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HomeMy WebLinkAboutCC Minutes 2009-10-05SRCC Minutes (Regular) 10/05/2009 Page 1 IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, MONDAY. OCTOBER 5, 2009 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 CHAMBERS — 7:00 PM Mayor Boro announced Closed Session item. CLOSED SESSION — CONFERENCE ROOM 201 — 7:00 PM Present: Albert J. Boro, Mayor Barbara Heller, Vice -Mayor Greg Brockbank, Councilmember Damon Connolly, Councilmember Cyr N. Miller, Councilmember Absent: None Conference with Labor Negotiators— Government Code Section 54957.6(a) Negotiators: Jim Schutz, Leslie Loomis, Cindy Mosser, Rob Epstein, Ken Nordhoff Employee Organization(s): San Rafael Fire Chief Officers' Assn. San Rafael Firefighters' Assn. San Rafael Police Mid -Management Assn. San Rafael Police Association Western Council of Engineers Local 1 - Confidential SEIU Miscellaneous & Supervisory SEIU Child Care Unit Unrepresented Management Unrepresented Mid -Management Elected City Clerk and Elected Part -Time City Attorney City Attorney, Robert Epstein announced that no reportable action was taken. ORAL COMMUNICATIONS OF AN URGENCY NATURE: 8:13 PM Davidson Middle School Shadow Dav: - File 9-1 Noting October was the month of the Young Adolescent, Harriet MacLean, Principal of Davidson Middle School, explained that this was initiated some years ago by the National Middle School Association to celebrate 10 - 15 year olds. She invited the City Council and public to participate in their Community "Shadow Day" on Friday morning, October 23, 2009 from 8:00 - 11:00 to experience the life of a middle school student. Mayor Boro thanked Ms. MacLean for the invitation and complimented her on her great work at Davidson Middle School. Police Department Impounds: - File 9-1 x 9-3-30 John Fuery reported that he had yet to receive a decision from the Police Department as to whether his client, a lawfully licensed car dealer, could reclaim the cars he had purchased under the Safe Streets Act. He stated that he had been in contact with the Deputy City Attorney; however, he still awaited a decision from the Police Department. Any records relating to an agenda item, received by a majority or more of the Council less than 72 hours before the meeting, shall be available for inspection in the City Clerk's Office, Room 209, 1400 Fifth Avenue, and placed with other agenda -related materials on the table in front of the Council Chamber prior to the meeting. American Sign Language interpreters and assistive listening devices may be requested by calling (415) 485-3198 (TDD) or (415) 485- 3064 (voice) at least 72 hours in advance. Copies of documents are available in accessible formats upon request. Public transportation is available through Golden Gate Transit, Line 22 or 23. Paratransit is available by calling Whistlestop Wheels at (415) 454-0964. To allow individuals with environmental illness or multiple chemical sensitivity to attend the meeting/hearing, individuals are requested to refrain from wearing scented products. CC 10-05-09 Robert Epstein, City Attorney, explained that the issue was being evaluated with the assistance of the Deputy City Attorney and staff hoped to have an opinion on the matter shortly. Mr. Fuery reported that, having informed Captain Jeff Franzini two weeks ago of the $265 daily cost to the tow company, Captain Franzini indicated that when the decision was made, the Police Department would cover the amount of money spent. Mr. Fuery noted that these fees were close to $5,000 at this point. Lucas Vallev Road: - File 9-1 Rav Lorber, Mont Marin Homeowners Association, stated he represented a safe passage along Lucas Valley Road. He thanked Councilmembers Brockbank and Connolly and Vice -Mayor Heller for taking a walk along Lucas Valley Road and seeing the dangers and issues being faced in attempting to solve the problem. He requested that the City Council support them in their efforts to have the County of Marin install a path which he identified on a map submitted with other material to the City Council this evening. City Manager, Ken Nordhoff stated that staff would respond to Mr. Lorber within a month. Miscellaneous: - File 9-1 Barry Taranto stated that the relocated Farmers' Market was excellent and complimenting Monique Moran on an excellent job, he urged the City Council to promote it further, as having a longer than just summer market benefited San Rafael. With regard to plastic baps, he believed San Rafael should take the initiative and have these prohibited. Believing he was disconnected from a telephone call to the City Clerk's office earlier this morning, Mr. Taranto thanked the City Clerk for assisting him with his questions. He also expressed thanks to the City Council for approving the Mi Pueblo Food Center project and requested they try to have the owner of the Marin Square commercial property develop it into something other than medical office buildings. Police Department: - File 9-1 x 9-3-30 David Maver thanked the Police Department for responding so quickly to a call he had placed regarding a belligerent bus rider on Sunday evening. CONSENT CALENDAR: Councilmember Brockbank moved and Councilmember Heller seconded, to approve the Consent Calendar as follows: CONSENT CALENDAR: ALL MATTERS ON THE CONSENT CALENDAR ARE TO BE APPROVED BY ONE MOTION, UNLESS SEPARATE ACTION IS REQUIRED ON A PARTICULAR ITEM: 2. Approval of Minutes of Regular City Council Meeting of September 21, 2009 (CC) Call for Applications to Fill Five Three -Year Terms (including Two Alternate Terms) on the Bicycle & Pedestrian Advisory Committee, to the end of November, 2012, due to the expiration of terms of Sean Braniff, Don Magdanz and Sara Sonnet and Alternates Jane Middleton and Kraemer Winslow, and One Two - Year Vacant Youth Position, to the end of November, 2011 (PW) — File 9-2-55 4. Resolution Requesting a Renaming of the Private Street Portion of Cresta Drive Located on Highlands of Marin Property to Cresta Way and Re -numbering Nine Buildings Along the New Portion of Cresta Way (CD) — File 11-2 x 10-7 x 10-2 x 273 RECOMMENDED ACTION: APPROVAL OF THE FOLLOWING ACTION: Approved as submitted. Approved staff recommendation: ADOPTED RESOLUTION NO. 12841 RESOLUTION APPROVING A REQUEST TO RENAME THE PRIVATE STREET PORTION OF CRESTA DRIVE LOCATED ON HIGHLANDSOF MARIN PROPERTY TO CRESTA WAY AND RE -NUMBER NINE BUILDINGS ALONG NEW PORTION OF CRESTA WAY (APN: 155-280-18) CC 10-05-09 N Second Reading and Final Adoption of Ordinance No. 1877 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL APPROVING AN AMENDMENT TO THE ZONING MAP (ZC08-001), ADOPTED BY REFERENCE BY SECTION 14.01.020 OF THE MUNICIPAL CODE OF THE CITY OF SAN RAFAEL, CALIFORNIA, SO AS TO RECLASSIFY CERTAIN REAL PROPERTY FROM SINGLE-FAMILY RESIDENTIAL R2a- H DISTRICT TO SINGLE-FAMILY RESIDENTIAL R20 DISTRICT FOR THE RESIDENTIAL REZONE AND TWO -LOT SPLIT PROJECT AT 45 HAPPY LANE; APN 010-011-53 (CD) - File 10-3 Resolution Authorizing the Mayor and City Clerk to Execute an Agreement Between the County of Marin and the City of San Rafael Regarding the Marin Literacy Program / F.L.A.G.SHIP Services (Lib) Resolution Adopting Memorandum of Understanding (MOU) Pertaining to Compensation and Working Conditions for the San Rafael Police Association (July 1, 2009 through June 30, 2011) (MS) - File 7-8-3 Resolution Approving the Amended and Restated Section 125 Plan Document (Ms) - File 7-8-37 Resolution Adopting the City of San Rafael's Healthcare Premium Costs Under the Public Employees' Medical and Hospital Care Act (PEMHCA) (MS) - File 7-1-34 x 7-9 10. a) Resolution Approving Use of State of California Office of Traffic Safety Grant Funds in the Amount of $44,596.56 for a "Sobriety Checkpoint - Mini Grant Program" Enforcement Campaign from October 1, 2009 through September 8, 2010; and (PD) b) Resolution Approving Use of State of California Office of Traffic Safety Grant Funds in the Amount of $116,979.00 for the "DUI Enforcement and Awareness Program" from October 1, 2009 through September 30, 2010 - File 9-3-30 Approved Final Adoption of Ordinance No. 1877. Removed from agenda at request of staff. ADOPTED RESOLUTION NO. 12842 RESOLUTION PERTAINING TO THE COMPENSATION AND WORKING CONDITIONS FOR EMPLOYEES REPRESENTED BY SAN RAFAEL POLICE ASSOCIATION (Two year agreement from July 1, 2009 through June 30, 2011) ADOPTED RESOLUTION NO. 12843 RESOLUTION APPROVING THE AMENDED AND RESTATED SECTION 125 PLAN DOCUMENT ADOPTED RESOLUTION NO. 12844 RESOLUTION FIXING THE EMPLOYER'S ANNUAL CONTRIBUTION UNDER THE PUBLIC EMPLOYEES' MEDICAL AND HOSPITAL CARE ACT a) ADOPTED RESOLUTION NO. 12845 RESOLUTION APPROVING USE OF STATE OF CALIFORNIA OFFICE OF TRAFFIC GRANT FUNDS IN THE AMOUNT OF $44,596.56 FOR A "SOBRIETY CHECKPOINT - MINI GRANT PROGRAM" ENFORCEMENT CAMPAIGN FROM OCTOBER 1, 2009 THROUGH SEPTEMBER 8, 2010 b) ADOPTED RESOLUTION NO. 12846 RESOLUTION APPROVING USE OF STATE OF CALIFORNIA OFFICE OF TRAFFIC SAFETY GRANT FUNDS IN THE AMOUNT OF $116,979.00 FOR THE "DUI ENFORCEMENT AND AWARENESS PROGRAM" FROM OCTOBER 1, 2009 THROUGH SEPTEMBER 30, 2010 11. Resolution Vacating of a Portion of an Existing Open Space ADOPTED RESOLUTION NO. 12847 Easement Dedicated to the City of San Rafael Upon Parcel `B' RESOLUTION VACATING A PORTION OF (APN 186-470-98) as Shown on the Map Entitled `Map of AN EXISTING OPEN SPACE EASEMENT Peacock Estates (Country Club Estates), a Subdivision of Lot DEDICATED TO THE CITY OF SAN RAFAEL CC 10-05-09 1 (20 P.M. 10)' Recorded at 20 RM 28, and Accepting and Authorizing Recordation of an Easement Deed for Open Space Purposes on a Portion of the `Lands of Naylor' (APN 186-551-43) Granted to the Peacock Estates Homeowners Association for Inclusion in Parcel `B' in Connection with a Lot Line Adjustment Agreed Upon by the Peacock Estates Homeowners Association and the Owners of the `Lands of Naylor' at 534 Biscayne Drive, San Rafael (PW) — File 2-12 x 2-14 12. Resolution Approving a Loan to Marin Housing in an Amount not to Exceed Three Hundred and Seventy Five Thousand Dollars ($375,000) for the Purchase of a Below Market Rate Unit and Making Findings and Approvals Pursuant to the California Redevelopment Law in Connection with the Utilization of Agency Low and Moderate Income Housing Funds Outside the Central San Rafael Redevelopment Project Area (APN 179-471-14) (RA) — File 229 x (SRRA) R-173 x R-103 UPON PARCEL "B" (APN: 186-470-98) AS SHOWN ON THE MAP ENTITLED "MAP OF PEACOCK ESTATES (COUNTRY CLUB ESTATES), A SUBDIVISION OF LOT 1 (20 P.M. 10)" RECORDED AT 20 RM 28, AND ACCEPTING AND AUTHORIZING RECORDATION OF AN EASEMENT DEED FOR OPEN SPACE PURPOSES ON A PORTION OF THE "LANDS OF NAYLOR" (APN: 186-551-43) GRANTED TO THE PEACOCK ESTATES HOMEOWNERS ASSOCIATION FOR INCLUSION IN PARCEL "B", IN CONNECTION WITH A LOT LINE ADJUSTMENT AGREED UPON BY THE PEACOCK ESTATES HOMEOWNERS ASSOCIATION AND THE OWNERS OF THE "LANDS OF NAYLOR" AT 534 BISCAYNE DRIVE, SAN RAFAEL ADOPTED RESOLUTION NO. 12848 RESOLUTION APPROVING A LOAN TO MARIN HOUSING IN AN AMOUNT NOT TO EXCEED THREE HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($375,000) FOR THE PURCHASE OF A BELOW MARKET RATE UNIT AND MAKING FINDINGS AND APPROVALS PURSUANT TO THE CALIFORNIA REDEVELOPMENT LAW IN CONNECTION WITH THE UTILIZATION OF AGENCY LOW AND MODERATE INCOME HOUSING FUNDS OUTSIDE THE CENTRAL SAN RAFAEL REDEVELOPMENT PROJECT AREA (APN: 179-471-14) 13. Resolution Authorizing the Temporary Closure of Point San ADOPTED RESOLUTION NO. 12849 Pedro Road from Riviera Drive to Biscayne Drive for the Marin RESOLUTION AUTHORIZING TEMPORARY County Triathlon on November 1, 2009 from 7:00 a.m. — 1:00 CLOSURE OF PT. SAN PEDRO ROAD FROM p.m. (RA) — File 11-19 RIVIERA DRIVE TO BISCAYNE DRIVE FOR MARIN COUNTY TRIATHLON ON NOVEMBER 1ST, 2009 FROM 7AM TO 1PM AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None OTHER AGENDA ITEMS: 14. VILLAGE AT LOCH LOMOND MARINA DEVELOPMENT (110 LOCH LOMOND DRIVE) —REQUEST FOR INTERPRETATION REGARDING VESTING TENTATIVE MAP CONDITION OF APPROVAL NO. 45 WHICH REQUIRES THE FORMATION OF A MELLO-ROOS DISTRICT TO FUND LONG-TERM MAINTENANCE OF PUBLICLY -ACCESSIBLE PARK AND RECREATION AREAS ON THE MARINA SITE (CD) — FILE 10-2 Paul Jensen, Planning Manager, stated that in August, 2007, the City approved the Loch Lomond Marina development project and among the components in the project was a public park and conservation area. Initially, there were many questions about the ownership of the park area and long-term maintenance and ultimately the City approved a requirement that the ownership of the park and conservation area be retained with the Marina property owner but that there be a non-exclusive public access easement recorded over this area for public use in perpetuity. He added that the other concern was how long-term maintenance would be addressed for the park area and ultimately, the City Council approved a requirement that a Mello -Roos District be formed to fund long-term maintenance. The condition for the Mello -Roos District was purposely intended to cover the entire marina site, including submerged tidelands and the marina function portion of the project, primarily to capture the entire site and to minimize the assessment on the upland portions of the property, which was primarily residential and commercial development. CC 10-05-09 Mr. Jensen stated that recently, staff had been working with the Development team and discovered a nuance in the Mello -Roos law. He explained that essentially the law mandates that when there are twelve or more registered voters within the district, it is the registered voters, not the property owner, who had the right to vote in the district. There were 517 marina berths, 52 of which were live-aboards, and many of these were likely to be registered voters; however, they do not pay property taxes into the assessment district. He indicated it was never intended that the tax would be levied against the live-aboards because they would not pay this tax. Mr. Jensen stated that the project managers were requesting an interpretation by the City to clarify the intent of the Mello -Roos condition and the boundaries of the District. In essence, staff was looking for confirmation that the District covers the water and land area of the marina, but exclude the marina berths from the assessment. By doing this, the voting rights would be retained with the marina property owner. He stated that typically staff would not bring a condition of approval forward to the Council for an interpretation; however this was a high-profile issue. Having reviewed it, staff concluded that the rationale being presented was reasonable and did not change the condition of approval, the project or the assessment for the property. Mr. Jensen deferred to the City Attorney on legal matters dealing with the Mello -Roos District. Todd Wriqht, representing the property owner, stated he was in attendance along with their legal counsel primarily to answer any questions. Having read the staff report, Mr. Wright stated they concurred with the analysis and recommendations and could answer any questions. Councilmember Brockbank moved and Councilmember Heller seconded to accept the recommendation that the requirement in Vesting Tentative Map (TM04-001) Condition of Approval No. 45 that the boundaries of the Mello - Roos District "cover the entire 131+ acre marina site" be interpreted to authorize exclusion from the District of the limited areas where the berths are located, as set forth in Exhibit A and the map attached thereto. AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 15. CONSIDERATION OF REQUEST TO WAIVE THE USE PERMIT (UP) PLANNING FEE FOR 4 INDIVIDUAL CHURCHES (VINEYARD CHURCH, FIRST PRESBYTERIAN OF SAN RAFAEL, CHRIST PRESBYTERIAN CHURCH, TERRA LINDA, AND SAN RAFAEL FIRST UNITED METHODIST CHURCH) TO OPERATE AN OPEN SHELTER FOR THE HOMELESS AT THEIR CHURCH SITE (CD) — FILE 9-10-2 x 9-1-2 x 10-2 x 229 Bob Brown, Community Development Director, reported that a request was received from four local churches 10 days ago (Vineyard Christian, San Rafael United Methodist, First Presbyterian and Christian Presbyterian) for a fee waiver for intended use permit applications to operate a rotating homeless shelter this winter. He clarified for both the Council and the public that the request was for a fee waiver only; formal applications for these shelters had not been received; therefore, those issues concerning how and where the shelters would operate were not germane for this evening. Anticipated questions from the public: Why was a use permit necessary for this type of operation? Mr. Brown explained the Zoning Ordinance stated that both church uses and rotating homeless shelters required the issuance of a use permit by the Planning Commission. Elaborating, he reported that in each zoning district there were permitted and conditional uses. Permitted uses were uses allowed by right; the City had no discretion, whereas conditional uses in each zoning district were uses that had been deemed to have the potential to impact surrounding properties. Therefore, the requirement for the use permit in those cases was to allow a case-by-case evaluation and the ability for the City to either put conditions on the uses, to modify them, or in some cases, to deny them. In this case both churches in the single-family district require use permits as do rotating homeless shelters. He explained that the use permit requirement for a rotating homeless shelter was added to the zoning ordinance in the early 1990s after a temporary use permit application was filed by both United Methodist and First Presbyterian churches to hold a rotating homeless shelter temporarily. This was approved by the Planning Commission, appealed to the City Council, involving large hearings in both cases, and the City Council ultimately approved the temporary use permit; however, also directed staff to amend the zoning ordinance to add rotating homeless shelters as a conditional use. Why does a Use Permit process take so long? CC 10-05-09 Mr. Brown explained that typically, use permits that are processed through the Planning Commission take 3-4 months; however, they were highly variable and tended towards four or more months. Factors affecting this included the ability and timeliness of applicants to provide accurate information and to respond to staff requests for more information or to respond to issues arising during the process; the need to involve other departments; required noticing periods and primarily, the extent of public involvement. Therefore, as the level of controversy rose, the amount of time staff spent responding to the public issues also increased. Displaying a graphic demonstrating some of the first steps involved in the process, Mr. Brown noted that some occurred concurrently and some sequentially. By way of example, he explained that staff had to work for a period of time with applicants to complete their applications, site visits had to be conducted, the application is distributed to other departments involved in the review process (Fire Prevention, Building Inspection, Police Department, Public Works), etc., so that they would have the opportunity for input. Mr. Brown reported that in this case there was a process for a neighborhood meeting, required for each application. He explained this would be a formal neighborhood meeting hosted by the applicant to explain the proposal to surrounding neighbors and to respond to their questions, in order to give both the applicant as well as the City a sense of what potential issues would need to be addressed going forward in the process. He stated that this process alone would take about 3-4 weeks, because of having to provide at least two weeks notice to neighbors before the meeting would be held. Mr. Brown stated that in this case a Building and Fire Inspector would need to look at each site because of code issues and some of the building and fire codes differed between those buildings provided for assembly uses, such as multi-purpose rooms and churches, and those facilities that would be allowed overnight habitation/sleeping. Noting there would be public inquiries throughout the process which would require response time, Mr. Brown stated that staff would work in collaboration with the various departments in reviewing these to identify concerns and to try to craft conditions of approval or to work with the applicants to understand whether more information was needed or whether they would need to modify their proposal to meet these issues. The next steps would be to notice the Planning Commission hearing, two weeks in advance, prepare staff reports, resolutions, hold the Planning Commission hearing and complete the meeting minutes. Additionally, with use permits, should they be controversial, there was a good likelihood they would be appealed to the City Council; thereby repeating the process carried out for the Planning Commission. Mr. Brown noted that Ken Nordhoff, City Manager, met with representatives of the organizing committee for these specified uses in May, 2009, pointed out to them that the application process took a while and strongly advised them to have their applications filed as of August 1, 2009 if they intended to begin operations November 1, 2009. He stated that staff had not received a preliminary application proposal until mid-September, which was the reason they were running a little behind. He also pointed out that these would not be the only applications that Caron Parker, Project Planner, would be processing, together with her full workload. In terms of cost, Mr. Brown explained that the fees for these applications were set by the City Council in the adopted fee schedule and were intended to recover the City's costs in processing. He indicated that a comprehensive update to the fee schedule was carried out this past year, including detailed studies of both staff time and materials typical in processing the various types of applications. He indicated staff felt confident that the estimates for fees were accurate. Mr. Brown explained that use permits were billable application types, meaning there would be an initial deposit of $3,894, of which $2,872 would be used for fixed costs, e.g., cost of mailings, reproduction and the cost of other City staff time involved in the review other than the Project Planner, and the remainder, $1,022, would fund nine hours of Ms. Parker's staff time. Once that was expended for each of the applications, staff would then request the applicant to submit an additional deposit, thereby continuing the billing process for as long as the process took. He reiterated it was intended strictly for cost recovery. Mr. Brown reported that staff always advises applicants that there were ways in which they could help to keep their costs as low as possible. One was by providing a thorough initial application and to assist, staff met with these applicants a week and a half ago. Ms. Parker provided them with a list of fourteen questions that at the outset needed to be responded to in terms of how they would handle medical emergencies, altercations, etc., as well as other issues involving security, transportation and such, that needed to be detailed in the application. He reiterated that the more complete and accurate the application, the less time staff would need to spend attempting to solicit that information. Secondly, if applicants worked in advance with the surrounding neighbors and homeowners' association to explain the proposal and try to respond to questions and concerns up front, that would reduce the level of controversy at the back end, which would be charged for. Regarding the staff recommendation, Mr. Brown reported that Mr. Nordhoff had secured a commitment from the Marin Community Foundation to cover $4,000 of costs per application. Commenting that he misread the Council's CC 10-05-09 fee waiver resolution, Mr. Brown clarified that the resolution included two categories: daycare centers and affordable housing, and he had assumed that this proposal would fall into the affordable housing category. In the affordable housing category the City Council could grant an unlimited fee waiver; however, the resolution is specific in its definition of affordable housing projects and they only refer to subsidies for Below Market Rate housing units - - deed restricted affordable units seen in new development -- and did not indicate other items such as homeless shelters. By default these would fall into the third category -- fee waivers for governmental agencies or non -profits, and that fee is capped at a $2,000 maximum. He clarified that beyond the $4,000 being covered by the Marin Community Foundation, according to the fee resolution, the City Council could waive an additional $2,000; however, beyond that the applicant would be responsible. The City Council, however, had the ultimate authority to change the fee waiver resolution to indicate that homeless applications would fall under affordable housing. With regard to how the applications would be processed, Mr. Brown explained that the intent would be to process the four applications together; however, should the various applications encounter code issues, etc., one or more would probably be dealt with separately, continuing with those most expeditious Mr. Nordhoff stated he was confident that Ms. Parker, Mr. Brown and the Planning Division staff would work as expeditiously as possible, once they received applications. Mr. Brown had done an excellent job outlining the process in place and the City Council's direction on the fee waiver was important in order to allow the formal process to commence. The staff report noted that a formal resolution would be returned to Council to bind their decision and this would be done very expeditiously. Mr. Brown added that, based on the directive of the Council tonight, staff would work with the applicants to get their applications filed in the interim before returning to the City Council with a formal resolution. Responding to Councilmember Connolly's request for clarification on the Council's ability to do a complete fee waiver, Mr. Brown stated that according to the current fee waiver resolution, 11025 adopted in 2002, "governmental agencies, non-profit or other community organizations which provide services principally to benefit low-income residents" could be granted a maximum waiver of $2,000 per request. Should the City waive $2,000 and the Marin Community Foundation contributed $4,000, Councilmember Connolly inquired as to the remaining costs. Mr. Brown stated these were billable and he could not anticipate whether or not $6,000 would be sufficient. Councilmember Connolly inquired whether it was likely it would go much beyond that figure, to which Mr. Brown responded "probably not." Councilmember Connolly commented that it could virtually be no fee or a nominal fee. Mr. Brown stated that was possible; however, the applicants would be requested to submit some deposit amount to prevent the process from ceasing on reaching the $6,000 limit. Councilmember Connolly stated that from his understanding of the law in this area, it would be necessary to be careful about placing any substantial burdens on the operations of religious institutions in performing this type of mission. He understood the proposed program was to house approximately 20 women in the four locations for the winter months — November 1 through March 1. Should the use permit application process on the natural take approximately four — six months, this was essentially swallowing up the program and rendering it non-existent. Mr. Brown stated this was the reason staff informed the churches in February, 2009, that operated shelters last year without permits, that they needed permits for this coming winter and that was the reason the City Manager met with organizing groups and strongly advised them to submit their applications during the summer. Councilmember Connolly stated it appeared that if a process in length was being created that would consume the entire program's timeline, it seemed potentially like a substantial burden. He inquired whether there was a way to shorten or tailor the process to the particular situation being dealt with -- religious institutions wishing to house homeless -- essentially some sort of variance from the usual process. Mr. Brown stated he did not know of any. Concurring that it was important to hold inspections, Councilmember Connolly was concerned that the program essentially was a non -factor because of the red tape. Mayor Boro reiterated that it was not because the City had not urged the groups to apply — they had not applied — and to indicate that the City's process was causing this not to happen could be true; however, it was not deliberate CC 10-05-09 on the part of the City. He believed it important to remain focused on this one issue Councilmember Connolly stated he was seeking a way realistically to shorten the process. Mayor Boro believed the realistic way was for the four churches to submit common applications for each of their particular sites rather than dealing with four different applications. He believed the variable would be how the public reacted subsequent to their public meetings. Robert Epstein, City Attorney, expressed concern that the City Council focus on the agenda item, which was considering a fee waiver, and responding to one of Councilmember Connolly comments, he stated that, while the resolution adopted in 2002 placed the restrictions that Mr. Brown described, the City Council had the power to make any decision it wished with regard to waiver of fees. As suggested by the City Manager, staff awaited the City Council's direction as to how they wished them to respond to a request for a fee waiver for something that hopefully would be less than $6,000; however, but could exceed that figure. With regard to questions of process or whether the process could be different or truncated, Mr. Epstein stated his concern was that this was not agendized this evening; however, should there be a directive to return this issue for consideration at a future meeting, this could be suggested. Addressing Mr. Nordhoff, Councilmember Miller noted he had negotiated with the Marin Community Foundation and inquired as to whether they intended to contribute to applications in perpetuity or whether it was just for these four churches. Mr. Nordhoff stated that his conversations with Dr. Peters were limited to the item for the Council's consideration this evening and the four churches specified. Should there be future applications or the level of contribution Marin Community Foundation might wish to put forth would strictly be subsequent to these particular uses. Should the fee waiver be decided on this evening, Councilmember Heller inquired as to whether the permits would be returned to the City Council for final approval. Mr. Nordhoff stated that the issue would only be brought back to Council in the event of an appeal, adding that the conditional use process was designed to be determined by the Planning Commission. Councilmember Heller stated she had questions on how they planned to do this and why it was San Rafael only instead of taking the program out to other cities. Mr. Nordhoff stated these answers would not be forthcoming this evening. Should Councilmember Heller have questions about other churches, processes, etc., he would be glad to hear of them outside of this evening's item. He was aware that Mr. Brown had been talking with his counterpart at the County of Marin and noted some applications were being made by faith institutions in the County limits He clarified for Councilmember Heller that his interactions had been with the Marin Organizing Committee and various representatives of that over the last several months and he believed they were the same people likely talking with the County or other communities. Councilmember Brockbank inquired whether it was absolutely necessary to make a once and for all final determination on the limits of the waiver tonight. Should the $2,000 fee waiver be passed this evening and it was exceeded, it was unknown to what degree, if any, the congregations would be able to make up the difference in excess of $6,000, whether the Marin Community Foundation would contribute more or to what extent the cost would be, and he inquired whether the excess could be returned to the City Council at a future date. Mr. Brown stated that this would stop the process. He explained that staff would continue as long as there were funds to support staff work. Should time be the enemy, staff would wish to be as expeditious as possible and not have to return to the City Council for fee direction. Steve Bover, Executive Director of the Saint Vincent de Paul Society of Marin County, stated he represented the rotating shelter program in all participating San Rafael congregations. As an active leader at the Marin Organizing Committee of which the St. Vincent de Paul Society, along with 20 other institutions in Marin, was a dues paying member, he explained that the Marin Organizing Committee (MOC) was a constituent organization that decided that the issues of homelessness, specifically the need for a permanent open shelter, deserved public investment, i.e., institutions across San Rafael and the County, those that provided services for the homeless and those that did not, were taking a stand that they wanted their tax dollars to go towards a homeless shelter. Mr. Boyer stated that this evening they also stood with the Marin Inter -Faith Council and dozens of other faith CC 10-05-09 institutions that had participated in sheltering the homeless. They believed the issue before the City Council this evening extended beyond permits and fees and concerned the role of citizens and decision-making in the City and the County, and therefore, should be addressed in a broader, historical context. He indicated that for two years, MOC had been actively organizing for a permanent shelter where anyone who found themselves homeless was welcome on a temporary basis, particularly during the cold winter months. Mr. Boyer stated that during the MOC public action last May before 600 people, leaders of MOC agreed that it was a top priority for the organization to work with the County and with the municipalities and service providers across Marin to find the public funds to fill this critical front step in the continuum of housing services. Until such a permanent solution was found, it was still a priority to shelter those without a roof over their heads, particularly during the cold season. Mr. Boyer stated that last winter after much community outcry, including a 200 candlelight vigil, two hypothermia cases and some particularly cold nights, Marin County opened the Armory for six weeks as a temporary shelter, and while it was a beginning, it was not enough. When the armory closed, a number of congregations across Marin County, together with local service providers, raised the funds to keep the shelter program running on a rotating basis. He indicated that this was an act of generosity for which the entire community could be grateful. Mr. Boyer stated that in an ideal world, last winter would have been enough to create the political will and the funding to find or build a shelter in time for winter this year. Sufficient public funds were not allocated, nor was there an adequate site located for a permanent shelter. There also was no single site feasible for a temporary shelter this winter. The armory was a problematic location due to scheduling conflicts, ADA regulation and costs, amongst other things. Mr. Boyer reported that on August 11th at the San Rafael First United Methodist Church before 200 MOC leaders, Supervisor Susan Adams and the head of Health and Human Services, Larry Meredith, committed $150,000 to run a temporary shelter for this winter -- December through March -- and committed to the ongoing work toward a permanent solution. Once funding was secured and because there was not an adequate single site to house the program, over a dozen congregations across the County stepped up and volunteered their space, in addition to their volunteer hours and food. The Saint Vincent de Paul Society agreed to run and staff the program and proceeded to work with the City of San Rafael to ensure the appropriate permits for the four (4) congregations in the City. It should be noted that the County was not requiring conditional use permits. Mayor Boro noted that the $150,000 committed by the County was to build a permanent shelter, not to run winter shelters. Liza Klein, Pastor at San Rafael First United Methodist Church, stated that four congregations together with Saint Vincent de Paul met with City staff to submit applications for a permit. They were informed that the most important aspect was to organize community meetings; however, they were surprised to be informed that there were fees as high as $8,000 per congregation just to apply. They were advised to seek a fee waiver from the City Council, which led to this meeting tonight; however, on Friday afternoon when the agenda for this meeting was posted, they were shocked by the staff recommendations. They found that on their behalf, but without their knowledge, City staff approached the Marin Community Foundation for funding in their name to go directly to the City. In addition to this, the City was recommending that congregations would still pay as much as $2,000 a piece, for a process that might or might not result in a permit. Ms. Klein noted there were fifteen churches involved in Marin County working together to shelter those who no one else was sheltering. They had been working with Marin County for months, changing their deadlines. The County was contributing $150,000 and had contributed countless staff hours to both the rotating shelter and to the search for a permanent site. Congregations were putting up their facilities and their resources for free; they had not gone to MCF for funds, and did not believe that investing $24,000 to the City Planning Department for an uncertain outcome, as they sought to care for all of the citizens of San Rafael, was a good investment of their collective community dollars. Indicating that it had become clear it was in everyone's interest to find a way to be able to open a temporary shelter with public approval on December 1St of this year, Ms. Klein still believed there was a way to make this happen in positive collaboration with the City of San Rafael. However, it had become clear to them that the conditional use permit process was not a viable path to the end of providing shelter to those without housing, beginning December 1 St For that reason, Ms. Klein stated they were respectfully withdrawing their request for use permits, and instead invited the City to meet with them as soon as possible so that the important work of churches, the mission of faith communities, and the City of San Rafael to provide safe and secure shelter during the coming winter months, might move forward. Ms. Klein stated they hoped to get the City Council's commitment to meet together with City staff, CC 10-05-09 Steve Boyer and the Winter Shelter Program in the next few days. Jonathan Frieman stated that in 1980 when President Ronald Reagan lowered the taxes, a lot of the money was shifted from the government and the services providing for homeless persons to those who were wealthy, with the expectation that the wealthier citizens would invest or give to services such as these; however, this had not worked out -- non-profit organizations had suffered as a result. On a personal note, Mr. Frieman reported that in 1998 he went homeless, driving to Los Angeles to experience homelessness on Skid Row — he was doing legal work under the auspices of the Homeless Advocacy Project. Reporting that it was a horrific process, he indicated it took a lot to get food, water, sleeping place, etc.; however, what was impossible to get was one's dignity. Mr. Frieman stated his concern was that the churches not be forced to pay the fees since they offered sanctuary for people in need and it was important to exclude all of these attendant factors from the fact that it was a mere favor and he urged waiving all of the fees. David Maver stated he was somewhat amazed that with budget cuts and cutting back on code enforcement, the City found the time to do code enforcement against churches. He believed the homeless were not just drug and alcohol addicts; they were people who had jobs and had lost everything and the fact that time was being wasted on this process displeased him. He believed the churches should be allowed to operate without permits and to continue denying these people a place to live without supporting a shelter was going nowhere. He hoped the churches were not fined should they break the law. Lisa Sanaita Moskow, expressing concern, stated that most communities expected their governments to support a safety net for their homeless citizens and instead of supporting private organizations, the City was expecting to receive money through planning processes that went on for months. Having lived in the City since 1973, she indicated she would like to be part of a community that respected the religious institutions that had been helping not just the homeless, but in many other areas. Marci Tellis, San Rafael resident of 30 years, stated she did not understand why the churches had to pay the City to do what was essentially the job of City government, rather the City should be paying them. She did not understand why City government was not doing this job in the first place and believed the planning process was important. She hoped the City would ensure the homeless had a safe, secure place to live and she was not so concerned about those living next door. Understanding that processes were often required and that it took time and money for City staff to vet out issues, a member of one the four congregations requested that the City consider the nature of the outreach the churches were trying to do, together with the scale of no more than 20 women on any given night, and consider the most expeditious and affordable way to try to achieve the care for these women that they were very grateful to receive. Victoria DeWitt stated she agreed with Councilmember Heller's comments regarding other places in the County. She indicated that historically, cities were not responsible for social services, rather the County, and she believed the Grand Jury recommended that the County hire a homeless coordinator to coordinate these services. Concurring with Councilmember Brockbank's comments on why an extension was necessary, Ms. DeWitt questioned why the process could not be started and return to request a waiver should it be necessary. Noting the County received some federal stimulus funds and awarded Homeless Bound $750,000, she did not understand why some of this money could not be used to pay the fees. Ms. DeWitt stated that on the one hand San Rafael was asking the taxpayer to pay $88 million for buildings the City had not been able to maintain and now the City was considering waiving fees. She paid $500 earlier this year for a permit to have her shower retiled. She was glad the City approached the MCF and did not believe the City could afford to waive the fees. Believing that the process should be circumvented, she stated that the City gave the churches notification of when they needed to come in in order to meet the deadline, noting the fees charged were strictly to cover the cost of providing the services. Noting the Planning Department was closed four afternoons per week and City Hall was closed one day a month for furloughs, Ms. DeWitt stated that graffiti at Yardbirds was getting greater and the $26,000 the City was considering foregoing on these applications could be used to pay for a graffiti person. Ms. DeWitt indicated that the City's policy for waiving fees stated that one half of the agency's operating budget needed to be used for low-income residents and she did not see any substantiation of the churches' operating 10 CC 10-05-09 budget and whether they met that requirement. She noted the waiver policy also addressed the impacts of such fees on the General Fund and stated it was not so much about social services as whether the City could afford it. Should the City consider waiving the fees, Ms. DeWitt believed it was to the City's benefit to waive a specified dollar amount; an open-ended waiver of fees put no incentive on the applicant to comply and meet the requirements of the process. Mayor Boro stated that Ms. DeWitt was correct. Governments had different roles and levels and in this state and county, the County had the responsibility for homeless funding. They received the money directly from the federal government; a whole series of funds came to the counties, the County of Marin being one, to spread to deal with the homeless problem. This truly was the responsibility of the County; the City was not funded to do it. Secondly, in the last two weeks, Mayor Boro reported he had heard all kinds of stories about twenty women, some children, forty men and it appeared impossible to obtain a definitive answer as to what this group wanted to do. Mayor Boro stated he was unaware of any money the County had. It was explained to him and the City Manager that the $150,000 was to be used at some point to build a permanent shelter somewhere in this county, not to fund winter shelters. While he was not against winter shelters, he believed there should not be anarchy in San Rafael. He noted that as many people were in attendance this evening advocating for it, as soon as there was a hearing to discuss the issue, as many people would be opposed to it. Indicating that the City had a process that needed to be followed, Mayor Boro stated there was no question that there was a need; however, some order was necessary, and walking out of this meeting was not the answer. Nothing could be done in the abstract — something had to be available to process so that the community could be notified as to what would happen. Mayor Boro indicated he could sense that the Councilmembers were leaning towards waiving all the fees, which was fine should the item be returned to the City Council. He noted that the current resolution stated: "fee waivers should be based on the impact of such waivers on the General Fund." He mentioned this because of a sign which would be on the doors to City Hall for thirteen weeks indicating City Hall would be closed on a given day because of budget problems. Employees were taking furlough days -- the equivalent of a 5% pay cut -- services were not being delivered and this would compound the problem, which was fine if this were Council's decision. Based on what he had heard and felt, he did not believe four applications would be the limit. Mayor Boro stated that this evening's discussion was to resolve the issue of a fee waiver and he requested the City Attorney to comment. Mr. Epstein stated he had not seen the application or who signed it. A representation this evening from Pastor Klein indicated that the request was being withdrawn, which sounded like the agenda item was being mooted by the withdrawal of the request; however, he was unclear whether she spoke on behalf of all of the applicants. Explaining a misconception by Mr. Boyer, Bob Brown stated that when staff met with Mr. Boyer and other church representatives two weeks ago, he mentioned that the County was not going to require a use permit or they would issue it over the counter, which was incorrect. He spoke with the Community Development Director at the County, and the County apparently intends to look at eliminating the requirement for a use permit from their zoning ordinance next year. They had not initiated this, so for this year, their requirement was for a use permit also. Mayor Boro commented that, since the majority of the audience walked out with the minister, he assumed they were in favor of not acting on the fee waiver this evening. Mr. Nordhoff concurred with the City Attorney's inference that even though only one pastor spoke they were speaking on behalf of the four applications. He indicated he would be glad to follow up with Mr. Boyer this week and whomever he wishes to include. Mayor Boro stated he commended the City Manager when he took the initiative to contact the Marin Community Foundation to seek help to reduce the cost to the churches to do this. It was a great initiative on his part and on the part of the head of the Marin Community Foundation, who was pleased to be able to help. Mayor Boro stated that to characterize that San Rafael was looking for this money to "load our coffers" was a disservice and he would relate this to the minister when he saw her. This step was taken by the City Manager to reduce the impact on the church. The City Council had all the latitude it wished on how much to waive; however, apparently the item had been withdrawn by the minister and there was nothing before the City Council. Councilmember Brockbank believed Mr. Epstein had stated that withdrawing the conditional use permit application mooted the agenda item and he inquired whether mooting the agenda item meant no further discussion or action was in order. 11 CC 10-05-09 Rob Epstein stated that the minister was heard to state that the use permit applications were not going to be pursued and he had no idea whether that decision might be revisited. However, there was nothing that prohibited the Council from considering the narrow agenda item, which was that, should a use permit application be received staff would follow Council's direction. It was up to the City Council whether they wished to act on the agenda item tonight and following whatever action taken or not taken, the churches could make their decision about whether they wished to pursue the use permit process. Councilmember Brockbank stated that every comment made in the last five minutes had given him new pause for thought and reconsideration. He was cognizant of Mayor Boro's comments, particularly, that homelessness issues such as health issues were more the prerogative of the County than the City and he did not wish to overburden the already overburdened and straining budget; however, he believed a society was measured by the way the least are treated, or words to that effect. He believed that a large part of leadership was responding to emergencies, much as the County did a year ago when people were in the hospital dying of hypothermia and they stood up and provided some money for the Armory, inadequate and temporary as that was. He indicated he could be persuaded that it was not the City's responsibility; however, he did not wish the City to be seen by anyone as being an obstacle to this and believed just a tiny bit of money was under discussion. Should the City waive $2,000, and even with an excess of $1,000 to $3,000, the amount in question was $5,000, $10,000 or $15,000 possibly in excess of the $2,000 waiver under consideration — 1/100 of 1% of the City's budget. Councilmember Brockbank believed this was a situation to demonstrate leadership and not show to the rest of the county or whomever, that San Rafael was so hard-hearted. The City was being asked to subsidize it and he personally, would vote to do this by waiving all excess fees to prevent any obstacle. He commented that he did not believe it would cost the City anything because it sounded as though they would not apply, and should they change their mind and apply, it might not cost the City anything because the $6,000 might not be exceeded. He indicated he was willing to have the City take the risk of bearing some additional costs in a possible emergency such as last year; therefore, he would move to waive all fees. Councilmember Connolly stated he was very glad the City Council was considering this motion still, although the pastor did indicate they did not intend to pursue the conditional use permit. He did however, hear her state that they wanted to talk to staff within the next few days, which appeared like an offer to discuss this issue and negotiate further so, perhaps the City Council's role now was to arm staff with their thoughts on where they should be in that negotiation process. He concurred with his colleague that the fees should be waived to the extent possible, which sounded like at most, leaving the churches with a nominal fee, and believed these churches were filling an important societal need. Commenting that this was an emergency situation with the ensuing winter, Councilmember Connolly stated they were asking for temporary use of their facilities for one of their core values -- to help fellow human beings who did not have a place to live. Councilmember Connolly stated he was deeply concerned about the time factor. To the greatest extent possible, as part of these negotiations, he suggested figuring out the time factor so that it was a meaningful process where the program could be initiated to help these women; however, also have a sufficient level of inspection and notification to the public and sensitivities in that regard, without putting a substantial burden on these institutions. Therefore, beyond the fee waiver, he requested that a way be figured out to do that. Mayor Boro inquired whether Councilmember Connolly was suggesting limiting the discussion to twenty women per shelter. He noted someone used the term "open shelter" — which meant that someone under the influence of drugs or alcohol would be welcome along with someone who was not. And there was concern in some quarters that, should people come in with that kind of condition, with those there to be sheltered, there could be problems. He indicated that these were the kinds of issues evaluated through a use permit process. Mayor Boro stated that waiving fees was one thing; however, he did hear the minister state: "we're not going to pursue a use permit" and he believed they never intended to pursue a use permit. Mayor Boro stated that San Rafael provides more services to the homeless than the whole county combined, in the beds provided (with the exception of Novato that had one shelter), the dining room, the Ritter Center and the tons of things done as a community. San Rafael had been very compassionate and reaches out. He noted a change in this population currently which was not due to unemployment as much as it was due to people coming into this community who were a different type of homeless than the people San Rafael normally had — they were hard-core, did not want any direction and wanted to be able to do what they wished. Therefore, he believed hearings were necessary to explain specifically what was intended in a neighborhood. While it was one thing to waive the fees, Mayor Boro stated that a process was necessary to evaluate the facility for safety, code requirements, the conditions and the thoughts of the neighborhood. He stated he was not against doing this; however, the City could not close its eyes and have everyone open up their churches. Councilmember Connolly stated this was not inconsistent with what he stated. He did not see the process to make 12 CC 10-05-09 this a realistic exercise lasting 4-6 months, and would be interested in staff's opinion on making it a thirty to forty- five day process. Councilmember Brockbank clarified that the only action before the City Council this evening was the fee waiver. Rob Epstein concurred and confirmed that in looking at the zoning ordinance and San Rafael Municipal Code he did not see how any part of the process built into the zoning ordinance could be sidestepped. Therefore, there were noticing requirements that came into play with a conditional use permit application that had to be heard by the Planning Commission. An appeal could be filed within ten days after the Planning Commission rendered its decision, and such appeal would also have to be noticed. The City Council could not take any action this evening; the only issue before the City Council was the question of the fee waiver. For the record, Mayor Boro stated he raised the question of twenty women not to discuss it but to point out that a supposition was made and that there was nothing definitive. Mayor Boro clarified that Councilmember Brockbank and Connolly made a motion with the premise of waiving the fees with the idea in mind that the City would require a use permit process to be filed. Councilmember Connolly stated "some sort of process." Mayor Boro stated it had to be a use permit process. Councilmember Connolly noted this could take four to six months. Mayor Boro indicated that that was a separate issue. Councilmember Connolly stated that in that case it was a moot point. Mayor Boro stated he believed staff would do everything they could to expedite this; however, the applicant needed to be cooperative. The motion should be predicated on the basis of waiving the fees as long as the applicant applied for a use permit, which would include, the most important part outside of the safety of the facility, notification of the neighborhoods that this was happening. He believed it was the City's responsibility to the rest of the community not in attendance this evening who had concerns, if and when this happened. Agreeing, Councilmember Connolly stated that a way had to be found to tailor the process to address those issues, being mindful of the time frame, so that the program and its objectives were not nullified. Mayor Boro stated he did not disagree; however, there had to be a balance. Councilmember Heller stated that this evening she came in fully expecting to vote to waive the $2,000 and in fact, that was how she would vote. She reported having met with the group and was informed the County was giving them $150,000 in order to pay for people to oversee the sites; however, she did not hear anything like that tonight. Her next problem was why San Rafael. She stated that in drawing a circle around the middle of Marin County, she believed that San Anselmo, Fairfax, Corte Madera, Larkspur and Marinwood fell into that middle also. Councilmember Heller stated she requested that staff compile a listing of what San Rafael does for housing, for homeless, for low-income housing, and she reported that San Rafael leads the County. She wanted to ensure that the newspapers received the list of what the City of San Rafael does for the poor, the homeless and those that needed assistance. She commented that San Rafael was always there with assistance to Ritter Center and backing up the churches and the faith community when they needed help. She did not believe in this instance that the issue was being worked on in good faith because there was a legal process and the churches were informed early on that they did need to meet the process and to work with the City. Noting this was the first four churches, Councilmember Heller questioned whether there would be a rotation next year or the year after when perhaps the County did not provide the expected assistance. She noted there was lots of unincorporated land in other cities to share the program; however, her problem was that it was always returned to San Rafael as San Rafael's responsibility. She agreed with Mayor Boro that the City received no money. Health & Human Services belonged in the County with San Rafael's assistance, and she commented that the homeless did not live on County streets, rather on City streets and San Rafael takes care of its homeless. Councilmember Miller believed the City should go into negotiations and meet with the people to see and begin to work the situation out. San Rafael was a land use city and land use was for everyone, regardless of whether it was a shelter, for profit, non-profit, faith based community, humanist society or whatever. The common good over the 13 CC 10-05-09 use of the land was found in City ordinances and resolutions and the General Plan. Should one of those ordinances need to be changed this could be done. He reiterated that San Rafael was land use, together with public health and safety. The mission of the City had to be defined; services had to be reduced according to that mission and staff aligned accordingly. The City was trying to find a solution and work together to be creative within the context of the governance of the City. It needed to be open, honest and solution driven. Mayor Boro stated he personally was against eliminating all of the fees. He believed the churches had to have some level of accountability for what was happening. On the other hand he saw it as a restraint and eliminating the fees would not solve the problem. He stated he would vote to support eliminating the fees over and above the $4,000 received from the MCF and that staff contact Steve Boyer. He invited Councilmember Connolly to work with him and the City Manager to participate in the meetings. Rob Epstein invited Councilmember Brockbank to restate the motion. Councilmember Brockbank noted that particularly, in light of the staff's report, the issue could require specific modifications of Resolution No. 11025 to include rotating homeless shelters among the potential uses for which fees may be exempted. So, instead of just moving to waive all fees, he stated: "move to amend Resolution 11025 to include rotating homeless shelters as among the uses for which we may waive more than $2,000 and that we waive all fees in excess of the $4,000 per application provided by the MCF" Mr. Nordhoff stated this would entail bringing a new resolution not an amendment. Councilmember Brockbank added: "if they continued their application, which they may well not." Mr. Nordhoff stated that, since there had been such a lengthy conversation this evening, it could be an amendment Council might wish to have regardless of whether or not and application was submitted. Mayor Boro inquired whether it was necessary to amend the resolution or whether an exception could be made. Mr. Epstein stated he would be more comfortable if staff brought back a new resolution at the meeting on the consent agenda that memorialized the Council's action which was proposed by Councilmember Brockbank in two parts: 1) Requesting staff bring back a new resolution to include a new category; and 2) For the specific applications discussed but not made, that all fees over and above the contribution from MCF would be waived Mayor Boro inquired whether the first part could be on a case by case basis starting with tonight. He indicated he did not wish to walk away from what was already there. Mr. Nordhoff believed the City Council still had the discretion for each and every application even if a modified resolution were returned. They could be looked at independently even if they were submitted in groups and Council could make whatever determination it wished on a case by case basis. He believed the genesis of this evening's work was centered around the four applications from which a fee waiver was brought forward for consideration. Councilmember Brockbank moved and Councilmember Connolly seconded to: Direct staff to return with resolutions at the meetinq of October 19, 2009: 1) To amend the existing Fee Waiver Policy to define shelter facilities for the homeless as affordable housing; and 2) Waiving all fees in excess of the $4,000 contribution per application by Marin Community Foundation for the four churches in question. AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 14 CC 10-05-09 16. RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR CONSTRUCTION AND MAINTENANCE OF IMPROVEMENTS IN CERTAIN MEDIANS AND OTHER LANDSCAPE AREAS IN THE CITY RIGHT-OF-WAY IN THE PEACOCK GAP HOA NEIGHBORHOOD (PW) FILE 9-3-40 Parviz Mokhtari stated this was a good example of public/private partnership. The Homeowners Association Board of Directors had worked on this issue for a couple of years and decided they wanted to pay for construction and maintenance of these medians, with the City taking care of design and paying for the water. Plans were being prepared and subsequent to City Council approval of the agreement, there would be a call for bids. The HOA indicated they had approximately $80,000 for construction and should bids be higher than this amount, staff would meet with the HOA Board of Directors and reduce plans accordingly. Mr. Mokhtari reported that this was an agreement between the City and the HOA Board of Directors. The attorney representing the Board submitted a letter to the City Manager with an attached resolution of the Board of Directors approving the assessment; therefore, this agreement was not between the City and individual homeowners, rather it was between the City and the HOA Board of Directors. He also noted that letters had been received from individuals. Mr. Mokhtari reiterated that the City's cost would be for water which was estimated at $1,500 annually; however, the Board of Directors would have to hire a contractor to maintain the medians, such maintenance to be inspected by Public Works Parks Division staff. Grea Faulkner, President, Peacock Gap Homeowners Association (PGHA) stated that between the documents submitted by Ken Nordhoff, City Manager, as well as the documents provided by Nader Mansourian, Assistant Public Works Director, the history and description had already been clearly explained. He stated it was very important to recognize: a) the reason it made so much sense to get this plan approved; and b) the broad support that existed for the project. With regard to why the project made sense, Mr. Faulkner stated that all of the street medians were owned by the City of San Rafael and were part of the entryways into the Peacock Gap neighborhood. Peacock Gap was an upscale and higher -end housing area of San Rafael and deserved to be as visually appealing as anywhere else in San Rafael. He explained that the houses within the Peacock Gap area had values among some of the highest in San Rafael and the homeowners all paid their representative portion of taxes relative to these values. He believed these homeowners deserved the same equal ability to live in a visually appealing and properly maintained environment as anyone else within the City limits; however, for many years the homeowners had not had this benefit and instead had been required to watch entryways and the surrounding City owned property deteriorate to what could now be considered blight. No one was doing anything to make the City property attractive in appearance because of insufficient funds; however, the solution was that the HOA would pay for the work. Indicating that the Public Works Department and City Manager supported the plan, Mr. Faulkner reported that a formal vote with a mail -in ballot was circulated in 2008 inviting all homeowners to vote on this plan. 62.76% of homeowners cast their vote — a clear majority of homeowners took the time to document their opinion. A total of 59.70% of responses supported the medians plan — again a clear majority. As president of the association, Mr. Faulkner reported having had numerous conversations with homeowners all inquiring when the medians would be fixed. Some admitted they did not initially support the vote; however, now that it appeared to be a possibility, they too were excited to see the plan enacted. Mr. Faulkner stated that support for the plan was broad, albeit not unanimous. The issue appeared simple: there was a job to be done, some medians needed to be fixed and the City did not have the funds to make it happen. The HOA did, however, and would make it happen should the City Council approve the plan. He indicated that the Peacock Gap HOA expressed thanks to Mr. Mokhtari, Interim Public Works Director, Mr. Mansourian, Assistant Public Works Director, Mr. Davis, Deputy City Attorney, Mr. Nordhoff, City Manager, former Public Works Director, Andy Preston, former Operations and Maintenance Manager, Art Gibney and John Tune, Parks Superintendent, all of whom provided countless hours in preparing this sensible plan. Equally importantly, he expressed thanks to the City Council for their time and support of this first of its kind public and private partnering project — a win-win for all. Ravmond Ham, Peacock Gap, reported that at an election in 2006 to renew the CC&Rs, few attended resulting in no election; however, two weeks later the Board indicated they had sufficient members. Personally, he would like to have the medians removed. He noted that the Board did not enforce the CC&Rs for forty years and in fact, were against one of them; therefore, he would like to remove the item and return in a year to discuss its pros and cons. However, should the project be approved he favored it looking like Andersen Drive. 15 CC 10-05-09 Debbie Di Giovanni stated she was not against improving the medians, rather she was against the way the HOA had handled the issue. She explained that in 2002 a vote took place in the neighborhood to extend and amend the CC&Rs. The HOA indicated that the only way they could raise fees to pay for the median improvement was to vote to amend; however, her neighborhood did not vote to amend the CC&Rs wishing to keep things as they were, and the HOA Board did not favor this outcome. Noting they now indicated they could raise fees, she questioned what had occurred since 2002 that now permitted them to raise fees without a vote. Being prohibited from attending their meetings, Ms. Di Giovanni stated there were three open positions on the board for which she volunteered; however, was informed she could be on the board only if she asked no questions about the increase in fees. She stated she had been told by a board member: "sue us if you don't like it." She reported having heard from many neighbors who had wanted explanations but received none. She believed the City should not spend tax dollars on an organization such as this board. She understood some neighbors' concerns and desires to improve the medians and had spoken to many who would be willing to pay $100 annually voluntarily, instead of the requested $40; therefore, it was not about the money. She commented that, had the homeowners done this voluntarily initially, residents would now be enjoying the planted medians. Having only found out about this evening's meeting on Friday night, Ms. Di Giovanni stated she would like to have the time to have their attorney state her opinions also; therefore, she respectfully requested that the City Council postpone the vote until the attorneys could work out a legal solution. Tom Holmes, Peacock Gap, stated he was opposed to the project. He believed the Peacock HOA had not been forthcoming in their presentation of the project as votes and opposing opinions had been ignored and misrepresented. As a homeowner, Mr. Holmes stated he was shocked at the polarizing nature of the HOA on the issue. Rather than motivating people to work together to find a solution, they had resorted to a draconian campaign and threatening posturing in an effort to steamroll the contract through, and in doing so, ignored its principal mandate of abiding by the CC&Rs. Reporting that he had long experience on an HOA board for condominiums, Mr. Holmes stated he appreciated anyone volunteering in such an organization as it was a wonderful, selfless and thankless act; however, this was not a good situation and could be made better. He agreed with Ms. Di Giovanni that it should be postponed until everyone could get together as a community and work out a solution for all. Vicki McQuaid, Peacock Gap, commented that her property value had not gone down because of any type of blight. While there was lots of blight in the neighborhood, this did not have anything to do with the medians. Indicating she was not aware of who the board members were she stated she was never approached and was appalled at the attempt to "ram this down our throats." Without a majority vote she believed this was a dubious move on their part in an effort to disrespect neighbors. There was no civil discourse between the Board and the neighborhood association and no consideration for residents. As a City taxpayer, Ms. McQuaid believed a decision should be postponed until a fair majority of the neighborhood had voted and agreed on either going forward or not, as there had not been an honest vote. She believed people in the neighborhood were unaware of what the project fully entailed. There could be some litigious and financial issues addressed that had not been addressed by the HOA and she posed the following questions: • Should the HOA contribute the majority of the funds to plant the trees and shrubs and subsequently someone was injured or killed, who was legally responsible? • Where were the plans designed by Ralph Alexander? • With regard to cost, what would happen should it run over? • Who would hire and pay for the maintenance person? • What was the guarantee that this would not be expanded by the HOA to include the park, tennis courts, etc.? Ms. McQuaid believed that, having lived in the community for eight years it was mind boggling that these people were running a private organization in such a great community. While she agreed it was bad, she believed the way the organization was being conducted was not the way HOAs should be run. Dean Di Giovanni, Peacock Gap, requested that the City Council vote to not approve this item this evening. He believed there were flaws in the staff report that misrepresented the will of the residents and it was ill-advised for 16 CC 10-05-09 the City Council to invest public funds in improvements in which the HOA had not legal funding to pay for maintenance. Should this project be approved, he believed the City would be in dangerous legal territory in attempting to set up a back door assessment district in Peacock Gap. Mr. Di Giovanni stated the first flaw in the staff report was that the vote presented was not credible for the City to rely on to use public funds. The vote numbers presented were not derived from a legal and enforceable vote of the HOA similar to what they did in voting to not amend their CC&Rs, noting they did have a means to conduct a legal and proper vote in the area, which was not done. It was not a secret ballot where rules were followed to ensure fraud or rigging did not take place, and even if true, less than half of the total homeowners would approve to pay a fee for landscape maintenance of City property, and as represented by the numbers, only 37% of homeowners voted to approve in this vote that was not legal. Also, Mr. Di Giovanni stated that the statement in the third paragraph, page 1, of the staff report "...the Peacock Estates Homeowners Association agreed to contribute $80,000 towards the cost of landscaping and the annual maintenance cost of these medians" was not a true representation of the HOA. He explained the City was now relying on a misrepresentation of a flawed vote to obligate the HOA to pay for maintenance of City property -- this was a backdoor assessment on property. The HOA had no legal authority to collect maintenance fees for property it did not own. In fact the HOA's attorney advised the attorney of one of the property owners that — quoting from a letter "last week I was finally able to confer with the association's counsel, Wanden Treanor, and was pleased to hear that the charge for contributing to the $80,000 was being withdrawn from your account, as well as the accounts of other members who had indicated an unwillingness to pay it." In sum, the $200 charge was intended to be a voluntary assessment and not a charge assessed pursuant to the governing documents. He commented that this meant the governing documents of the CC&Rs in the HOA. Mr. Di Giovanni requested that, should the City want the Peacock Gap area to maintain City property, it should hold a legal vote following all accepted voting laws of an enforceable assessment district. Mr. Di Giovanni stated the final flaw in the staff report was a review of available options, noting the second page of the staff report only listed two, both of which recommended moving forward at some point in time with the agreement, whether now or later. He indicated there were two other options — the "do nothing" option which subsequent to hearing the passionate plea of the homeless in the neighborhoods, he would much rather see his tax dollars going towards supporting a fee waiver for the homeless in the area and the churches trying to support them. The second option was that the City conduct a legal vote of all the HOAs in the Peacock Gap area, including Peacock Greens, Peacock Estates and Peacock Gap and then form an assessment district so that all had a proper vote to maintain the medians in the area. He requested that the City Council not approve the project this evening and return to the drawing board to obtain the full support of those paying the fees in the area. Zein Yountchi stated that subsequent to this evening's discussion, he believed this plan would bring something positive to the area and would add to the value of homes. Noting there would never be 100% agreement, he suggested looking at the cause and at least start something good. Understanding the City could not pay for everything, he believed contributing $40 annually when owning a million dollar home was acceptable and he would be willing to pay even more for this service. Martha McNear, Peacock Gap, stated she did not consider herself a member of the Peacock Gap Homeowners Association and had never paid dues; however, she was being requested to pay $200 to be a member. She indicated she would prefer to send the money to the Community Clinic or any other social service organizations as fixing the median strips was not necessary. She urged the City Council to either table the project or vote against it and believed the vote was an illegal one. Kenneth Webb stated he was not in favor of approving the contract. Noting the staff report mentioned the drought, should nature decide to the stop the water and MMWD decided to issue a drought mandate, he inquired as to what the City would do. Noting a speaker indicated there was a vote in May, 2008 and everyone voted, Mr. Webb stated this was incorrect. He explained that on October 14, 2006, the Board mandated a $200 landscape surcharge on all homeowners and there was no opportunity to vote on this project. Taking the cost of $200, approximately $80,000, and adding the maintenance for five years, this amounted to approximately $175,000 and $200,000. None of the homeowners had the opportunity to vote on this $175,000 project, rather the Board mandated that they pay that money. In May, 2008, a vote took place for maintenance only. He clarified that they did not vote on the initial project, nor did they receive a business case, financial statements or anything to represent the total cost of the project. Mr. Webb stated that the country was sitting at the top of a financial iceberg and this was definitely the tip. San Rafael, Marin County, California, the US and world was experiencing this. It was affecting those in Peacock Gap, 17 CC 10-05-09 people had lost or were losing jobs, and this would continue going forward, which meant houses in foreclosure and missing house payments, and he personally was aware of people bringing their children back from college because of being unable to afford the second, third or fourth year of school. He noted that approximately 14% of homeowners in Peacock Gap were 65 years and older and while some were doing very well, a lot were not doing quite so well. With regard to private -public partnerships, Mr. Webb questioned the value and who benefited. He believed the City benefited because of improved medians; however, on the private side, some 36 homeowners had a direct view of the medians, while 391 homeowners did not have any view. With regard to property values, Mr. Webb stated that, should someone be interested in purchasing his house, they would not care about flowers in a median six blocks away. In conclusion, Mr. Webb urged the City Council not to approve the resolution, rather to work together to improve Peacock Gap to benefit all homeowners, instead of only 9% of residents. Leo Isotalo, Peacock Gap, stated he was one of "those" people who had been nefariously hiding in the shadows doing all types of awful things on behalf of the 427 homeowners in the Peacock Gap HOA. He explained he now officially was the President Emeritus; therefore, his perspective was somewhat different. He spent 20 plus years on the board, 27 plus years in the neighborhood, 10 plus years as the president of the board, and could state without question that all of the volunteers over all of those years had worked tirelessly on behalf of the neighborhood and tried to do what was best, albeit sometimes the process did not win a lot of gold stars or applause. He believed they had been as transparent as possible with newsletters, a new president, energetic board members and a website. Board members were elected and identified, budgets were posted, there were annual meetings and closed board sessions. Mr. Isotalo stated his perspective on this issue went back to Dave Bernardi (former Public Works Director) days and this time there was a lot of energy from volunteers and from Public Works. The project was not without wrinkles; however, it was a fabulous opportunity for the neighborhood to make the entryway more attractive. While there were objections, he believed that, once the project was completed, people would approve. With regard to comments on the election that only 37% approved, he noted that President Obama received only 33% of the vote and was elected. Mr. Isotalo stated they would like to have Council's vote and get the project underway. Having taken notes on the discussion, Mr. Nordhoff stated that many of the items related to the board, its representation and people's interactions with due process and other issues. Noting questions were raised concerning who would be sued should someone get sued, he commented that was up to the lawyers and they "probably would sue everyone." Mr. Nordhoff stated that extensive work had been done with the Public Works staff in terms of design and renderings and there had been a lot of reiterations evaluating hardscape, planning materials and issues that addressed what those the City was working with believed would be of benefit to the community and neighborhood when the design was done, keeping in mind the cost of maintenance, watering, etc. With regard to cost overruns, Mr. Nordhoff explained that there was a limited amount of funding for the capital project, similar to every public project bid in the City. Bids are evaluated and awarded to the lowest responsible bidder and, should there be insufficient funds, staff would meet with the HOA Board and decide what portions of the project would be scaled down or modified. He believed there was no intention of ever expanding a licensing agreement such as this beyond medians, to parks, tennis courts, etc. These were publicly owned assets and in order for that to occur, something would have to be crafted and go before the City Council for consideration. In discussions with the homeowners regarding the yearly maintenance fee, Mayor Boro inquired how they described this would be paid. Responding Mr. Nordhoff indicated this question would be better directed to the HOA; however, he believed they had built into their fee structure for their annual dues a sufficient cost. He commented that the board needed to figure out how it levied that assessment. Mr. Nordhoff believed staff had done a good job in the licensing agreement with the attorney's office and Public Works working with the homeowners' representatives to craft something that made good sense; however, it was up to the City Council to decide whether or not to move forward. He believed staff would use this as a model of where 18 CC 10-05-09 other things could be accomplished in the future in other parts of the community. Requesting clarification on what the City Council should or should not be considering this evening, Councilmember Brockbank stated the fact that there was a dispute among the HOA was not unusual, nor the fact that there was a split in opinion regarding the wisdom of the project or the legality of an election. It appeared to him that, short of a judge's order enjoining a particular election by an HOA, enjoining an election of officers of the HOA, or enjoining Council's decision, the City Council's decision was fairly narrow and was to trust the staff recommendation that this was an appropriate public-private partnership and the City Council was not only entitled, rather legally obligated to accept the word of the HOA president that this election occurred and these were the results. Mr. Epstein clarified that what was solely presented to the City Council was consideration of whether to enter into the agreement granting the non-exclusive license. Responding to a comment from the City Manager earlier he directed attention to the indemnity and insurance provisions in paragraphs 9 and 10 of the agreement — the agreement requires the HOA to purchase appropriate liability insurance and automobile liability insurance. Therefore, should anyone believe the HOA lacked authority to enter into the contract or that somehow it was not legally valid because of the failure to take appropriate action by the HOA to have a legal remedy, that question was not framed for the City Council, rather the question presented was whether the City Council wished to enter into this agreement. Councilmember Brockbank moved and Councilmember Heller seconded, to adopt the resolution. ADOPTED RESOLUTION NO. 12850 — RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR CONSTRUCTION AND MAINTENANCE OF IMPROVEMENTS IN CERTAIN MEDIANS AND OTHER LANDSCAPE AREAS IN THE CITY RIGHT OF WAY IN THE PEACOCK GAP HOMEOWNER ASSOCIATION NEIGHBORHOOD AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None CITY MANAGER'S REPORT: 17. None. COUNCILMEMBER REPORTS: (including AB 1234 Reports on Meetings and Conferences Attended at City Expense) 18. League of California Cities Annual Meeting: - File 9-11-1 Having attended the League of California Cities Annual Meeting In San Jose from September 16 — 28, 2009, Councilmember Brockbank reported on the sessions he attended. Among his favorites was a booth relating to chips for garbage cans which measured and weighed recycling as a means of incentivizing and rewarding those who recycled the most. He distributed some informational material and strongly encouraged attendance at a future conference. He reported that at the Business Meeting a resolution was passed to undertake a campaign to put a measure on the ballot next year to preclude the state from taking any city funds in a variety of areas. To that end everyone was requested to undertake a 100:100 pledge — a $100 donation and 100 signatures. Councilmember Brockbank reported he volunteered to get 200 signatures and raise $1,000. Also attending the conference, Vice -Mayor Heller indicated she found the topic on Strengthening Community Transportation with Limited Resources and a Personal Touch fascinating with several good ideas for expanding Marin County's ability to work with seniors and find local transportation for them. There being no further business, Mayor Boro adjourned the City Council meeting at 10:44 p.m. ESTHER C. BEIRNE, City Clerk APPROVED THIS DAY OF 2009 MAYOR OF THE CITY OF SAN RAFAEL 19 CC 10-05-09