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HomeMy WebLinkAboutCC Minutes 1990-03-05SRCC MINUTES (Regular) 3/5/90 Page 1 - IN CONFERENCE ROOM 201 OF THE CITY OF SAN RAFAEL, MONDAY, MARCH 5, 1990, AT 7:00 PM. Regular Meeting: CLOSED SESSION CLOSED SESSION TO DISCUSS LITIGATION - File 1.4.1.a 1. No. 90-5(a) - (#1) - Kenneth Massa vs. City of San Rafael No. 90-5(b) - (#1) - Michael Williams vs. City of San Rafael No reportable action was taken. IN THE COUNCIL CHAMBERS OF THE CITY OF SAN RAFAEL, MONDAY, MARCH 5, 1990, AT 8:00 PM. Regular Meeting: San Rafael City Council Present: Lawrence E. Mulryan, Mayor Albert J. Boro, Councilmember Dorothy L. Breiner, Councilmember Michael A. Shippey, Councilmember Joan Thayer, Councilmember Absent: None Also Present: Pamela J. Nicolai, City Manager; Gary T. Ragghianti, City Attorney; Rose Lola Sniffen, Deputy City Clerk Mayor Mulryan announced that at a special meeting held earlier in the evening, Council appointed William McClure to the Relocation Appeals Board of the Redevelopment Agency. CONSENT CALENDAR Councilmember Breiner moved and Councilmember Thayer seconded, to approve the recommended action on the following Consent Calendar items: Item 2. Approval of Minutes of Regular Meeting of February 20, 1990 (CC) 3. Call for Applications to Fill Two Positions on the San Rafael Fire Commission (CC) - File 9-2-5 a. One Unexpired Term to End of March, 1992. b. One 4 -Year Term to End of March, 1994. 4. Resolution of Appreciation for Fred McClendon, Deceased Former Member of the Cultural Affairs Commission (Cult.Affs.) File 102 x 9-2-24 5. Resolution to Accept Grant of $3,600 from the California Arts Council in Support of Exhibitions and Programs (Cult.Affs.) - File 4-10-241 7. Resolution of Appreciation to Peacock Gap Garden Club Commemorating Arbor Day Celebration March 9, 1990, Planting of Trees at Falkirk Cultural Center (PW) - File 109 8. Report on Bid Opening and Award of Bid for Playground Equipment for Victor Jones Park and Gerstle Park (Rec) - File 4-2-246 9. Second Reading and Final Adoption - Ordinance No. 1584 - An Ordinance of the City of San Rafael - Amending Ordinance No. 1564 Entitled, "Mobilehome Rent Stabilization Ordinance" to Include Owners of Leased Property (CA) - File 13-7-1 Recommended Action Approved as submitted. Approved staff recommendation to call for applications, with deadline for receipt Tuesday, March 27, 1990, 12 Noon, City Clerk's Office. Date for interviews, including incumbent, at Special Council meeting on Monday, April 2, 1990 at 6:30 PM. RESOLUTION NO. 8130 - RESOLUTION OF APPRECIATION IN MEMORY OF FRED McCLENDON, FORMER MEMBER OF THE CULTURAL AFFAIRS COMMISSION RESOLUTION NO. 8131 - AUTHORIZING THE SIGNING OF A CONTRACT, LEASE OR AGREEMENT (With California Arts Council, Grant #089-152, MBO -213, $3,600 for Falkirk Cultural Center) RESOLUTION NO. 8132 - RESOLUTION OF APPRECIATION TO PEACOCK GAP GARDEN CLUB (Commerating Arbor Day March 9, 1990, by Planting of Trees at Falkirk Cultural Center) RESOLUTION NO. 8133 - AUTHORIZING THE PURCHASE OF TWO LOTS OF PLAYGROUND EQUIPMENT, ONE FOR VICTOR JONES PARK AND ONE FOR GERSTLE PARK FROM E. P. FINIGAN, INC. (Victor Jones Park $13,213, and Gerstle Park $20,480) Approved final adoption of Ordinance No. 1584. SRCC MINUTES (Regular) 3/5/90 Page 1 SRCC MINUTES (Regular; 3/5/90 Page 2 1O.Second Reading and Final Adoption - Ordinance No. 1585 - An Ordinance of the City of San Rafael - Amending Title 5, Chapter 5.40 of the San Rafael Municipal Code Entitled, "Stopping, Standing and Parking in City Streets" and Adding Section 5.40.230 Entitled, "Parking Vehicles Exceeding Six Feet in Height in City Streets (PW) - File 11-8 11. Claims for Damages: a. Pauline Chazankin (PW) Claim No. 3-1-1445 b. Lauretta Spito (PW) Claim No. 3-1-1451 c. Harry Rodrigues (RA) Claim No. 3-1-1460 d. Sheri D. Murphy (RA) Claim No. 3-1-1468 AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: Approved final adoption of Ordinance No. 1585. Approved Insurance Consulting Associates, Inc. recommendation for denial of Claims a & b. Approved City Attorney's recommendation for denial of Claims c & d. Boro, Breiner, Shippey, Thayer & Mayor Mulryan None None The following item was removed from the Consent Calendar for discussion: 6. RESOLUTION APPROVING COST INCREASE ADDENDUM TO STUDY AGREEMENT - CORPS OF ENGINEERS CANAL FLOOD STUDY (PW) - File 12-9 Public Works Director Bernardi briefed the Council, stating that the City of San Rafael is currently engaged in a "Cost Sharing Agreement" with the U.S. Army Corps of Engineers to perform a Flood Control Study on the San Rafael Canal. He added that the Corps has recently informed staff that the scope of the Study will have to be expanded as the result of new information received since the beginning of their study effort in October 1988. Mr. Bernardi then outlined the expanded services and their associated costs, of which the City is responsible for 50%. He informed the Council that the Hydrology and Hydraulics has been increased by $6,000; Fish and Wildlife Studies by $3,500; Plan Formulation by $12,000; Management Review, a new task, for $13,000; Design, increased by $121,000, and Project Management, increased by $74,500. Mr. Bernardi noted that this is the second amend- ment to the original Cost Sharing Agreement, and that the City's financial obligation for this amendment will be approximately $115,000; and that a very small portion of that will be recouped through a credit for "in kind" services supplied by the City. Councilmember Boro expressed concern about how solid the figures are, and will they continue to change. Mr. Bernardi responded that this should be the extent of the changes, but that there may be some additional work as a result of the feasibility study. Jack Farless, Acting Deputy District Engineer for Project Management, Corps of Engineers, stated in reply to Mr. Boro's concern, that from what the Corps knows today these figures are firm, unless during the design stage something else develops. Councilmember Boro noted that the City's financial obligation of $115,000 is a substantial percentage increase. Mr. Farless noted that $121,000 is to fund additional engineering and design studies of the tide barrier plan. Councilmember Thayer questioned the $12,000 for funding the local citizens' planning Commit- tee meetings. Mr. Bernardi responded that part of that money is preparing publications and sending out public notices. Mr. Farless added that there are also costs of the prepara- tion time by hydrologists, ecological people, and Corps of Engineers staff, which are part of the process. Councilmember Boro moved, and Councilmember Thayer seconded, to approve staff's recommenda- tion and adopt the Resolution, but to ask that staff be sensitive to tonight's discussion and that if there are any increases they should be with specific details included, and with complete justification. RESOLUTION NO. 8134 - AUTHORIZING THE SIGNING OF AMENDMENT TWO TO THE AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE CITY OF SAN RAFAEL FOR THE GENERAL INVESTIGATIONS, FLOOD CONTROL STUDY, FEASIBILITY PHASE (total cost $970,000) SRCC MINUTES (Regular) 3/5/90 Page 2 SRCC MINUTES (Regular) )/5/90 Page 3 AYES: COUNCILMEMBERS: Boro, Breiner, Shippey, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None Special Presentation - File 109 Mayor Mulryan then presented Resolution of Appreciation No. 8132, to Peacock Gap Garden Club for their Arbor Day observance, to Regina Buchanan, 1989/90 President of the Club. Ms. Buchanan thanked Council, on behalf of the Club, and expressed appreciation for the cooperation of the Public Works Department and Parks Division. 12. PUBLIC HEARING - TO CONSIDER DEREGULATION OF DEBRIS BOX RATES (Fin) - File 4-3-32 Mayor Mulryan declared the public hearing opened. Finance Director Ransom Coleman briefed the Council, including background information. He stated that the court settlement with Grange Debris Box stated that San Rafael would regulate Grange Debris Box to the same extent that they regulate Marin Sanitary Service. He added that San Rafael is the only agency which regulates debris box rates, and must decide how to implement the regulation of the two companies if that is what the City wishes to do. Mr. Coleman referred to a memo from the City Attorney's office, which addresses concerns which were raised at the February 5th Council meeting. He stated that the problem of estab- lishing rates for two different companies can be resolved this year by accepting Grange's proposal to "piggyback" on Marin Sanitary's rates. He pointed out that Marin Sanitary does not rent 6 yard and 12 yard debris boxes, and Grange does not rent 5 yard, 10 yard, 18 yard or 40 yard boxes. He added that the rates for the 6 yard and 12 yard boxes would be based on Marin Sanitary's charge for 5 yard and 10 yard boxes, plus a $12 dump fee for the larger boxes. He stated that Grange agrees to charge the same rate for their 20 yard box that Marin Sanitary charges. Mr. Coleman stated that this method of setting rates for 1990 is acceptable to both Marin Sanitary Service and Grange Debris Box, but he still does not know what financial impact these rates will have on Grange without a rate study. He added that, at some point, Grange Debris Box will have to subject itself to the same regulatory process that Marin Sanitary is subject to, which would mean that Deloitte & Touche would perform a rate study of Grange Debris Box at Grange's expense. He stated that the City would then either have to set a single rate which is fair to both companies, or different rates which would provide an equal return for both companies. He noted that, in any case, it would appear that the rates approved by the Council are only maximum, and that both companies could charge less if they wished to do so. He added that the City could, if it wished, amend the present agreement to provide for a minimum as well as maximum rate. In conclusion, Mr. Coleman stated that Deloitte & Touche have indicated that they would prefer that San Rafael continue to regulate debris box rates because of the interrelation- ship with its other divisions. He added that their review of Marin Sanitary will still involve separating the revenues and expenses for debris boxes and garbage collection, regardless of whether the debris boxes are regulated. He stated this would not be a problem, since Marin Sanitary already has one unregulated division. Mr. Coleman stated that Deloitte & Touche also feel that if the City continues to regulate debris boxes they would have some control over where the debris boxes are dumped, and that in the future it may be important to make sure that the material in debris boxes is recycled when practical. Mr. Coleman noted that this may be accomplished without regulation if it becomes an issue. Mr. Coleman stated that both Marin Sanitary and Grange Debris Box have expressed no strong feelings about regulation versus deregulation. He noted that if the City deregulates the market will determine the rates, and if this becomes unacceptable regulation could be reinstated. Councilmember Thayer inquired, if the City deregulated, would it make any difference in allocations, and Mr. Coleman responded that Deloitte & Touche would continue to allocate costs and make recommendations. He added that even if we deregulate they would do the same analysis as they do now, but we would not be setting debris box rates. Councilmember Boro noted that in the February 8, 1990 letter from Deloitte & Touche Mr. Gilberg makes reference to regulations which mandate increased recycling. He inquired how this could be regulated. Mr. Coleman responded that in paragraph two on the second page of the revised 24th Amendment, there is a prohibition against any third party having the right to provide debris box service within the jurisdiction of the City Council, without formal approval by the Council. He stated that same paragraph states that the City Council further reserves the right to continue to regulate the debris box waste stream. He added that the City will still have some control over the dumping of garbage. He stated that in the future we will have to recycle about 50% of the garbage collected, and this paragraph reserves the right of the Council to have some control over that process. SRCC MINUTES (Regular) 3/5/90 Page 3 SRCC MINUHTES (Regular, 3/5/90 Page 4 Attorney Albert Bianchi, representing Marin Sanitary Service, stated that this matter has been studied very carefully, and that at times he thought regulation was better, and then deregulation. He noted that Marin Sanitary is regulated by four other jurisdictions, none of which regulate the debris box service. He noted that deregulation would give it continuity and uniformity. He stated there has been no problem in the jurisdictions which do not regulate, and also noted that different size boxes make comparisons difficult. Mr. Bianchi stated that the City would retain all of the authority over the operation of Marin Sanitary, and noted that if the City deregulates now they can at any time reverse its position. He added he does not see any down side to deregulation. Councilmember Breiner expressed concern that when setting residential and commercial rates could we still indirectly be setting a debris rate. Mr. Coleman responded that income derived solely from garbage collection will be reviewed in its own right. The debris boxes could be left unregulated and the costs would still be allocated to each of Marin Sanitary's divisions. Councilmember Boro inquired if Marin Sanitary would have separate people and separate trucks handling the garbage and the debris boxes, with a complete partition within the company. Mr. Bianchi responded that Marin Sanitary does not need to do that; however, the garbage operation and debris box operation will have some cross-over. The personnel and equipment could be the same, and the costs will be allocated. Mr. Boro noted there would be competition for the debris boxes and none for the garbage. Marin Sanitary owner Joe Garbarino noted that the debris boxes being discussed are those for homeowners, and not those rented to restaurants and large businesses. He stated he would like to deregulate and compete. He showed the Council photographs of the various types and sizes of debris boxes, and explained their varied uses. He also noted that there would be no cross -overs because they have separate vehicles. Mr. Robert Drach of Deloitte & Touche addressed the Council, stating that the advantage to continuing to regulate would be having the continued information regarding the cost structure. He stated information will be available and will be reviewed on a regular basis. Mayor Mulryan stated it is his understanding that if the City deregulates the small debris boxes that Deloitte & Touche will still continue to review them. Mr. Drach replied in the affirmative. Mr. Boro asked would the debris boxes still be indirectly regulated, and Mr. Drach replied in the affirmative. He stated they will be indirectly looking at the cost structure. Ms. Nadine Mueller, Chief Financial Officer of Marin Sanitary, informed the Council that they have a new system, and costs are set up for debris boxes, garbage, recycling and other facets of the operation, and it will be much easier to clearly define all of the costs. She stated it should not be an issue for the future, whether regulated or deregulated. Councilmember Breiner inquired how often it would be reviewed, and Mr. Drach responded it would be on an annual basis. Councilmember Thayer inquired if, when setting residential or commercial rates, will the City be indirectly regulating debris rates, and Mr. Drach responded it is a question of semantics, meaning it will continue to be reviewed, and noted it will not change the way that Marin Sanitary is now being reviewed. Mayor Mulryan closed the public hearing. Councilmember Breiner expressed concern regarding Item 10 of the settlement, as cited in the letter from the Assistant City Attorney, regarding regulation of the debris boxes. Mr. Bianchi responded that the City retains all of the powers they have today, and do not have to regulate rates in order to have control. City Attorney Ragghianti agreed. Mr. Coleman noted that staff's intent was to deregulate rates but to have all other controls remain. He stated there will probably be an agreement with Mr. Grange in the future to cover these other issues. Councilmember Shippey moved and Councilmember Thayer seconded, to approve the Resolution which will deregulate debris boxes. RESOLUTION NO. 8135 - AUTHORIZING THE SIGNING OF A CONTRACT, LEASE OR AGREEMENT (With Marin Sanitary Service, 24th Amendment to Agreement, to deregulate debris box rates) SRCC MINUTES (Regular) 3/5/90 Page 4 SRCCMINUTES (Regular) .,5/90 Page 5 AYES: COUNCILMEMBERS: Boro, Breiner, Shippey, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None Councilmember Boro noted that, although this issue was advertised in the papers, there was no input from the public. Mayor Mulryan responded that there was no disadvantage to the public in the action just taken, and that there was possibly an advantage. 13. PUBLIC HEARING - TS86-4 - APPEAL OF PLANNING COMMISSION DECISION OF AUGUST 29, 1989, APPROV- ING TENTATIVE MAP FOR 28 LOT SINGLE FAMILY RESIDENTIAL SUBDIVISION LOCH LOMOND #10, LAS CASAS & INVERNESS DRIVE; ROBERT B. HAM, INC., OWNER; OBERKAMPER & ASSOC., REP.; AP 186-031- 02 & 06, 186-520-17 & 18 (P1) - File 5-1-297 Mayor Mulryan opened the public hearing and stated this item was continued to meeting of March 19, 1990, per request by staff. 14. PUBLIC HEARING - ED88-121; APPEAL OF PLANNING COMMISSION'S DENIAL WITHOUT PREJUDICE OF APARTMENT PROJECT FOR FAILURE TO PROCEED WITH EIR; 157 WOODLAND AVE.; ROBERT J. COPPLE, OWNER & APPELLANT; PETER BREKHUS, ATTY., AND BRUCE PENDERGRAFT, REPS.; AP 13-114-19 & 20 (P1) - File 10-7 Mayor Mulryan declared the public hearing opened. Planning Director Pendoley briefed the Council on the history of the project, stating that on January 9, 1990, the Planning Commission voted unanimously to deny the proposed project without prejudice. He stated this action was necessary in order to avoid a possible automatic approval under the Permit Streamlining Act which provides a one-year time frame for completion of EIR . He added that the applicant is requesting that the City pay a portion of the EIR fee and the Planning Commission stated that this was a policy matter which must be addressed by the City Council. Mr. Pendoley stated that the project involves development of a 34 -unit apartment complex and one single-family residence. A density bonus of one unit is requested in exchange for designating 15% of the project as affordable to low and moderate income households. He added that the applicant has also stated that he expects to charge a rent affordable to moderate income households for the remainder of the units. Mr. Pendoley explained the rationale for a focused EIR being required, since the Planning Department's initial study concluded that the proposal could result in significant adverse impacts on the property and surrounding area. He added that the applicant, Robert Copple, contends that the project is already approved by operation of law and that requiring an EIR is not appropriate. Also, he is requesting a waiver of fees including the EIR cost based on General Plan 2000 Land Use Policy H-20. This policy provides for fast track pro- cessing and waiver/reduction of fees to projects which provide a minimum of 15% of the total units affordable to low and moderate income households for 40 years. Mr. Pendoley added that the applicant also feels the cost of the EIR is excessive. Mr. Pendoley stated that the staff does not feel that the consultant cost of an EIR is within the scope of Policy H-20. Also, in connection with the project being deemed approved because the City failed to act within 6 months from the date the application was accepted as complete for processing, the Planning Department and City Attorney's office contend that the six-month time frame applies to projects for which a Negative Declaration is adopted. Mr. Pendoley concluded by stating that Mr. Copple's attorney, Peter Brekhus, has instructed his client not to proceed with the EIR processing until the City has reduced the EIR fee. He noted that at this time, even if the City Council chooses to pay a portion of the EIR cost or waive the 15% administrative fee, the decision of the Planning Commission to deny the project without prejudice should be upheld. He noted that according to the Government Code, since the project was accepted as complete on February 27, 1989, the last meeting for the Planning Commission to certify the EIR would be on May 22 of this year, and that schedule obviously cannot be met. Attorney Peter Brekhus, representing the appellant, cited his views on approval by operation of law, and stated that they wanted to appear before the Council and discuss the matter of fast -tracking and waiver of fees, which he feels apply to this project. He referred to the General Plan Housing Goals and Policies, and stated that by providing affordable modern housing in the community they are abiding by the rules of the General Plan. He stated they have a difference with the staff regarding the processing of their application, and that they have gone before Design Review, did a density study, and he objected to the $39,000 for an EIR. He stated a drainage study was also requested, and a suggestion that an acoustical engineer would be required. Mr. Brekhus stated he saw nothing in the General Plan which said a waiver of fees did not apply to an EIR. He asked that the Council look at this in a practical manner and make a determination. He added he thinks it is within the City's powers to reduce or eliminate the add-on to EIR costs, and he feels the EIR cost could be reduced in half if it is not necessary to do a geotechnical report, drainage report or acoustical report, and added there is no need to address the impact SRCC MINUTES (Regular) 3/5/90 Page 5 SRCC MINUTES (Regular) 3/5/90 Page 6 on special services because there is no impact. He stated that this is an opportunity for the Council to say they are committed to public housing, and asked that the Council direct the staff that this project is entitled to some kind of preference. He noted this project is overlooking an industrial area, and no luxury homes will be built. Apelicant Bob Copple then addressed the Council, emphasizing that the project meets the criteria for affordable housing. He noted that in the past there was some criticism of their rendering, and explained that it was taken from the roof of a building, because otherwise you could not see the elevations. Councilmember Boro noted that in a letter dated March 5th, Mr. Copple mentioned six units affordable, and asked how he could guarantee that. Mr. Copple responded that they have done that before, with an agreement, and it worked. Attorney Fred Etzel, representing Mr. and Mrs. Darcy McDonnell of 171 Woodland Avenue and Mr. Duane Love, who resides at 171 Woodland Avenue, which adjoin the site of the pro- posed apartments, presented a letter to the Council, which he said touches on why the Council should uphold the Planning Commission. He stated his clients would welcome a develop• ment at a reasonable level of density. He added that they have gone on record as supporting the development of at least eight apartment units on the site. He stated this developer has said he was not interested in anything less than 34 units. Mr. Etzel spoke in favor of the EIR, and stated it would be inappropriate for the City to subsidize it. He stated he feels the amount is reasonable. He asked that the Council uphold the decision of the Planning Commission. Mr. Darcy McDonnell stated he strongly objects to using taxpayers' money for the EIR, and urge Council to uphold the Planning Commission's decision. Mr. Brian McLeran, a neighbor, stated that the size of the project and traffic it would generate are prohibitive. He stated this is a corner with fast traffic and the driveway is at an angle, which would be very dangerous. He stated an EIR is needed. Mr. Tony Erickson of 540 Bret Harte Road noted the impact this project would have on the cul-de-sac above, with the parking it would create. Also, he stated the soil is extremely hazardous, and the hillside is constantly moving. He urged that the EIR be done, and the developer should have to pay for it. He stated he would not want to see a large number of units on that hill. Mr. John Cope, who said he has an interest in 111 Woodland, objected to a reduction in fees, stating this developer is not a church nor a charitable organization, and should not be entitled to a cut in fees. He called attention to apartments which were built on a steep, unstable hillside in San Anselmo, and collapsed and slid down the hill. He cited the fact that there are not storm drains in that area, that there are no sidewalks and the traffic on Woodland is very fast and the street too narrow for such a development. He also noted that there are two high-pressure gas mains right in front of that property. He stated this development needs a full EIR the same as was done in Loch Lomond. Abraham Yang stated he is not familiar with this project, but he knows of other projects which Mr. Copple and his partners have developed, and they have been successful. Mr. Duane Love of 171 Woodland Avenue, adjacent to the site, stated that an EIR is a neces- sity. He noted that drainage is needed and that when there is any rain at all the area is flooded. He also objected to the precedent which would be set if the City subsidized an EIR for a developer. Mr. Brekhus refuted the claim that this is a high hazardous area, and stated that a refer- ence to subsidizing is unfair. There being no further public input, Mayor Mulryan closed the public hearing. Mayor Mulryan noted that the question at this time is not whether we need more low income housing, but does the Council want to overturn the Planning Commission's denial for failure to complete an EIR. Mr. Pendoley stated he does not read the appeal as being from the decision of requiring an EIR, and that actually that expired many months ago. Mayor Mulryan cited Mr. Copple's letter of January 15th in which he contested the propriety of requiring an EIR. Mr. Pendoley noted that the time has long passed to appeal the EIR or its scope. He noted the language of the agenda item, and also the appeal letter, that the appeal is for the denial without prejudice. He stated the burden of the appeal is to ask the Council to waive a portion of the fees. Councilmember Shippey inquired about the setting of a precedent in reducing a fee, and asked what kind of legal implication it would have. SRCC MINUTES (Regular) 3/5/90 Page 6 SRCC MINUTES (Regular) /5/90 Page 7 City Attorney Ragghianti stated that the manner in which a consultant is retained to prepare an EIR is a contract, a professional fee. He stated the other types of fees are 15% admini- strative. He said that type of fee could be waived if the City wanted to do it, but the other fee, the $39,000 has nothing to do with the Land Use Policy in the General Plan. He stated that legally that type of fee cannot be waived. City Manager Nicolai recommended obtaining something in writing about the number of afford- able units. She said it was requested of the developer in December, but she has not seen such a document in the packet. Councilmember Boro stated he remembers the reason the Council came in with medium density on this site, was because of the past record of the applicant. He stated that staff had originally proposed low density, but based on Mr. Copple's performance elsewhere in the City the Council was willing to go with medium density. He noted that Mr. Copple is now asking the maximum density. He stated that if Mr. Copple were to ask the City to reduce any fees they should only be the processing fees, not the EIR fee. He added that the issue before the Council is to support the Planning Commission. He stated that once we have an EIR we can talk about the processing fee reduction. Councilmember Thayer noted that the zoning is high density and the General Plan recommends medium density. Councilmember Boro moved and Councilmember Shippey seconded, to direct staff to prepare a Resolution upholding the Planning Commission's denial without prejudice, and to deny the request for payment of the EIR fee. AYES: COUNCILMEMBERS: Boro, Breiner, Shippey, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 15. PUBLIC HEARING - TO CONSIDER ADDITION OF TEXT AMENDMENTS TO SAN RAFAEL MUNICIPAL CODE BY ADDING TITLE 21, OBSTRUCTION OF VIEWS BY TREES ON PRIVATE PROPERTY (P1) - File 11-6 x 115 Mayor Mulryan declared the public hearing opened. Planning Director Pendoley briefed the Council, stating that on January 16, 1990, the Council had approved a six-week work program to prepare a View Protection Ordinance in response to requests from a number of citizens. He stated that the work program included a Citizens Advisory Committee comprised of members from neighborhood and environmental groups, as well as representatives from the City's Design Review Board, Cultural Affairs Commission and Park and Recreation Commission. He stated that the draft Ordinance is the result, and noted that it has been the subject of a public hearing on February 27th before the Planning Commission. Mr. Pendoley noted that one important discussion was on the definition of "reasonable", and upon advice from the City Attorney staff recommends that using a test of "reasonableness" is the fairest way to file a view claim to recapture a "reasonable" view determined by mediation or arbitration. He stated the Committee concurred with this recommendation. Another item discussed was apportionment of this recommendation. He added that most Committee members felt that there should be no standard for apportionment of costs for the initial restorative action, leaving this to the mediation process. However, after discussion with officials from other communities, the Planning staff recommends that frivolous complaints regarding view restoration would be discouraged by having a standard that requires costs of the initial restorative action be the responsibility of the complaining party. The third major issue was the date of a claim, and Mr. Pendoley noted that the proposed OrdinancE does not recognize a benchmark date for a claimant to establish a view claim. He noted that some ordinances from other jurisdictions use the date the ordinance is adopted. Mr. Pendoley stated that in discussion a question arose regarding going directly into litigation, and he would like a decision from the City Attorney. He said he does not think that is a good idea. Mayor Mulryan inquired of the City Attorney, in the proposed format are we not only attempt- ing to create mediation, but a right to civil litigation. City Attorney Ragghianti replied in the negative. He stated the Ordinance would force persons concerned in a dispute to mediate or arbitrate. He stated that California law does not entitle a property owner to a view. He stated staff has specifically attempted to keep the City out of it. He added they are not creating any new cause of action, but are simply providing a vehicle or forum, which is mandatory, in an attempt to resolve the view blockage questions, and then permitting the person who receives the award, in the case of an uncooperative tree owner, to press that award in court, and probably pursue a remedy. SRCC MINUTES (Regular) 3/5/90 Page 7 SRCC MINUTES (Regular) /5/90 Page 8 Mayor Mulryan stated that, in other words, it is not the intent of the Ordinance to alter current State law which does not notice the concept of a view corridor value. Mr. Ragghianti said that is correct, that this Ordinance provides a statute or vehicle for a person who is aggrieved to force a tree owner to cut, top or trim a tree after the mandatory mediation and arbitration initial reconciliation procedures have been gone through. He said you are creating something that they would not have had the right to, at those levels. Mayor Mulryan then inquired, if an appeal is made to the civil court, what would they look at. Mr. Ragghianti responded, the City can enact an Ordinance to regulate the height of a tree. This would give the people something they do not have - a right. He added that we are saying they can go through the arbitration procedure and take it and go to court and force someone to do something they would not otherwise do. Mayor Mulryan inquired, what would be the effect on people who already have a problem, and Mr. Ragghianti responded that would depend on the date which is decided on. He added they could bring a complaint up again if it is retroactive, and could make a tree owner demonstrate the height of the tree when the claimant purchased the property. Councilmember Thayer noted that the only person to act in civil court would be the complain- ant. She asked, however, that if the tree owner felt the award was unfair, would he not have the same right to go to court. Mr. Ragghianti responded they would have the same right, but it would be very negative when you have an arbitration award. He added that once the arbitrator award is made it should be binding. Mayor Mulryan noted there could be a claim of fraud, mistakes, or absence of jurisdiction. Councilmember Breiner noted that at one time there was a 300 -foot limit, but it has been eliminated, and she asked the reason. Mr. Pendoley stated that it was eliminated because the complaining party could only complain about a tree 300 feet or closer, while a tree 400 feet away could affect a view, and it was felt this was too arbitrary. Councilmember Breiner asked would it be open-ended, and Mr. Pendoley replied that is a policy matter, up to the Council. He repeated that they do want to discourage frivolous complaints, and they did not feel that the number of feet could be determined. Councilmember Breiner stated she does not feel comfortable without the feet designated. Councilmember Shippey agreed, stating that reasonable protection of a view at a considerable distance should be considered. He then asked could the allocation of costs be depending on when the tree was planted, and Mr. Pendoley responded that is a policy matter. He stated that there is also the question of whether the tree owner planted the tree or acquired the property before there was an Ordinance. He stated it would seem that the tree owner has the ability to know that tree blockage is prohibited and he should bear some part of the burden. On the other hand, a person wanting to have a view should pay for part of it. Mayor Mulryan called for public comment. Mr. Ray Moritz, an Arborial Consultant, applauded the encouragement of the use of mediation services, but stated he is concerned about the View Ordinance being passed in the absence of a comprehensive View Management Program. He added he is very concerned that on the Tree Committee there is not one professional tree expert, and hopes that in the future development of ordinances regarding trees that nursery people or tree people will be added. Mayor Mulryan agreed. Ms. Victoria DeWitt of the West End Neighborhood Association stated that her association was not notified of this hearing and would like to be in the future. She stated this ordi- nance is more an issue of property rights, and there is no regard for the value of the trees on neighboring properties. She noted there is also the case of the uphill property owner depriving neighbors of light. She noted that cut trees add noise. She stated that people have the mediation services without this ordinance, and she would support a Heritage Tree Ordinance. Mayor Mulryan inquired about notices to neighborhood groups, and Mr. Pendoley responded that staff's recommendation at the beginning of the process was to direct notices to inter- ested neighborhood groups. City Manager Nicolai stated that a year ago notices were sent to all homeowners' groups for a similar issue, and only two replies were received. Mr. Ragghianti remarked that staff was directed to prepare a View Ordinance. Mr. Pendoley added that through the process staff did receive a number of good suggestions in other areas, but they explained to the people that they would go into the other areas later. Ms. Carol Colbert, a member of the Committee, stated that in her opinion the payment of costs should be determined by the parties involved or, failing that, through arbitration. Regarding the exempted trees in Section 70, she said there is no tree which cannot be SRCC MINUTES (Regular) 3/5/90 Page 8 SRCC MINUTES (Regular) `5/90 Page 9 properly maintained, even old Native Oaks. She stated Redwoods are fast-growing and are listed as undesirable by the City of Sausalito. She stated no tree should be exempt from maintenance. She urged that the effective dated be the date of adoption of the Ordinance. She urged that a Heritage Tree Ordinance be written, and that Redwood trees be removed from exempt status. Mrs. Sandy Lollini asked that the City follow through with the Heritage Tree Ordinance, noting that trees are constantly being cut down. Mrs. Alice'Vipiana stated her homeowners' group in the Dominican area was not notified of this hearing. She stated all the neighbors with whom she spoke have been opposed to this ordinance, and want a Tree Protection Ordinance. Mrs. Vipiana also mentioned that the uphill residents who want trees topped should pay for the work, citing the high cost of tree removal. Mr. Hugh Campbell then addressed the Council, referring to his letter and addressing the four concerns: 1) To require that the complaining party act in food faith. He stated this was in the original draft. 2) Litigation. Civil action to be included as a procedural option; 3) "Reasonableness". Incapable of definition, and an objective manner should be substituted; and 4) Date of View Claim. Date of adoption of the Ordinance. Mr. Campbell mentioned that by forcing people to cut trees, you may be depriving them of wind shelter and privacy. He stated that he feels if there is any ordinance at all it should be on Preservation, and this ordinance should sit on a shelf with parts of it being used. He stated there is no pressure for this ordinance and it should be set aside so staff could come up with a Tree Preservation Ordinance. Included in that ordinance should be due process of law for all. Dr. Julian Lifschiz of 27 Dunfries Terrace stated he takes strong opposition to Mr. Campbell's comments. He stated that more than a year ago a survey was made as to whether we needed a View Ordinance, since there are many property owners who had a view in the past but has a neighbor who never cuts his trees. He stated he has such a neighbor, with Monterey pines which have not been cut in 20 years. He stated that the reason the 300 foot distance was dropped is that beyond 300 feet there can be a large row of pines which may block a water view. He added that having it effective on the date the ordinance is adopted does not make sense, neither does the term "reasonableness". He stated if the effective date is March 15, 1990, it will do nothing to help his situation. Mayor Mulryan asked, what if the owner never had a view at all. Dr. Lifschiz responded he could still ask his neighbor to cut a tree so he could have a view. Mr. Jim Boughey of the Cultural Affairs Commission informed the Council that two members of the Commission were on the Tree Committee, and their interpretation of the General Plan is that there is an inter -relationship of the value of trees, light and air. He stated their endorsement of the ordinance is because some steps should be taken, but not without a commitment to continue the process. He said there is a certain amount of fear and concern. He added that the Cultural Affairs Commission became convinced during the process that some step has to be taken, and they have endorsed the process. He stated that the reason- ableness test was aimed at that goal, but alone it is unworkable, and he thinks the process should be completed within the Fiscal Year. He stated we need to focus on heritage trees, and should include light and air. He stated this ordinance should not be shelved or put aside. Mr. Clifford Elbing spoke of the dangers of eucalyptus trees, especially in a storm. Mr. Gordon Terre] stated the City does need this ordinance. He said he does not have a problem with trees, but feels this is necessary. He also noted that Marin Mediation has a good track record, and the definition of a reasonable distance can be established. He added that frivolous complaints will be minimal, and the process will be at no cost to the City. He stated that this ordinance is fair and reasonable. He stated he has no view problem, but if his view was blocked later it would be reasonable if he asked that a tree be cut down. Mayor Mulryan asked Mr. Terrell's opinion if this should be effective the date the ordi- nance is enacted, or the date you purchased the property - whichever is earlier, or later. Mr. Terrell responded it should be earlier. He stated if you purchased your property with a view, this ordinance would assure that you maintained the view. Mr. Don Shephard stated that he has a view of the San Rafael Bridge and Marin Islands. He asked the lady below to cut her trees when they began to block his view, and she did. However, he feels that if she were to sell her house and the next person did not cut the trees and give him back his view he would take advantage of the ordinance provisions. He stated he does not see the reason for having the effective date the date the ordinance is enacted. SRCC MINUTES (Regular) 3/5/90 Page 9 SRCC MINUTES (Regular 3 90) Page 10 Mr. Douqlas Colbert stated that some recommendations by staff are not the ones recommended by the Committee. He stated that the effective date should be the date the complaining party purchased the property with a view. He stated that on page 5 of the Ordinance, there is a great discrepancy between benefits to the tree owner and burden to the complaining party, with regard to the conditions listed. Councilmember Breiner posed a question, what if you bought the property and did not build on it for 15 or 20 years? She noted that could cause a problem. Ms. Lois Zell stated she had bought a lot 23 years ago, and the neighbors planted Monterey pines, and she wishes there had been a way before which she could have used to mediate the problem. She stated we need a View Ordinance, and we also need light. She urged that the View Ordinance be passed. Mayor Mulryan inquired of Mr. Pendoley about the time it would take to work on a Heritage Tree Ordinance. Mr. Pendoley responded that in a number of reports to the Council staff recommended that they might wish to require a broader approach, and stated that it would be a six-month process in fulltime work. He added it would take more hours within the six months than staff had originally contemplated, since there are broader implications and many issues. Councilmember Thayer inquired, could this ordinance be changed if you were to go forward with the other ordinance, and Mr. Pendoley responded that staff had looked at ten other ordinances and most were pretty comprehensive. He added it will take many hours and a Committee which can spend quite a lot of time. Mrs. Mary Carpou of Peacock Gap Homeowners Association commended the Planning Department for the ordinance. She stated that 16 cities have written a Tree Ordinance, and 9 of them were in Marin. In all of them, view, light and air are addressed. She stated that Larkspur has just updated their ordinance. Mr. Pendoley informed the Council that 240 hours were spent on this ordinance and he hates to think it would be shelved. He stated there should be a permit applied for before a tree is cut, and that would prevent tree cutting. Mayor Mulryan responded that there would have to be a decision on sizes of trees before such an action. Mrs. Carpou stated that some trees had to be cut in Peacock Gap. She recommended that the Council make a few revisions if they wish, but to please go forward and not waste 240 precious hours. Mayor Mulryan stated the question is one of pace, and whether we go forward with issues discussed tonight and go forward with a Heritage Tree Program. He added he would like to see something of the Heritage Tree Program before the Council goes forward with this ordinance. Councilmember Shippey agreed, and stated he would support that we start from the date of purchase. He added he does not think they should rush into this ordinance tonight, because there are a number of concerns to be addressed, and all neighborhoods should be notified. Councilmember Breiner stated staff should bring it back in two weeks and, before that time, circulate the current ordinance to the associations which had not received it, and have staff review the issues. She added that as much as she wants the Heritage Tree Ordinance we should not hold this ordinance back. She stated a permit for trees of a certain size would be good. Mayor Mulryan noted that on March 19th the Council has a very heavy agenda, and he suggested the April 2nd meeting. Councilmember Boro stated that this started back in September of 1988 and there have been at least five hearings on the issues. This is the first time there were any comments against the concept. He added that the Council is trying to find a way to work out the issues. He added that he supports the concept. He agreed that a Tree Preservation Ordinance is needed, and noted that at a meeting six weeks ago the Council took the approach that we would start with this ordinance. He stated he wants to know more about the effective date, and also about filing of claims. He added it would be difficult to have the date people bought the home, and we need to talk more about it. He agreed that it is important that all neighborhoods are noticed. Staff agreed they could have the information ready by April 2nd. Councilmember Thayer stated she agrees with Councilmember Boro. She stated with regard to an effective date of the ordinance, she would like to have input from the neighborhood associations. She said she feels the date should be based on reasonableness or unreasonable- SRCC MINUTES (Regular) 3/5/90 Page 10 SRCC MINUTES (Regular) /5/90 Page 11 ness of the obstruction. She stated anyone could come forward under the ordinance and if they feel they are entitled to a view and it has been unreasonably obstructed the burden should be on the complainant. Mayor Mulryan asked that if someone buys property with older trees around it and wants the trees cut, could they ask that the trees be cut down? He stated the value of the property would have been with the view blocked. Mr. Harry Winters of the West End Neighobrhood Association stated that a view is in both directions, and people in the valley enjoy the view of the trees on the hills. Mayor Mulryan continued the public hearing to April 2, 1990. 16. AUTHORIZATION TO ACQUIRE COMPUTER EQUIPMENT FOR PUBLIC SAFETY SERVICES (CM) - File 9-3-11 x 8-5 City Manager Nicolai briefed the Council on her request for authorization of $179,850 for acquisition of computer equipment for the Public Safety System and an updated strategic plan for City automation. She stated the acquisition of hardware necessary to make the second computer operational for the public safety system is part of the request, and also funds to install necessary safety systems to the computer room on the second floor in City Hall. Mayor Mulryan inquired who is advising on what to buy, and Ms. Nicolai said it is CMSI, with whom we have a five-year contract. She stated some of the equipment is lease -lined, and is compatible with what we have. She stated that Police and Fire Departments would not only have their own programs available, but would also have access to all of the other programs; but no one outside of the Police and Fire Departments would have access to their system. Councilmember Boro said the concept is fine, but we are contracting with people instead of being self-supporting. He said that before he could approve an amount such as $179,850, he would have to know much more detail on the technical aspects in order to make a judgment. After discussion, Councilmember Shippey moved and Councilmember Thayer seconded, to authorize the expenditure of $179,850, for computer equipment as outlined in the City Manager's report. AYES: COUNCILMEMBERS: Shippey, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: Boro, Breiner ABSENT: COUNCILMEMBERS: None There being no further business, the meeting was adjourned at 12 Midnight. JEANNE M. LEONCINI, City Clerk B y : ' ZSILOLA SNIFFEN, Depu y City lerk APPROVED THIS DAY OF 1990 MAYOR OF THE CITY OF SAN RAFAEL SRCC MINUTES (Regular) 3/5/90 Page 11