPED
PROPERTIES TO SINGLE-FAMILY RESIDENTIAL (R-5) DISTRICT
LOCATED AT 2450, 2452, 2468 FIFTH AVENUE; APN: 010-351-07
(2450 FIFTH AVENUE); 010-351-17 (2452 FIFTH AVENUE); AND 010-
351-18 (2468 FIFTH AVENUE)
AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
The title of the ordinance was read:
2) "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL APPROVING AN
AMENDMENT TO THE ZONING MAP OF THE CITY OF SAN RAFAEL, CALIFORNIA, ADOPTED BY
REFERENCE BY SECTION 14.01.020 OF THE MUNICIPAL CODE, SO AS TO: 1) PREZONE TO
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PLANNED DEVELOPMENT (PD) DISTRICT (AX07-001) THE MT. TAMALPAIS CEMETERY
LOCATED ON A 56.8 -ACRE SITE AT 2500 FIFTH AVENUE; APN: 177-240-03; AND 2) PREZONE
THREE CONTIGUOUS DEVELOPED PROPERTIES TO SINGLE-FAMILY RESIDENTIAL (R-5)
DISTRICT LOCATED AT 2450, 2452 AND 2468 FIFTH AVENUE; APN: 010-351-07 (2450 FIFTH
AVENUE); 010-351-17 (2452 FIFTH AVENUE); AND 010-351-18 (2468 FIFTH AVENUE) DISTRICT
FOR ANNEXATION INTO THE CITY OF SAN RAFAEL"
Councilmember Brockbank moved and Councilmember Miller seconded, to dispense with the reading of
the ordinance in its entirety and refer to it by title only, and pass Charter Ordinance No. 1870 to print by
the following vote, to wit:
AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
Councilmember Heller moved and Councilmember Connolly seconded, to adopt the Resolution
3) RESOLUTION NO. 12629 — RESOLUTION APPROVING A MASTER USE PERMIT (UP08-031) FOR
A 50 -YEAR MASTER PLAN AND APPROVAL OF AN
ENVIRONMENTAL AND DESIGN REVIEW PERMIT (ED07-010) TO
ALLOW CONSTRUCTION OF 22 NEW MAUSOLEUMS, EXPANSION
OF THE EXISTING OFFICE BUILDING TO A CHAPEL/OFFICE
BUILDING AND NEW PARKING, ROAD AND LANDSCAPE
IMPROVEMENTS FOR THE MT. TAMALPAIS CEMETARY PROPERTY
LOCATED AT 2500 FIFTH AVENUE (APN: 177-240-03)
AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
Mayor Boro stated that staff would work through Mr. Mills and the community to obtain a sense of the scope
of what the proposed committee would do to ascertain whether there was a way to gain some access in the
neighborhood.
Mayor Boro stated for the record that he would not participate in the next agenda item (Item #7) due to a
potential conflict of interest, and he left the Council Chambers.
The City Council Meeting was paused at 9:25 p.m. and resumed at 9:34 p.m. — Vice -Mayor Miller presiding.
PUBLIC HEARING — CONSIDERATION OF AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SAN RAFAEL APPROVING THE MARIN ENERGY AUTHORITY JOINT POWERS AGREEMENT AND
AUTHORIZING THE IMPLEMENTATION OF A COMMUNITY CHOICE AGGREGATION PROGRAM (CM) —
FILE 271 X 4-13-125
Vice -Mayor Miller declared the public hearing opened. He confirmed that Mayor Boro recused himself from
this Public Hearing because of a financial interest in PG&E. The remaining four Councilmembers would hear
the item.
Vice -Mayor Miller explained that a vote would be taken at this meeting, unlike previous meetings on this
subject, which were informational. Explaining the voting process he indicated that with a 2:2 vote, the
ordinance would not pass, and with a 3:1 vote, the ordinance would pass. None of the four Councilmembers
had consulted with each other on this issue because of the Ralph M. Brown Act.
Vice -Mayor Miller noted again for the record that Mayor Boro had recused himself and had left the Council
Chambers.
City Manager Ken Nordhoff reported that the City Council was in possession of his staff report and related
documents which included the enabling ordinance requesting the City Council to consider joining the Marin
Energy Authority, the associated Joint Powers Authority Agreement and a copy of the Business Plan,
together with some additional attachments.
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Providing a brief summary of his report and recommendations, Mr. Nordhoff stated that this evening he would
argue that the City Council was being requested to make a fairly substantial and significant policy decision, a
service delivery decision the likes of which San Rafael had probably not seen in at least a decade or more.
He indicated that the focus of that decision was rooted in greenhouse gas reductions as it related to the
energy sector.
Mr. Nordhoff explained that the Marin Energy Authority was established to set up and work on energy related
programs, specifically to target the AB 32 requirements Council was familiar with, and there were still
implementing regulations to come; however, it was clear all would be responsible for those.
Mr. Nordhoff stated that the biggest and first priority tactic or program of most significance was Marin Clean
Energy, and that had been the bulk of public presentations, outreach and discussions over the past few
months. Arguing that this was a significant policy decision, he explained that it requested the City to engage
in an area not currently providing services, the energy sector.
Providing background that led through the process, Mr. Nordhoff stated the report noted that the City signed
on to the Kyoto Protocol in 2005. Also included in the report were a couple of studies conducted by ICLEI,
(International Council for Local Environmental Initiatives) at the City's request, identifying greenhouse gas
emissions both on a community -wide level as well as on a City operation level. He indicated it was worth
noting that the largest contributor to those greenhouse gases was the transportation sector, which was not
under consideration this evening; however, the next biggest pieces on the pie chart got right after the energy
sector, both on a residential and commercial basis. He stated it was also worth noting that the City
operations, which was fairly consistent with similar studies done for local agencies, only contributed
approximately 1 % of total emissions; therefore, the great majority emanated from the community.
Noting a Green Ribbon Committee had been appointed by the City Council, some of whom were in the
audience this evening, Mr. Nordhoff stated these members had been working with Bob Brown, Community
Development Director, Linda Jackson, Principal Planner, and two Councilmembers to form a Climate Change
Action Plan, which he believed would be before Council this spring for approval. This Plan would contain a
number of potential projects, programs and ideas that could deal with greenhouse gas emissions. Mr.
Nordhoff stated that approving the Climate Change Action Plan would probably get Council to consider what
future resources would need to be committed, which were not under discussion this evening, in order to carry
out those Plan ideas. While this evening's discussion centered on the Marin Energy Authority and Marin
Clean Energy, he noted a menu of items would be coming as part of the Climate Change Action Plan and
committee process.
Mr. Nordhoff stated that ultimately, the City Council would be requested to set their own greenhouse gas
reduction goals as a City, and this would be done both in terms of level of reduction and whatever timeframe
to be considered in order to achieve this.
Mr. Nordhoff reported that briefly in the staff report he touched on the legislation, the two major bills affecting
greenhouse gases: AB 32, a statewide mandate to get everyone back to 1990 levels of emissions by year
2020, and SB 375, fairly new; however a land use based piece of legislation tied to transportation and land
use policies, again trying to drive some decision-making around greenhouse gas emissions.
Providing background on the Marin Energy Authority and San Rafael's involvement in the process, Mr.
Nordhoff explained that the CCA (Community Choice Aggregation) formation legislation came from the last
deregulation and energy debacle. Passed in 2002, the bill allowed local governments to create an entity
known as a Joint Powers Authority to acquire and deliver electricity to the Authority's customers. As learned
last week, although the organization was set up to be structured in Marin, it was not constrained to being just
Marin only agencies; however, it was restricted to just county and city governments.
Mr. Nordhoff explained that in that process and under that legislation, PG&E, the current utility provider, still
retained the billing, transmission, collection, distribution and emergency response responsibilities. Part of
what had been happening for the past several years was the development of the Marin Clean Energy
Program, initially Community Choice Aggregation. Noting the City had been involved at the staff level, Mr.
Nordhoff explained that he, Linda Jackson and Council representation had worked on the local government
task force with other Marin colleagues. The Business Plan went through several iterations, was refined, and
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finally approved in April 2008.
Highlighting some important assumptions or goals in the Business Plan, Mr. Nordhoff stated that the
expectation was that the Light Green rates would be comparable to PG&E, and the Dark Green rates would
be approximately 10% above PG&E's rates. He indicated there was a requirement that the Implementation
Plan be developed and submitted to the California Public Utilities Commission for approval in order to
memorialize the Marin Energy Authority, and specifically, the Marin Clean Energy Program. There would be
a phased implementation for customer rollout, starting with municipal accounts in early 2010, moving to the
business and commercial sector in the middle of that year, and an expectation that residential and all other
customers would come online in 2011. He indicated there were approximately 200 megawatts of renewable
energy, approximately 62%, expected to be in the portfolio mix by 2014. There was an assumption
concerning issuing approximately a half -billion dollars worth of revenue bonds to build facilities that would
create this renewable energy, and most of those facilities would likely come from outside of County limits.
Start-up costs noted in the Business Plan, at $6.4 million, could rise close to $16 million, and this could have
a lot to do with how the implementation rolled out. Some of these issues would be determined subsequent to
getting through the next period of time.
Mr. Nordhoff reported that one of the environmental advantages to looking at the Marin Clean Energy
Program was the higher usage of renewables and a lowering of greenhouse gas emissions, which was
rooted in his opening comments.
Mr. Nordhoff stated he noted in the staff report also the process approved in May. A June hearing provided
some very specific information from Dawn Weisz at the County of Marin about the Business Plan
components. There was also a PG&E perspective on that Business Plan, together with the California Public
Utilities Commission providing their perspective on a statewide level of what was happening with renewables
and regulation. Three neighborhood meetings were held in September, attended by approximately 100
participants, to hear from ratepayers. A final meeting took place on Monday, November 24, 2008, where
Council heard from Greg Stepanicich who helped draft the ordinance and agreement, as well as a separate
Business Plan review by MRW & Associates, and there was now additional information concerning the PG&E
partnership program which was provided to the various cities and towns over the last month.
As noted in the staff report, Mr. Nordhoff stated that a substantial amount of correspondence was received,
and this was available in the lobby for review.
Mr. Nordhoff stated that the ordinance sets up the Marin Energy Authority and includes an implementation
element for the Marin Clean Energy Program. Noting some withdrawal provisions, he indicated it was worth
noting that withdrawing from the Marin Clean Energy program was de facto withdrawing from the Joint
Powers Authority.
Indicating that he had highlighted in the staff report a number of items from the Agreement discussed last
week, Mr. Nordhoff stated this included the fact that Marin Clean Energy would be the priority program for the
coming year. Some public bidding processes would ensue to explore an energy services provider, or ESP.
Noting this would be a high priority level of work, he stated there would be some operating and regulatory
documents put together by the JPA Board to figure out how it would be set up, run and function, all of which
would happen during 2009.
Mr. Nordhoff stated that there were future energy related efficiencies or projects or other programs that could
be considered under the authority of the ordinance, as they related to AB 32; however, he suspected most of
these would sit on the back burner, at least for the ensuing year.
Noting extensive discussions had taken place about the cost and budgeting of running this new organization,
Mr. Nordhoff believed the City Council was fully aware that the County had supplied the first $500,000 to get
through some of the items just discussed, including the Implementation Plan and bidding work for the ESP.
He stated it was worth noting again that the non -Marin Clean Energy related programs and administrative
costs not tied to Marin Clean Energy would become an obligation of the Authority and they could look to pay
for that in any number of ways, including grants, etc., Ultimately, should there be costs that could not be
absorbed, they would be shared across the participating agencies, putting a burden on the General Fund.
With regard to governance, Mr. Nordhoff stated there would be one seat on the Board, primary and alternate,
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from each member agency. Noting there would be two tiers of voting in the Marin Clean Energy Program, he
explained there was a 1 for 1 vote first, and a weighted vote based on energy usage. All non -Marin Clean
Energy activities would strictly be a 1 for 1 majority vote, based upon membership.
Mr. Nordhoff noted discussion took place last week summarizing the withdrawal processes and how the
agreement could be amended, and he had mentioned the operating rules and regulations that needed to be
developed. He indicated that an important issue in considering this was the additional milestone where once
the public bidding process was completed over the next few months, each Council that was part of the JPA
would have an opportunity to look at the results and determine whether many of the goals and assumptions
defined had been achieved or not and make a determination on whether to continue moving forward.
Highlighting where the JPA currently stood, Mr. Nordhoff stated it was formed based on actions taken. The
County of Marin, Fairfax, Tiburon and Sausalito had already had their first and second readings and currently
constituted the JPA. Belvedere, Mill Valley, Ross and San Anselmo each had a first reading and had a
second reading to complete and he was unaware of any first reading dates set yet in Corte Madera, Larkspur
or Novato.
Calling out some of the most salient points, i.e., public policy impacts, Mr. Nordhoff stated that joining the
JPA meant saying "yes" to a new level or service of electricity procurement, which was not something the City
had a lot of expertise or knowledge in currently. It was certainly a direction, from a public policy perspective,
the City Council might choose to pursue and he believed that doing this would essentially add a new baseline
service to the current menu of services the City provides on behalf of citizens, businesses, etc. He also
argued that joining the Marin Energy Authority provided an opportunity to look at where the pricing for
renewable energy could occur, whether or not this met City Council goals, and there was an opportunity to
bow out or not proceed. Mr. Nordhoff believed that joining created an expectation of some cost-sharing in the
future.
Repeating that San Rafael was a member of many JPAs, Mr. Nordhoff noted that it was a time commitment
for this and future Councils should the choice be to move forward, and it was also a time commitment at the
staff level. A lot of work still needed to be done to get this new enterprise off the ground; therefore, it would
take some staff involvement to help guide Councilmembers where professional expertise or
recommendations were needed, should the issue move forward.
Mr. Nordhoff noted that items 8 and 9 on page 11 of the staff report delineated a lot of things arising from the
MRW & Associates presentation of last week. He believed some questions needed to be answered,
including:
• Expected rates for the CCA or Marin Clean Energy customers and how they related to PG&E;
• Cash Flow risks;
• Rate volatility between the new authority and PG&E;
• Customer opt -out assumptions;
• Light and Dark Green migration choices;
• Studying the natural gas and wholesale power costs were important relative to meeting the Light and
Dark Green options.
Mr. Nordhoff stated that in his staff report he had recommended, albeit recognizing a lot of issues he believed
needed addressing, that San Rafael consider becoming a participant in the Marin Energy Authority and work
through the next phases of the Marin Clean Energy Program, and establishment of the necessary documents
that would make the authority function. He believed there were opportunities, particularly in light of AB 32,
where San Rafael had historically been able to take advantage of sharing resources in other agencies.
Animal Control and Solid Waste were good examples, where a shared responsibility had been taken and
divided up across County participation, achieving results in a fairly effective and efficient way. Noting a lot of
successes in this way he suspected those could be developed in this instance also. Mr. Nordhoff also sensed
that there was a lot of push about green technologies, green jobs and green money at the state and national
levels and he believed there was an opportunity to take advantage of that through a JPA structure.
Repeating the necessity of going through a bidding process to ascertain what could actually be achieved, Mr.
Nordhoff stated that in looking at the stock market and credit markets he was a little cynical as some of the
potential bidders he considered could be players as recently as six months ago were now getting bail -outs
and laying off employees; therefore, he was not sure of the health of all this.
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Mr. Nordhoff stated that should the City Council chose to go forward he would pay close attention to the
implementation process and public bidding process, and he would report back how he believed those
processes had either achieved the goals assumed in the Business Plan or not and provide an appropriate
recommendation.
In addition to all of the work going on through the Authority Mr. Nordhoff stated that last week the City Council
had a chance to hear about the energy partnership programs being proposed by PG&E. These had not been
flushed out or detailed in any way and he noted that similar presentations were shared with the County and
other agencies. He recommended that, should this be of interest to the City Council, while this JPA was
getting its legs and taking on its initial business, Council might wish to direct staff to work with colleagues
and PG&E to figure out some of the shared responsibilities, objectives and potential outcomes from the
various programs being proposed or considered. Mr. Nordhoff suggested that this work should happen in
tandem with the public bidding process.
Indicating he would be glad to answer any questions, Mr. Nordhoff complimented Linda Jackson, who had
been part of the local government task force outreach committee and one of his chief editors, and whose help
he very much appreciated. He noted that Rob Epstein, City Attorney, and Gus Guinan, Assistant City
Attorney, had also done extensive reviews of the documents.
Thanking Mr. Nordhoff and his staff for all the work on this issue, Councilmember Brockbank also appreciated
his pointing out the few areas that were not quite firmed up or flushed out yet. Noting Mr. Nordhoff indicated
that even though he made very clear where all the off -ramps were, most especially the results of the bidding,
he also stated that "if we go forward with this vote tonight, we should plan on being in this for the long haul."
Councilmember Brockbank believed this to be somewhat contradictory, and he wanted to clarify that the City
was not locked in if in fact, Council voted to go forward this evening, rather, if the results of the bidding were
not acceptable, the City could opt -out with no harm done.
Responding, Mr. Nordhoff explained that entering the Authority and all the possibilities it brought did lock the
City in on a long-term basis, i.e., choosing to join the Authority and all the things it could do under energy
related programs and AB 32 compliance, was committing to it on a long-term basis. He recognized that the
biggest program and the most intensive amount of work in the next few months was around Marin Clean
Energy, which did have some very specific off -ramps, opt -outs or choices that the City Council could make
and would have the opportunity to hear about. Should issues such as solar system installations, retrofitting or
energy efficiency become programs with legs in the Authority, the only way to get out in the future would be
to take advantage of the withdrawal provisions. Having been around a lot of JPAs and seen how difficult it
was just to amend something, let alone try to withdraw from or dissolve one, Mr. Nordhoff believed this to be
a fairly permanent choice. While not discrediting this, practically he believed this was how this would work.
Unless, Councilmember Brockbank commented, that by withdrawing from the CCA, the City was de facto
withdrawing from the JPA; however, should everyone decide not to do the CCA, the City could well be left in
the JPA and go forward with other energy programs. Mr. Nordhoff concurred.
Councilmember Brockbank noted that MRW & Associates pointed out just last week that there were a few
areas where sufficient risk analysis was not undertaken; however, they indicated that this risk analysis could
be done over the course of the next six months, subsequent to joining the JPA. He believed insufficient
attention had been paid to the real risk, exit fees, which to him appeared to be the most likely financial risk.
He believed it had not been sufficiently pointed out that exit fees would only apply in a falling market;
therefore, entering in a high market and deciding to opt out in a falling market could necessitate
compensating the JPA for the fact that they had locked in long-term contracts for energy and the City would
be on the hook for paying a substantial energy fee. He confirmed with Mr. Nordhoff that this decision could
be made when better risk analysis information was available.
Mr. Nordhoff suggested that should these be the types of topics that were important in that assessment he
would wish to ensure they were conveyed to the people involved in order to obtain the correct analysis and
provide the City Council with some recommendations related to these types of issues.
In response to PG&E's proposal, Mr. Brockbank stated he appreciated Mr. Nordhoff's mentioning that he
would like to proceed on a parallel track; however, he was somewhat disturbed last week by PG&E,
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SRCC Minutes (Regular) 12/01/2008 Page 15
specifically Joe Nation's statements that "no, you cannot proceed on a parallel track, it's now or never,
because if you vote to join this JPA, forget it, we will be bidding against ourselves", which he did not believe
or understand then or now. He therefore, appreciated Mr. Nordhoff's leaving the door open to proceed on a
parallel track, as despite Mr. Nation's comments last week, he believed PG&E would still be around, still want
to deal with the City lest San Rafael decided not to go ahead; however, they needed a lot of flushing out of
their proposal.
Mr. Nordhoff stated that joining the JPA, should the Marin Clean Energy program go forward, was really
creating a permanent partnership or relationship between the Authority and PG&E, because of the shared
responsibilities; therefore, there had to be some constructive, intentional ways of figuring out that these
parties could work together, whether studying this proposal or looking at other alternatives.
Mr. Nordhoff noted that representatives from the County who helped generate the Business Plan were in
attendance, Dawn Weisz, as well as PG&E representatives, and they could provide responses as needed.
Explaining the public hearing procedure, Vice -Mayor Miller requested that each speaker provide their name
and city of residence and keep remarks to two to three minutes. Subsequent to closing the public hearing,
Mr. Nordhoff and staff would respond to questions, to be followed by Council consideration.
Councilmember Brockbank stated he had a suggestion which might save, not only the City Council an hour,
but more importantly, the audience an hour. In reading the audience, most of whom he knew fairly well, he
believed all had a pretty good idea where most stood. And without any indication from the City Council of
where Councilmembers stood, he believed several dozen from the audience would wish to state their
feelings, many for the second, third, fourth or fifth time. Believing it pretty predictable, he was unsure if much
would be added to the process. He indicated that this was the first time in the extensive process of a half-
dozen meetings where it could well be that the City Council could state: "everything that we have needed to
hear, we have heard." This did not mean he wanted to cut out anyone from saying anything that had not
been said before, which they could of course do; however, "if we were to give an indication of where we
stand, then there's an old saying that us lawyers know, that if you're winning the argument, you shut the heck
up and give the people who want to change our minds an opportunity to change our minds, as opposed to
them not knowing and they speak to us just in case we might not vote the way they want us to vote."
Vice -Mayor Miller stated that this was not a very good suggestion, precisely because Councilmembers should
not have made up their minds until they had fully heard everybody every time. Therefore, as a matter of
transparency, the public hearing would proceed as suggested.
Don Maadanz, San Rafael, stated that seeing as how the ratepayers had the option of opting out of the Marin
Clean Energy Program, it did not seem logical that a vote was necessary from the public. With regard to
PG&E, he stated they had been dragging their feet for years on renewable energy. He commented: "Beware
of the politician from PG&E saying 'I'm here to help you'." He believed that if PG&E was real serious about
this issue they would be at the table bidding.
With regard to greenhouse gases, Mr. Magdanz stated that very little had been done at the federal level,
which he hoped would change. However, the state was also minimal, and the old adage of "Think globally,
Act locally" had never been more apparent than what it was today, because as a local group, things could be
made to happen with this issue.
In reference to Mr. Nordhoff's remarks that the transportation sector was not under discussion, Mr. Magdanz
stated he believed the transportation sector would be discussed with Marin Clean Energy. Over the next five
— fifteen years, he believed there would be a shift from fossil fuels to electric forms of energy: public
transportation, electric cars, etc., and this would start attacking this entire issue. Today, transportation was
not being looked at; however, it would be looked at.
Indicating he did have some reservations about Marin Clean Energy, Mr. Magdanz stated that the financial
picture was being put together based on estimates; however, on getting to bidding on the CCA, a lot more
would be known. He believed it really important to stay involved with this issue at this point in time. There
was no liability on the City at this point, and if in the future there was liability, the City could get out of it.
Noting Marin County had allocated $500,000 to get this program started, and with 250,000 residents, this
equated to $2 per taxpayer. Commenting that the $500,000 could eventually go to $1 million or $1.5 million,
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SRCC Minutes (Regular) 12/01/2008 Page 16
he indicated that $2 represented a little over a day of his PG&E bill, and he believed it should happen
Noting the City Council formed a Green Ribbon Committee to provide a Climate Change Action Plan, Mr.
Magdanz stated that those on this committee were not even considering Marin Clean Energy, because it was
already in the works. He commented: "if you people vote it down, we are going to be all over you to go back
and do MCE, simply because this is a significant portion of what we want to do to reduce greenhouse gases
in this city."
Mr. Magdanz urged the City Council to vote "yes." He would like to hear a unanimous vote from the City
Council. It would cost $8 in taxes.
Paul Cohen, San Rafael, indicating that it was a pleasure to see the City Council, commented that it was an
interesting experience to be on this side of the podium. He stated he was appearing this evening as Chair of
the Marin Democratic Party, an organization formally known as the Democratic Central Committee of Marin.
Mr. Cohen reported that at their November meeting they took a time-out from celebrating the results of a truly
outstanding election to consider the issue before the City Council this evening, and after careful
consideration, the committee voted to recommend that the San Rafael City Council proceed with participating
in the formation of a Joint Powers Authority. Recognizing that this was a complex issue, Mr. Cohen stated
that just as the City's very capable staff had concluded, they believed the best way to get answers to the
tough questions was to join the JPA, continuing the process, and reserving the right to withdraw if the
answers were not satisfactory, the numbers were not as expected or the studies of risk did not appear
tolerable. Noting a lot of tough questions needed to be answered, Mr. Cohen believed the best way to get
those was to form the JPA and take the next step on this issue.
Mr. Cohen expressed the hope that their recommendation was helpful and the City Council would take into
consideration the position of the Democratic Party in deciding how to vote.
Personally speaking, with regard to PG&E's interest now in coming up with a competing proposal about how
to reduce greenhouse gas, Mr. Cohen stated that as a former member of the City Council he had worked on
this issue and PG&E's hands off, almost disinterest in a position on the issue, was always interesting to him.
He personally believed that the only reason PG&E was now serious was that the City Council was now
serious, and was on the threshold of considering joining the JPA. It had taken that to get them to step up and
state: "wait a minute, we've got something else we would like you to take a look at as an alternative." Mr.
Cohen concurred with Councilmember Brockbank in continuing to have the opportunity to do that. He
believed that should the City Council vote to join the JPA this evening PG&E would suddenly state: "oh, no,
forget it, we didn't mean it anyway." Should PG&E have something serious to propose they had time while
the JPA was doing its work to put a serious proposal before the County of Marin and the towns and cities.
The City Council could evaluate that in comparison to what the JPA came up with.
Councilmember Brockbank clarified that he did not participate in the discussion or vote of the Democratic
Central Committee of Marin on this issue.
Paul Helliker. General Manager, Marin Municipal Water District (MMWD), stated that MMWD was the largest
electricity customer in San Rafael and Marin County and he hoped his comments would be taken with some
serious significance.
Indicating that they had been working on this program from the beginning, Mr. Helliker stated they supported
it with the initial phase and continued to be supportive, providing the funding to be able to offer the MRW
analysis, the conclusions of which he hoped the City Council would concur with.
Mr. Helliker reported that MMWD had adopted a greenhouse gas emission reduction goal and Marin Clean
Energy was central to their ability to be able to achieve this. They had been working with the City of San
Rafael in a partnership named the "Marin Climate and Energy Partnership" which was focused on a whole
variety of different ways to reduce greenhouse gas emissions. It was a program that presumably, would be
incorporated into the JPA; however, it did not cover the bases MMWD needed covered, primarily the
electricity sector. Mr. Helliker hoped the City Council would afford them the opportunity to participate in a
renewable power portfolio such as Marin Clean Energy would offer. Noting they had requested this from
PG&E over a year ago, he expressed the hope that when San Rafael was looking at the proposal being
offered by PG&E, that the City Council would ensure it was solid and substantial and did actually represent
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significant amounts of renewable power
Indicating that MMWD looked forward to a partnership such as this from PG&E, which hopefully, they would
provide as an alternative, until the details were available and it went through the PUC process, it was not
something comparable to that proposed by Marin Clean Energy.
With regard to risk, as was presented last week from the PG&E representatives, where they referenced
Citigroup as a potential risky organization, Mr. Helliker stated that MMWD had experienced this in the bond
market recently with AIG. They hold bonds from one of their subsidiary corporations, and while AIG had
serious problems, their subsidiary corporations did not, and in fact, they still continued to be very solid players
in the marketplace. He believed the same to be true of Citigroup Energy; they had significant assets, they
were not threatened by the meltdown in the mortgage market; therefore, he cautioned that in referencing
Citigroup, it would be important to note the correct part of Citigroup when comparing the scenario being
considered in San Joaquin Valley.
Mr. Helliker stated that, most importantly, PG&E would continue in the role they had today. They would be
transmitting and distributing the power, i.e., continuing to do everything they do, except purchasing the power
under Marin Clean Energy.
Having conducted additional calculations, Mr. Helliker submitted a chart entitled GHC Emissions: PG&E vs.
MCE, and discussed the comparison figures. He noted that PG&E's own numbers indicate that when they
calculate the benefits of energy efficiency programs in Marin County, they are calculating the emissions that
are reduced from their gas portfolio, which was in their comments on the Marin Clean Energy Business Plan.
He noted this needed to be used as the baseline comparison, not their average emissions. Given that, the
mix of emissions from the two portfolios being proposed by Marin Clean Energy, Light Green and Dark
Green, taking the average, it was below PG&E's average numbers from the very beginning; therefore, the
mix expected for both Light Green and Dark Green customers in Marin County would produce a greenhouse
gas emission portfolio that was significantly below PG&E's average numbers, and would be well below the
power being offset that PG&E otherwise would have provided to Marin County. Mr. Helliker noted that these
were the real numbers and those presented last week did not tell the whole picture.
Mr. Helliker stated that the Marin Municipal Water District supported Marin Clean Energy and hoped the San
Rafael City Council did also.
Peter Warina, Fairfax, stated he had a small business providing green building and energy consulting,
focusing mainly on the residential sector; however, also the small commercial sector, in terms of encouraging
people to make their homes and business buildings more energy efficient. He was pleased that the Fairfax
Town Council moved forward quickly in terms of joining the JPA and he urged the San Rafael City Council to
join them to make it possible. He believed that clearly, clean energy, and electrical energy in particular, was
a very important part of the challenge in Marin County, the state and country; however, there were many
other areas where the City Council would be called upon to make decisions. One of these was implementing
AB 811, where the state legislature had authorized municipalities to float bonds and make low interest loans
available to homeowners in order to carry out energy efficiency upgrades on their homes. The program
should pay for itself, doing upgrades now, saving money on energy and saving enough money to pay back
the money it borrowed in the first place, and in the meantime, air would begin to get cleaner. Mr. Waring
urged the City Council to vote favorably on this proposal.
Arthur Duffv, San Rafael, stated that he went door to door in several neighborhoods in San Rafael and found
the support for this program to be overwhelming. Quoting the saying: "All of us are smarter that any one of
you" he urged the City Council with this in mind to do the wise thing.
Roaer Roberts, San Rafael, stated he was present on his own behalf and that of Marin Conservation League,
and he and they supported this program.
Mr. Roberts noted that claims had been made by various members of the public, based on a
misunderstanding, he believed, that the City would be at financial risk in connection with the Marin Clean
Energy Program. The assumption that these would be General Obligation Bonds that would require the
backing of the cities was not correct. He explained that these were industrial revenue bonds, which were
secured by the revenue generated by the underlying project. If this was reliable, with the correct number of
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people and rate setting, there never would be a requirement for a guarantee of San Rafael or any other city in
support of Marin Clean Energy.
Urging the City Council not to be too concerned about that risk, Mr. Roberts noted that he stated this with a
certain amount of knowledge, having spent twenty-seven years in the banking industry working in trade and
project finance. He had not been involved in domestic infrastructure finance but had been involved in
overseas infrastructure finance for many years. The revenue of a project could be relied upon as a source of
repayment and as long as the Marin Clean Energy Program and the Marin Energy Authority did not take
completion risk, there would be no liability on the part of this City or any other member of the JPA.
Tamara Peters, San Rafael, stated that as she had not read the staff report she could not comment on it;
however, she could address somewhat people's motivations of what they cared about. Having spent the past
several months managing the phone bank for the Obama Presidential Campaign in San Rafael, she reported
that they had 1,300 volunteers calling from this phone bank. Noting there were 155,000 registered voters in
Marin County, she stated that they had almost 1 % of registered voters in Marin who made phone calls for an
issue they deeply cared about. Ms. Peters believed that 78% of Marin County residents voted for Obama
and his platform, which was Energy Conservation and Climate Change, and she believed this said
something. She liked the Obama comment: "it's not about me, it's about you" and believed that those 1,300
people and the many others who called from their homes and went through the swing states, really got that.
She believed Obama would "do it in Washington and it was up to us to do it here" and she encouraged the
City Council to vote to join the JPA and hopefully, MCE.
Ed Bovice, San Rafael, encouraged the City Council to vote to join the JPA as they would like to sign up for
Dark Green power to do their part to save the environment, and could not do this without San Rafael's help.
He noted he had expressed his opinion in letters previously.
Bob Spofford, San Rafael resident and member of Sustainable San Rafael, clarified that everything PG&E
was proposing, some of which sounded interesting and probably should be pursued, had to be approved by
the PUC, which was a long, slow process. And it had to be approved by the PUC on the proposition that it
was something being test -marketed here that they would be able to roll out to their 20 million customers
within a certain period of time, or the PUC would not approve it. He believed PG&E was not in a position to
put anything on the table now and were in a position to possibly start a long process of negotiation and going
back to the Public Utilities Commission. He noted that nothing they were talking about would become firm
and possible, except on about the same kind of timetable as the JPA getting a contract back from someone
such as Citigroup. Mr. Spofford stated that there was not an option to state "let's defer this while we hear
what PG&E has to say" because all PG&E could provide for the next six or eight months was what they
hoped to be able to do, rather than what they could actually deliver. Other than that, Mr. Spofford believed
the City Council was well aware of Sustainable San Rafael's support for the JPA.
Mary Ann Maiorie, Mayor of Fairfax, reported that Fairfax approved this affirmation of the future in May once.
It was changed a little, worked on a little, which they did not object to doing over and over because they
believed it to be really worth it. Considering themselves a sister municipality, Ms. Majorie stated that Fairfax
would like to be in the same family with San Rafael.
Ms. Majorie stated it was clear to them that when PG&E made a presentation to Fairfax in May that their idea
of a non-polluting resource was to state "well, we can beat your MCE figures by a 20% - 25% cut in the
rates." On questioning them on how they would do this, the response was that their carbon footprint would
be much smaller because they use Nuclear Energy. She indicated Fairfax believed that the promise of MCE
and the JPA was to eventually see wind and solar energy, efficiencies, and the JPA work on other things
besides that under the AB 32 stipulation of the State of California. Ms. Majorie stated that most importantly, it
had always been to them Clean, Clean, Clean Energy. She believed the San Rafael City Council had
sufficient information and positive energy before them; Fairfax was the first to ratify the JPA and she hoped
San Rafael would be the fourth. Appreciating San Rafael's long and hard deliberations, she stated that the
time taken was a noteworthy aspect and she urged the City Council to "go for it."
Ted Posthuma, San Anselmo, stated that when this entity took on the Kyoto Protocol and the President of the
United States did not, it already laid out its direction, and he hoped it would be taken to the next step.
Bill Carnev, San Rafael, urging the City Council to take this hugely significant first step locally and regionally
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to address global climate change, stated he was glad to see that the staff report set this action in context with
the City's current process to develop a Climate Change Action Plan. Serving on one of the green teams
participating in that process, he commented that as those attending those meetings were aware, there was a
long way to go. Staff was doing a great job of guiding the process and were currently diligently compiling the
recommendations; however, from what was presented at the last session, it appeared that MCE would clearly
be the most significant, single action the community could take to reduce the collective carbon footprint,
possibly 25% - 50% of all the recommended reductions. Mr. Carney stated that if Climate Change Actions
were a menu, then MCE was clearly the main course.
Noting the huge significance just in reducing emissions from electricity production, Mr. Carney noted that the
real long-term importance of having a green grid was that it provides a clean infrastructure for plug-in
vehicles, which would allow the beginning of a meaningful dent on the 60% of greenhouse gas emissions
from cars in San Rafael.
Noting people from other jurisdictions spoke this evening, emphasizing the regional aspect, Mr. Carney
stated that half of those car emissions were from Highway 101, from cars passing through, which highlighted
that MCE was a regional effort. San Rafael's leadership was one of the few things that could be done as a
city to help reduce the emissions from regional traffic, which accounted for fully 30% of all emissions in San
Rafael. Mr. Carney stated that joining the JPA made sense as prudent public policy. Voting to join the JPA
was just a first step that would position the City for a final decision next year when increased information
would be available. As a community, the best deal would be achieved, either with PG&E or with other
suppliers, only by coming together with other jurisdictions and negotiate from a position of strength - -
strength in numbers and from having available the viable option of CCA.
Mr. Carney stated that from public policy and fiscal viewpoints, proceeding with the JPA this evening was the
prudent thing to do, leading ultimately, to the most informed public decision and not wasting the public
resources already expended and pledged in this effort to achieve clean energy and a sustainable future.
Marsha Cannon, San Rafael, reported that she and many other volunteers had been at the Farmers' Market
on Sundays collecting letters and talking to people, and this evening, she had the results of that effort. She
submitted 414 letters from San Rafael residents, all in support of Marin Clean Energy.
Barbara Georae, Fairfax, stated that with regard to the risk question, whether or not MCE needs another risk
management plan, it was important to note that the Community Choice was a risk management plan. The
risk of the PG&E portfolio was quite serious. Ms. George explained that just a couple of weeks ago a new
earthquake fault was identified just off the coast underneath Diablo Canyon, there already is one earthquake
fault underneath that nuclear power plant, and now two, and the Energy Commission indicated it needed all
of the information about the geological issues around all the nuclear power plants before considering any
possibility for renewing those licenses. Therefore, all of a sudden, PG&E stands to lose a large amount of
power, about five times as much as Marin even needs just for one power plant. Ms. George indicated this
was an enormous risk.
Ms. George indicated that another serious risk of staying with PG&E was that they are investing in liquefied
natural gas (LNG), which is a very dangerous technology and was compared to nuclear power as if it were
worse. Believing nothing could be worse than nuclear power, Ms. George stated that liquefied natural gas
came close, noting it was possible to incinerate half a city with a LNG facility if a match were lit at the wrong
time. Other risks associated with staying with PG&E included missing their targets on renewables, PG&E
had just barely half of the renewables they are supposed to get in 2010; they had 14% in 2003 and 12% now;
therefore, as a percentage of their system they were going backwards. She explained that one of the
reasons for this was that their system was growing at a faster pace than expected, because their energy
efficiency programs had also been a dismal failure, having met only half of their energy efficiency goals on
some programs, and in some cases, only 15%.
Ms. George reported that rate volatility was among other major risks of staying with PG&E. She explained
that rate increases were being experienced currently; having a 10% increase in the space of a year was an
outrage, especially since it was not foreseen. She commented: "if we are concerned about our consultants
seeing exactly how MCE is going to turn out, let's remember that PG&E could not even figure out what they
needed to charge us." She noted they were 10% off on all of their numbers and had been wildly off on all of
their comparisons with MCE.
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Noting the staff report indicated this was creating a permanent relationship with PG&E, Ms. George stated
that there had been a very long semi-permanent relationship with PG&E and this was the first time
consideration had been given to getting out of that relationship. She noted that the relationship the City and
its residents had been in was a passive, powerless one, which would be exchanged for a relationship with
leverage and power and the extreme advantage of a democratic system where the entire community was
keeping an eye on things that were happening and could work with the City to make things better. Ms.
George stated this was not something the City ever had a chance to do with PG&E. She noted there was no
chance to vote on anything they did nor was there an opportunity to even discuss with them what power they
purchase.
While she agreed there were risks, one of which was a falling market, Ms. George stated that conversely, the
JPA would be purchasing at the bottom of the market. With regard to Citigroup, she indicated she always
wanted people to remember that there is a public entity to contract with, noting public entities did well,
survived and had no problems from the energy crisis. This was one of the reasons for public control, as
when things went haywire in the market place, the public sector had this kind of conservative, careful way of
looking at things, as represented by how the plan was studied.
Ms. George looked forward to all City Councilmembers voting affirmatively for this plan.
Kaki LaPorta, Sustainable San Rafael and Sustainable Marin, stated that her family had resided in Marin
County since 1966. She expressed pride to be present this evening, pride to be represented by the City
Council and served by staff. She stated the City had done an amazing job of delving into this program,
understanding the nuances and hopefully, coming to the decision that would result in the JPA that would
bring Marin Clean Energy. Ms. LaPorta stated she was also incredibly proud to be in this room full of her
colleagues and fellow citizens who had done an incredible amount of work. They were so articulate, cogent,
understanding and out of the realm of denial about daily life, quality of life, choices and environment.
Ms. LaPorta stated she hoped the City Council would support the ordinance forming the JPA, that Marin
Clean Energy would go forward and would come back with numbers that would make everyone "leap for joy."
She also wished to frame for all that this was just the beginning. 2009, 2010 and beyond would see this JPA,
which she hoped would be formed and joined by San Rafael, providing an opportunity to work together as a
community for community benefit so that the community could solve problems where it had control and where
everyone could serve and look after each other, making the community a better place.
Tom Driscoll, San Rafael, stated that the biggest argument against MCE was the rate risk, noting the chance
that if everything went wrong some ratepayers could pay more. Being in the renewable energy business, he
stated that PG&E was his best friend because they had raised the top tiers over 200% in eight years. He
believed much greater electric prices from fossil fuel energy would be seen in the not too distant future;
therefore, no matter what the numbers looked like in the next six months, he urged the City Council to
support the JPA wholeheartedly.
Councilmember Connolly left the Council Chambers at 10:44 p.m. and returned at 10:45 p.m.
There being no further comment from the audience, Vice -Mayor Miller closed the public hearing.
City Manager Ken Nordhoff noted that although there were a lot of comments, there was nothing specific
requiring correction, except for one item. He noted that Mr. Magdanz commented about PG&E being able to
bid as though they were one of the potential parties in the CCA and Marin Clean Energy process; however,
this was an inherent conflict, both in the way the CCA law and structure was set up, as well as the way PG&E
currently procures and delivers energy. Mr. Nordhoff clarified that PG&E would not be a bidder in the
process. He indicated that unless the City Council wished him to address something specific, he had no
additional comments.
Councilmember Connolly began his remarks by thanking staff, particularly Ken Nordhoff and Linda Jackson,
for doing an outstanding job and producing a great staff report. He recalled many months ago as a sub-
committee member working with staff on generating a public process that the word they sought to achieve
was a "robust" community process, and through a number of community meetings, community outreach
efforts and public hearings, he believed that goal had been accomplished. He thanked the public and
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community for participating in the process. The exchange of ideas, debate and respectful tone had shown
this community at its best, noting that so many people concerned about this important issue were heard.
As mentioned by City Manager Nordhoff, Councilmember Connolly stated that Marin Clean Energy was a
bold step for the City of San Rafael; however, in his judgment, it was also a prudent step and the right time
for the City to take this step. By joining the Joint Powers Authority and moving to the next step in the
process, the City would be in a position to achieve three goals important to citizens:
• To address climate change and the climate change process at a local level. This was being done
currently, as indicated this evening, by efforts through the Green Ribbon Committee and the Climate
Change Action Plan process, which he (Councilmember Connolly) was happy to be a part of. Those
efforts could be continued with Marin Clean Energy with other towns and the County in Marin,
achieving regional benefits that would meet the City's obligations under AB 32.
• The second goal that would be achieved by joining the JPA and going forward with this process was
fostering the use of renewable energy. Everyone was aware, not only locally, but as a nation, that it
was necessary to reduce fossil fuel use. He was very impressed by efforts at the local level to
encourage use of solar energy, wind and other forms of renewable energy, and he believed those
efforts also fit in nicely with the objectives of Marin Clean Energy.
• To make the local economy stronger. There again, San Rafael was not immune to national trends.
Councilmember Connolly stated he had talked a lot with community members about the fact that, for
example, the problems being experienced in Detroit were also affecting the local economy. Auto
dealerships were leaving and it was difficult to attract new ones, and this was an important part of the
local economy.
Councilmember Connolly stated that the solution was to begin thinking differently, not only just as a matter of
protecting the environment, but protecting jobs also. President -Elect Obama was correct in stating that the
way to solve many of the economic challenges was to think differently and start fostering green jobs, and it
was his (Councilmember Connolly's) humble opinion that within Marin, the City of San Rafael could really
take the lead in creating those types of jobs. He believed that Marin Clean Energy would be an integral part
of that process.
Stating that this was a moment in time to dare to think boldly, Councilmember Connolly noted that, as had
been mentioned, without question boldness carried some risk. He believed one of the City Council's jobs,
which they would continue to work with the community on, was assessing those risks as the process went
forward as to what was in the best interest of San Rafael. In evaluating those risks today, Councilmember
Connolly stated his judgment was that it was in the best interest to go forward with the program. He believed
the City could still work on a parallel track with PG&E, to the extent they truly wanted to, in coming up with
solutions as well and partnering.
Councilmember Connolly stated he would be voting affirmatively this evening to join the JPA.
Councilmember Heller thanked all San Rafael residents present this evening, noting they had attended many
meetings on this subject, and who were working very hard to help reduce San Rafael's greenhouse gases
and generate plans for the next few years with the Green Ribbon Committee and Green Teams. With regard
to an important area under discussion this evening, Energy Conservation and Production, Councilmember
Heller reported that for several years interested parties had been working towards this. Some had come into
this a little later because of not being part of the sub -committees working on the issue; therefore, it was more
or less of an issue of hurrying up and learning everything possible. She congratulated Marin County staff for
doing a very fine job this past year with very clear and good presentations.
Councilmember Heller stated she would vote to approve the ordinance because she believed it was
necessary to take this one step, go forward and look at where the City was in the next few months.
Unhappily for her, sitting on her side of the table, it was not possible to get carried away with enthusiasm;
rather it was necessary to look more at the facts. Wanting something for the City and its citizens, her
question was whether San Rafael could afford the JPA, noting the City would have very limited funds in the
immediate future.
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Councilmember Heller stated that a huge problem for her was the fact of choosing not to educate the public
by taking this to a public vote. She believed the opt -out plan would also confuse the public. She disliked
these two parts, as personally, she believed it more or less conveyed to the public and those who pay taxes
that they were not important enough to discuss this with. Noting the start-up plans were unknown and the
financial risk substantial, she did not believe the $500,000 from the County would be sufficient to get the
program off the ground with the start-up funds. She was aware they would expect to receive money back
from the JPA when it was set up and running; however, she questioned where the JPA would go for funds at
that point, probably to their members.
Noting the plan was a little dated, having been around for two or three years, with another year before
implementation, Councilmember Heller was unaware of guarantees as to who would furnish the millions of
dollars in loans the JPA needed to borrow. She noted that this would roll out in the next few months and it
would be known at the end of that period whether the money would be available and whether advantage
could be taken of it.
Commenting that Marin had a population of less than 250,000 people, Councilmember Heller questioned
whether this population was large enough to support the program. She did not see another county or entity
with a JPA such as this, and being a small county, she liked to follow rather than lead, because she believed
this put the City in a very precarious position financially.
Councilmember Heller believed that all of the cities and towns should continue to work with PG&E to
formulate the program so that if the first one did not work out satisfactorily, they would have been working
with PG&E and perhaps would be able to get a plan going with them, or perhaps a combination of both. She
believed they had now stepped up to the plate and would continue to work with the entire community.
Indicating these were her concerns and reservations, Councilmember Heller stated she would vote for the
ordinance.
Councilmember Brockbank added his thanks to the City and County staff. Most importantly he thanked the
dozens of volunteer activists who spent a lot of hours sitting through many meetings, and especially those
who went out on the streets to really take the pulse of the people, which was the hardest, most important and
telling work that anyone could do to advance major policy changes.
Quoting State Senator Mark Leno: "democracy is best served when you have a choice because without
choice there is no accountability and without accountability there was no responsibility," Councilmember
Brockbank stated it occurred to him that this was all about choice. Without this, there was no choice and the
City would be stuck with PG&E. He believed the ordinance should be approved in order to give individuals
the choice, noting it was possible to opt -out.
Under the category of "we all need to do everything we can" Councilmember Brockbank noted that some
speakers favored a public vote; however, this issue was resolved some months ago on the grounds that it
was too expensive or unnecessary, or an unfair method, etc. During his election last year finding it
necessary on occasion to condense his remarks as to why people should vote for him to three seconds, he
used the phrase "Let's get the greenhouse gases out of the air." Regardless of how people felt about how
informed the electorate was, he did not believe people would have elected him if they did not wish to see
greenhouse gases out of the air. He found it hard to believe that the City was not making a choice that
represented the overwhelming majority of the views of San Rafael, not just by his election, the canvassing
done, or the 90% of those speaking positively in the extensive meetings, rather by the City Council's own
extensive hours of analysis and joining colleagues from other cities in going with the odds, odds that
indicated this was a really good deal to explore.
While the City could not know for sure, Councilmember Brockbank stated it would be crazy not to at least
take the next step and form the JPA, and he would vote affirmatively.
Vice -Mayor Miller joined his colleagues in thanking everyone because this was a community endeavor. It
was a community endeavor where everyone worked as hard as could be and brought forth a real energy of
bringing one another together.
That stated, Vice -Mayor Miller stated he wanted to add a twist to the discussion. It was a twist he believed
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had merit, otherwise he would not bother those in attendance with it; however, it was a little different
Vice -Mayor Miller stated that he had listened. He had listened to the audience and to his colleagues and
after study this was where he stood:
He had great passion for growing in San Rafael the three Es of sustainability: Economy, Environment and
Social Equity. He saw the reduction of greenhouse gas emissions through the development and use of green
energy as one of the most fruitful tactics in the evolving San Rafael Climate Change Action Plan.
Vice -Mayor Miller reported that he had studied the concepts and workings of Community Choice Aggregation
He had been involved as a representative of San Rafael on the Local Government Task Force in the
development of the Business Plan to form a CCA organization in Marin, now labeled "Marin Clean Energy,"
and would come about through the adoption of a Joint Powers Agreement for a Marin Energy Authority.
Noting the multiple caveats in Mr. Nordhoff's report, Vice -Mayor Miller stated he still had some concerns over
the formation of the JPA:
• New Service;
• $475 million in Bonds; and
Limited supply of renewables
New Service — Vice -Mayor Miller stated that whether buying renewable energy was directly provided by the
City or indirectly provided through the medium of a governmental, non-regulated, start-up energy enterprise,
it was, nevertheless, a new service for San Rafael and lay outside the essential services the City now
provides. The customers of the energy enterprise would be the same people and businesses who reside in
the homes, and own, lease or work in the buildings in San Rafael. This was of paramount importance,
because in these drastic, critically drastic, recessionary and changing times, for the City to balance its budget
it must refine its mission, reduce its services and realign its workforce. There was no other choice. Indicating
that the City could not take on new services, Vice -Mayor Miller stated that rather it must re -think, reorganize,
re -select and even jettison services that do not relate to its most fundamental mission of providing a safe and
healthy place to live, work, do business and visit.
$475 million in Bonds — Vice -Mayor Miller reported that the Authority planned to issue nearly a half -billion
dollars, which could only be public revenue bonds, to invest in renewable energy facilities. Virtually all of the
facilities to be constructed would necessarily, at least in the immediate future, be located outside of Marin.
The City's participation in a JPA that would obtain substantial financing for construction of distant facilities, for
what he (Vice -Mayor Miller) and many others, considered a new City service, would cloud the issue when the
City had to take care of its own construction needs within its boundaries, such as refurbishing and replacing
its existing police station, or its aging fire stations or other critical buildings.
Limited Supply of Renewables — Vice -Mayor Miller stated that his analysis of the CPUC Renewables Portfolio
Standard Quarterly Report of July 2, 2008, reflects that there is insufficient generation of renewable energy to
satisfy the existing Investment Owned Operators who are regulated and obligated by the CPUC and
mandated by AB 32 to achieve 33% RPS by 2020, even though those operators already had contracts that
make aggressive assumptions about the availability of renewables and thereby offer substantial risks to
achieve. Because of the magnitude of the supply problem, Vice -Mayor Miller believed that the issue would
be more realistically addressed at the state level and not at the local level. He believed it to be more
appropriate that local governments spend their time, energy and money generating renewable energy at the
community level and let the big picture be painted at the state level.
Given these grave concerns, Vice -Mayor Miller stated he would prefer not to act upon the ordinance and
agreement presented to the City Council this evening and to test PG&E's alternative. He would like to see if
the City of San Rafael could achieve its goal to significantly reduce its greenhouse gases through the process
to partnership suggested by Pacific Gas and Electric, a partnership that carries no risk to San Rafael's budget
or refined mission of providing a safe and healthy place for all.
Vice -Mayor Miller stated he believed that now was the time the City of San Rafael should, in collaboration
and in a manner determined with other willing cities, towns and the County of Marin, negotiate for the best
possible PG&E offer to supply under regulation of the California Public Utilities Commission, renewable
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energy products to retail electricity customers in Marin County under the best prevailing terms and conditions
available in the marketplace. He indicated that this process should occur within a defined timeframe which
he believed, should conclude no later than March 31, 2009.
Vice -Mayor Miller stated that now was the time that the City of San Rafael should demand from PG&E the
assurance that the City would get full credit for the renewable energy delivered to ratepayers. Now was the
time that the City of San Rafael should request that PG&E finance, procure, construct, operate and maintain
desirable, renewable energy facilities at sites provided by the City, the County and other Marin County local
governments, and sell the output to retail customers who voluntarily choose to have their electricity supply
come from these local, community-based renewable energy facilities.
Vice -Mayor Miller stated that now was the time that the City of San Rafael should require that PG&E
aggressively pursue any and all other potential efficiency and "green" services, including home and
commercial energy audits, flexible and time -of -use pricing options, advanced electric meters, building design
services, customer energy efficiency rebates and incentives, demand response programs, employer and
commuter transportation programs and assistance and job training to green energy vendors and developers.
In his judgment, Vice -Mayor Miller stated that he had carefully exercised his duty to the City of San Rafael, in
the knowledge that there were competing viewpoints, including those expressed this evening, strong
concerns voiced by some who felt that their goals could best (and only) be addressed by the City's immediate
participation in Marin Energy Authority.
Vice -Mayor Miller stated that what he would like to do (and this was the twist) was to request that the City
Council support him in directing that the City Manager and his staff, as needed, take the necessary steps to
explore the PG&E partnership process, including defining responsibilities, objectives and realistic outcomes.
He further requested that the City Manager work with his manager peers and report back to the City Council
on this PG&E partnership proposal as quickly as possible, as it was imperative that the PG&E evaluation be
promptly concluded in light of the fact that the JPA was already established and would be pursuing its initial
energy services provider contract over the next few months. Vice -Mayor Miller stated he would like to ensure
that the City Manager would respond by March 31, 2009; however, he should also respond mid -way during
that period.
Indicating that this was his proposal, Vice -Mayor Miller stated it basically was to try to see what could be
obtained from this, as so far it had not been found. On the other hand it would provide an alternative and
strong feeling about what was being done, while at the same time, everything would be proceeding because
the JPA was already established and running.
Councilmember Connolly stated that as he had voiced earlier, the City could pursue negotiations with PG&E
while also joining the JPA now.
Councilmember Heller stated she believed Vice -Mayor Miller's recommendation was not before the City
Council this evening, rather the action before the City Council was consideration of the ordinance.
Mr. Nordhoff stated he did not believe it would be inappropriate for the City Council to direct him, as his staff
report had suggested and several Councilmembers had discussed, to work with PG&E and whatever other
cities or the County wanted to be part of that process, to flush out their partnership proposal and bring back
the results to the City Council. While he was unsure whether March 31, 2009 was the date, he stated he
could certainly work as diligently as possible. He had not spoken to PG&E with regard to who was on their
side of the table or what the process would actually be like; however, if it were Council's direction he would
commit the time necessary to try to get an answer as quickly as possible.
Vice -Mayor Miller confirmed his recommendation was not to join the JPA now.
Agreeing with Councilmember Heller, Councilmember Brockbank believed that as with the previous action,
the City Council should not wrap into a motion the formation of a separate advisory committee because it was
not on the agenda and could conceivably be considered a part of the Brown Act. Similarly, as
Councilmember Heller, and he believed the City Manager were indicating, the City Council should not take
any formal action in the way of a motion to do anything with PG&E because it was not one of the options this
evening. He therefore, believed the only option before the City Council this evening was to consider this
SRCC Minutes (Regular) 12/01/2008 Page 24
SRCC Minutes (Regular) 12/01/2008 Page 25
motion; however, the City Manager could take a consensus of nodding heads to direct staff in an informal
manner without it being a motion to be voted on.
City Attorney Robert Epstein stated that the City Manager directed attention to page 12 of his staff report,
item 4, where he makes recommendations for the Council to consider regarding PG&E.
Indicating that the answer to the question with regard to the options before the City Council this evening was
pretty straightforward, Mr. Epstein explained that the City Council could choose to take action on this matter
this evening by calling a vote on whether to have a first reading of the ordinance, or they could choose to
continue the matter. Should Vice -Mayor Miller's proposal about how he was suggesting the City Council
should proceed be something the Council wanted to consider, this could be discussed at a later time, as
suggested in the staff report.
Councilmember Brockbank reiterated his point of order that wrapping up any type of conditional approval of
this ordinance with something like working with PG&E, whether favored or not, was irrelevant. It was not part
of the options agendized and not something the City Council could legally take an action on this evening.
Mr. Epstein stated that he did not believe conditional approval was something he mentioned, nor that the City
Manager was discussing.
Councilmember Brockbank stated he thought that was what the Vice -Mayor was suggesting; however,
perhaps he misunderstood.
Noting Councilmembers Brockbank Connolly and Heller first considered moving ahead with the ordinance
with some recognition that some work needed to be done with PG&E, Mr. Nordhoff believed Vice -Mayor
Miller's suggestion was to commence the work with PG&E and not take action on the ordinance this evening.
Mr. Nordhoff stated that the first reading of the ordinance was before the City Council for action, should they
choose to take action, adoption of which would permit San Rafael to join the Marin Energy Authority, etc.
Independent of that, should the City Council choose to direct him to work with PG&E, he would be glad to do
so. He noted that staff takes direction often from the dais to do things, responding to public comment or in
open time, etc., and in his opinion, this would be no different. He believed the previous item on this evening's
agenda was somewhat unique in that staff was attempting to put pieces of people together to do some work
that was not very clearly defined. In this instance, he believed the scope was clearly defined, and a timeline
had been set to return to the City Council with some responses.
Responding to Councilmember Heller's question on the effective date of the ordinance, Mr. Nordhoff
explained that if the City Council chose to take action this evening, the second reading would be on the
agenda for December 15, 2008, and the ordinance would take effect 30 days subsequent to that approval.
Councilmember Brockbank inquired as to whether discussion of Vice -Mayor Miller's proposal was in order.
Mr. Epstein stated that discussion at this time was appropriate should Councilmembers wish to discuss the
Vice -Mayor's suggestion.
Councilmember Brock commented that, should the City Council delay passing the ordinance this evening, it
was not inconceivable that the City could join in the months ahead; however, the opportunity to be involved in
the early meetings of the JPA would be missed, where positions would be set. He believed San Rafael
should have a seat at that table and the ordinance should be passed this evening.
The title of the ordinance was read:
"AN ORDINANCE OF THE CITY OF SAN RAFAEL APPROVING THE MARIN ENERGY AUTHORITY
JOINT POWERS AGREEMENT AND AUTHORIZING THE IMPLEMENTATION OF A COMMUNITY
CHOICE AGGREGATION PROGRAM"
Councilmember Brockbank moved and Councilmember Connolly seconded, to dispense with the reading of
the ordinance in its entirety and refer to it by title only, and pass Charter Ordinance No. 1871 to print by the
following vote, to wit:
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AYES: COUNCILMEMBERS: Brockbank, Connolly and Heller
NOES: COUNCILMEMBERS: Vice -Mayor Miller
ABSENT: COUNCILMEMBERS: Mayor Boro, due to potential conflict of interest.
Noting Councilmember comments concerning working with PG&E and returning with a response to their
proposals, Mr. Nordhoff inquired whether this was Council's expectation and direction, so that he could return
in March, should that be Council's collective recommendation.
Councilmember Heller stated she would favor this.
Mr. Nordhoff stated he had a meeting with his Manager colleagues a week from Friday, and it would be nice
to be able to tell them he had direction from the Council to do that, should they so choose.
Vice -Mayor Miller stated that it was fine by him.
Councilmember Heller stated that at some point the City Council could decide to go with PG&E rather than
remain in the JPA, which could be more beneficial to San Rafael.
Councilmember Brockbank stated he hesitated to load working with PG&E upon the City Manager, not that it
necessarily would always be inappropriate, rather he considered it premature. He believed the City Council
had made its position pretty clear to PG&E that the ball was in their court and should they wish to deal further
with the City, they needed to more fully flush out their proposal and bring it to the San Rafael. Until then,
Councilmember Brockbank stated he would be perfectly happy if Mr. Nordhoff did nothing, unless and until
PG&E came to him with a much more flushed out proposal for review, in which case the City Council would
expect him to review it.
Councilmember Connolly believed the understanding was that PG&E intended to flush out their program and
he would assume that at that time the City would evaluate it, along with the other towns, cities and the County
participating in the process.
Vice -Mayor Miller noted that PG&E offered the path to a partnership and all staff would be doing was picking
up on what they were asking to be done, which would be fine. He recognized it did take staff, intelligence
and a great deal of work and testing to ascertain whether there was an alternative or not.
COUNCILMEMBER REPORTS: (includinq AB 1234 Reports on Meetinqs and Conferences Attended at Citv
Expense)
8. AB32 Workshop: - File 9-1
Councilmember Brockbank announced that he would be attending an AB32 (California Global Warming
Solutions Act of 2006) workshop in Sacramento on December 2, 2008.
There being no further business, Vice -Mayor Miller adjourned the City Council meeting at 11:35 p.m.
ESTHER C. BEIRNE, City Clerk
APPROVED THIS DAY OF 12009
MAYOR OF THE CITY OF SAN RAFAEL
SRCC Minutes (Regular) 12/01/2008 Page 26