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HomeMy WebLinkAboutCC Minutes 2003-04-21SRCC Minutes (Regular) 04/21/2003 Page 1 IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, MONDAY, APRIL 21, 2003 AT 8:00 P.M. Regular Meeting: San Rafael City Council Also Present: Rod Gould, City Manager Gus Guinan, Assistant City Attorney Jeanne M. Leoncini, City Clerk OPEN SESSION — COUNCIL CHAMBER — 7:00 PM: Mayor Boro announced Closed Session item: CLOSED SESSION — CONFERENCE ROOM 201 —7:00 PM: 1. Conference with Real Property Negotiator Government Code Section 54956.8 Property address: Gold Hill Grade Present: Albert J. Boro, Mayor Gary O. Phillips, Vice -Mayor Paul M. Cohen, Councilmember Barbara Heller, Councilmember Cyr N. Miller, Councilmember Absent: None APN #: 015-250-28; 015-250-55 Agency Negotiators: City Council, Rod Gould, Bob Brown, Gus Guinan Negotiating Parties: Save Gold Hill Committee, David Santistevan, Greg Fowler, Golden Forest LLC, Marin County Open Space District, City of San Rafael Under Negotiation: Price and Terms Assistant City Attorney Gus Guinan announced that no reportable action was taken. ORAL COMMUNICATIONS OF AN URGENCY NATURE: 8:00 PM a) Loch Lomond Homeowners Association- Proposed Development at Marina: - File 115 (2020) x 10-2 Albert Barr, representing the Loch Lomond Homeowners Association concerning the proposed development, stated City staff had prepared a site analysis for the 2020 General Plan which indicates that the Marina is capable of accommodating 150 residential units. In arriving at this figure, he stated they estimated that ten acres were available to be developed; however, this was misleading, as the Marina itself has significant requirements, including parking for boats berthed at the Marina, an engine repair shop, neighborhood serving commercial and office space, parking for boats trailered in, together with dry boat storage. Mr. Barr stated their estimation is that only three and a half to four acres are available for residential development, and while they are presently discussing these numbers with the developer, they believe these will not change significantly. Assuming the availability of four acres, Mr. Barr stated that at medium density, this would mean a possible 60 units for residential use. Mr. Barr believed that reporting to the State, ABAG and members of the community that 150 units could be facilitated was misleading and he requested that Council direct staff to review this issue and adjust the number. He indicated it raises unintended expectations by members of the committee interested in housing on that site. Mr. Barr believed that over time, dry boat storage and use of the boat ramp at the Marina would be discouraged by increasing fees, as both utilize a considerable amount of space which ultimately would be used for other purposes, primarily housing. He requested that staff should consider means to control this possible price gouging, either through the land use approval process, or eventually, by ordinance. Noting that the breakwater, one of the most attractive parts of the City, would be developed and available for public access, Mr. Barr indicated there was no guarantee that future owners would continue to provide public access. He, therefore, requested staff make a mental note that the approval should ultimately guarantee, in perpetuity, daylight public access to pedestrians on the breakwater to ensure indefinite public access. Mayor Boro requested that Mr. Barr forward a copy of his notes to Community Development Director Bob Brown. Councilmember Cohen inquired whether there would be support in the neighborhood for four acres at fifteen units per acre. SRCC Minutes (Regular) 04/21/2003 Page 1 SRCC Minutes (Regular) 04/21/2003 Page 2 With the response "possibly not," Mr. Barr explained this would mean going up to most likely three stories. He reported having recommended a staggered height of one and two stories to the developer, and would be meeting with him tomorrow to obtain preliminary plans. He noted that with considerable fill, the level of these houses would be raised even higher. He indicated that even 60 units would require three stories, which would impede views and create a significant amount of congestion. b) Re: Proposed Crematorium — Keaton's Mortuary: - File 13-1 x 10-2 Noting that a number of people wished to address Council on the proposed crematorium, for the benefit of those not present at the last meeting, Mayor Boro invited Assistant City Attorney Gus Guinan to provide some background as to what had transpired to date and where the application is currently. Mr. Guinan indicated that his office was requested to review the status of Keaton's Mortuary's Use Permit application for a crematory at its Fifth and Mission Street location. He reported that the zoning at that location is "Fifth/Mission Residential/Office." This district permits funeral and interment services, including crematoriums and mortuaries, with a Use Permit issued by the Zoning Administrator. He stated that consistent with that requirement, the applicant in July, 2002, filed an application to construct on-site, a crematorium at Keaton's at Fifth and Mission. Pursuant to the procedure outlined in Section 14.22.060 of the San Rafael Municipal Code, property owners within 300 - feet of the proposed use were noticed. On September 4, 2002, a public hearing was conducted by the Zoning Administrator, and at that time, one property owner did appear in response to the notice and voiced concerns. Mr. Guinan reported that at the conclusion of the public hearing, the Zoning Administrator took the issue under advisement and issued a Findings of Fact and an opinion granting conditionally, the Use Permit for the crematorium at the location. Because of the concerns of the property owner present at the hearing, Mr. Guinan reported the Zoning Administrator, consistent with Planning Department policy, read the appeal rights pursuant to Section 14.28 of the San Rafael Municipal Code. He explained that section provides that if an aggrieved party disagrees with a decision of the Zoning Administrator, an appeal could be filed to the Planning Commission. This appeal must be in writing, must state the grounds for the appeal and must be filed within five working days (a week) of the decision. As no appeal was filed in the matter, pursuant to Section 14.22.120, the Use Permit became final and effective on September 12, 2002. Mr. Guinan stated that because the Conditional Use Permit (conditioned on the issuance of a permit from the Bay Area Air Quality Management District) as issued by the City is final, the City Council has no authority to review it at this time. Mr. Guinan explained that in the future, should the applicant who has been granted the use, conduct the use in such a way as to create a public nuisance, Code Enforcement activities could take place in the ordinary course as with any other use abusing the Use Permit conditions or creating a public nuisance in the City. Parenthetically, Mr. Guinan pointed out that in this process, the California Environmental Quality Act (CEQA) was analyzed and it was determined that pursuant to the CEQA guidelines, Section 15061(b)(3), this particular project was exempt from CEQA review; however, no notice of exemption was filed. He indicated that the Statute of Limitations for filing a court action on such a determination is 180 days from the date of decision. Regarding the City Council, Mr. Guinan stated this decision is final and the City Council is without authority under the Municipal Code to revisit the granting of the Use Permit. Councilmember Cohen inquired whether there were renewal provisions on the Use Permit. Mr. Guinan reported that according to Mr. Brown, there were not. Michael Gulasch, Sunnyvale, reported he had been involved in a similar issue in the City of Sunnyvale with an existing mortuary and crematory application, noting he had taken a year off work to research and be involved in this process. He commented that by conducting some research in Southern California, the City Attorney would find that due to the City's policing authority and obligation to protect public health, safety and property values, the City did have the authority to rescind the Use Permit. He indicated that the courts had upheld and done this specifically in the case of a crematory, indicating he could provide such reference. Having personally dealt with a similar issue recently where a crematory and mortuary were proposed to be located next door to his property, from his limited knowledge of San Rafael's situation Mr. Gulasch stated that in San Rafael's case, there probably had been some reliance on manufacturers' literature with references comparing the crematory to the safety and emissions of a hamburger stand, which he indicated was an "apples and oranges" comparison. He cautioned that no one should expect the Bay Area Air Quality Management District would not issue the permit, as their role dealt only with certifying that when the piece of equipment is operated under certain conditions, i.e., temperature, times, etc., there would be specific emissions. SRCC Minutes (Regular) 04/21/2003 Page 2 SRCC Minutes (Regular) 04/21/2003 Page 3 Living next door to such a process, Mr. Gulasch reported unpleasant odors, together with the equipment exceeding the City ordinance on leaf blower operations in terms of decibels. He stated that even with soundproofing, it was a loud operation and was similar to living next to a freeway. Mr. Gulasch indicated that a lot of toxins and health/safety issues were involved. There was also evidence of property values decreasing by 18 — 20% post crematory installation, all of which impacted the City's role of protecting health, safety and public property values. Mr. Gulasch agreed to forward information on a specific case reference to the City Attorney's Office. Marie Henry reported that in 1975, she swam across the Bay and three years later, was sprayed with pesticides on an airplane, which changed her whole life. Due to airborne chemical toxins, she indicated she cannot work, has trouble standing, walking and thinking; she is in constant pain and suffers debilitating fatigue, which she believes is due to a brain dysfunction that had compromised her immune, endocrine and nervous systems, and could happen to anyone. Ms. Henry reported that the public notice from the Bay Area Air Quality Management District stated that a crematory "will increase emissions of toxic air contaminants." She indicated that children today are suffering in startling numbers from asthma and allergies, including a number of very young children in her apartment building. She stated that no one is taking into account the cumulative effect of toxins, for which she is the "poster child." Ms. Henry indicated she resides between Second and Third Streets and breaths in traffic and gas station fumes. For years she has enjoyed going to the library or Falkirk to sit on the grass and wondered whether these places would soon become too dangerous for her. She stated that with every exposure to environmental pollutants she becomes sicker, and questioned how many vulnerable residents were at a point where one more source of toxicity would overload their bodies' immune systems. She questioned why in the information supplied by the City to the Bay Area Air Quality Management District, the City characterized this area as strictly commercial, not even mentioning residential. Also, she believed something was wrong with the City's public notification process where only those homeowners living within 300 -feet were notified, as toxic air emissions did not have any respect for property lines. Ms. Henry wished to state to her representatives in City Hall that on a matter relating directly to the health of every individual in the neighborhood, a decision was made without their knowledge or input. She indicated it was necessary for someone to evaluate the big picture as the Land Use and Air Quality permits are issued independently, and no one person was looking at both of them together. While the City and the Air Quality District might each be following the letter of the law, what in fact they would be doing is setting loose a toxin releasing contaminator in the community, among homes, schools and a library. She stated they looked to the City Council to take responsibility to prevent those living in the neighborhood from slipping through the cracks. Kathleen Keith stated she was one of the co-owners of Victorian Village located at Fifth and F Streets. She grew up in San Anselmo and several members of her family live in the area. She reported having been involved in real estate and real estate development since 1974, and in the late 1980s, brought to conclusion a resolution regarding a new McDonald's restaurant now located along U.S.101 and Merrydale. Ms. Keith indicated she alluded to this situation to highlight the process it took to get an operation that staff and the public believed needed additional use mitigations in order to obtain typical building and use permits. Ms. Keith stated she helped finalize a process (which took eighteen years) that involved significant contributions to new and existing signalized intersections, exterior design and treatment, reciprocal easements, trash pickups and operating issues. Ms. Keith indicated the important aspect here is that there was a process. Staff and the public, including neighbors with concerns about circulation, traffic, trash, trash pick-up, product deliveries, operating hours, parking and odors had a chance to be involved in the process and offer suggestions and limitations. In her present position, Ms. Keith stated she manages the real estate and acquisition relocations for the City of San Jose Redevelopment Agency, working daily with the public on all aspects of real estate development and the entitlement process. Ms. Keith reiterated they own property one block from what could only be described as a significant change in use and they had not received any notification. She indicated she understood how the letter of the law could be stretched to envelop a situation such as this. She noted that Keaton's Mortuary had always been a beautiful facility prominently located in an older section of San Rafael, populated by a wonderful blend of old Victorian homes, schools, a convalescent home, retail stores, offices and other general commercial uses. SRCC Minutes (Regular) 04/21/2003 Page 3 SRCC Minutes (Regular) 04/21/2003 Page 4 She stated that she and her partners were disappointed the City did not consider input and the effect on the public in this neighborhood and limited the notification radius to 300 -feet. As a human being, Ms. Keith stated she was very concerned about the environmental impacts of placing the crematorium facility in a very non -industrial area. As a property owner and active preservationist of historical properties, she stated she was very concerned about the value of all their properties and their ability to retain tenants and businesses in the area. Ms. Keith stated that should this decision be set in stone, it would be negligent on the City's part not to require a focused EIR, standards for noise, and other environmental issues, at levels based on local conditions. This should be considered a neighborhood; the property owners and tenants have and have had a long-term stake in the quality of life and business in San Rafael. Gail Mills, 262 Alpine Street, Sun Valley, stated she lived down the street from the Mount Tamalpais Mortuary, which includes a crematorium, and felt it curious that San Rafael appeared to need another crematorium. She had heard very strong arguments this evening against the toxicity of such an establishment in the middle of town. She got the feeling over the years that the City wanted to bring people to the center of San Rafael to beautify it; however, the crematorium was not a way to do this. Ms. Mills stated she was glad to hear the City was not "stuck" with this decision as she believed it needed to be revisited. Regarding the visual impact of a crematorium, Ms. Mills stated that apparently, a smoke stack is involved, which could possibly be one and one half times the building's height. While she was not aware whether this was true in this circumstance, she noted it was adjacent to the Belrose Theater, Head Start Daycare Center, Bordenave Bakery and Library. She believed the 300 -foot notification in the center of town did not make too much sense since a lot of that area is lawn. With regard to the second notification of 1000 -feet, she believed the idea of air currents had not been taken into account. Ms. Mills stated that presently, San Rafael has approximately 166 hazardous waste permits that are ongoing and to have had this come in without an EIR appeared somewhat unusual. She expressed the hope that Council would revisit this decision. Noting Ms. Mills used the term "not stuck," Mayor Boro clarified the City Attorney had indicated that at this point, there were not many options, if any, for the City to pursue. He indicated Ms. Mills' points were valid and well taken. He further confirmed for Ms. Mills that the City Attorney had indicated a permit had been granted and the City did not have the right or ability to change this at this time. He acknowledged the remarks of a previous speaker, indicating this would be explored. Brad Sears questioned whether all the good work done in San Rafael would be undone by preposterous uses, and he did not believe a crematorium was an appropriate use for downtown. He indicated he would continue to pursue the issue on a number of different levels and had retained the services of Mr. Peter Brekhus, Attorney, on behalf of the "Clean Air on Fifth Group", a number of business owners primarily, and individuals who feel very strongly that this has to stop. He hoped all could work together to bring the issue to a sensible conclusion. Attorney Peter Brekhus stated it appeared him that what occurred was something which does occur occasionally before public bodies, i.e., a matter comes before the City or City staff and it is not realized how sensitive it is, and while it is no one's fault, it seemed as if that happened. He recalled that approximately twenty years ago, the City of San Rafael was involved in somewhat of a similar situation. He explained that at a December meeting, the City was strengthening the Sign Ordinance they had spent a year and a half with. It was passed at Christmastime and then the whole business community and Chamber of Commerce "came up in arms", which resulted in litigation. Mr. Brekhus stated he believed it was not publicized and the hearing took place at holiday time. He believed something similar happened in this case, without realizing how sensitive the issue was. From his knowledge of Conditional Use Permits, he stated it appeared the City could revisit the permit if it is detrimental to the health, safety and welfare of the community. If a Conditional Use Permit has been granted and appeal rights have run, it appeared to him Council still had the discretion to visit that matter as all Conditional Use Permits are subject to review as to whether they are detrimental to the health, safety and welfare of the community, instancing the issue of the large smoke stack. He reiterated that something like that could and should be done. Councilmember Heller stated she had lived for the past twenty years within 600 -feet of the crematorium at the Tamalpais Cemetery and there is no smoke stack. She stated she walks the property daily and never experienced any odor or problem, and in fact, was not aware the fixture was there until a couple of months ago. She and everyone on her street had lived and raised children in the area, and seeing the building daily, Councilmember Heller stated she had evidenced no smoke, odor or health problems and she hoped the present project could be proceeded with. For those who had learned of the City's process from the newspaper, Councilmember Cohen corrected the record to the fact that neither the City Council nor Planning Commission voted on this issue. It was treated as a zoning permit by staff and he did not believe it fair of Mr. Sears to infer Council wanted it. SRCC Minutes (Regular) 04/21/2003 Page 4 SRCC Minutes (Regular) 04/21/2003 Page 5 He expressed concern about the use and wondered whether it ran with or counter to what had been successfully done in downtown San Rafael. He stated he was equally concerned about the process and unfortunately, did not come away from the comments this evening glad to hear "we are not stuck with this decision," as it appeared to him the City Attorney believed the decision was made and the City's ability to appeal had run. Councilmember Cohen stated that should Mr. Gulasch or Mr. Brekhus have specifics they could share with the City Attorney regarding possible options, he would be interested in having such a report. He stated he understood the community concern, believing perhaps the issue "missed the City's radar screen" and should be discussed further at some future time. He noted the traffic impacts of this as opposed to the McDonald's mentioned earlier are a lot less; however, he believed there was a process question which should be visited at some point. As this was not a publicly noticed meeting and no action could be taken this evening, Councilmember Cohen suggested asking the City Manager to request the Bay Area Air Quality Management District to conduct a public hearing on those impacts. He did not anticipate waiting for two weeks to put this on the Council agenda. Mayor Boro stated the City could certainly send a letter to the Bay Area Air Quality Management District expressing concern about the issue of toxics and the concern of the community, and the City Council would appreciate their holding a hearing on that issue. He indicated he would be willing to sign such a letter tomorrow morning. On the issue of notification, Mayor Boro stated it was a permitted use in an existing operation. While government is criticized for holding things up, this, in fact, was done over the counter by the Zoning Administrator. It met all of the conditions and as noted by the City Attorney, there was no need for an Environmental Impact Report based on the interpretation. He indicated that the Community Development Director was requested at the last meeting to come back with a review of the 300 -foot noticing. Somehow, more sensitivity was needed in applying this going forward, and while it would not help this issue, Mayor Boro stated it would point out the fact that each case could not be treated similarly. He reiterated that Council could take Councilmember Cohen's suggestion to write to the Bay Area Air Quality Management District expressing the City's and those in the immediate community's strong concerns, and requesting the opportunity for residents to articulate their views. This, he indicated, would be done on Tuesday morning, April 22, 2003. Councilmember Heller suggested the City generate a fact sheet of questions for the Bay Area Air Quality Management District as she had learned of potentially huge amounts of cremations to take place at this facility. She believed there were a lot of mixed facts with fiction and favored helping the community with the correct information. She also suggested inquiring from each of the facilities in the County as to the number of cremations they perform. Having spoken with Mount Tamalpais today, she reported they indicated carrying out approximately only 300, and only their own customers. Mayor Boro clarified that more information should be sought as to what is proposed, specifically what was requested, the understanding of the operation, the smoke stack, etc. He informed Mr. Brekhus the City would continue to communicate, indicating Mr. Brekhus was free to contact Mr. Guinan and City Attorney Ragghianti. Should he have any ideas, the City would be happy to hear them. Councilmember Miller moved and Councilmember Phillips seconded, to approve the following Consent Calendar items: ITEM 2. Approval of Minutes of Special Closed Session of Thursday, April 3, 2003 (CC) 3. Fair Political Practices Commission (FPPC) Report on Annual Filings (CC) - File 9-4-3 4. Resolution Authorizing Amendment and Extension to Agreement with General Plan 2020 Design Consultant Dan Hodapp for Services Ending May 30, 2003 (CD) - File 4-17-129 x 115 (2020) RECOMMENDED ACTION Minutes approved as submitted. Accepted Report on Fair Political Practices Commission (FPPC) Annual Filings, as presented. RESOLUTION NO. 11291 — RESOLUTION AUTHORIZING AMENDMENT TO AGREEMENT WITH DAN HODAPP RE: SAN RAFAEL GENERAL PLAN 2020 (P98-10) (COMMENCING ON FEBRUARY 20, 2002 AND ENDING ON MAY 30, 2003) SRCC Minutes (Regular) 04/21/2003 Page 5 SRCC Minutes (Regular) 04/21/2003 Page 6 5. Resolution Authorizing Amendment to RESOLUTION NO. 11292 — Agreement With General Plan 2020 Planning RESOLUTION AUTHORIZING Consultant Jeffery Baird, AICP, for Additional AMENDMENT TO AGREEMENT WITH Services for Community Involvement and JEFFERY BAIRD, AICP, RE: SAN Workshop Preparation (CD) — RAFAEL GENERAL PLAN 2020 (P98 - File 4-3-353 x 115 (2020) 10) (COMMENCING ON DECEMBER 21, 1998 AND ENDING ON JUNE 30, 2004, IN AN AMOUNT NOT TO EXCEED $135,900) 6. New Fire Dispatch Center: (CD — RESOLUTION NO. 11293 — File 9-2-7a x 9-3-31 RESOLUTION OF THE CITY COUNCIL Resolution of the City Council of the City of San OF THE CITY OF SAN RAFAEL (IN Rafael, in its Capacity as the Board of Appeals, ITS CAPACITY AS THE BOARD OF Granting Approval, and Ratifying the APPEALS) GRANTING APPROVAL Determination of the Building Official of: OF APPEALS REGARDING THE USE a) The Use of an Alternate Design from the OF AN ALTERNATE FOR CBC Relative to the Exterior Wall and MATERIALS, DESIGN, TESTS, AND Opening Protection Between the Two METHODS OF CONSTRUCTION Properties at 1033 and 1039 C Street: FROM THE CALIFORNIA BUILDING and CODE RELATIVE TO (a) EXTERIOR b) The Use of an Alternate Design from the WALL AND OPENING PROTECTION CBC Relative to Operable Windows in the BETWEEN TWO PROPERTIES, AND Sleeping Rooms of the Fire Dispatch (b) OPERABLE WINDOWS FROM Center at 1033 C Street SLEEPING ROOMS, AT 1033 AND 1039 C STREET, SAN RAFAEL 7. Resolution Authorizing the City Manager to Sign RESOLUTION NO. 11294- 7 Professional Services Agreement with Rosen RESOLUTION AUTHORIZING THE Goldberg & Der to Assist with the Preparation of CITY MANAGER TO SIGN A Background Information and with Policy PROFESSIONAL SERVICES Development Pertaining to the Noise Element in AGREEMENT WITH ROSEN San Rafael General Plan 2020 and Related GOLDBERG & DER TO ASSIST WITH Documents (P00-7) (CD) — THE PREPARATION OF File 4-3-421 x 115 (2020) BACKGROUND INFORMATION AND WITH POLICY DEVELOPMENT PERTAINING TO THE NOISE ELEMENT IN SAN RAFAEL GENERAL PLAN 2020 AND RELATED DOCUMENTS (P00-7) (COMMENCING ON MAY 19, 2003 AND ENDING ON JUNE 30, 2004) 9. Resolution Authorizing a License Agreement with RESOLUTION NO. 11295 — Pacific Gas and Electric (PG&E) for Use of the RESOLUTION AUTHORIZING THE Parking Area Located at 999 Third Street, in an EXECUTION OF A LICENSE Amount not to Exceed $30,000 (MS) — AGREEMENT BETWEEN THE CITY File 4-10-335 x 9-7-3 OF SAN RAFAEL AND PACIFIC GAS AND ELECTRIC FOR USE OF THE PARKING AREA LOCATED AT 999 THIRD STREET IN AN AMOUNT NOT TO EXCEED $30,000 10. Resolution of Appreciation to Diane Wachter, RESOLUTION NO. 11296 — Administrative Assistant, Public Works RESOLUTION OF APPRECIATION TO Department, Employee of the Quarter Ending DIANE WACHTER, ADMINISTRATIVE March, 2003 (PW) — File 102 x 7-4 x 9-3-40 ASSISTANT, PUBLIC WORKS DEPARTMENT, EMPLOYEE OF THE QUARTER ENDING MARCH, 2003 11. Resolution Amending Resolution No. 6728 and RESOLUTION NO. 11297 — Establishing the List of Sidewalks, Streets and RESOLUTION AMENDING Parking Structures Within the City Where the Use RESOLUTION NO. 6728 AND of Skateboards, Roller Skates, Bicycles and ESTABLISHING THE LIST OF Electric Personal Assistive Mobility Devices is SIDEWALKS, STREETS, PARKING Restricted (PW) — File 11-27 STRUCTURES AND PUBLIC PLACES WITHIN THE CITY WHERE THE USE OF SKATEBOARDS, ROLLER SKATES, BICYCLES AND ELECTRIC PERSONAL ASSISTIVE MOBILITY DEVICES ARE RESTRICTED SRCC Minutes (Regular) 04/21/2003 Page 6 SRCC Minutes (Regular) 04/21/2003 Page 7 AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None ABSTAINING: COUNCILMEMBERS: Cohen (from item #2 only, due to absence from meeting.) DISQUALIFIED: COUNCILMEMBERS: Mayor Boro (from item #9 only, due to conflict of interest.) The following item was removed from the Consent Calendar, at the request of Councilmember Cohen: 8. SUMMARY OF LEGISLATION AFFECTING SAN RAFAEL (CM) — FILE 116 x 9-1 Councilmember Cohen stated he wished to point out the support for HR1157, the Freedom to Read Protection Act. He explained this is a proposed amendment to the so-called Patriot Act that would remove Section 215 and would remove libraries from the broad category of business records that could be searched by the FBI at will, and restoring the customer privacy protection that existed prior to the passage of the Patriot Act. He stated they still would have access as part of a criminal investigation with a search warrant, but would remove libraries from the broad category into which they were placed with the hasty passage of the Patriot Act. Councilmember Cohen stated he did not have high hopes for the passage of HR1157; however, he believed it appropriate to go on record as supporting that House Resolution. Mayor Boro stated he was aware of this item and understood how it targeted the library. He noted the Patriot Act was approved by 99 members of the Senate and approximately 422 of the 434 members of the House and having had the San Rafael City Attorney's Office check to date, he reported that no lawsuits were filed anywhere in any court they could find challenging the constitutionality of this particular law. Mayor Boro stated Council was "skimming here" on the issue of the policy pertaining to taking positions on issues that affect the City and he was concerned that to get into this, it would not be enough to appease some people. He wished the record to state that should Council desire to address any further part of this Act, they first would address the issue of policy before getting to the merits of the Act. Councilmember Phillips indicated his agreement with Mayor Boro's comment. Councilmember Cohen moved and Councilmember Phillips seconded, to approve the staff recommendation: AB 980 Housing Elements: Production -Based Certification— Assembly Member Salinas — SUPPORT; ACA 10 Local Government Property Related Fees — Assembly Member Harman — SUPPORT ACA 7 Transportation Funding: Sales and Use Tax — Assembly Member Dutra — SUPPORT H.R. 1157 Freedom to Read Protection Act — Representative Sanders - SUPPORT AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None SPECIAL PRESENTATION: 12. PRESENTATION OF RESOLUTION OF APPRECIATION TO DIANE WACHTER, ADMINISTRATIVE ASSISTANT, PUBLIC WORKS DEPARTMENT, EMPLOYEE OF THE QUARTER ENDING MARCH, 2003 (PW) — FILE 102 x 7-4 x 9-3-40 For the benefit of the audience, Mayor Boro announced that Diane Wachter was elected Employee of the Quarter for the first quarter of 2003, for which she received a $100 bill, and recognition at the Annual Employee Luncheon. He indicated she would be one of the contestants for the Employee of the Year award. Mayor Boro stated the Resolution of Appreciation indicated that Diane had been with the Department of Public Works since 1996, that she had been very professional, competent, calm and mature in a setting that is always busy and often hectic. The resolution also addressed the fact that Diane is a rare individual who sincerely cares about people and takes time to listen, and that her cakes had become the stuff of legend and an indispensable part of the City's organizational and gastronomical culture. Mayor Boro stated the Resolution further indicated that those persistent rumors about store bought cake mixes were unfounded and sprang solely from the petty jealousy of those whose baking skills could not now and never would measure up to Diane's Olympian standards. SRCC Minutes (Regular) 04/21/2003 Page 7 SRCC Minutes (Regular) 04/21/2003 Page 8 Mayor Boro congratulated and thanked Diane. Diane Wachter stated that by enjoying what one is doing, it is very easy to do a good job. She stated she truly enjoys her job and those with whom she works. PUBLIC HEARING: 13. Public Hearing - RE END OF NORTH AVENUE (MCINNIS PARK APARTMENTS IIB) - CONSIDERATION OF REQUEST FOR: 1) REZONING FROM PLANNED DEVELOPMENT (PD) DISTRICT TO A REVISED PD DISTRICT WITH ADOPTED MULTI -FAMILY ZONING REGULATIONS; 2) AN ENVIRONMENTAL AND DESIGN REVIEW PERMIT FOR THE CONSTRUCTION OF 14 MULTI -FAMILY RESIDENTIAL UNITS WITHIN TWO BUILDINGS, 30 PARKING SPACES, AND LANDSCAPING; 3) A TENTATIVE SUBDIVISION MAP TO ADJUST EXISTING LOT LINES AND CREATE A NEW SEPARATE LOT; AND 4) A TRIP PERMIT TO TRANSFER SURPLUS TRIPS IN NORTH SAN RAFAEL TO THIS PROJECT SITE; APN: 155 -370 - PARCEL B, 155-370-07 AND 08, AND 155-251-54; PLANNED DEVELOPMENT (PD 1574/1767/1768) DISTRICT; SMITH RANCH HOMES HOMEOWNERS ASSOCIATION/MCINNIS HOUSING PARTNERS/MHPII LLP, OWNERS; MCINNIS HOUSING PARTNERS/JOHN SHALAVI, APPLICANT; FILE NOS.: ZCO2-04, ED02-159, S02-14 AND TP02-01 (CD) — FILE 5-1-290 x 10-3 x 10-7 Mayor Boro declared the public hearing opened Associate Planner Raffi Boloyan stated this would be the third phase to the McInnis Park Apartments project. The fourteen units would all be two-bedroom and once completed, all three phases of the apartment project would operate as one entity. As identified in the staff report, Mr. Boloyan stated the project is generally consistent with the General Plan and Zoning Ordinance. The Design Review Board and Planning Commission reviewed the application and both Boards recommended approval of the project. He reported that the Planning Commission's was a split vote, 4:3, the main issue with the dissenting vote being whether the project merited granting of a Trip Permit. On the issue of the Trip Permit, Mr. Boloyan reported that two of the fourteen units are proposed as affordable, a 14.2% affordability, which is slightly less than the 15% identified in the General Plan. To offset this deviation, he stated that the applicant had proposed to provide both of the units as very low-income. This, he stated, is actually more than what is required by the General Plan, which only requires one very low-income unit. Mr. Boloyan reported that staff had reviewed this proposal with the City's Housing Consultant, as well as the Economic Development staff, and recommend that the provision of a second very low affordable unit is an adequate method to justify that slight deviation from the 15% requirement. He indicated that very low-income units are very hard to come by and this is a very valuable and needed type of unit in the City. Based on this, staff recommends approval of the project, and Mr. Boloyan stated he would be happy to answer questions. Councilmember Cohen noted that the packet contained a letter from the developer suggesting a willingness to propose an alternate, one very low, one low and one moderate -income unit, and he inquired as to staff's position on this. Community Development Director Bob Brown stated this discussion took place before at Council level, and the City no longer accepts moderate -income units, as essentially, they are market rate. In running the numbers of this alternative, he indicated it was found there would actually be less subsidy than the two very low units. Councilmember Heller inquired whether this would be coming through later on the PPP project. Responding, Mr. Boloyan stated this application is the one and only application competing in the North San Rafael area. Councilmember Heller stated that in looking at the number of trips available in that area, there appeared to be a sufficient amount; therefore, she confirmed that nothing was actually being stripped from someone else. Noble "Rocky" Birdsey, Marin Center for Independent Living, thanked staff for requesting the very low-income unit as it was desperately needed in San Rafael. He inquired whether any of the units would be accessible. SRCC Minutes (Regular) 04/21/2003 Page 8 SRCC Minutes (Regular) 04/21/2003 Page 9 Responding, Mr. Boloyan stated the building official had reviewed the plans and stated that the accessible units were to be on the ground level and were to be identified on the building permit drawings. The question of how many would be addressed later in the hearing. John Shalavi, General Partner of the Partnership owning the property, stated he was present to address any questions. On the question of accessibility, Mr. Boloyan reported that one unit on the ground floor would be accessible. There being no further comment from the audience, Mayor Boro closed the public hearing. Councilmember Cohen stated he had noticed from the plans submitted to Council that Unit B on the ground floor in Building 3 was indicated as "HC adaptable" and he questioned the meaning of that phrase. Specifically, he inquired whether this meant the unit could be retrofitted, whether doorways and open areas would meet the wheelchair space requirements, whether there would be blocking in the wall for the addition of grab bars, or whether it would be built as an accessible unit. Not having all the details, Mr. Boloyan stated he believed the Uniform Building Code had certain requirements, as did the ADA (Americans with Disabilities Act). He indicated this was what the building official had required to be shown on the plans, i.e., that the unit meets the minimum requirement by the Building Code and by the ADA Code. Referring the question to the applicant, Mayor Boro inquired whether this was also his understanding. Mr. Shalavi stated that unfortunately, the architect was not present; however, his understanding was that all of the ground floor units were required to be accessible, and he believed they were. For tonight's action, Mayor Boro requested it would be good if Mr. Shalavi could stipulate for the record that for sure, one would be accessible, and to make the entire 7 on the ground floor accessible would be great. Mr. Boloyan stated this could be added as a condition In reading the minutes of the Planning Commission meeting, Councilmember Phillips requested clarification as to whether or not a literal reading of the General Plan would permit this configuration, i.e., the affordable housing configuration. Mr. Brown stated that the General Plan does not address Trip Permits, etc., rather it defines what an affordable project is, specifying this to be 15% of more. His understanding was that the majority of the Planning Commission did approve a resolution that has findings for the Trip Permit that essentially accept the 14.2% as being adequate. Councilmember Phillips stated that a literal reading would indicate that it is not consistent. Mr. Boloyan concurred. Councilmember Phillips stated that furthermore, he understood the City could use its own judgment in going beyond that. On that point, Councilmember Heller stated that with phases II and IIB, the figure was 15%, or more. Mr. Boloyan explained that when phases II and IIB were added, it showed that 19.6% was affordable. Mayor Boro stated he had discussed this point with Community Development Director Brown, recalling a similar discussion earlier on in this project concerning the concept of double dipping. He indicated he had resolved in his mind that overall, it had been a good project and a substantial number of affordable units had been achieved. Tonight, two at the very lowest level were being achieved; therefore, he believed it justified Council's discretion. Councilmember Phillips stated he appreciated this comment as he was troubled because of the PPP process. He indicated he would vote with the overall conclusion and stated he appreciated staff's comment with regard to the clarity of the issue. As part of the General Plan process, Councilmember Cohen stated policy arguments could be made; however, he suggested that perhaps the General Plan should reflect that opportunities would be sought, particularly in regard to rental housing, with standards a little different as an incentive to produce more very low-income housing. He stated he agreed with staff's interpretation and believed the trade-offs were here. He noted the trade-off decision was made on the last approval; therefore, this one should stand on its own. SRCC Minutes (Regular) 04/21/2003 Page 9 SRCC Minutes (Regular) 04/21/2003 Page 10 Councilmember Cohen stated that technically, three units could be obtained, one of moderate - income; however, as had already been seen out there, this is essentially at market rate. Technically, he stated, it could be argued it is an affordable unit, however, from a policy perspective, it would be a worse outcome. He stated the project as presented should be proceeded with; however, since staff is now working on the General Plan, he favored making the numbers tougher. He suggested figuring out a way for flexibility should someone come in with a way to obtain more very low income. In terms of what had been discussed with the Steering Committee, Mr. Brown stated they would propose to eliminate Appendix B in the Trip Permits, which was considered a duplicative process that did not add a great deal of value. However, the Housing Element forwarded to the State would require 20% affordability in apartment projects. Councilmember Cohen moved and Councilmember Phillips seconded, to adopt the resolution. 1) RESOLUTION NO. 11298 — RESOLUTION ADOPTING A MITIGATED NEGATIVE DECLARATION FOR A REZONING (ZCO2-04), ENVIRONMENTAL AND DESIGN REVIEW PERMIT (ED02-159), TENTATIVE MAP (S02-14), AND TRIP PERMIT (TP02- 01) TO ALLOW THE CONSTRUCTION OF A 14 -UNIT MULTI -FAMILY RESIDENTIAL DEVELOPMENT ON A VACANT PARCEL LOCATED AT THE END OF NORTH AVENUE (MCINNIS PARK APARTMENTS IIB) (APN 155 -370 -PARCEL B) AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None The title of the ordinance was read: 2) "AN ORDINANCE OF THE CITY OF SAN RAFAEL REZONING CERTAIN REAL PROPERTY FROM PLANNED DEVELOPMENT (PD) DISTRICT TO A REVISED PD DISTRICT (ZCO2-04) TO ALLOW THE CONSTRUCTION OF 14 TWO-BEDROOM APARTMENTS ON A VACANT 0.92 -ACRE SITE LOCATED AT THE END OF NORTH AVENUE (MCINNIS PARK APARTMENTS IIB) AND INCORPORATING THE PREVIOUSLY APPROVED PD DISTRICT ZONING FOR MCINNIS PARK APARTMENTS I AND II INTO THE NEW PD DISTRICT (APNS: 155 -370 -PARCEL B, 155-370-07 AND 08, AND 155-251-54)" Councilmember Heller moved and Councilmember Miller seconded, to dispense with the reading of the ordinance in its entirety and refer to it by title only, and pass Charter Ordinance No. 1801 to print, by the following vote, to wit: AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None Councilmember Phillips moved and Councilmember Heller seconded, to adopt the resolution. 3) RESOLUTION NO. 11299 — RESOLUTION APPROVING AN ENVIRONMENTAL AND DESIGN REVIEW PERMIT (ED02-159), TENTATIVE MAP (S02-14), AND TRIP PERMIT (TP02-01) TO ALLOW THE CONSTRUCTION OF 14 TWO-BEDROOM APARTMENTS ON A VACANT 0.92 -ACRE PARCEL LOCATED AT THE END OF NORTH AVENUE (MCINNIS PARK APARTMENTS IIB) (APN: 155 -370 -PARCEL B) (as amended: Page 9 - #29. All units on the ground floor shall be "adaptable" per the California Building Code. Furthermore, the applicant stipulated that at least one of these units shall be fully "accessible.") AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None SRCC Minutes (Regular) 04/21/2003 Page 10 SRCC Minutes (Regular) 04/21/2003 Page 11 CITY MANAGER'S REPORT: 14. a) SB402: - File 116 x 9-1 x 9-3-30 x 9-3-31 City Manager Rod Gould reported that staff was gratified to learn today the California Supreme Court ruled that SB 402 is unconstitutional. He recalled that in 2002, the legislature signed a law that stated cities and counties had to go to binding arbitration if they were unable to reach agreement with Police and Fire unions over wages and benefits. Mr. Gould stated the State Supreme Court agreed with arguments from the League of California Cities that this is a clear violation of local control as embodied in the Constitution, and struck it down as unconstitutional. b) Santa Margarita Homeowners Association:- File 9-3-66 Mr. Gould reported that the Santa Margarita Homeowners Association would hold a celebration on Saturday, April 26th, 2003, for the renovation of the Santa Margarita Park, commencing at 3:00 p.m. He invited any Councilmember who could to attend. As Mayor Boro would be unable to attend, Councilmember Miller agreed to attend on his behalf. Councilmembers Cohen and Heller hoped to also attend. COUNCILMEMBER REPORTS: 15. a) Forum on Affordable Housing: - File 9-1 x 13-16 x (SRRA) R-173 Mayor Boro offered Councilmembers the opportunity to take his place on a Forum on Affordable Housing, to take place on May 22, 2003, at 2:30 p.m. Councilmember Cohen offered to attend and Mayor Boro confirmed the role would be Public Leadership. b) Congestion Management Agency: - File 170 x 191 Regarding this week's meeting of the Congestion Management Agency, Mayor Boro stated he would be unable to attend on Thursday evening, and Councilmember Cohen, alternate, would attempt to attend. Councilmember Heller would be in attendance representing the Marin Transit Authority. Mayor Boro distributed a draft document for the meeting, noting he had alerted the City Manager who would be getting a presentation on this at a Managers' meeting this week. He explained that basically, there had been a request that the organization conduct outreach in the community, concentrating primarily on the set-aside. He recalled having informed Councilmembers that one of the components of a ballot measure, should it go on the ballot, would be to have a percentage of the sales tax go to each community for a local set-aside to work on street improvements and transportation improvements that each community feels is a priority. Mayor Boro stated that even though there had been a two-year process and a vision developed, literally hundreds of thousands of dollars spent on this plan, public hearings, workshops and polls taken, there was concern that the word still had not gotten to the public. Therefore, in addition to discussing the local set-aside, communities were invited to discuss the overall plan. To that end, the Mayor and representative to the CMA in each jurisdiction would appoint a committee of citizens to evaluate what the County and CMA had come up with. As he is the Mayor and CMA representative, Mayor Boro invited Councilmember Cohen to meet with him at the time of appointing a committee to decide on representation. He indicated that San Rafael would deal with this on its own, while some other cities would combine. As this would be voted on Thursday evening, Mayor Boro was not quite sure how the entire committee felt. While there was some sentiment that outreach be conducted, his concern was not to return to the beginning each time; therefore, the emphasis should be put on the local set-aside with good policies and community involvement. In San Rafael, Interim Public Works Director, Andy Preston would discuss plans and needs from an infrastructure point of view, together with street and road improvements; the study on the issue of a shuttle in the downtown could be reviewed, and all presented in a form establishing some priorities. Mayor Boro indicated that County staff would attend these meetings to discuss the County and CMA's plan with respect to the overall allocation of dollars for transit and road improvements. He believed it would be a disaster if each community tried to suggest it should be 12% this way and 18% that way. He stated that obviously, with some glaring issues emerging, whatever they may be, it would be great to collect them and the more people who become invested in this process, the more people would feel an ownership which ultimately, would contribute to a resolution. He urged those Councilmembers attending on Thursday evening to ensure the overall plan was not returned to the beginning, which was not the intent. He believed it important that a charge be given to each of the committees to be consistent, that a County staff person SRCC Minutes (Regular) 04/21/2003 Page 11 SRCC Minutes (Regular) 04/21/2003 Page 12 attend the meetings and "speak the gospel", and that cities were present to represent their own particular needs. He hoped Councilmember Cohen could attend, and if not, Councilmember Heller would be the representative. There being no further business, Mayor Boro adjourned the City Council meeting at 9:16 p.m. JEANNE M. LEONCINI, City Clerk APPROVED THIS DAY OF 12003 MAYOR OF THE CITY OF SAN RAFAEL SRCC Minutes (Regular) 04/21/2003 Page 12