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HomeMy WebLinkAboutCC Minutes 1990-08-20SRCC MINUTES (Regula 8/20/90 Page 1 IN CONFERENCE ROOM 201 OF THE CITY OF SAN RAFAEL, MONDAY, AUGUST 20, 1990, AT 7:00 P.M. Regular Meeting: CLOSED SESSION CLOSED SESSION TO DISCUSS LITIGATION AND LABOR NEGOTIATIONS - File 1.4.1.a No litigation was discussed. 1. No. 90-17(a) - #7 No reportable action was taken. IN THE COUNCIL CHAMBERS OF THE CITY OF SAN RAFAEL, MONDAY, AUGUST 20, 1990, AT 8:00 P.M. Regular Meeting: Present: Lawrence E. Mulryan, Mayor San Rafael City Council Albert J. Boro, Councilmember Dorothy L. Breiner, Councilmember Michael A. Shippey, Councilmember Joan Thayer, Councilmember Absent: None Also Present: Suzanne Golt, Assistant City Manager; Gary T. Ragghianti, City Attorney; Jeanne M. Leoncini, City Clerk CONSENT CALENDAR Councilmember Breiner moved and Councilmember Thayer seconded, to approve the recommended action on the following Consent Calendar items: Item Recommended Action 4. Report on Bid Opening and Award of Contract - Traffic Signal Install- ation and Improvements at Three Locations (PW) - File 4-1-437 6. Resolution Amending 1989/90 Budget (Fin.) - File 8-5 7. Resolution Certifying a Negative Declaration and Adopting Miscel- laneous General Plan Amendments - GPA 90-2 (P1) - File 115 x 10-6 9. Legislation Affecting San Rafael (CM) - File 9-1 10. Claim for Damages: a. Catie Crockett (PW) Claim No. 3-1-1504 AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: RESOLUTION NO. 8216 - AWARD OF CONTRACT (To Steiny & Co., Inc., lowest responsible bidder, for $263,443.75; Traffic Signals at: North San Pedro & Los Ranchitos Roads; Redwood Hwy. & Professional Center Pkwy.; and Redwood Hwy. & Mitchell Blvd.) RESOLUTION NO. 8217 - AMENDING THE 1989/90 BUDGET RESOLUTION NO. 8218 - CERTIFYING A NEGATIVE DECLARATION AND ADOPTING THE MISCELLANEOUS GENERAL PLAN AMENDMENTS (GPA 90-2) Approved staff recommendations to: SUPPORT SB 2733 (Rosenthal), Playground Safety; SUPPORT AB 145 (Costa) Park Bond Approved City Attorney's recomendation for denial of Claim a. Boro, Breiner, Shippey, Thayer & Mayor Mulryan None None The following items were removed from the Consent Calendar for discussion: 2. APPROVAL OF MINUTES OF REGULAR MEETING OF AUGUST 6, 1990 (CC) Councilmember Shippey requested the following amendments to the minutes: On Page 6, Item 11, third to the last paragraph, add: ". . .Mr. Shippey also SRCC MINUTES (Regular) 8/20/90 Page 1 SRCC MINUTES (Regular 8/20/90 Page 2 asked if the Planning Commission had concurred about the one-story design and was informed by staff that the one-story design did not go back to the Planning Commission". On Page 8, Item 13, add the following paragraph before the motion: ". . .Councilmember Shippey requested that should the initiative be passed to ballot, that rebuttal arguments be permitted, which would be contrary to existing Council policy". Then, remove period from end of the motion, and add, ". . .arguments with no rebuttals". Councilmember Thayer moved and Councilmember Shippey seconded, to approve the minutes of August 6, 1990, as amended. AYES: COUNCILMEMBERS: Boro, Breiner, Shippey, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 3. RESOLUTION AUTHORIZING PUBLIC WORKS DIRECTOR TO APPLY FOR STATE -LOCAL PARTNERSHIP PROJECTS (PW) - File 11-15 x 9-3-40 Councilmember Boro inquired if the City has approval of funding for Andersen Drive at present, and Public Works Director Bernardi replied that $900,000 from the State for Andersen Drive is being continued into the next funding year. Mr. Boro then inquired, is the City giving that money up this year and then will be getting it next year, and Mr. Bernardi replied in the affirmative. Mr. Boro stated that if we went ahead with Andersen Drive this year, we could potentially petition the State for more money next year, but Mr. Bernardi stated there are so many projects throughout the State that he could not be certain of that. Mr. Boro then stated his main concern is, if we do not use the money this year, are we certain we will not lose it next year due to the competition. Mr. Bernardi stated that the way legislation was passed was that projects which were approved in the current year can be put off to the next year, with the funding guaranteed, so we will not lose this money. Mr. Bernardi explained that the way the project worked, there was $300 million set aside across the State, originally intended to be a 50% partnership, but there were so many projects the actual percentage from the State is about 13.2%. So, the $875,000 set aside for this project, included in the first round of funding, if not quite ready to go, can be held for another year. Mayor Mulryan clarified that this is the only project which would qualify under the definition of this particular grant, and we lose nothing by putting it over to the next year. Mr. Bernardi agreed. Councilmember Boro noted that the staff report said there are a number of projects which meet the criteria, such as the Lucas Valley Interchange, Kerner and Bellam Boulevards, and he inquired if the City will not be applying for those. Mr. Bernardi explained that in the future, should this program continue on an ongoing basis, he would like to have the Council's authorization to apply for those projects. Mr. Boro noted that we would be less likely to get additional projects if we were already carrying forward $900,000. Mr. Bernardi stated that to a certain degree that is correct. Mr. Boro then inquired what it would take to complete Andersen Drive by this year so we would have a clean slate for next year. Mr. Bernardi stated it is a question of getting the geology done, and the kind of analysis required is very comprehensive and is part of the environmental document, and part of the hazardous waste study and identification of all hazardous materials in the ground. Councilmember Boro recommended that the City try to complete the Andersen Drive project. Mayor Mulryan agreed. Mr. Bernardi stated he will check with the State and see what concerns there might be in this regard, and then report back to the Council. The Council agreed to carry this item over. 5. ADOPTION OF RESOLUTION WITH FINDINGS DENYING APPEAL OF PLANNING COMMISSION'S CONDITIONAL APPROVAL OF A USE PERMIT FOR A SECOND DWELLING UNIT; 26 WILDWOOD WAY; ROBERT AND CAROL BUTLER, OWNERS; STEVE KAY, ARCHITECT AND REP.; FAIRHILLS PROPERTY OWNERS' ASSOCIATION, APPELLANT; AP 10-121-05 (P1) - File 10-5 City Attorney Ragghianti referred to a letter received in the Planning Department from John Sharp, attorney for the property owners, Robert and Carol Butler, asking that the Council reconsider its decision in approving the one-story second unit at a recent meeting of the Council. Mr. Sharp suggests that the single story which the Couhcil approved is inappropriate since the applicant applied for a two-story treatment. SRCC MINUTES (Regular) 8/20/90 Pz.Se 2 SRCC MINUTES (Regular) 8/20/90 Page 3 Mayor Mulryan inquired if this request is timely, and Mr. Ragghianti stated that it is. He added it would require a motion made by one of those voting in the majority. Mr. Ragghianti added that Mr. Sharp's letter also states that the single story, or Alternative 2, was not a proper second -unit application. Mayor Mulryan inquired if any Councilmember wishes to make a motion for reconsideration of this item. No Councilmember responded, and Mayor Mulryan called for a motion to adopt the Resolution. Councilmember Thayer moved and Councilmember Breiner seconded, to adopt the Resolution with Findings on 26 Wildwood Way. RESOLUTION NO. 8219 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DENYING THE APPEAL OF THE PLANNING COMMISSION'S APPROVAL OF UP89-10, APPROVING A CONDITIONAL USE PERMIT FOR A SECOND DWELLING UNIT AT 26 WILDWOOD WAY AYES: COUNCILMEMBERS: Boro, Breiner, Shippey, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None Mr. Ragghianti stated he will respond to Mr. Sharp's letter. 8. REQUEST FROM DOWNTOWN MERCHANTS' ASSOCIATION FOR CLOSURE OF CITY STREETS ON SEPTEMBER 9, 1990, FOR CYCLING EVENT (CM) - File 11-19 Mr. Boro stated he has no problem with the street closures, except that he was approached last year by a St. Raphael's church parishioner, because the street was blocked off at 8 A.M., although the event was not going to start until noon. He recommended that Christopher Lang, representing the Velo Club, and applicant for the street closure, work with St. Raphael's and any other churches affected, so they will be aware. Mayor Mulryan stated the streets should not be blocked off any earlier than necessary. He inquired if Mission Avenue is open, and Police Chief Ingwersen stated that it will be. Chief Ingwersen added that it does take time to put all of the barricades in place. Mr. Boro also expressed concern regarding the time expended by two Paramedics, and also Police time, and stated that events of this sort should pay for themselves. Christopher Lang stated that this is a non-profit bike club, and they were asked by the Downtown Merchants to promote the race. He stated they lost some sponsors just recently and with the short time frame, there was no way to fund the Police overtime. He stated that two weeks ago he had met with Monsignor Knapp of St. Raphael's and explained the situation and he has no problem with it. Also, people can park in the Westamerica Bank lot, and he will ask the cyclists not to leave their cars there, but park elsewhere so the churchgoers will have parking. Councilmember Boro moved and Councilmember Breiner seconded, to approve the street closure as requested. AYES: COUNCILMEMBERS: Boro, Breiner, Shippey, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 11. PUBLIC HEARING - TS 84-1 - APPEAL OF PLANNING COMMISSION'S CONDITIONAL APPROVAL OF A TENTATIVE MAP FOR A 7 -LOT SUBDIVISION; MEYER ROAD; ARMAND LOCKE, OWNER; DON L. DAGLOW, APPELLANT; AP 12-191-16 & 17 (P1) - File 5-1-318 Mayor Mulryan declared the Public Hearing opened. Associate Planner Mark Wolfe briefed the Council, showing on a map the location of the project and the proposed siting of the residences. He then listed the ten points in the appeal letter, and gave a response to each issue. The issues included a claim that there were inaccuracies in the Environmental Impact Report (EIR), and Mr. Wolfe stated the appellant is not specific in regard to discrepancies. The appellant also questioned siting of the lots, stating that changes were made subsequent to the approval of the EIR. Mr. Wolfe explained the setbacks of the homes in question, and stated they were found to be acceptable by the EIR biologist, but that certain wording in the EIR which was not clear was later clarified by the biologist. The appellant stated there are flaws in the EIR discussion of drainage, and Mr. Wolfe listed the calculations involving SRCC MINUTES (Regular) 8/20/90 Page 3 SRCC MINUTES (Regular) 8/20/90 Page 4 drainage impacts. There was an issue of variation in lot dimensions, and Mr. Wolfe presented a table showing that the sizes of the lots comply with the requirements of the slope regulations. Mr. Wolfe also showed the location of trees on the map, since there was a question of the number of trees to be removed. Mayor Mulryan stated he had received a letter from Perry Litchfield, attorney for the applicant, Armand Locke, citing a Code section which pertains to housing, and it says in effect that this proposed development in its current form, and as relates to the Slope Ordinance in the City's General Plan, must be approved unless this Council finds that there would be specific adverse impact on the public health or safety, and that there is no other feasible method to satisfactorily mitigate. Mr. Ragghianti stated he does not believe that this application must be approved, but he does believe that the density of this project cannot be reduced unless specific findings are made. He stated that is what 65589.5 of the Government Code speaks to, and also what Public Resource Code Section 21085 speaks to. He added it is important to note here that the criteria for the findings which must be made to support a reduction in density of this project must specifically relate to health or safety, and that the legislature, in enacting this section, in dealing with housing development projects, took out considerations dealing with public welfare, the so-called "quality of life" issues usually associated with aesthetics, etc. He stated that is what those particular sections require in dealing with a housing development project, assuming that this particular development application complies with the General Plan of the City and its development policies, which the staff report indicates it does. Councilmember Breiner stated there was something about deepening of the stream bed being a mitigation. Mr. Wolfe responded that was not a mitigation factor. Ms. Breiner stated perhaps that was in connection with the detention basins which were previously considered, and Mr. Wolfe stated that was possible, in the northern panhandle part of the site, and it would have been quite deep. Councilmember Shippey asked to see the tree chart again, and verified that it is Alternative 1, which preserves the Redwood trees. He inquired if there are any other large trees which staff does not show on this map, and verified that it does not show any trees which would be cut down as a result of building. Mr. Wolfe stated this map shows trees which were specifically mentioned in the EIR, per lot. He pointed out a number of Redwoods and a Bay tree which were specifically mentioned in the EIR as being worthy of preservation. He noted they are outside the development envelopes. Councilmember Thayer inquired about the law regarding changes made in the EIR after the fact. She stated the EIR before her does not reflect the current project because of the changes recommended by staff, including some mitigation alternatives to the drainage system which are incorporated in a letter of October 30, 1989, which basically forms the basis for the changes in the drainage system. Mr. Wolfe responded that is included in the final EIR document. He stated this Plan is based on the Alternative 1 Plan discussed in the EIR, and the only variation between that project covered in the Draft EIR and what the Council has before it tonight, is in the northern portion of the site where the driveway has been realigned to avoid the larger Redwood trees in that area. He added that Alternative 1 Plan, covered in the EIR, actually called for removal of five Redwood trees in that area, and this Plan would avoid that impact. Mr. Shippey stated he did not hear an answer to Ms. Thayer's question. Mr. Ragghianti responded that from a strictly legal standpoint, it is not unusual that a project, when it is finally approved, will not be the exact same project described in the environmental document. He added that the reason for that is that the environmental documents frequently, although not always, are approved weeks or months ahead of the project merits determination. He stated that such is the case in this instance, where the environmental document was certified in January and this appeal was not taken until June from the Planning Commission's decision on the subdivision. Mr. Ragghianti added that what Mr. Wolfe had indicated was that one of the alternatives in the environmental document is essentially what the Council is seeing before it right now. Ms. Breiner referred to page 10 of the environmental document of May, 1989, the Draft Environmental Impact Report (DEIR), noting it seems to indicate that a deeper stream course would be better in terms of the reparian species. Mr. Wolfe indicated that was the Initial Environmental Assessment. Ms. Breiner stated she realizes that the EIR is not being appealed, but she wondered if there is an enhancement which should be included in this discussion, because even without the detention basins, if.one of the driveways is going to be 25 SRCC MINUTES (Regular) 8/20/90 Page 4 SRCC MINUTES (Regular) 8/20/90 Page 5 feet, rather than 50 feet, that an enhancement of this nature might offset it. Mr. Wolfe responded that was actually a condition of approval on the Tentative Map, in response to a comment from the Biologist on this very issue. He stated that when staff asked him to interpret his statement about the 50 -foot setback as mitigation for impact of the project, he suggested that the incursions of the project were acceptable, but we should consider enhancement and buffering of that portion of the site as part of the project approval, and that was incorporated in the new conditions. Ms. Breiner inquired if "enhancement and buffering" includes deepening of the stream bed, and Mr. Wolfe responded that it does not. Ms. Breiner inquired if that was ever discussed and Mr. Wolfe responded that it was not discussed as a mitigation measure in the Draft EIR document. Mr. Shippey referred to page 5 of the minutes of the Planning Commission of June 12th, stating that the dissenting Commissioner specifically had concerns about modifying the EIR and clarifying the intent of the wording after a public hearing and adoption of the EIR. He added he wants to be certain that all of the amendments as approved and the Alternative 1 Plan, even though they are not all in this document, can in fact be enforced. Mr. Ragghianti replied in the affirmative. Mayor Mulryan asked to hear from the appellant. Don Daglow, appellant, of 10 Meyer Road, thanked the Council for changing the date of the hearing so he could be present. He stated he is aware of California law, and noted he has a court reporter at the meeting. Mr. Daglow stated he believes he can bring the Council specific concrete reasons why this project needs more work. He stated his group are realists, and are after a good development, and that is not what the present plan represents. He stated that over the years the volume of documents has "muddied the waters" and certain things have been obscured. He noted that the soil is a sandy mix, and it slides whenever there is a major project. He noted that when his parents put in a driveway the land slid. He stated that the staff is acting in good faith, responding to the experts, but when the experts state that the various mitigation measures will have the desired effect, it means that the housing won't move because they will be on solid piers, but the hillside will. Mr. Daglow then referred to recent acts of vandalism in the neighborhood, and noted that they were directed toward Mr. Locke, as well as various neighbors. He stated that Mr. Locke is a good neighbor, and they are still getting along, even though there is opposition in the neighborhood to this project as it now stands. Mr. Daglow stated he would never in a million years think that Mr. Locke would be involved in any vandalism and, in fact, his property has also been vandalized. He stated he speaks for the neighborhood when he condemns absolutely whatever person is trying to break down the process by which they have been trying to solve this as neighbors, and put them against each other. Mr. Daglow then addressed the issue of EIR changes, and stated that if they start tracing through the issues, there have been so many changes that it is hard to compare the EIR with any rationality. He stated there are so many changes that the Plan described in the EIR is not the same Plan you have now. As an example, Mr. Daglow referred to page 7 of the staff report when staff's response to Item 4 of the Appeal indicates that a house which was 12 feet away from the stream is now 50 feet away. Mr. Daglow also questioned the number of trees, since he is now being told no Redwood trees will be affected, but not anything about how many Bay trees or Toyons will be affected. Mr. Daglow added that the lower density alternative has never been considered, even though it has been brought up over and over again. He stated that if a few units are taken out of the project, there will not be the problems, but the applicant's associates have refused to consider it. He noted such a project would not be as profitable. He also objected to the four houses planned to be built on Meyer Road, which will spoil the area. He also disputed the staff report's estimate of increase in drainage as a result of the project, stating the runoff will be much more than stated. He also expressed concern that, in spite of CC&R's, people are likely to cut trees which shade their home or obstruct their view. In closing, he stated he would like to seek the help of the City to identify what is really happening, to assist the lay people to identify the problems. Dan Simonsen, of 9 Wolfe Avenue, stated that the environment was the No. 1 issue in formation of the General Plan and development was one of the five biggest negatives. He noted that the northern portion of this site is a sensitive SRCC MINUTES (Regular) 8/20/90 Page 5 SRCC MINUTES (Regular) 8/20/90 Page 6 biological area and should have lower density, because of large diameter Redwoods and California Bay trees. He traced the history of the project from the original environmental assessment in October of 1984. He noted that the panhandle driveway is less than 15 feet in width, and the Uniform Fire Code requires 20 feet. He then expressed concern regarding flooding as a result of the runoff. He also noted that there are three separate foundations, including the Trust for Public Lands, which might be interested in this site. Mayor Mulryan inquired why, in the past five years, there has been no attempt to acquire funds from those sources. Mr. Simonsen responded it is because the City staff has not tried to help. Aileen Treadwell, a resident of Southern Heights Boulevard, showed a chart illustrating slides in the area on Bret Harte, Meyer Road, Pearce Road and McCoy Road, and many trees topped or removed. She stated Meyer Road is still lovely and green, and she would like the subdivision to be reduced to preserve the area. She also strongly recommended that the City address the issue of the Tree Ordinance as soon as possible. Sandra Lollini, of the Gerstle Park Neighborhood Association, supported the lower density, and stated her organization still continues to have concerns about the drainage and the Redwood trees. Leslie Simonsen, of 9 Wolfe Avenue, stated this is a watershed area and there should be no cutting of trees outside the building envelopes. She stated the applicant has never applied for a lower density project, and it should be within the residents' rights to require it. Michael Bondi, who lives on "C" Street, stated that when "C" Street was paved, it reduced the gutter height by 12 inches, but the height of the curb was never adjusted and he is concerned about flooding. Attorney Perry Litchfield, representing Armand Locke, owner and applicant, stated that many comments brought up tonight dealt with the EIR, and the time for appeal of the EIR has long since passed. He stated the issue tonight is to consider an appeal of the approval of the Tentative Map, which was approved by a 6-1 vote of the Planning Commission. He stated that at meetings the neighbors worked toward a denial of the proposal as a whole, rather than trying to work with the owner on changes. He noted there had been greater density previously, and it has been reduced. He stated that one of the Commissioners of long standing had remarked that the Subdivision Map was one of the best he had every seen, and the applicant was complimented on the project. He noted the density of this project is much lower than is allowed, and that all homes on Meyer Road are on over an acre, and this could not be called a tract development. He stated that on the question of whether the EIR is adequate, it has already been certified. Mr. Litchfield requested that the Council deny this appeal, and also noted that in past meetings the chambers were full and that the only people here tonight are adjacent neighbors who do not want the project. There being no further public input, Mayor Mulryan declared the Public Hearing closed. Mayor Mulryan noted that there were comments that the EIR stated that there was to be no construction within 50 feet of the stream, and yet there is some construction within 50 feet. Mr. Wolfe responded that is correct, stating that as noted in the staff report there is a mitigation measure in the DEIR which says there should be no building within 50 feet of the streams. He stated that the EIR states that the project is consistent with this requirement; however, that is not true. There is an internal inconsistency. Mayor Mulryan inquired how could that be allowed. Mr. Wolfe responded that when staff noted this discrepancy, they asked the EIR consultant biologist who prepared the mitigation measures, for a clarification. In his reply, included with the staff report, he explains that the mitigation measure was intended to relate to any further incursions into the 50 -foot setback zone, and to recognize that the site plans in the EIR do include those incursions. Mayor Mulryan questioned how this could be allowed, and Mr. Wolfe responded, by having the person who prepared that mitigation measure reconcile a discrepancy in the EIR with regard to the 50 -foot setback question. He is stating that the project is consistent with the EIR. However, the project is not. Mayor Mulryan stated that then he is wrong. It was pointed out that the letter in question is from LSA, dated June 6, 1990. SRCC MINUTES (Regular) 8/20/90 Page 6 SRCC MINUTES (Regluar) 8/20/90 Page 7 Mayor Mulryan stated that it is an error, that they did not notice in the first statement that there were already two incursions, and what they meant to say was that no more would be allowed. Mr. Boro questioned why any incursions would be allowed, if they had already said there should not be any, and if the EIR which was certified says 50 feet, why is LSA allowing them. Mr. Wolfe responded, the biologist is not allowing them, that he is the one who wrote the mitigation measures in the EIR, and in this letter he is explaining the discrepancy, saying this mitigation should have been worded acknowledging that there were two incursions into the 50 -foot buffer and saying that no additional incursions shall occur. Jean Freitas, Principal Planner, noted the fourth paragraph of the letter which states that these are relatively minor incursions and are not a major impact. Mayor Mulryan then inquired about a 14 vs 16 foot fire road. Mr. Wolfe responded that the original mitigation measures from the Fire Department called for what was then the standard 12 -foot driveway, and the mitigation measures in the EIR accordingly called for 12 feet. However, the Fire Department requires 15 -foot driveways; however, there is one point at which the driveway leading to a lower part of the site, lots 6 and 7, where because of a Redwood tree the road will have to be approximately 14 feet in width. Mr. Wolfe stated he conferred with the Fire Department on this and they stated there was no problem, since the reason they had increased the width of driveways was to allow emergency personnel to pass when necessary. Also, the restriction is only for a couple of feet, because of the tree. Mayor Mulryan then referred to a question about fencing. Mr. Wolfe stated there was a mitigation measure in the EIR which stated there should be no fencing within the project, but at the Planning Commission meeting the applicant requested that there be some fencing allowed in the project, and be limited to the development envelopes. Staff agreed with this, since the limitation in the EIR was intended not to impede the movement of animals through the project and, in this case, a fence would be no more limiting than a building. Mayor Mulryan then inquired about a three-story exemption. Mr. Wolfe responded that the conditions on the Tentative Map allow a maximum of three stories, with a 30 -foot height limit, which is consistent with the General Plan. He noted that the EIR does not go into design. Ms. Freitas noted that the question was probably because the adjacent properties are limited to one story. Councilmember Thayer stated she is interested in knowing why the staff made the recommendation for the downhill drainage system. She noted that the Department of Fish & Game, in July of 1989, had recommended the retention basins, and wondered if the plan had been changed for safety reasons. Mr. Wolfe responded it was changed for a number of safety reasons. Mr. Wolfe responded it was changed for a number of reasons, and that the detention basins had a number of drawbacks, with tree roots being too damp, possibility of people falling in, and other safety reasons. He stated for these reasons the drainage plan was formed. He noted that check dams will be required along the stream. He noted this was a mitigation measure in the EIR. Councilmember Boro again referred to the LSA letter of June 6, 1990, with reference to the 50 -foot setbacks. He questioned if, as a result of one of the conditions in the EIR that there would be nothing within 50 feet except for drainage, why then would a structure be proposed less than 50 feet, knowing that the requirement was that it had to be at least 50 feet. Mr. Wolfe stated that the person who wrote the EIR made an error in not including the two incursions. Mr. Boro stated that the error was in the incursions themselves, since the EIR says flat out that it will not be allowed. Mr. Wolfe noted that the biologist corrected himself and clarified this in his correspondence. Mayor Mulryan referred the matter to the City Attorney, stating that when the EIR says one thing and after the process is concluded a letter is received stating that they did not really mean that, but meant something else, where does that leave the Council with respect to their ability to rely on the EIR. Mr. Ragghianti stated that the EIR is an informational document, and it is important to point out that if there is a significant issue such as this 50 -foot issue, if there is a significant adverse impact that the EIR identifies, then no project may be approved which allows that significant impact to continue. He stated the purpose of CEQA (California Environmental Quality Act) is to reduce to a level of insignificance all adverse impacts. He stated that in this instance, the EIR consultant is saying that he made a mistake, and that it should have said there are two incursions into this 50 -foot setback and no more should be permitted. He stated the consultant's letter says the impacts are not major. Mr. Ragghianti stated that he feels what the consultant is SRCC MINUTES (Regular) 8/20/90 Page 7 SRCC MINUTES (Regular) 8/20/90 Page 8 doing is indicating that the written word did not accurately reflect what he wanted it to. Councilmember Boro stated that what he is trying to understand is, when you develop an EIR you respond to a proposal and you come up with criteria for that proposal, and then as a result of looking at the environmental issues you come up with mitigation measures. He noted that one of the requirements is a 50 -foot setback, and the applicant is desiring less than 50 feet, it seems the consultant has accommodated it rather than stick with the requirements of the mitigation. Mr. Ragghianti agreed. Mr. Boro stated he does not understand why that would happen. Mr. Wolfe pointed out that the person who wrote that mitigation measure was reviewing plans and the EIR when he made those statements, when he was preparing the mitigation measures and writing his section of the Draft EIR. Councilmember Breiner pointed out that the EIR consultant can make his statements, but the Council can still refer to its own General Plan, as it refers to 50 -foot setbacks. She noted that the 50 -foot setback is from the stream bed, and inquired of staff if the stream bed is synonymous with the bottom of the swale, and Mr. Wolfe replied it would be. Ms. Freitas noted that the requirement is for 25 feet from the top of the creek bank, as a minimum. Mayor Mulryan asked if, using that standard, that is the reason staff is advising us that the setbacks are in compliance with the General Plan designation, and Mr. Wolfe replied that is correct. Councilmember Breiner expressed a concern regarding the difference between a creek bed which is flat, and a swale where there can be a massive amount of water coming down from above, which could affect foundations. Ms. Freitas stated that the applicant has noted that the wider setback would result in cutting down several large trees. Councilmember Boro then noted a reduction in the loss of trees due to the placement of the houses in the two incursions, and stated he is disturbed by the inconsistencies He questioned how the City can be assured that no one will cut the trees down, after the homes are occupied. He also stated he is not satisfied with what he heard about the downstream drainage. He also noted that a year ago the Gerstle Park Association had concerns about density. He stated he would look to Public Works to give some reaffirmation concerning the drainage proposal. Councilmember Shippey stated he feels that the motion coming up would incorporate a staff report including the amendments to the EIR so they will be in the one document. He noted there is a letter from the biologist, but no change in the report. Also, he questioned how many trees will actually come down, and the need for a clarification regarding the three-story building. Councilmember Breiner stated she would like information on the setbacks and enhancement of the habitat, as well as protection of wildlife. She stated she wants to be certain there is total agreement and marking for which trees will come down, and all of the gray areas brought up must be resolved. Councilmember Thayer inquired, after the public hearing of January, 1990, were any changes made following the certification of the EIR; and Mr. Wolfe replied there were none. Councilmember Thayer stated she has concerns about the change in the drainage system. She noted it is a public safety item and she would like a more complete EIR analysis of the two drainage systems and why staff accepted the letter substituting what should have been in the EIR. Mr. Ragghianti pointed out that the Tentative Map has to be in accordance with the General Plan, and the EIR can be revised by conditions of approval. Councilmember Boro moved and Councilmember Shippey seconded, that this item be continued and that the following issues be brought back for review: Downstream flooding; protection of trees, both during and after construction; a one or two page chronology with regard to the EIR and what has occurred since January, 1990, what changes were made to effect the EIR; question of the 50 -foot setback from the stream bed, also the safety effects of deepening the stream; input from staff on the 3 story height issue; confirmation that a lower density alternative is not one that the Council can examine. AYES: COUNCILMEMBERS: Boro, Breiner, Shippey, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None SRCC MINUTES (Regular) 8/20/90 Page 8 SRCC MINUTES (Regular) 8/20/90 Page 9 Mayor Mulryan continued the Public Hearing, not to a date certain; public hearing to be renoticed. 12. CITY REVIEW AND APPROVAL OF REVISED JOINT POWERS AGREEMENT FOR COUNTYWIDE PLANNING AGENCY (P1) - File 4-13-81 x 170 Councilmember Breiner moved and Councilmember Boro seconded, to adopt the Resolution authorizing the Mayor to sign the Joint Powers Agreement. RESOLUTION NO. 8220 - AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: AUTHORIZING THE MAYOR TO SIGN THE REVISED JOINT POWERS AGREEMENT TO ESTABLISH A COUNTYWIDE PLANNING AGENCY Boro, Breiner, Shippey, Thayer & Mayor Mulryan None None 13. SUMMARY PROCEEDINGS - FORMATION OF BAYPOINT LAGOONS LANDSCAPING AND LIGHTING DISTRICT (PW) - File 6-48 a. Landowner Consent. (To be filed.) b. Resolution Initiating Proceedings. C. Resolution Approving Agreement for Engineering Services d. Resolution Approving Agreement for Legal Services e. Engineer's Report. (To be filed.) f. Resolution Ordering Improvements. Public Works Director Bernardi explained that this action is to be taken to initiate the subject district which will be taken under the Landscaping and Lighting Act of 1972. Councilmember Breiner moved and Councilmember Thayer seconded, to take the steps as outlined in the staff recommendation including the four Resolutions. a. Landowner Consent - Filed b. RESOLUTION NO. 8221 - INITIATING PROCEEDINGS - BAYPOINT LAGOONS LANDSCAPING AND LIGHTING DISTRICT (Pursuant to the Landscaping and Lighting Act of 1972) c. RESOLUTION NO. 8222 - APPROVING AGREEMENT FOR ENGINEERING SERVICES (With Stuber-Stroeh Associates, Inc.) d. RESOLUTION No. 8223 - APPROVING AGREEMENT FOR LEGAL SERVICES (With Sturgis, Ness, Brunsell & Sperry) e. Engineer's Report - Filed f. RESOLUTION No. 8224 - ORDERING IMPROVEMENTS AYES: COUNCILMEMBERS: Boro, Breiner, Shippey, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 14. REPORT ON SAN RAFAEL CANAL LIVE -ABOARD REGULATIONS (P1) - File 144 x 12-10 Mayor Mulryan noted the staff's recommendation regarding the live -aboard problems in the San Rafael Canal area, that the City follow the proceedings on the proposed County ordinance and consider a similar ordinance after the County ordinance has been adopted. Ms. Freitas reported that the County has spent quite a lot of time on their ordinance and it appears to be a workable approach. She stated they will have their public hearings very shortly and staff recommends waiting to see if there are any problems with their ordinance. Mayor Mulryan stated we should not have any live-aboards except in marinas, and Ms. Freitas replied that is the County's approach, and they are considered an ancillary use. Councilmember Breiner questioned enforcement, which should be included in any report on this issue, and wondered if the Police boat could be used. Ms. Freitas stated that would be a Code Enforcement responsibility, and noted the County's use of harbormasters. SRCC MINUTES (Regular) 8/20/90 Page 9 SRCC MINUTES (Regular) 8/20/90 Page 10 Councilmember Shippey recommended some sort of registration system, which would require an inspection of the facilities, and that would be one way to avoid the problem; if you did not register you would be in violation of the Ordinance. He stated there should be a way to enforce such a regulation. Mayor Mulryan stated the City wants to expedite this as much as possible, noting that the General Plan gives it Priority 3, but the Richardson Bay matter has brought some of those people to our waters. Adm. Thomas Patterson stated he sails regularly on the San Rafael Canal, and is concerned at the proliferation of the old junk boats along the Canal. He said they result in trash and garbage in the water and litter on the piers behind the apartments, and the Montecito Center. He stated public safety is involved, since the boats do not appear to be safe nor seaworthy. He agreed that live-aboards should be at marinas where there is access to 911 calls and sanitation facilities. Mayor Mulryan agreed, and stated we might make our ordinance even more stringent than the County. Alan Larkins stated he has lived on the Canal for 28 years, and agrees with everything Mr. Patterson said. He noted that the live-aboards do not pay taxes, and add to the pollution. Art Osborne stated the live-aboards should be in a controlled environment and the only way is within the marinas. He agreed with Councilmember Breiner regarding Police enforcement. He thanked the City Council for acting quickly in this issue. Bud Lowry of Lowry's Harbor agreed with the speakers, and added that his marina has facilities for showers, but noted some things will be difficult to enforce and the regulations should be written with a lot of thought. Carl Clark, who lives on Mooring Road, spoke of the floating garbage and debris, and noted there are many live-aboards across from where he lives. He stated he would like to see the City pass an ordinance and not wait for the County. Pat Osborne spoke of her main concern, the sewage being dumped into the Canal. She noted a Coast Guard regulation that all boats must have a holding tank, and she likes the idea of inspections. She noted that if a boat has been registered, they would not be in violation because they would have been inspected. Councilmember Breiner stated perhaps the Coast Guard could be of assistance. Police Chief Ingwersen stated that unless the Police have a reason to board a vessel, they cannot. He noted that all boats do not have to be registered, depending on size and other factors. He noted there are many legal issues to be considered. Councilmember Breiner expressed concern about the problem "mushrooming" and becoming more difficult. Chief Ingwersen stated that the Police run into problems with search and seizure. Mr. Lowry recommended asking for volunteers to work with the City to accomplish something workable, and Mayor Mulryan stated perhaps Adm. Patterson would like to. Councilmember Boro noted that if the City is going to start from scratch, we do not have the personnel to do it, and we should get the word out through the press that the City is moving post-haste so that people will not think San Rafael will be a safe haven. He noted that the boats which cannot sail should meet the same regulations as a regular home. He recommended Public Works might be able to inspect them. Councilmember Boro moved and Councilmember Shippey seconded, to accept the staff report and recommendations to closely shadow the activities of the County, and form a committee after getting results from the County. AYES: COUNCILMEMBERS: Boro, Breiner, Shippey, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None Adm. Patterson added that the Coast Guard has been boarding boats in the Canal, but they do not board a moored vessel. SRCC MINUTES (Regular) 8/20/90 Page 10 SRCC MINUTES (Regular) 8/20/90 Page 11 Councilmember Breiner stated that perhaps the Coast Guard could be asked to assist. Councilmember Thayer stated she thought requiring the live-aboards to dock at an established marina and following up on Councilmember Shippey's recommendation for registration should be considered. Councilmember Shippey stated that with regard to documentation, it would seem that to be a boat it would have to be mobile. Councilmember Boro responded that the County ordinance states that all live-aboards must be in good repair and be seaworthy. There being no further business, the meeting adjourned at 11:10 P.M. JEAN . E NCIN.i iotry erlc APPROVED THIS DAY OF 1990 MAYOR OF THE CITY OF SAN RAFAEL SRCC MINUTES (Regular) 8/20/90 Page 11