HomeMy WebLinkAboutCC Minutes 2000-02-07SRCC MINUTES (P-ular) 2/7/2000 Page 1
IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, MONDAY, FEBkuARY 7, 2000 AT 8:00 PM
Regular Meeting: Present:
Albert
J. Boro,
Mayor
San Rafael City Council
Barbara
Heller,
Vice -Mayor
Paul M.
Cohen,
Councilmember
Cyr N.
Miller,
Councilmember
Gary 0.
Phillips, Councilmember
Also Present: Rod Gould, City Manager
Gary T. Ragghianti, City Attorney
Jeanne M. Leoncini, City Clerk
OPEN SESSION - COUNCIL CHAMBER - 7:00 PM
Mayor Boro announced Closed Session item.
CLOSED SESSION - CONFERENCE ROOM 201 - 7:00 PM
1. Conference With Legal Counsel - Existing Litigation
Government Code Section 54956.9(a)
Case Name: Kerner Blvd., LLC v. City of San Rafael
Marin County Courts Case No. 172694
City Attorney Ragghianti announced no reportable action was taken.
ORAL COMMUNICATIONS OF AN URGENCY NATURE:
8:05 PM
RE: PEACOCK GAP LAGOON - File 4-4-6.b x 5-1-243 x 166 x 12-9 x 12-19 x 13-12
Suzanne Mabardy stated she lived on the Peacock Gap Lagoon, and noted that for the past
six months she has been meeting with Public Works Director David Bernardi and the
President of the Peacock Gap Homeowners Association regarding the management of the
Peacock Gap watershed, which deposits the storm drains into the lagoon. She pointed out
the community had conducted meetings, and obtained grants through the MCSTOPP Program
(Marin County Stormwater Pollution Prevention Program), designed and written to enhance
community education regarding protection of the watershed. However, Ms. Mabardy' stated
the meetings with the City and the Peacock Gap Golf and Country Club did not generate the
plan they had hoped for. Ms. Mabard.y presented a letter outlining what had occurred as a
result of the meetings, reading the letter into the public record. She noted a 30 -day
Notice to Comply had been issued to the City and the Peacock Gap Golf and Country Club by
the San Francisco Bay Regional Quality Control Board, directing that they jointly address
this matter. She stated the residents were emphasizing the need for a Flood Management
Plan to be included as an integral component of the Peacock Gap Lagoon Management Plan.
Public Works Director David Bernardi reported the City was working with the Peacock Gap
Golf and Country Club to develop a Pond Management Plan, as the Golf Club is the owner of
the pond, and the City simply has an easement for drainage purposes. He explained it was
the City's job to pump it out, and the Golf Club's job to manage and maintain it. Mr.
Bernardi stated the Regional Board has told the Golf Club they must develop a Pond
Management Plan, and the City is involved because it has a storm drain that is an integral
part of keeping the water fresh. He reported the Golf Club was re -analyzing the existing
Pond Management Plan, which was done when they planned to renovate the golf course. Mr.
Bernardi stated the City was more than willing to do its part in this program, but
reiterated it was the Golf Club that was the primary mover in this case.
Councilmember Cohen noted Ms. Mabardy had stated the City had been served notice for
illegal discharge into the Bay. Mr. Cohen clarified that the Notice to Comply referred to
'.potential" discharge, pointing out that was an important distinction. He stated he was
not trying to make light of Ms. Mabardy's concerns, and he believed the City would take
them very seriously. However, he stated he was very sensitive to statements being made in
a public forum stating that the City had made illegal discharge into the Bay, when in fact
it would appear, from the documentation, that the City had only been put on notice that
there was a potential for discharge into the Bay, and not that anyone had found that the
City had caused any illegal discharge.
Mayor Boro asked Mr. Bernardi when the City could begin a dialogue with all the interested
parties, and what he felt was a reasonable period of time when he could return before the
Council? Mr. Bernardi noted the Golf Club had thirty days to respond to the Regional
Board's notice, and once that was done, the Regional Board's staff would look at the work
plan proposed by the Golf Club, and determine whether or not it was appropriate. He
stated, assuming the Golf Club's plan is appropriate, the dialogue could then begin
between the Golf Club, the City, and the neighborhood to make certain the plan was
something everyone could live with. Mayor Boro noted that would be some time after the
middle of February, and asked when Mr. Bernardi felt he could come back before the Council
with an update or closure? Mr. Bernardi suggested 60 days from the middle of February.
Councilmember Cohen noted that when Mr. Bernardi comes back before the Council, he would
like to see that the concerns of the neighbors are also discussed, along with the Flood
Management Plan.
SRCC MINUTES (Regular) 2/7/2000 Page 1
SRCC MINUTES (P -pular) 2/7/2000 Page 2
RE: PRESENTATION FROM THE BUSINESS IMPROVEMENT DISTRICT RE: MILLENNIUM PARTY
- File 102 x 105 x 183 x 249 x (SRRA) R-414
Gisela Greene, President of the Business Improvement District (BID), stated their Board of
Directors had voted unanimously to present the City of San Rafael with a check in the
amount of $2,500 to help defray the expenses of the Millennium Party. She stated the BID
believed the City had taken a forward thinking approach in bringing such a fabulous event
to San Rafael, and regardless of the monetary loss, it would always remain a successful
endeavor. She noted the benefits to the business community overall, on a local,
national, and international level, were and would continue to be incalculable, and would
be felt for many years into the future. Ms. Greene stated the BID believed this was part
of the Vision which San Rafael set out to achieve, and they thanked the City leaders for
having the courage to take the risks so necessary today to be a viable business community.
On behalf of the Business Improvement District, Ms. Greene presented the City with a check
in the amount of $2,500.
RE: MILLENNIUM PARTY 2000 - File 249 x (SRRA) R-414
Katie Kinder stated she had been born and raised in the City of San Rafael. She reported
that while she and her husband had not attended the Millennium Party because of the high
prices of the tickets, she had read that 1,000 people had received free tickets to the
Millennium Party. She suggested those who received tickets pay the City for the price of
the tickets. Ms. Kinder stated she loved the City of San Rafael; however, she was
embarrassed because of the large amount the City had lost on the party. She noted there
were City trees on her street that needed to be cut, and there were potholes in some of
the streets that needed to be repaired, and she felt the party had been a bad plan.
Referring to the initial plan of making enough money to build a fountain on Court Street,
Ms. Kinder noted that when the Courthouse burned years ago, a fountain was built at that
location; however, it was now used as a planter for flowers. She stated that if the City
really wanted to build another fountain, she would be happy to donate $200, and have her
father's name put on the fountain wall, but she did not want that money to come from what
was left over from the Millennium Party. Mayor Boro clarified that the 1,000 people Ms.
Kinder had referred to did not get into the Millennium Party for free, rather their
companies paid corporate sponsorships, and part of the compensation for those sponsorships
were complimentary tickets. He reiterated they had paid for those tickets through their
sponsorship, either with money or in-kind services.
RE: CONTEMPO MARIN MOBILEHOME PARK - File 13-7-1 x 9-3-16
Tom Davis, 22 Yosemite Road in Contempo Marin Mobilehome Park, referred to a letter from
the law firm of Hart, King, and Cauldron, which was sent to City Attorney Ragghianti and
City Manager Rod Gould on behalf of MHC, the park owner of Contempo Marin. He stated the
letter threatened to sue the City over the issue of vacancy control in San Rafael's rent
control Ordinance. Mr. Davis read a specific paragraph from the letter, in which the park
owners discuss their goals for Contempo Marin, "It is our goal to work with the City in
operating clean, efficient and desirable rental communities that attract higher income
residents, and the type of home retail prices that speak well for the City of San Rafael.
We want to ensure that mobilehome communities will continue to upgrade appearances to
continue to attract new residents at higher rents, avoiding the cycle of deterioration
that befell the trailer parks of the 50's and 60's". Mr. Davis recalled that several
months ago he had brought to Council MHC's Annual Report, which discussed what they were
planning to do with Contempo Marin, and noted that now they were telling the City
directly. He believed that if the City was going to take seriously the housing component
of its General Plan, which sets aside Contempo Marin as affordable housing, it was now
faced with an implacable enemy. He believed this letter revealed that MHC is at odds with
the City's plan to preserve that space as affordable housing, and felt that perhaps it was
time to take a collective look at whether MHC can continue to function in this City as a
corporate citizen, one that can comply with the laws, and act in furtherance of the City's
goals and plans. He stated if they cannot do that, perhaps the City should invite them to
leave, and take their plans to a community where they would be more welcome.
RE: CONTEMPO MARIN MOBILEHOME PARK - File 13-7-1 x 9-3-16,
Coleman Persil.v, resident of Contempo Marin, thanked the Council for giving the residents
an Ordinance to protect them against bad rent increases. He stated the City's Ordinance
withstood court challenges, and it has been shown that the Ordinance is both
Constitutional and legal. He referred to the Vacancy Control clause in the Ordinance,
explaining this meant that if a resident sells his home, the next person to buy it does
not have to receive an increase in the rent, and the homes can be kept affordable. He
stated this was what the park owner was contesting, and why the law firm had written their
letter. He believed this was dangerous, as the park owners would likely come before the
Council and attempt to have the Ordinance amended to get rid of the vacancy control. Mr.
Persil.v noted the park owner could refer to a few examples of cities that had given up
their vacancy control; however, he assured the Council that upon any kind of hearing,
there could be shown many more cases of cities that have vacancy control, and are sticking
with it. Mr. Persil.v'urged the Council not to comply with MHC's request, and to keep the
mobilehome parks affordable.
City Attorney Ragghianti stated he had responded to the letter from the law firm
representing MHC, and he invited Mr. Davis and Mr. Persily to contact his office so he can
provide them with a copy of his letter. He stated he was not at all convinced the legal
SRCC MINUTES (Regular) 2/7/2000 Page 2
SRCC MINUTES (RAqular) 2/7/2000 Page 3
arguments set forth in MHC's letter were accurate; however, they were complicated, and
were based upon the Ninth Circuit Court opinion dealing with the Honolulu land use issue.
Mr. Ragghianti stated the City had no intention of acquiescing to the requests made in the
letter. He noted it had been at least two weeks since his response to the author of the
letter, in which he asked for four or five different things mentioned in the letter;
however, he had not had a response, which was why this issue had not yet been brought to
the Council. He stated, at this point, it was nothing more than a letter suggesting that
vacancy control constitutes a regulator taking. Mayor Boro urged Mr. Davis and Mr.
Persily to avail themselves of City Attorney Ragghianti's office.
CONSENT CALENDAR:
Councilmember Phillips moved and Councilmember Heller seconded, to approve the following
Consent Calendar items:
ITEM
ACTION
2. Approval of Minutes of Special and Regular Meetings Minutes approved as
of Tuesday, January 18, 1999 (CC) submitted.
3. Call for Applications for Appointments to Fill
Two, One -Year Youth Positions on the Bicycle and
Pedestrian Advisory Committee, Due to Expiration
of Terms of Dominique Goff and Joel Segura
(Terms to Expire End of February, 2001) (CC)
- File 9-2-55
4. Resolution of Appreciation to Chester Williams,
Maintenance Worker II, Employee of the Quarter
for Period Ending December 31, 1999 (CM)
File 102 x 9-3-40 x 7-4
Approved staff recommendation:
a) Called for applications for
two youth members on the
Bicycle and Pedestrian
Advisory Committee. Only
students who are residents of
the City of San Rafael and are
attending high school may
apply. Terms will be for one
year and will expire end of
February, 2001; b) Set
deadline for receipt of
applications for Tuesday.
February 29, 2000 at 12:00
Noon in the City Clerk's
Office, Room 209, City Hall;
and, c) After interviews and
appointments of the applicants
at the next regular Bike and
Pedestrian Advisory Committee
meeting on Monday, March 13,
2000, the Council can confirm
the new appointees at the next
regular City Council meeting,
to be held on Monday, March
20, 2000.
RESOLUTION NO. 10581 -
RESOLUTION OF APPRECIATION TO
CHESTER WILLIAMS, MAINTENANCE
WORKER II, EMPLOYEE OF THE
QUARTER FOR PERIOD ENDING
DECEMBER 31, 1999.
Resolution of Appreciation to Kenneth Nordhoff, RESOLUTION NO. 10582 -
Assistant City Manager, as the 2000 John H. Nail RESOLUTION OF APPRECIATION TO
Award Recipient (CM) - File 102 x 9-3-11 x 9-3-20 KENNETH NORDHOFF, ASSISTANT
CITY MANAGER, AS THE 2000 JOHN
H. NAIL AWARD RECIPIENT.
6. Resolutions of Appreciation to John Ortega for the RESOLUTION NO. 10583 -
Marin County Human Rights Commission 1999 Martin RESOLUTION OF APPRECIATION TO
Luther King, Jr. Humanitarian Award (CM) JOHN ORTEGA FOR THE MARIN
- File 102 x 13-17 COUNTY HUMAN RIGHTS COMMISSION
1999 MARTIN LUTHER KING, JR.
HUMANITARIAN AWARD.
7. Report on Bid Opening and Resolution Awarding
Contract for the Freitas Park Rehabilitation to
Bauman Landscape, Inc. in the Amount of $333,300
and Allocate an Additional $55,000 in Funding Out
of Park and Recreation Facility Fund (Project
No. 275-6697-615-8000; Bid Opening Held on
Wednesday, 1/19/2000) (PW)
- File 4-1-505 x 2-1-29 x 9-3-66 x 12-5 x 12-15
RESOLUTION NO. 10584 -
RESOLUTION AWARDING THE
CONTRACT FOR THE FREITAS PARK
REHABILITATION TO BAUMAN
LANDSCAPE, INC. IN THE AMOUNT
OF $333,300 AND ALLOCATE AN
ADDITIONAL $55,000 IN FUNDING
OUT OF THE PARK AND RECREATION
FACILITY FUND (Lowest
ResDonsible Bidder).
SRCC MINUTES (Regular) 2/7/2000 Page 3
SRCC MINUTES (P^gular) 2/7/2000 Page 4
9. Resolution Authorizing Temporary Road Closure,
Andersen Drive From West Francisco Boulevard
to "A" Street, on Sunday, March 19, 2000, 6:00 AM
to 2:00 PM, for the Pacific Bell Park Pitch Event
(CS) - File 11-19
AYES:
COUNCILMEMBERS:
NOES:
COUNCILMEMBERS:
ABSENT:
COUNCILMEMBERS:
ABSTAINING:
COUNCILMEMBERS:
RESOLUTION NO. 10585 -
RESOLUTION APPROVING THE
STREET CLOSURE OF ANDERSEN
DRIVE, FROM WEST FRANCISCO
BOULEVARD TO 'A' STREET ON
SUNDAY, MARCH 19, 2000 FROM
6:00 AM TO 2:00 PM, FOR THE
PACIFIC BELL PARK PITCH EVENT.
Cohen, Heller, Miller, Phillips & Mayor Boro
None
None
Cohen and Heller (from minutes of the Special Meetinq
of 1/18/2000 only, due to absence from meeting)
The following item was removed from the agenda for further discussion:
8. RESOLUTION ADOPTING SAN RAFAEL PUBLIC LIBRARY INTERNET USE POLICY (Lib)_
File 9-3-61 x 12-8
Councilmember Cohen asked for clarification regarding what the Council was being
asked to adopt, and whether they were modifying the policy to restrict access in the
Children's Library. He noted there would be a policy that in the Children's Library
the Internet terminal was going to be limited only to sites bookmarked by the
Children's Librarian, and in addition, another policy was being added regarding
usage of work stations for adults, stating that minors under the age of 14 years of
age needed permission. Mr. Stratford stated that was correct. Mr. Cohen asked if
the balance of the policy was the same as the one the Council previously adopted?
Mr. Stratford stated the Council had never adopted a policy, explaining the Library
Board adopted the current policy two years ago. He noted one of the reasons staff
was now asking the Council to act was because there is a State law which requires
the governing body of the Library to adopt a Children's Internet Policy. He pointed
out staff had developed a Children's Internet Policy when the Library was going to
begin offering Internet service in the Children's Room, and the guiding policy was
the Internet Use Policy now before Council for adoption.
Councilmember Cohen pointed out there was specific language in the Children's
Internet Policy, but not in the overall policy, and he felt that needed to be
addressed. Mr. Cohen stated he fully supported free public access to the Internet
through the Library, as he believed that was a natural component of Library
services. However, he believed it was important to have a policy on that, although
he acknowledged it was difficult to balance what constitutes offensive material with
the issues of free speech. Mr. Cohen referred to one line of Exhibit "A" of the
Internet Use Policy which states, "Users are asked to respect the sensibilities of
others when accessing potentially offensive information and images". He agreed it
was difficult to do more than that; however, he asked who was to be the judge of
that, and whether it would be Library staff? Mr. Stratford stated staff had been
trained to deal with instances when there is a complaint. Mr. Cohen agreed that was
probably as finely balanced as the policy could be; however, he pointed out the
Children's policy included another document, Exhibit "B", which appeared to be a
separate but related policy governing the use of the Internet terminal in the
Children's Library. He pointed out that at the end of Exhibit "B" it states,
"Misuse of the Internet or any violation of our policies may result in the
withdrawal or suspension of access privileges"; however, he did not find a
comparable phrase in the Adult Policy. Mr. Stratford stated Internet privileges
have been withdrawn from adults in the past, and while it was not stated in the
Adult policy, staff did have a practice of doing that. Mr. Cohen suggested the
phrase used in the Children's policy which refers to misuse should be changed to
read, "Misuse of the Internet terminals or Internet access privileges", as opposed
to "Misuse of the Internet". He also felt this phrase, as modified, should be
included in the Adult Internet Policy, so that it states, in writing, what happens
if someone persists in violating reasonable limits on what they are accessing.
Councilmember Cohen stated he believed staff had drawn as fine a line as could be
drawn on such difficult issues.
SRCC MINUTES (Regular) 2/7/2000 Page 4
SRCC MINUTES (P-qular) 2/7/2000 Page 5
Councilmember Cohen moved and Councilmember Miller seconded, to adopt the
Resolution, as amended.
RESOLUTION NO. 10586 - RESOLUTION ADOPTING A POLICY FOR PUBLIC USE OF THE INTERNET
WITHIN THE SAN RAFAEL PUBLIC LIBRARY (as amended: The last
sentence of Exhibit "B" of the Children's Policy shall be
changed to read, "Misuse of the Internet terminals or
Internet access Drivileqes, or any violation of our
policies, may result in the withdrawal or suspension of
access privileges". This same wording is also to be added
to the Adult Policy).
AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
SPECIAL PRESENTATIONS:
10. PRESENTATION OF RESOLUTION OF APPRECIATION TO CHESTER WILLIAMS. MAINTENANCE WORKER,
II. EMPLOYEE OF THE QUARTER FOR PERIOD ENDING DECEMBER 31. 1999 (CM)
File 102 x 9-3-40 x 7-4
Mayor Boro announced that Employee of the Quarter, Chester Williams, had been unable
to attend the meeting.
11. PRESENTATION OF RESOLUTION OF APPRECIATION TO KENNETH NORDHOFF, ASSISTANT CITY
MANAGER. AS THE 2000 JOHN H. NAIL AWARD RECIPIENT (CM) - File 102 x 9-3-11 x 9-3-20
Mayor Boro asked City Manager Gould to describe for Council the nature of the award
being presented to Mr. Nordhoff.
City Manager Gould explained that once a year the City Managers Department of the
California League of Cities gives an award in memory of John H. Nail, who was a
long-time City Manager and Assistant City Manager, a man known for his integrity,
character, dedication to his profession, and his outgoing and friendly manner. Mr.
Gould reported all the cities throughout the State are encouraged to nominate top-
notch municipal assistants to compete for this coveted award. He stated there is
only one award given each year, and this year, Assistant City Manager Kenneth
Nordhoff was awarded the John H. Nail Award. Mr. Gould stated it was a tremendous
honor for Mr. Nordhoff, and for the City of San Rafael, explaining that Mr. Nordhoff
had been given the award in Southern California on Friday morning, and would also be
given a free trip to the International City Managers Association Conference for
further recognition this Fall, as a result of this honor.
Mayor Boro presented the official plaque, which had been given to Mr. Nordhoff in
Southern California, and a Resolution of Appreciation from the City Council, which
addresses the many fine things he has done for the City, the leadership he has
shown, and the tremendous work he has done with respect to the City's budgets,
financing, and reorganization of the Management Services Department. Mayor Boro
noted Mr. Nordhoff had truly made an impact on the City in a very short period of
time.
Mayor Boro congratulated Mr. Nordhoff, stating he was very happy and proud to have
him as the City's Assistant City Manager.
Assistant City Manager Nordhoff thanked Mayor Boro and the Council. He stated he
did not believe he could have achieved this honor without several facets that occur
at the City, beginning with the City Council. He stated he really appreciated
working with the five Councilmembers, noting they take risks, they think
progressively, and allow staff a lot of latitude to do many things, which translated
into a lot of successes. Mr. Nordhoff stated nothing could really be accomplished
without City Manager Gould, noting he has had the pleasure of working with him for
the past eight years in two different locations. He stated Mr. Gould has been a
great mentor, and more than that, a great friend to him and his family. Mr.
Nordhoff expressed his appreciation to his colleagues, noting they deserved some of
the credit for his award, because much of what he does he also asks them to do, and
they support him. Mr. Nordhoff stated, most importantly, his staff did a very good
job, and they put their all into everything they do; and he believed much of the
success they have in Management Services, and many of his responsibilities, were
attributable to them. Therefore, he thanked the Council on behalf of all those who
have helped him achieve this success.
SRCC MINUTES (Regular) 2/7/2000 Page 5
SRCC MINUTES (P -pular) 2/7/2000 Page 6
12. PRESENTATION OF RESOLUTION OF APPRECIATION TO JOHN ORTEUA FOR THE MARIN COUNTY HUMAN
RIGHTS COMMISSION MARTIN LUTHER KING, JR. AWARD (CM) - File 102 x 13-17
Mayor Boro stated John Ortega was before the Council for further recognition of an
award he received from the Human Rights Commission. He explained the staff report
states the Human Rights Commission, established by the Marin County Board of
Supervisors, honors people each year for the work they do to eliminate prejudice,
intolerance and discrimination due to race, religion, national origin, sex, age,
cultural background, sexual orientation or disability. Mayor Boro stated the
Commission recognized Mr. Ortega for the fine work he has done in the community of
San Rafael, and in particular, in the neighborhood in which he lives. Mayor Boro
stated Mr. Ortega has really been a leader in that community, bringing a lot of the
different groups together, and he has effectively worked with the City, noting he
was a member of the Advisory Committee for Redevelopment, and makes certain the
conscience of his community is heard, which is a real contribution.
Mayor Boro stated Mr. Ortega has been a very effective representative of the
community he represents, noting the Resolution of Appreciation being presented by
the Council acknowledges that fact. On behalf of the City Council, Mayor Boro
thanked Mr. Ortega for all his hard work.
John Ortega thanked Mayor Boro and the Council, giving special thanks to
Councilmember Cyr Miller, for having done incredible work in the Canal. Mr. Ortega
noted Mr. Miller had reached into the hearts and souls of many people in the Canal,
and he appreciated Mr. Miller's "see all, tell all, know all" policy, and his
ability to really see what is happening in the Canal and translate that to the
Council. Mr. Ortega stated "deeds are love", and Councilmember Miller has shown
that.
Mr. Ortega stated he wished to share his award with those people in the Canal who
are struggling to become part of the community, socially, economically, and
politically, noting it was on behalf of those people in the community that he
accepted this award, in full appreciation of them.
PUBLIC HEARING:
13. CONSIDERATION OF CITY INITIATED AMENDMENT OF TITLE 14 OF THE SAN RAFAEL MUNICIPAL
CODE (CITY OF SAN RAFAEL ZONING ORDINANCE). SECTION 14.17.110 (PERFORMANCE STANDARDS
FOR SEASONAL OUTDOOR EATING AREAS PROPOSED IN CONJUNCTION WITH FOOD SERVICE
ESTABLISHMENTS) TO PROVIDE FOR A LICENSE AGREEMENT FOR USE OF CITY SIDEWALKS AND
RIGHTS-OF-WAY FOR OUTDOOR EATING AREAS. IN LIEU OF ANY USE PERMIT, ENVIRONMENTAL
DESIGN REVIEW PERMIT, OR ANY OTHER PERMIT FOR SUCH USE. AND PRESCRIBING STANDARDS
FOR SUCH USE. ALSO PROPOSED IS AN AMENDMENT TO OTHER STANDARDS SECTIONS
14.17.110.0 OF THE ZONING ORDINANCE) FOR OUTDOOR SEATING AREAS (CD)
- File 10-3 x 10-5 x 10-1 x 11-7 x 2-11
Mayor Boro declared the public hearing opened, and asked for the staff report.
Senior Planner Dean Parsons reported the Council reviewed this issue in October, and
explained the reason for the amendment of Title 14 was to eliminate the requirement
for a Use Permit and Design Review Permit for outdoor eating on public rights-of-
way, which are normally on public sidewalks. In addition, staff was also
recommending amendments to the Performance Standards. He recalled that at its last
meeting the Council directed staff to allow permanent roofs over outdoor seating
areas on expanded sidewalks, that there be a quarterly cleaning of outdoor eating
areas on sidewalks, and that there be no parking requirement for permanently covered
outdoor seating areas.
Mr. Parsons reported staff returned to the Planning Commission in January with these
recommendations, and they have done further "fine-tuning" since then. He noted that
since the Planning Commission meeting regarding this issue, staff has recommended
the parking performance standard be further refined, as indicated in the staff
report. He explained staff was recommending the parking standard requirement that
no outdoor seating area shall exceed 25% of the indoor seats, and if the seating is
permanently covered, parking shall be required if it is not in the Downtown Parking
Assessment District. He gave, as an example, a seating area in Terra Linda, noting
that if the seating were permanently covered, and on private property, it would
require parking.
Mr. Parsons noted staff had also recommended the License Agreement have a five-year
term, and the Planning Commission concurred, as it was felt that it was very
important for the City to be able to take back the sidewalk or public right-of-way
if the road had to be widened, or for other reasons. Mr. Parsons reported that
since that time, staff has discussed this issue with the City Attorney, and with Mr.
Berry, a Downtown property owner, noting the reason for that discussion was to
potentially try to add more flexibility into this requirement. He reported they
came up with the option of a Lease Agreement, as an option to the License Agreement,
SRCC MINUTES (Regular) 2/7/2000 Page 6
SRCC MINUTES (r hilar) 2/7/2000 Page 7
whereby the property owner or restaurant operator could enter into a lease which
would have a fixed term, giving them the guarantee of a specific time period. Mr.
Parsons stated this was requested, particularly by Mr. Berry, due to the investment
incurred by putting in a permanent seating area. Mr. Parsons explained that while
giving a fixed term, it would also require compensation to the City, which is
typical of any lease. Mr. Parsons noted this was being included in staff's
recommendations, which meant there could be either a License Agreement or a Lease
Agreement for outdoor dining on a public right-of-way.
Mr. Parsons stated staff was also recommending that any License Agreement be
revokable at the pleasure of the City Council, rather than be for a five-year term.
He explained that would be easier for staff, and possibly for the restaurant
operators, in that the City would not have to keep track of the five-year terms, and
it would allow the use to discontinue if, for any reason, the City had to take back
the sidewalk. Mr. Parsons explained staff was recommending that any Lease Agreement
come to the City Council, and that they be reviewed on a case by case basis, so the
term, as well as the compensation, could be reviewed and approved by the Council.
Mr. Parsons referred to other cities with similar situations, noting they either
charge by the area of outdoor seating, or by the seat, which is something staff
could further research if Council requested.
Mr. Parsons stated staff was recommending a couple of minor changes to the
Ordinance. On Page 3, Division 5, in the "Parking" section, Mr. Parsons recommended
adding the word "covered" to the sentence, "Parking shall be provided for all
permanently covered outdoor seating areas". On Page 5 of the Ordinance, Section
14.16.277 F, he recommended adding to the end of the sentence, "...and as approved
by Resolution of the City Council". He explained that would be for any kind of
License Agreement.
Councilmember Cohen asked if the distinction between the License Agreement and the
Lease was at the discretion of the City? Mr. Parsons stated the restaurant operator
could request either a license or a lease. He stated staff expected a license would
be more typical, noting that would be an agreement between the City and the
restaurant operator. He explained that if the restaurant operator wanted a lease
with a guaranteed term, that would also be the operator's option, and would require
City Council approval, whereas a License Agreement would require Community
Development Director and City Attorney approval.
Mayor Boro asked if a License Agreement would have a proviso that it could be
revoked at any time, at the discretion of the City Council? Mr. Parsons stated that
was correct. Mayor Boro asked if a lease would be for a specific period of time,
and Mr. Parsons stated that was correct. Mayor Boro noted the Planning Commission
had favored a five-year period as the typical term for a lease, and asked what time
period staff was considering? Mr. Parsons stated he would expect it to be at least
ten years. Mayor Boro asked if staff was asking Council for guidance on that issue,
as he was trying to get a sense of what to expect if this is approved? Mr. Parsons
stated he believed each lease should be looked at on a case by case basis, pointing
out that in any event, there were very few opportunities for this in the Downtown.
Mr. Parsons noted another factor that needed to be looked at was the value of the
improvement the restaurant was installing, and determining a reasonable period of
time to amortize the value of that improvement. He stated staff had not really
discussed a specific term. Mayor Boro clarified that a lease would be brought to
the Council for approval, whereas a license would be approved by the Community
Development Director. Mr. Parsons stated that was correct.
Mayor Boro invited public comment.
Linda Bellatorre, former member of the Vision Committee, referred to the design
review, asking if she was correctly interpreting that there would be no more design
review, or just that there would be no more permits issued? She noted that when
they did the follow-up on where they set the zoning, they had been told there was no
money for a design standard program for the Downtown. She asked if there was going
to be any kind of control, especially in the instance of how a covered roof was
going to look? Mr. Parsons explained that through the License Agreement, staff
would complete a design review, just as they were doing now with the Use Permits and
Design Review Permits. Ms. Bellatorre asked if that meant staff would be able to
give some guidance to someone coming forward with a proposed design? Mr. Parsons
stated that was correct. Ms. Bellatorre asked if it would have to be in compliance,
or carry out some kind of standard that was now in the Downtown. Mr. Parsons stated
it would.
Robert Berr.v, property owner in the Downtown, recalled he spoke to Council in
October, when this Ordinance was first heard. He noted substantial changes had been
made to the Ordinance since that time, for which he was very pleased; however, he
felt further changes needed to be made. He stated he had no problem with a
Licensing Agreement being used for most of the total Downtown, with the exception of
the expanded sidewalk areas only, pointing out those were few and far between.
SRCC MINUTES (Regular) 2/7/2000 Page 7
SRCC MINUTES (F iular) 2/7/2000 Page 8
Recalling a little of the background, and the City's original "Alive After Five"
campaign, Mr. Berry noted he had been one of the first to participate in what was an
experiment at 1130 Fourth Street, the Chinook Restaurant, which wanted to expand to
the sidewalk area and try this particular concept. Mr. Berry noted the City paid
for the expansion, poured the sidewalk and made the barriers, and then the City
reviewed the look and the feasibility. It was decided that this particular kind of
function might be something the City would like to have in the Downtown, and it was
then agreed that this would be in the General Plan. Mr. Berry recalled that when
the sidewalk area was replaced in the entire Downtown area in 1997, the
Redevelopment Agency went to all the property owners in the Downtown area to inquire
as to which property owners would be willing to pay for the sidewalk expansion
areas. He stated they were few and far between, and he was shocked that more
restaurant owners and/or property owners did not apply for, and pay for, the
sidewalk expansion area, noting he was one of the few who did, along with the Rafael
Theatre. In addition, Red Boy Pizza was done at that time. However, I1 Davide came
later, and it was not in conjunction with the Fourth Street sidewalk area.
Consequently, the initial opportunity to see what was happening was in the 1997
expansion of the sidewalk area. Mr. Berry noted, to date, the City had two License
Agreements, one with the Chinook Restaurant, and one with Red Boy Pizza, and two Use
Permits, pointing out there were only two, possibly three, businesses that would be
affected by this Ordinance.
Mr. Berry stated he was more concerned with the long-term, rather than the short-
term effect. He noted the short-term would affect what happens to the tenants that
have the existing right to use the sidewalk area; however, there could be tenants in
the future who might want to use the sidewalk area, such as a tenant in the former
Macy's building who might want to have food service or a coffee shop on the corner,
or a restaurant with a patio. He felt it was also likely that the yet unoccupied
cafe area surrounding the Rafael Theatre would want to have some kind of permanent
structure on the sidewalk, and that could be affected by this proposed amendment,
noting that if they do not currently have a Use Permit, they certainly would not
have a Use Permit for a permanent structure. He stated staff would put the theater
through the same loop holes he and his tenant were currently being put through.
Mr. Berry asked that Council refer the amendment back to staff to review the
expanded sidewalk area, and give more thought to whether the City wants to encourage
other tenants on Fourth Street to expand their sidewalk areas. And if that is what
the City wants, in the long term, he believed the City would have to give those
potential property owners and tenants the incentive to put in the dollars to make it
look decent in the Downtown area. Mr. Berry stated his tenant, The Broken Drum,
spent a lot of money on the outdoor look, noting it is a permanent structure, and
has an awning, a rain gutter, drainage underneath the sidewalk, light, heat, wind
protection and planters. He believed that if this was the kind of look the City
wanted, then the City had to encourage the owners and tenants to spend the money for
that particular kind of look. He believed that if the City enacted the amendment to
the Ordinance, what it would get in the future was the "Red Boy Pizza" look, with no
permanent structures where people could sit outside and be protected.
Mr. Berry noted that when he appeared before the Council in October, he had reported
that the tenant then at 1136 Fourth Street, Pasta Boat, who had a long-term lease
with an option, had elected to close his business, and was trying to sell his lease.
The owner had received an offer from P.J.'s Oyster Bar, a successful business in San
Francisco, who wanted to open a small seafood restaurant with an outdoor area
similar to The Broken Drum, where they could have an expanded seating area.
However, at the time of the negotiations with The Pasta Boat, staff was in the
process of developing this amendment, which had already gone through the Planning
Commission. He recalled that when the potential tenant appeared before the Planning
Commission and was told of the Ordinance in affect at that time, he got cold feet,
and chose not to purchase the lease. Mr. Berry reported that shortly thereafter his
tenant, The Broken Drum, negotiated with the owner of Pasta Boat, and was able to
purchase the lease. Mr. Berry stated he, as the property owner, approved the
purchase of the lease, thinking the tenant believed it would be easy to obtain an
amended Use Permit to use the area, similar to the way the areas at 1132 and 1134
Fourth Street had been used for the past two years. He noted the Pasta Boat had a
Use Permit for ten seats, although it did not include the use of a permanent outdoor
structure. In November, after The Broken Drum had obtained Pasta Boat's lease, the
owner applied for a Use Permit, believing it would involve nothing more than a staff
review, and the Use Permit would be adjusted. However, it became a major issue
regarding the License Agreement, and it was not until shortly after the first of the
year that the tenant received a letter from staff stating the Use Permit had been
approved, subject to ten conditions. He reported all of the conditions had been
acceptable except one, which was, in effect, to change the Use Permit to a License
Agreement, including the Use Permit that had been previously approved for 1132 and
1134 Fourth Street. Therefore, in essence, for The Broken Drum to expand into the
adjoining business, he would have to give up his Use Permit on the other locations
he occupied. Furthermore, the letter of approval gave a five-day period to accept
the conditions, or to file an appeal. On advice of counsel, the Use Permit
application was withdrawn, so time could be given to perhaps make a negotiated
SRCC MINUTES (Regular) 2/7/2000 Page 8
SRCC MINUTES (P-qular) 2/7/2000 Page 9
agreement with the City concerning a Use Permit or License Agreement. Mr. Berry
stated at that time he was advised that if the License Agreement, by definition and
by law, was a revokable instrument, and if it had been accepted, it would be
revokable under any set of circumstances. With that in mind, they were left with
only two or three different avenues of approach; to continue to use a Use Permit, or
to call the agreement something else, such as an encroachment agreement.
Summarizing, Mr. Berry stated a successful tenant wanted to obtain the space next
door, in order to expand his business; he had an existing agreement that was
suitable to the City and had no expiration date, and he wanted to ask for an
extension on the space next door. Mr. Berry noted that however that could be done,
it would be acceptable to him, as the owner of the property, and to the tenant, as
long as it was not a revokable type of instrument. Due to circumstances of short
time, or lack of availability to negotiate something in the interim, Mr. Berry
requested Council carve this particular issue out of the Ordinance, so it can be
reviewed with more time, and in the very specific instance of these five or six
tenants and property owners who would be affected, carve something different than
for those tenants who put a few tables out and use them as an encroachment on the
sidewalk for a limited period of time, and not on a year-round basis.
Councilmember Cohen stated he had listened carefully when this issue had previously
been brought before the Council, recalling Council, as a whole, had heard the
concerns and directed staff to review the issue. However, using Mr. Berry's own
description, they were referring to a permanent structure built on a sidewalk, which
is public property. He noted the condition which currently exists is that of a
permanent structure, privately owned and operated, which exists on public property,
with no further right of the City to revoke that Use Permit. Mr. Cohen stated he
understood Mr. Berry's concerns regarding the hesitation of a business owner to
invest in building a permanent structure, which Mr. Cohen agreed added more to the
streetscape than a couple of iron tables. However, he believed the City had
addressed that in the proposal to do a lease, noting that if five years is not
sufficient time to amortize the investment, the operator can come and sit down with
staff and propose what he feels is a sufficient time to amortize the investment, and
negotiate a long-term lease. However, Mr. Cohen believed the public had some right
to expect some compensation for that, because the public was giving up any right to
use its property for a specified period of time. Mr. Cohen stated that rather than
the City telling the property owner or tenant to go ahead and build their permanent
structure on the public's property and keep it there as long as they like, the City
was instead telling them they could have it one of two ways. First, they could do
it by License Agreement, which Mr. Cohen acknowledged was intentionally meant to be
something the City could revoke at will; or, the owner could enter into a Lease
Agreement with the City for the use of its property for a specified term, presumably
negotiating something that would be satisfactory to all parties, reflecting a term
the property owner and his tenant were comfortable with. Mr. Cohen noted the City
would be getting compensated for giving up its right to use its property in other
ways. He stated he had heard Mr. Berry's concerns before, and had agreed the issue
needed further work; however, he felt the City had done that, having left the
opportunity within the Ordinance to address those concerns. Mr. Cohen stated he was
not certain what else Mr. Berry would have the City do, other than turn portions of
public property over to private property owners.
Mr. Berry stated the proposed Ordinance, at least as proposed and offered to his
tenant, contained no time limit; therefore, it was timeless, just as the current Use
Permit. Mayor Boro stated Mr. Berry had the opportunity, if The Broken Drum wanted
to expand, to come back for a Lease, which would allow him to develop that property.
However, in lieu of allowing them to develop the property, the City wanted to
eliminate having a Use Permit, and instead have a lease with a specified term, which
would be negotiated, based upon the applicant's needs and the cost to amortize.
Mayor Boro stated he felt the City had truly met Mr. Berry's concerns, and he did
not understand why Mr. Berry wanted to further "carve this out" and start all over
again.
Mr. Berry stated the License Agreement, as originally proposed, had no termination
date, although it did have a clause for termination upon the will of the City. Mr.
Berry felt that was like a political leaf floating in the air, noting no one ever
knows what is going to happen in the future with the Council, and whether they are
going to want to cause Fourth Street to become something different than what it is
now. Mayor Boro stated Mr. Berry could only deal with today, and if he did not want
to have a License Agreement, then he could enter into a Lease Agreement. Mr. Berry
stated it was one thing to call it something different; however, the terms had also
changed, with time limits on something that used to be of a permanent nature. He
noted this was also the first time he had heard of any kind of "consideration". He
pointed out he had personally paid for the sidewalk, not the City, and the
Redevelopment Agency had encouraged him to expand the sidewalk. He felt that was
consideration for the lease; however, the City was looking at a successful business,
and wanted to charge the business because it was successful. He asked if the City
was going to charge the other licensees rent, noting that if they did, they were
never going to get anyone to do anything.
SRCC MINUTES (Regular) 2/7/2000 Page 9
SRCC MINUTES (RP,1flar) 2/7/2000 Page 10
City Manager Gould stated that rather than negotiating a lease with Mr. Berry during
the Council meeting, staff recommended Council adopt the amendment to the Ordinance,
as presented. Mr. Berry requested Council carve this particular issue out, and
adopt the Ordinance without the expanded sidewalk areas, in order to provide an
opportunity to further define what exactly staff was trying to accomplish by this.
Noah Berry, owner and operator of The Broken Drum, stated that while he applauded
the Council for being bold and taking risks, this proposed amendment concerned him
for a number of reasons. He noted that in reading the background information in
the staff report, it seemed the main reason for the Zoning Ordinance amendment was
to avoid a potential property right claim through the issuance of Use Permits on
City property. Mr. Berry believed there was a way to overcome this, through an
amendment to existing Use Permits, stating that existing property owners and
business operators make an express claim, in an amendment, that no past, present or
future property right claims can be made on outdoor eating areas on City property.
Mr. Berry believed this would solve the property right claims issues, rather than
adopting the draft Ordinance amendment. In addition, he pointed out the terms of
the existing Use Permits state the parameters within which an operator may conduct
business, and if the parameters are not met, or if the operator is being a nuisance,
the Use Permit can be revoked. Therefore, he believed those issues were satisfied,
and there should not be a property right issue if anyone choosing to operate a
business on City property makes those claims. Mr. Berry, also noted the City, in the
General Plan, was trying to create an "Alive After Five" atmosphere in the Downtown,
and he believed, in order to do this, the City had to allow successful operators to
make an additional investment within the City, and within their successful
operations. He stated he ran a successful operation, he did not believe he was a
blight on the City, and he felt he brought a lot to the City, contributing to the
tax base by bringing more people Downtown and creating a "scene" for people to come
to, to spend their money and enjoy the scene in Downtown San Rafael. Mr. Berry.
believed this Ordinance amendment would create great insecurity for existing and
potential future operators to do business in Downtown San Rafael. In addition, he
noted he, himself, financed his business through a Small Business Administration
loan, and the terms of his loan state that any agreements, licenses, or leases he
engages in must be approved, even those he engages in subsequent to receiving his
initial SBA loan. Therefore, this amendment could potentially revoke his existing
financing, and would potentially affect the financing of any future expansion he may
choose to do. Mr. Berry believed this amendment would make anyone reluctant to
invest money in the City, and that, in turn, would negatively affect future tax
revenue, which was something he felt should be a consideration of the Council.
Regarding the proposed Lease Agreement, Mr. Berry pointed out there were no specific
terms, noting it was so ambiguous he urged Council to either not adopt it, or send
it back to staff for further specification of a year 2000 lease term, per square
foot or per seat, so any operators attempting to expand in the City would have some
kind of hard figures to go on. Mr. Berry urged Council to make it easy for
successful businesses to do business in this community. He stated he really enjoyed
his operation, as he believed many other people did, and he felt the proposed
amendment was going overboard. He asked Council to put themselves in the operators'
shoes, and see what this amendment had the potential to do, noting it basically put
a rug underneath an operator that could potentially be pulled out at any time.
Councilmember Phillips asked why there was such a great reluctance, noting that if
the operators negotiate a lease, they are accustomed to doing that, as any business
is. He stated if he were an operator, he would not want the City to specify for
him, as an operator, whether it was a two-year, five-year, or ten-year lease, he
would want to negotiate that himself. He believed it would be less advantageous for
the City to specify the terms of the lease, because the users may have different
needs, one from the other. Therefore, he asked why Mr. Berry would not want the
flexibility staff was offering, as he believed that was the most advantageous? Mr.
Berry stated the Lease Agreement was not appropriate. Mr. Phillips asked why, if he
was going to establish a lease, it would not be appropriate to have more flexibility
in the terms of the lease regarding the length of time, than less flexibility? Mr.
Phillips noted the City could pick ten or fifteen years, which might not be
appropriate for him, and he could not understand why Mr. Berry would object to more
flexibility, rather than less. Mr. Berry stated he objected to the whole idea of a
Lease Agreement. Mr. Phillips clarified that Mr. Berry wanted no lease, and Mr.
Berry stated he believed a lease was the wrong way to go, noting he believed the
City should amend the existing Use Permit on a case by case basis, with amendments
that were concurrent with what Planning staff deemed appropriate.
There being no further public comment, Mayor Boro closed the public hearing.
Mayor Boro stated that in reading the staff report, Council had already agreed to
the fact that the City was going to eliminate Use Permits, with the idea of going to
a License. Therefore, he noted the Council had already had this debate, and he did
not believe it should be started all over again. He stated the only difference that
had come up was the issue of a License Agreement versus a Lease Agreement, and he
SRCC MINUTES (Regular) 2/7/2000 Page 10
SRCC MINUTES (RF-ilar) 2/7/2000 Page 11
believed staff had provided for great flexibility with a lease. Therefore, he
believed the City was supporting what the property owners were trying to do.
However, as Councilmember Cohen had pointed out, this was public property, and the
City had a right to say something about its use, and to be compensated, to some
degree, for its use.
Councilmember Heller asked if there was any disagreement on the compensation, or
would that be only a minimal amount of money? Mr. Parsons stated that if a Lease
Agreement were proposed between a restaurant operator and the City, staff could
bring Council information regarding what it might be valued at, in comparison to
other cities, noting some charge by the seat, and some by the square footage of the
outdoor area. In addition, staff would also look at the amortization of the
operator's investment into the property. Community Development Director Brown noted
staff would also take into consideration any other public improvements the property
owner may have installed previously.
Councilmember Cohen asked for further information regarding design review, noting he
was not clear on where the license procedure required design review. He pointed out
there was reference to administrative design review, but it appeared that paragraph
had been struck, so the requirement by even administrative design review seemed to
be eliminated. He asked where in the amendment, or the Ordinance, it stated that
design review was explicitly required at some level, be it administrative or
otherwise? Mr. Parsons explained that in the Performance Standards for Outdoor
Eating, which was included in the staff report as an attachment, there were several
performance standards, which covered such things as the types of fixtures that can
be placed on the site, refuse, whether chairs or umbrellas would be used, and
whether or not there were permanent or moveable planters or pots. Mr. Parsons
stated it was staff's intent that any License Agreement would cover the aesthetics
of the fixtures. Councilmember Cohen referred to the Standards listed in the staff
report, citing Standard #11 which states, "Downtown Parking Assessment District -
Outdoor eating areas in the Downtown Parking Assessment District shall be conducted
as part of a legally established food service establishment, and must comply with
standards (1), (9) and (10) above, and require an Administrative Design Review
Permit". However, Mr. Cohen pointed out license language in what Council was being
asked to adopt in the amendments to Division 6 and Section 14.16.227, state that a
"License can be in a form approved by the City Attorney, including the applicable
standard provided in Section 14.17.110", which is the eleven Standards he had
referred to. However, the paragraph prior to that, Paragraph "A" states"...which
License Agreement shall be in lieu of any environmental design review permit, use
permit, administrative use permit, encroachment permit or other permit required for
use of the City sidewalk or right-of-way for such purpose". He felt perhaps the
City Attorney needed to clarify this, because those two statements seemed to be in
contradiction. He pointed out the one in the staff report, 14.17.110 C-11 states
there needs to be an administrative design review permit; but the paragraph
immediately preceding states that if the owner or operator has this license, they do
not need any permits. He stated the Ordinance was very unclear, as it states two
different things in two different places; therefore, he felt the question was a good
one, and he wanted to see it clarified in the revisions, or in some other way. He
suggested adding to one of these paragraphs wording that specifically includes the
requirement of an administrative design review permit, noting he felt that would
satisfy the question that has been raised.
Deputy City Attorney Eric Davis stated he believed the section which makes reference
to a design review permit was being stricken from the Ordinance. Mr. Parsons noted
they were referring to the Applicability section, which refers to design review and
use permit. He reported that section was actually being modified by the Ordinance,
noting that in Division 4-B, the intent was to get rid of use permits. Mr. Davis
stated it was his understanding that the purpose of staff's intention of eliminating
both ED and Use Permits was because in the language of the Ordinance, the general
provision as to ED and Use Permits speak to these permits running with the land, and
inadvertently, when the Ordinance was originally adopted, the way it read suggested
that granting an ED Permit or a Use Permit relating to the City sidewalk areas would
somehow run with the land, which it cannot, as the City cannot give private property
owners the property rights to City property. He stated an ED Permit or a Use
Permit, whatever it is called, is not going to give anyone a property right that is
going to run with the land; therefore, staff has eliminated those entirely.
Instead, there will be either a license or a lease, and the City, as the property
owner, will determine what that will entail, and what performance standards will be
applied to both private property and public property. He stated, in general, the ED
Permit is "out the window", as is the Use Permit, as it relates to City sidewalk
areas.
Councilmember Cohen stated he understood this; however, the question was raised
during public comment as to what happens to design review? He asked, if the City
tells someone their proposal does not meet the City's design review standards, and
they point out that the Ordinance does not require them to do that, can the City
then not give them a license? He asked what would justify that, and if they meet
SRCC MINUTES (Regular) 2/7/2000 Page 11
SRCC MINUTES (RF -10 ar) 2/7/2000 Page 12
all the other standards and requirements, but refuse to comply with the City's
design review standards, where does the City have the "teeth" to require them to do
so? Mr. Cohen stated it did not have to be an ED Permit, but there should at least
be an administrative review regarding the issue of design, should the City ever get
to Downtown design standards. Mr. Davis referred to Section 14.16.277, Item "C",
which states, "Such license agreement also shall be subject to such regulations
hereafter deemed necessary by the Community Development Director to protect the
public health, safety and welfare, and as approved by Resolution of the City
Council". Mr. Davis believed this was intended to provide a mechanism if the
Community Development Director felt there needed to be standards, of any kind, and
to allow staff to bring issues of design, safety, or any other issue back before the
Council.
Councilmember Cohen clarified that Mr. Davis was stating that if staff decided a
project needed an administrative design review, it could be brought back, and
Council could revise the Resolution or the Ordinance. Mr. Cohen felt there should
be a way to include that in the amendment, so it explicitly states that if someone
is going to get a license or a lease for this kind of improvement, they are going to
have to go through some kind of administrative design review. He asked if there was
some way this could be included so it explicitly states that if someone is going to
get a license or a lease for this kind of improvement, they have to go through an
administrative design review process? Mr. Davis cautioned that the City's
Environmental Design provision indicates that it runs with the land. He believed
the City could get where it wanted to go by adopting some design criteria, which
could be applied when approving any license or lease, but not to come back into the
design review approval process, as that brings them back to the situation whereby,
if they approve a design review permit, it runs with the land.
Mayor Boro felt more clarity was needed, noting he would like to get the sense of
the Council, to help staff in directing their efforts. He believed the issue, as
Councilmember Cohen had pointed out, was that whether it is a lease or license, the
City will want the ability to have some design review, and that needed to be woven
into the Ordinance amendment. Councilmember Cohen stated he would prefer that the
specific design standards the City wanted to use were not spelled out in the
Ordinance, because any time the City modifies its design standards, the Ordinance
would also have to be revised. He agreed that rather than trying to resolve the
issue at this time, that Council refer the item back to staff for further review.
Mr. Davis noted the design standards could clearly be done by Resolution, without
having to affect the Ordinance. He felt that had been the intention of Section "C"
stating it would allow Council to do that by Resolution, and would not require an
Ordinance revision.
City Manager Gould suggested staff bring this item back for further consideration at
the next City Council meeting.
Councilmember Cohen stated he was ready to comment on the license versus lease
versus Use Permit issue, and find whether Council was close to consensus on that.
In addition, he stated if it was possible to bring this issue back on the Consent
Calendar, he would be prepared to accept staff's assurance that the design issue had
been addressed, although he acknowledged he was not certain that could be done
without reopening the public hearing. He did not feel that Council needed to
address all the issues again. Mayor Boro asked if the other Councilmembers were
looking for revisions on any other issues related to this Ordinance amendment?
Councilmember Miller stated he wondered about the levels of design review, noting
this issue concerned permanent structures in the middle of the Downtown; therefore,
he believed the design review should be of the highest level, and should go to the
Design Review Board itself, not have simply an administrative design review. Mr.
Miller did not feel this would be burdensome to the Design Review Board, because
there would only be a limited number of these instances; however, on the other hand,
it would give the City a sense of really protecting the Downtown. He pointed out
San Rafael's Downtown was different from other cities, because of its diversity,
which was one of the basic components of the Downtown Vision. He believed the
diversity component in the Vision almost demanded that the City protect that
diversity, and have quality design.
Councilmember Heller asked for clarification, noting she had understood Deputy City
Attorney Davis to state that if the City went to design review standards, then the
City would also be dealing with the issue of the use running with the land, while a
license or a lease took it out of that realm. Mayor Boro acknowledged that Mr.
Davis had stated that was the case; however, the Council was stating that for the
right of obtaining a lease, the City was expecting a certain level of design. Mr.
Davis stated the City could certainly have a design process, they just had to make
certain that the design approval process was not the same type as that currently
stated in the City's Zoning Code, which is an ED review process, and as such, runs
with the land, creating the controversy of some type of property right that the
applicant would have, as opposed to City property which is not restricted or
SRCC MINUTES (Regular) 2/7/2000 Page 12
SRCC MINUTES (RP-ljlar) 2/7/2000 Page 13
encumbered. Mr. Davis stated that if the City wanted to put together an ED process,
he would recommend the Council refer that specific issue back to the Planning
Commission for their review and consideration, and language that would provide a
process whereby the Council could consider it at a future meeting.
Mayor Boro asked why there could not be a requirement for a lease or license to have
design review, and have it go only with the lease or the license, and when the lease
or license dies, that is the end of it? Mr. Davis stated that is because the
language in the City's Ordinance indicates the approval of an ED Permit runs with
the land. The whole problem with tying this into an ED Permit or a Use Permit is
that it suggests the private property owner has some right that it runs with the
land, and it does not, as it is the City's property. Mr. Davis clarified that was
not to say the City could not have some design review, but it would be a different
kind of design review.
Councilmember Cohen stated he believed it was important that the City have the
ability to impose design guidelines, and make sure any proposed permanent structure
is in keeping with design guidelines. He stated he did not want to make this overly
onerous, and he was a little concerned that having to go through Design Review Board
hearing for a small covered seating area may get to that point. He felt it may not
justify going to the Design Review Board, and he would be comfortable in knowing
that staff had the ability to review it, and if the property owner was not satisfied
with staff's decision, they would have the ability to take it up with the Planning
Commission or the Council. He stated he was not sure he would agree that the City
should require, in order to obtain a License Agreement, that someone would have to
go through a hearing process before the Design Review Board. Community Development
Director Brown stated that when staff reviews this issue, they will compare it to
what would be required for a small expansion of the building itself.
Councilmember Phillips stated reference had been made to Terra Linda, and he was not
certain how far this traveled, noting staff had referred to the two sites, perhaps
three, in San Rafael, and he was unclear on what the scope was, and whether it was
extended throughout the City, rather than just two or three locations in the
Downtown. He wondered about the degree of review, as it related to the visibility
of the sites. Mr. Brown stated certain portions of the Ordinance, such as No
Parking, would apply to the Downtown Assessment District, which covers the three
sites they have been discussing. However, the general provisions are being
broadened for the entire City, for use on private property, as well. He noted a
good example was Gianni's Italian Restaurant, explaining they had done a permanent
expansion, and it was very much a permanent set-up; however, under the current
Seasonal Outdoor Eating provision, it could not be classified as such, as they had
to go 'round and 'round with the provisions of the Ordinance. Mr. Brown stated this
amendment would actually broaden things for private property, as well, noting in
those instances they did not have the same constraints regarding design review, and
the City would also require additional parking, because it is a permanent use.
Councilmember Cohen stated he was comfortable with referring the issue of design
review back to staff, and asking them to come back to Council with a recommendation
as to how to handle the design issues.
Mayor Boro asked the Councilmembers if there was any sentiment toward changing any
other part of the Ordinance, based on this discussion? There was not.
Councilmember Cohen stated he believed the Council had provided a lot of
flexibility, and he was very happy with what staff had brought forward, other than
the design issue.
There being no further discussion, Mayor Boro again closed the public hearing.
OLD BUSINESS:
14. RESOLUTION APPROVING POLICY AND WARRANTS FOR THE INSTALLATION OF SPEED HUMPS ON
RESIDENTIAL STREETS (PW) - File 11-1 x 11-11 x 11-12 x 9-1-2
Public Works Director David Bernardi explained staff was presenting two recommended
actions; one was to approve the pilot project Council had approved in 1999, and the
second was a Resolution for adoption, which also included the standards to be used
in the future for speed humps on other residential streets.
Referring to Exhibit 1, Mr. Bernardi noted it gave a "before and after" picture of
what happened on Belle Avenue in the vicinity of Coleman School. He explained that
vehicle counts had been reduced by approximately 238 cars, which meant the vehicles
that were diverting off of Highway 101 and Grand Avenue were now back where they
were supposed to be, rather than on Belle Avenue. In addition, vehicle speeds had
been reduced by roughly six miles per hour, which he noted was significant, having
dropped from 34 mph to 28 mph. Mr. Bernardi stated staff had also dealt with the
issue of emergency response times. He reported Traffic Engineer Nader Mansourian
SRCC MINUTES (Regular) 2/7/2000 Page 13
SRCC MINUTES (Rr--ilar) 2/7/2000 Page 14
conducted a study with Fire Department vehicles, both before and after, and the
total length of time was approximately 15 seconds longer, because the vehicles had
to slow down to approximately 10 miles per hour over each speed hump. Mr. Bernardi
stated that was felt to be acceptable by the Fire Department. Referring to the
After Speed Hump Survey, Mr. Bernardi noted the results indicated a very favorable
response, the residents were happy with the speed humps, and they would recommend it
to be used in other parts of the City.
Mr. Bernardi referred to Attachment "A" of the Resolution, which addressed the
actual Speed Hump Installation Policy. He explained this was basically the same
policy Council provisionally approved in April, 1999, in order to allow speed humps
to be installed on Belle Avenue. He stated the process outlined in the resolution,
as well as the standards, worked very well on Belle Avenue, and staff would plan to
use the same procedure in other areas, as they receive additional requests for
installation.
Councilmember Cohen referred to the issue of Warrants, noting that when the
Residential Stop Sign Warrants were done, a clause was included for factoring in
high pedestrian counts, such as near schools. He asked if that had been done in
this case, and if it was something staff might want to consider factoring in?
Traffic Engineer Nader Mansourian explained that speed humps were installed to
reduce the speed of the cars, and staff only dealt with cars that were traveling on
the roadway. Actual pedestrian conflicts were not considered. Councilmember Cohen
asked if it would make sense where an area, for a variety of reasons, might not be
appropriate for a stop sign, and might instead be appropriate for this treatment,
where the City wants to reduce speeds because there are more pedestrians? He asked,
if there is a higher number of pedestrians, particularly children in a school area,
or a path of travel to school, would it make sense that the City might want to
consider lowering speeds if there was a speed problem where there are a lot of kids
trying to cross the street? Mr. Mansourian stated that had been the case with Belle
Avenue, explaining there had been high traffic volume in a residential area, near a
school zone, yet it was not a high volume roadway.
Mayor Boro stated there were 238 cars that were no longer going up Belle Avenue,
either going up Grand or Rafael Avenues, and no longer going through the
neighborhood. He noted that when staff reviews the criteria for installing a speed
hump, they are interested in getting the reaction of the neighbors on the streets
where the speed humps will be installed. In this instance, he pointed out the
vehicles were likely now going up Grand Avenue, which was pretty much a
thoroughfare; therefore, an additional 238 trips over the period of a day would not
be too significant or noticeable. He asked, if there was another street, which was
a slow street, and traffic was diverted to a nearby adjoining street, wouldn't those
neighbors have an interest in what the City was doing on that adjoining street, and
how would staff get their input? Mr. Bernardi stated one of the things Mr.
Mansourian does is to analyze what happens when cars do divert. He noted, for
example, when stop sign installations are reviewed, it is noted that this might
divert cars to another street, and staff makes sure that the impact of doing
something in one locations does not create a problem in another location.
As an example, Mr. Mansourian reported that with Belle Avenue they had anticipated
some of the cars would go back to using Highway 101, and some would use Grand
Avenue, noting the numbers were very low, approximately 20 - 22 cars per hour. He
stated staff does consider the parallel roadways to which these devices will shift
the traffic, and also contacts the neighborhood associations, asking for their input
in analyzing the situation.
Councilmember Heller stated she was certainly in favor of expanding this to other
areas of the City, noting the Sun Valley Neighborhood Association Traffic Committee
would like to become the next area to be considered, perhaps on Fifth Avenue. Mr.
Mansourian stated they were on the list.
Steve Patterson, Chairman of the Federation of San Rafael Neighborhoods, stated they
applauded the work Mr. Mansourian has done in relation to the speed humps, and
believed he had done a terrific job in terms of reaching out to the neighborhoods.
Mr. Patterson reported that approximately six months ago, several members of the
Federation, along with other San Rafael residents, attended a two-day workshop
entitled, "Creating Walkable Communities", and one of the components of the workshop
dealt with traffic calming techniques. He encouraged Mr. Mansourian and the Council
to support not only the extension of speed humps, where it makes sense, but also to
look at other techniques and tactics that could be used, such as roundabouts or
circles, raised planted medians, strategically placed and planted trees, and bike
lanes. He pointed out these were just additional tools that could be added to the
City's tool box. In addition, Mr. Patterson reported there was a terrific website,
www.walkabout.org, which addresses these issues, and he encouraged the Council and
staff to check it out.
SRCC MINUTES (Regular) 2/7/2000 Page 14
SRCC MINUTES (R, -filar) 2/7/2000 Page 15
Linda Bellatorre, member of the Federation of San Rafael Neighborhoods, also thanked
Mr. Mansourian for his forward thinking, and for coming to so many meetings and
listening to their concerns and answering their questions. She noted he had also
attended several joint City/Federation meetings, where the residents were able to
have smaller, private discussions with him, and she very much appreciated that. Ms.
Bellatorre noted Mr. Mansourian was really progressing, and stated she particularly
liked the timing of the signals on Fourth Street.
Albert Barr, representing the Loch Lomand Homeowners Association, thanked the
Dominican Neighborhood Association for raising this issue with the City. He noted
some years ago he had been asked by residents on Manderly Way to raise this issue
with the City; however, he had been discouraged from pursuing the issue because it
was felt that speed humps would slow down the response of emergency vehicles. Mr.
Barr stated his Association had not yet decided whether they would request that the
City install speed humps noting they wanted to conduct their own survey first, a
survey which would include not just the residents of Manderly Way and Lochinvar, but
all the residents of the entire neighborhood, because they will all use those
streets.
Mr. Barr stated he was concerned with some of the conditions. He asked if all three
of the conditions had to be met or, if the first condition regarding volume was met,
then only one of the other two primary conditions had to be met? Mr. Mansourian
stated that once the condition regarding traffic volume was met, then one of the
other two conditions had to be met. Regarding the issue of volume, Mr. Barr stated
he understood staff liked to have clear direction before beginning the process of
initiating speed humps. However, he suggested the wording be changed to provide
staff with certain flexibility when considering speed humps. He felt it should be a
more reasonable number, depending upon the traffic and speed problems that actually
exist. He stated they likely would not reach 1,000 cars on Manderly Way or
Lochinvar; however, they did have a lot of speeding cars, especially in the morning
with kids going to school. He reported the Association had raised this issue in
their newsletter, asking parents to discuss the issue with their kids. In addition,
they have asked their neighborhood beat officer to monitor these two roads, and also
asked the Public Works Department to install a "Slow Traffic - Children at Play"
sign, but they were informed these signs were no longer permissible.
Mayor Boro asked about the criteria for installing speed humps. Mr. Mansourian
stated the criteria for volume was between a minimum of 1,000 and a maximum of 5,000
cars, based on research conducted by all cities. He explained areas with more than
5,000 vehicles were too congested to use speed humps, and they were not very
effective in areas with less than 1,000 vehicles. Mr. Mansourian reported that
since discussing this issue with Mr. Barr, he had contacted the cities of Portland,
Oregon and Sacramento, California to discuss their findings. He noted that in the
City of Sacramento, in areas where the streets were too wide and they were
experiencing a lot of speeding, they reduced the volume requirement to between 400
to 500 vehicles, which proved successful in one area, but was unsuccessful in two
others. The City of Portland reported their minimum criteria was at least 1,000
vehicles.
Mayor Boro asked if there was any flexibility in the number of vehicles required?
Mr. Mansourian stated the criteria had been established to require that the volume
warrant had to be met first, which was at least 1,000 vehicles, and once that
criteria was met, they would have to meet the criteria for either speeding or
accident history. However, the volume was the most critical element. Mayor Boro
asked what would happen if a neighborhood did not meet the criteria for volume, but
they felt they had a problem and they were willing, as a neighborhood, to have speed
humps installed to effect slower speed? Mr. Mansourian stated that if an entire
neighborhood signed up and stated they wanted speed humps, staff would have no
objections. Public Works Director Bernardi stated staff would work with the
neighborhoods, and if they had specific concerns that could not be addressed through
enforcement or other traffic calming means, the City would not rule out looking at a
lower number of vehicles. He stated staff would like to use the minimum of 1,000
vehicles as the standard, and allow Mr. Mansourian to use his judgment in cases
where there are not 1,000 cars, noting if there were other issues to deal with,
speed humps might still be a tool he could use to solve their problem, if the
neighborhood agreed.
Mayor Boro asked, if Council adopts the Resolution with the current attachment
designating 1,000 vehicles, and then there was support from a neighborhood that did
not meet the criteria of 1,000 cars, what would it take for staff to approve such a
project? He wondered if an amendment would have to be made? Mr. Bernardi stated an
amendment would not have to be approved, pointing out this was not an Ordinance, it
was merely a standard to be adopted by the Council. Mr. Bernardi stated language
could be added which states the standard is 1,000 to 5,000, except in cases where
staff feels that less than 1,000 is warranted.
SRCC MINUTES (Regular) 2/7/2000 Page 15
SRCC MINUTES (Rr filar) 2/7/2000 Page 16
City Attorney Ragghianti noted that in the past, the Traffic Engineer's professional
judgment has been permitted to be exercised on this very issue. Therefore, he felt
that since it has been explicit, it should also be expressed that the Traffic
Engineer is charged not only with the responsibility, but also given the latitude of
making exceptions if, in his professional opinion, he believes it is appropriate.
Mr. Cohen suggested adding the statement, "In the event that all other criteria is
met, but the volume is not reached, if, in the professional judgment of the Traffic
Engineer it is warranted, they may proceed".
Councilmember Cohen moved and Councilmember Heller seconded, to adopt the Resolution
regarding residential traffic calming techniques, and approving the Residential
Street Speed Hump Warrants and Policy, as amended to allow an adjustment downward in
the volume if, in the professional opinion of the Traffic Engineer, it is warranted.
RESOLUTION NO. 10587 - RESOLUTION OF THE CITY OF SAN RAFAEL REGARDING RESIDENTIAL
TRAFFIC CALMING TECHNIQUES AND APPROVING THE RESIDENTIAL
STREET SPEED HUMP WARRANTS AND POLICY PERMANENTLY (With
Exhibit 'A' as amended, to allow an adjustment downward in
the volume, if, in the professional opinion of the Traffic
Engineer, such adjustment is warranted).
AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
NEW BUSINESS:
15. CONSIDERATION AND APPROVAL OF CITY COUNCIL APPOINTMENTS (CC) - File 9-1
Mayor Boro referred to the list of City Council appointments, and pointed out the
changes that had already been made for this year, reporting Councilmember Heller had
been elected Vice -Mayor and Vice -Chair of the Redevelopment Agency, and
Councilmember Phillips had taken Councilmember Heller's place on the Business Issues
Committee. City Clerk Leoncini noted the addition of a new Board, the Marin County
Transit District Board of Directors, on which Councilmember Heller would represent
the City. Mayor Boro asked if there were any other changes to suggest? City
Manager Gould noted the CATV (Cablevision Joint Powers Authority) was defunct, and
had been replaced by the Marin Telecommunications Agency.
The Councilmembers voted unanimously to approve the list of City Council
appointments, as amended.
COUNCILMEMBER REPORTS:
16. a. SOROKIN LAWSUIT FILED BY THE CITY - File 13-1 x 13-16 x 9-3-16 (Verbal)
Councilmember Miller reported he had been involved with City Attorney
Ragghianti in filing a complaint against Dr. Gideon Sorokin. He noted that in
reviewing the City's Ordinance and speaking with Marin Legal Aid, it had come
to their attention that one issue that was lacking in the City's Ordinance was
the payment of relocation for people who are forced to relocate because of the
abuse they receive from their landlord. He stated he had received from the
City of Napa a copy of their Ordinance dealing with relocation, noting he had
since forwarded that information to Assistant City Attorney Guinan, asking him
to look into how San Rafael might begin to develop an Ordinance that would
cover relocation costs from a recalcitrant landlord.
There being no further business, the City Council meeting was adjourned at 10:10 PM.
JEANNE;/ '. LEONCININI, City Clerk
APPROVED THIS DAY OF
MAYOR OF THE CITY OF SAN RAFAEL
2000
SRCC MINUTES (Regular) 2/7/2000 Page 16