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HomeMy WebLinkAboutCC Minutes 2009-05-18SRCC Minutes (Regular) 05/18/2009 Page 1 IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, MONDAY, MAY 18, 2009 AT 8:00 P.M. Regular Meeting: San Rafael City Council Also Present: Ken Nordhoff, City Manager Robert F. Epstein, City Attorney Esther C. Beirne, City Clerk OPEN SESSION — COUNCIL CHAMBER — 4:30 PM Mayor Boro announced Closed Session items: Present: Albert J. Boro, Mayor Barbara Heller, Vice -Mayor Greg Brockbank, Councilmember Damon Connolly, Councilmember Cyr N. Miller, Councilmember Absent: None CLOSED SESSION — THIRD FLOOR CONFERENCE ROOM — 4:30 PM 1. a) Conference with Real Property Negotiator (Government Code Section 54956.8) Property: City Open Space Adjacent to 81 McNear Drive, San Rafael (APN 186-530-68 & 186-470-99) City Negotiators: Ken Nordhoff, Parviz Mokhtari, and Art Gibney Negotiating Parties: City of San Rafael and Marion Hill Under Negotiation: Possible property exchange of City Open Space Lands for Private Lands; terms and conditions, including price and terms of payment b) Conference with Labor Negotiators— Government Code Section 54957.6(a) Negotiators: Jim Schutz, Leslie Loomis, Cindy Mosser, Rob Epstein, Ken Nordhoff, David Dodd, Carlene McCart, Chris Gray, Matthew Odetto, Bob Brown, Parviz Mokhtari, Nancy Mackle Employee Organization(s): San Rafael Fire Chief Officers' Assn. San Rafael Firefighters' Assn. San Rafael Police Mid -Management Assn. San Rafael Police Association Western Council of Engineers Assn. of Confidential Employees SEIU Miscellaneous & Supervisory SEIU Child Care Unit Unrepresented Management Unrepresented Mid -Management Elected City Clerk and Elected Part -Time City Attorney City Attorney Robert Epstein announced that no reportable action was taken. ORAL COMMUNICATIONS OF AN URGENCY NATURE: 8:00 PM SEIU 1021 Contract Neqotiations:- File 9-1 Paul Carroll, SEIU 1021, expressed concern with regard to overreaching in connection with a number of contract provisions that had been in place for a long time and moving their contract back more than a decade in terms of items negotiated for. He stated that it hindered their ability to work collaboratively with the City on the fiscal crisis when there were elements that did not have any short-term effect and could have dubious long-term effects. Indicating that until recently it had been a very productive time in negotiations, Mr. Carroll stated they would like this to continue and to focus on what could get the City through its current fiscal issues. SRCC Minutes (Regular) 05/18/2009 Page 1 SRCC Minutes (Regular) 05/18/2009 Page 2 CONSENT CALENDAR: Councilmember Brockbank moved and Councilmember Miller seconded, to approve the Consent Calendar as follows. ITEM RECOMMENDED ACTION 2. Approval of Minutes of Regular City Council Meeting of Minutes approved as submitted. April 20, Special Meeting of April 29 and Special and Regular meetings of May 4, 2009 (CC) 3. Reappointment of Sue Beittel to Fill One, Three Year Term Sue Beittel reappointed to serve a three - on the Marin Commission on Aging — Term to Expire End year term on the Marin Commission on of June, 2012 (CC) — File 199 Aging — term to expire end of June, 2012. 4. Report on San Rafael Ridge Access (CS) Removed from agenda at request of staff. 5. Monthly Investment Report for Month Ending April, 2009 Accepted Monthly Investment Report for (Fin) — File 8-18 x 8-9 Month Ending April, 2009, as presented. 6. Resolution in Support of National Emergency Medical RESOLUTIONS 12735. 12736 Services Week — May 17 — 23, 2009 (FD) — RESOLUTION OF APPRECIATION TO SAN File 102 x 9-3-31 RAFAEL FIRE DEPARTMENT AND MARIN COUNTY DISPATCH PERSONNEL 7. Resolution Authorizing City Manager to Execute an RESOLUTION NO. 12737 — Agreement for the Provision of Emergency Management RESOLUTION AUTHORIZING THE CITY Services by the City of San Rafael to the City of MANAGER TO EXECUTE AN AGREEMENT Larkspur (MS) — File 13-11 FOR THE PROVISION OF EMERGENCY MANAGEMENT SERVICES BY THE CITY OF SAN RAFAEL TO THE CITY OF LARKSPUR Resolution Authorizing the City Manager to Execute the RESOLUTION NO. 12738 — Agreement with Regional Government Services RESOLUTION AUTHORIZING THE CITY Authority for Emergency Management Services Support MANAGER TO EXECUCTE THE in the Office of Emergency Services (MS) — AGREEMENT WITH REGIONAL File 4-3-473 x 13-11 x 9-3-31 GOVERNMENT SERVICES AUTHORITY TO PROVIDE EMERGENCY SERVICES COORDINATION IN THE OFFICE OF EMERGENCY SERVICES Resolution Finding a Severe Fiscal Hardship will Exist if RESOLUTION NO. 12739 — Additional City Property Tax Funds are Seized and RESOLUTION FINDING A SEVERE FISCAL Additional Unfunded Mandates are Adopted by the State HARDSHIP WILL EXIST IF ADDITIONAL Of California (CM) — File 116 x 9-1 CITY PROPERTY TAX FUNDS ARE SEIZED AND ADDITIONAL UNFUNDED MANDATES ARE ADOPTED BY THE STATE OF CALIFORNIA 10. Resolution Authorizing the City Manager to Publish a RESOLUTION NO. 12740 — Request for Proposal for a City Council Chambers RESOLUTION AUTHORIZING THE CITY Audio/Video System and Select the Most Responsive MANAGER TO PUBLISH A REQUEST FOR and Qualified Proposal by Use of Competitive PROPOSAL FOR A CITY COUNCIL Negotiation (MS) — File 9-3-88 x 9-1 CHAMBERS AUDIO/VIDEO SYSTEM AND SELECT THE MOST RESPONSIVE AND QUALIFIED PROPOSAL BY USE OF COMPETITIVE NEGOTIATION SRCC Minutes (Regular) 05/18/2009 Page 2 12. Resolution Authorizing the City Manager to Amend Funding Agreement #2007-012 Between the Transportation Authority of Marin and the City of San Rafael by Adding $487,732 in Local Measure A Funding (PW) — File 170 x 9-3-40 13. Resolution Authorizing Temporary Closure of Downtown City Streets to Accommodate Great American Blues & Barbeque Festival Event on Saturday, September 12, 2009 from 6:30 a.m. until 9:00 p.m. (RA) — File 11-19 14. Resolution Authorizing the Temporary Closure of Fourth Street from H Street to E Street from 7:OOam — 11:00pm for the West End Village Celebration 2 on Sunday, July 19, 2009 (RA) — File 11-19 SRCC Minutes (Regular) 05/18/2009 Page 3 RESOLUTION NO. 12741 — RESOLUTION AUTHORIZING THE CITY MANAGER TO AMEND FUNDING AGREEMENT #2007-012 BETWEEN THE TRANSPORTATION AUTHORITY OF MARIN AND THE CITY OF SAN RAFAEL BY ADDING $487,732 IN LOCAL MEASURE A FUNDING RESOLUTION NO. 12742 — RESOLUTION AUTHORIZING THE TEMPORARY CLOSURE OF CITY STREETS FOR THE 4T" ANNUAL GREAT AMERICAN BLUES & BBQ FESTIVAL ON SATURDAY, SEPTEMER 12, 2009 FROM 6:30 AM TO 9:00 PM RESOLUTION NO. 12743 — RESOLUTION AUTHORIZING THE TEMPORARY CLOSURE OF FOURTH STREET FROM H STREET TO E STREET FROM 7:00 AM — 11:00 PM FOR THE WEST END VILLAGE CELEBRATION 2 ON SUNDAY, JULY 19, 2009 AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None The following item was removed from the Consent Calendar for discussion, at the request of staff: 11. REPORT ON BID OPENING AND RESOLUTION AWARDING THE CONTRACT FOR DOMINICAN / BLACK CANYON NEIGHBORHOOD LANDSCAPE PROJECT. PROJECT NO. 11059, TO FIELDSTONE CONSTRUCTION CO. IN THE AMOUNT OF $63,536 (BID OPENING HELD ON TUESDAY, APRIL 28, 2009) (PW) — FILE 4-1-609 Interim Public Works Director Parviz Mokhtari clarified that the total cost of the project, including architectural work, contingency, bid and water meter amounted to $99,699 and not $88,000 as inadvertently stated on page 2 of the staff report. Councilmember Brockbank moved and Councilmember Heller seconded, to adopt the resolution. RESOLUTION NO. 12744 — REPORT ON BID OPENING AND RESOLUTION AWARDING THE CONTRACT FOR DOMINICAN / BLACK CANYON NEIGHBORHOOD LANDSCAPE PROJECT, PROJECT NO. 11059, TO FIELDSTONE CONSTRUCTION CO. IN THE AMOUNT OF $63,536 AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None SPECIAL PRESENTATION: 15. PRESENTATION OF RESOLUTION IN SUPPORT OF NATIONAL EMERGENCY MEDICAL SERVICES WEEK (FD) — FILE 102 x 9-3-31 Mayor Boro explained that these were Resolutions of Appreciation to the San Rafael Fire Department and Marin County Dispatch personnel group. He quoted part of the resolution: "The American College of Emergency Physicians sponsors National Emergency Medical Services Week each year as a national celebration — bringing together communities and medical personnel to publicize SRCC Minutes (Regular) 05/18/2009 Page 3 SRCC Minutes (Regular) 05/18/2009 Page 4 safety and honor the dedication of those who provide the day-to-day life saving services of medicine's front line. This year's EMS Week, with a theme of `EMS: a Proud Partner in your community, is May 17 — 23." Mayor Boro expressed thanks for the great work done in providing this type of coverage and service to the community. Administrative Fire Chief Keith Schoenthal introduced Ward Hayter, Marin County Communications Center, Firefighter Paramedic Steve Takemoto and Doctor Vicki Martinez, Kaiser Permanente, who accepted the Resolutions of Appreciation on behalf of the San Rafael Fire Department and Marin County Dispatch. PUBLIC HEARING: 16. CONSIDERATION OF A REQUEST FOR AN EXCEPTION PURSUANT TO SAN RAFAEL MUNICIPAL CODE SECTION 19.10.070 FOR AN ENCROACHMENT OF PRIVATE IMPROVEMENTS UPON CITY OPEN SPACE LANDS ADJOINING 81 MCNEAR DRIVE (PW) — FILE 2-11 Mayor Boro declared the public hearing opened. Art Gibney, Operations and Maintenance Manager, Public Works, explained that this item involved encroachment of private improvements upon City open space land at 81 McNear Drive and a petition from the current owner, Marion Hill, for an exemption to San Rafael Municipal Code Section 19.10.070 — Open Space, with the goal of maintaining these encroachments in some fashion. Mr. Gibney noted that the history to this issue was long and complex and was described in detail in the staff report. Summarizing, Mr. Gibney explained that some time between 1989 and 2000, a previous owner/owners of 81 McNear Drive installed private improvements upon City open space covering an area of approximately one half acre, including improvements such as lawn area, landscaping, irrigation systems, a small structure and fencing. Reporting that in 2000 City staff's attention was directed to 81 McNear Drive through a complaint from a neighbor regarding illegal tree trimming on the open space adjacent to 81 McNear Drive, Mr. Gibney stated that City staff responded, took their best guess at where the property line was and assumed that perhaps there was an encroachment. A property line survey was performed by the City, parenthetically not only for 81 McNear, but also for 82 and 85 McNear, two adjoining properties, and it was determined that the 81 McNear encroachment of approximately one half acre included those improvements. The then owner of 81 McNear was sent a letter, together with the survey map, and requested to remove the encroachments; however, that enforcement action did not materialize. Mr. Gibney reported that in 2006, Marion Hill took title to 81 McNear Drive and in 2007, City staff was again requested to investigate an alleged illegal tree trimming on City open space at 81 McNear Drive. City staff responded, checked records in Public Works and discovered again the encroachment. Marion Hill was sent a letter in 2007, as were the two adjoining properties, 82 and 85 McNear, and requested to remove the encroachments from 81 McNear. As City staff did not hear from Ms. Hill, in 2008 the matter was referred to Code Enforcement, who issued a Notice and Order to remove the encroachments. Mr. Gibney stated that subsequently numerous discussions took place between City staff, Marion Hill and her attorney, which led to a hearing with the Park & Recreation Commission. The Park & Recreation Commission voted 4:3 to grant a limited exception to the Municipal Code, granting roughly 2,500 square -feet of lawn area to the petitioner. This issue went before the Public Works Director and staff recommended in this evening's staff report denial of the exception and adoption of the resolution. Reporting that the San Rafael Open Space Ordinance protects open space, Mr. Gibney clarified that it does not allow encroachments, private use or exclusive use of it; however, it did contain language which enabled the City Council to grant an exception. Four criteria needed to be met to grant such an exception and although the Park & Recreation Commission could only find for two of the four, Public Works staff found that the current petition met none of the four and therefore, recommended denial of the exception and adoption of the resolution. Marion Hill, current owner of 81 McNear Drive, expressed thanks for the opportunity to present the other side SRCC Minutes (Regular) 05/18/2009 Page 4 SRCC Minutes (Regular) 05/18/2009 Page 5 of this unusual set of circumstances. She hoped the City Council could assist in resolving the situation in a positive way. Ms. Hill reported that in the spring of 2006, she received a brochure advertising a house for sale in San Rafael and subsequent to inspecting the home, in August 2006 she entered into a contract for its purchase. She had only twenty-one days to conduct her due diligence and order key reports or inspections to be fully aware of all aspects of the property. She indicated she spent the full twenty-one days actively researching and coordinating all possible reports and in all of these reports, including the City's own report, there was no mention of any notices of violation that would have alerted her to order further inspection. Having visited the City offices and requested the file relating to 81 McNear, Ms. Hill reported that she was handed two enormous files full of documents relating to a 2001 battle between neighbors regarding landscaping disputes at the front yard of the property. The only other item she observed regarding the rear yard of the property were documents relating to the 1989 land trade made by the City and approved by the City Council to help the owner at the time, Marshal Lucas, save an already half finished pool which the owners discovered was encroaching on open space lands. Ms. Hill reported that according to those documents the land trade was approved, the lot lines were adjusted and the encroachment was resolved, which appeared to be the end of the back yard story. When she inquired from the realtor as to where the property line was she was informed that it was down hill from the lawn and somewhere by the deer fence. It did not occur to her that the exact location of a deer fence should be an issue of concern, as this was a common problem all over Marin County. Ms. Hill reported that having inquired of the realtor whether there was a survey, the response was "no" after they checked with the owner. At no time did anyone inform her that more than half of the lawn area was encroaching onto open space or rock walls, and there was no discussion with her by any realtor about any encroachment being an issue. Ms. Hill reported that after all normal reports and files had been reviewed, everything looked fine to her and her realtor, there appeared to be no red flags, and she moved ahead with the purchase confident there were no major problems that had not been disclosed. She and her family were thrilled to move in, she fell in love with the house and garden and worked very hard the first year to clean up any items that had fallen into disrepair, as the house had been vacant for almost two years while it was for sale. Ms. Hill reported that in April, 2007 she received a letter from the San Rafael Director of Public Works indicating that the City had sent a letter seven years before (October 2000) to the previous owner requesting removal of certain known improvements made on open space, including an encroachment survey performed at the time by the City. After trying to piece together a spotty history from neighbors and from the previous owner, and with very little information in City files, it appeared that in 1989, at the time the land trade was made, the pool was completed, while at the same time significant landscaping improvements were made on the property and on City open space. Ms. Hill commented that why anyone would invest the time and money and risk the potential loss of such an investment to make such extensive landscaping on City property was beyond her comprehension. She indicated she did not make those landscaping improvements that were encroaching, nor was she alerted to their existence prior to purchase. Questioning who was aware that these encroachments on open space existed, Ms. Hill believed the two previous owners and the City of San Rafael were aware. Since there was a land survey and letter of notice regarding private encroachments on open space -- such a major issue regarding the property — she questioned why these documents were not in the City file she was given. She questioned why a major issue such as this was not noted in the City report to her prior to purchase under a section entitled "Notice of Violations." Why there was a seven-year lapse on the part of the City to follow up on their own notice of encroachment and why an internal review was made by the City's own contractor with a determination of "file closed", while currently, the City states that the file is open and in violation. Returning to the predicament she now found herself in, Ms. Hill reported that this entire ordeal took her by surprise and had dealt her family a huge blow with respect to their personal use and enjoyment of their back yard. She indicated she was primarily concerned about Areas A and B as they were necessary for the use of her back yard. This was especially true for Area A which she believed should include less than 220 feet of rock wall intrusion. Ms. Hill indicated that parts of the landscaping, such as the section of lawn and the current retaining wall, were all integral to the rest of the non -encroaching parts of the yard which would make it difficult to compensate for a loss. SRCC Minutes (Regular) 05/18/2009 Page 5 SRCC Minutes (Regular) 05/18/2009 Page 6 Ms. Hill reported that the lawn was a very important part of the back yard. Most of the back yard was pool and patio and it would be a loss on a personal level to lose it. Further down the hill was an issue of deer fencing and shed installed by the previous owner, perhaps as far back as 1989. However, since she did not install those improvements and they were not on her land she did not understand why she was being charged with the responsibility of removing them. Indicating that this was a difficult issue for her to solve, Ms. Hill stated that had the City taken care of this issue in 2000 when it was discovered, she would not be present this evening. Because of the complexity and potential loss, Ms. Hill stated she engaged the help of Neil Bloomfield, attorney. They had worked actively for almost a year exploring potential solutions that could create a cooperative resolution to the problem while attempting to minimize the damage and the negative impact to her property value. As could be seen from the multitude of documents, there had been an evolving course of solutions and ideas. The City had been unwilling to meet with them or provide any guidance on the issue. This evening they were requesting the City Council to grant a temporary exception and direct City staff to meet with them to come to a resolution that would mitigate the damages to her family, while being an acceptable resolution to neighbors and the City. Ms. Hill stated that they had struggled with little guidance from the City as it appeared to be uncharted territory. It was clear, however, that City law allowed for an exception in extraordinary circumstances and she believed hers was such an extraordinary circumstance. She expressed the hope that her special set of circumstances would be given fair consideration and in doing so, provide feedback and guidance to assist them find what would be an acceptable or alternative course of action suitable to all interested parties. Indicating that she was unable to show pictures of the site this evening, Ms. Hill noted that all Councilmembers had visited it. Ms. Hill requested that an exception be granted to Lawn Area A and Area B. She would also like the City Council to consider a five-year exception for Area C, with the understanding that she could install gates for a deer fence, neighbors and public at reasonable intervals. She also requested that the City Council instruct City staff to meet with them to explore win-win solutions, including, but not limited to, the sale of a small portion of open space, a trade for equal open space square -footage, a minor lot line adjustment to correct apparent deficiencies in the prior lot line adjustment completed many years ago, and other win-win solutions to the present unresolved situation, and that an enforcement moratorium be declared while she was actively working with the City to together solve the problems. Ms. Hill expressed thanks to the City Council for their consideration and for their taking the time to visit the property to view the situation. Neil Bloomfield, attorney for the owner, provided the City Council with a draft resolution proposed by Ms. Hill. In terms of the history of the issue, Mr. Bloomfield reported that when he first reviewed the City's building file he came across a memo from David Faw, Contract RBR (Residential Building Report) Inspector, regarding the Administrative Hearing Order in which he stated that he had reviewed the attached Hearing Order with Joe Garcia, Code Enforcement Officer of the City of San Rafael. "Mr. Garcia reviewed the operative file and determined that the file had been closed, and that no further action is required." Mr. Bloomfield commented that a lot of people were suggesting that somehow Ms. Hill should have dug deeper or come up with something different. He indicated she received a report from the City that stated there were no pending enforcement actions. The City building file stated that the file was closed with no further action required and that it had been discussed with the Enforcement Officer. From experience, Mr. Bloomfield stated that enforcement files are confidential — citizens could not see enforcement files — so the fact that there was an enforcement file somewhere in the bowels of the Public Works Department did not help a citizen. Mr. Bloomfield believed this pretty much established an unusual and extraordinary set of circumstances and in looking at this set of circumstances, they had been searching steadily for a win-win. He noted that many people would commence with a search of who to sue or how to make a claim for money; however, that was not the way Ms. Hill had approached the issue. While it was possible such an event could happen, they hoped it would not, rather they hoped that by a suitable exception damages could be mitigated with a fair win- win that benefited everyone. Mr. Bloomfield reported that he had located further documents which he had provided to the City Council today, one of which dealt with the treatment of 140 Convent Court, a property with a similar issue; however, quite different. He explained the difference was that in the Convent Court case the property owner had constructed improvements and was asking the City to bless these improvements. In the current case, Ms. SRCC Minutes (Regular) 05/18/2009 Page 6 SRCC Minutes (Regular) 05/18/2009 Page 7 Hill had paid a lot of money to acquire a home in the belief that it was at peace with the City. She looked in the City file, saw a memo which indicated that there were no outstanding violations and no enforcement action required, and Ms. Hill would like at least the benefit of what was offered to the owner on Convent Court, i.e., the opportunity to either purchase the offending area or trade for suitable other open space. Noting considerable friction between his office and City staff, Mr. Bloomfield explained this was because he wanted to meet with City officials to discuss a trade and to discuss the public benefit; however, the response was "we have no policy, so we can't talk to you." Similarly, Mr. Bloomfield reported that once before where there was an encroachment with this property there was a very small adjustment of property lines, and for one of the more severe problems they proposed that as a smaller solution, while in the interim hoping for the bigger solution. The response was that this matter was in front of the City Council; therefore, the application could not be processed. He stated they hoped that the City Council to some degree could bless and welcome these opportunities for win-win, although there were issues of public policy concerns, and give some instruction for a moratorium while those were explored. They hoped the City Council would see fit to grant the application for the exception to Area A that was recommended by the Park & Recreation Commission. He commented that it was odd to go through a hearing with the Park & Recreation Commission, have them approve something and then have staff not recommend to the City Council that this approval be followed through on. He hoped the City Council would follow through and implement that recommendation granting an exception to Area A. Mr. Bloomfield believed, per the proposed resolution provided to the City Council, that all four of the factors required were present in this situation: there were exceptional extraordinary circumstances; the exception was necessary for the enjoyment of substantial right; the exception would not be detrimental to the public welfare or injurious to other property or property owners in the vicinity. The area had been fenced for twenty years and nothing that the public had experienced was being lessened. They proposed to open up with gates the deer fence, at a minimum, or bring back the fence line to the current intensely landscaped area. With the offer to install locked gates into the deer fence, the granting of the exception would not interfere with the public use or rights of the open space land. Noting a number of issues were mentioned by various commentators in letters to the City, etc., such as fire danger, Mr. Bloomfield stated that everything that had happened there had lessened fire danger for the neighborhood. Marion Hill had been, and would continue to be, a good steward of the land and wanted a solution that would allow the citizens of San Rafael to have more open space land than ever before. Elisha Robb, stated she and her husband requested that the City Council not grant an exception to the owner of 81 McNear because they did not believe she met some of the criteria for encroachment as required by the San Rafael Municipal Code. The Public Works staff report outlined very clearly why none of these criteria were met and she agreed with the assessment. With regard to the third criterion — granting the exception would not be detrimental to public welfare or other property owners in the vicinity of the property that is subject to the exception — Ms. Robb questioned how Mr. Bloomfield thought or knew this when he was not a neighbor. As a homeowner within 300 -feet of the Hill's property, and a property that abutted the open space in question, she believed the granting of this exception would be detrimental to her and her husband. The current encroachment hindered their ability to walk through this open space and the removal of the encroachment would ease their way to a level area of open space they frequent daily. More importantly, Ms. Robb stated that this space serves as a wildlife habitat and the encroachment prohibits the wildlife from accessing an area that belongs to them. Ms. Robb stated that this open space abuts to China Camp State Park where there is an abundance of wild life. As a resident of San Rafael, Ms. Robb stated she was horrified at the precedent that the granting of this exception would set. The subdivision map clearly stated that the open space lands exist as "a parcel which shall forever be kept open and free from permanent or temporary buildings and structures of any kind and upon which no further re -subdivision shall occur." She noted that in the last twenty-five years, the only exception granted was for an underground septic leech field and she applauded the City Council and staff in maintaining this excellent record. Noting Ms. Hill claimed having no knowledge of illegal encroachments, Ms. Robb stated that as the City staff report noted, publicly available assessor's maps clearly showed her lot lines as well as the lot line adjustment done in 1989 to retain the use of the pool. Ms. Hill indicated she reviewed City reports on the property that SRCC Minutes (Regular) 05/18/2009 Page 7 SRCC Minutes (Regular) 05/18/2009 Page 8 alerted her to the previous lot line adjustment and landscape dispute. The disclosure documents note an illegal encroachment with the deer fence. Also on the disclosure was a check in the "unknown" box response regarding whether or not the title and access had any boundary disputes or any third -party claims affecting the property; therefore, there were two red flags to this purchase. Also on the disclosure statement, previous owner, Jesse Rhodes checked "no" on line #15 — Any Notices of Abatement or Citations against the property — which was clearly untrue given the letter from 2000. In addition, sources including the home description clearly showed the lot acreage at approximately three-quarters of an acre; however, Ms. Robb reported there was far more than that developed and fenced in with wrought iron fencing as well as deer fending with barbed wire at 81 McNear, and any reputable real estate agent would notice this instantly. Ms. Robb stated that anyone with the means to purchase a multi-million dollar house had the means to do the necessary research to review public records, maps of the lot line adjustment and Assessor's parcel map to see the obvious discrepancies and order a survey to be done. While she realized Ms. Hill did not build these fences, irrigation system or structures, she should be bringing any issues concerning the illegal encroachment to the real estate agents and previous owners, not asking for an exception from the City. Ms. Robb reported having spoken with the previous owner, his real estate agent and Ms. Hill's real estate agent, all of whom confirmed that the issue of illegal encroachment was disclosed to her. All were available and willing to confirm this fact should there be doubts of whether Ms. Hill was aware of any illegal encroachment. Given she was aware of the encroachment and decided not to have a survey carried out to identify the exact property lines was not Ms. Robb's, the neighbors', the City's or wildlife's problem. Most homeowners that back to this open space in the vicinity are against this encroachment, with the exception of Dr. Dill, who admitted publicly to the Park & Recreation Commission that he had also illegally encroached upon open space land. Ms. Robb stated that these encroachments need to be rectified and the open space returned to its original state. She, along with other neighbors would also be requesting the City Council to address the illegal encroachment of open space by Doctor Dill as well as the illegal application of chemical weed killers on open space. As these encroachments were in clear violation of the Municipal Code, she requested that a clear message be sent to all homeowners who believed they could take public land and make it their own. She urged the City Council to adopt the resolution denying the request for the exception by Ms. Hill. She noted she had photographs that documented the situation, including the barbed wire fencing, structures and the illegal encroachment upon the open space. Dick Sadlier, San Rafael, stated he had been involved with open space in San Rafael for forty years, dating back to 1970 when San Rafael acquired the 540 acres from Frank Sinatra. He commented that that park is heavily used. Subsequent to that he had been following up on situations in San Rafael where a select few of the public believed they had the right to public lands, which he was unalterably opposed to. Noting the public purchased the lands, Mr. Sadlier stated that in 1970 San Rafael residents taxed themselves twice to purchase open space. With regard to Ms. Hill's testimony, Mr. Sadlier recalled the expression "the devil is in the details." With the income available to someone who could purchase a $4.2 million property, with taxes of $46,000 annually, he believed they had the financial wherewithal to have a survey done, which he believed was Ms. Hill's mistake. Had that survey been carried out during the twenty-one days of perusing records, this issue would not be under discussion this evening as Ms. Hill would not have purchased the property. Indicating that attorney Bloomfield was entirely wrong about the 140 Convent Court issue, Mr. Sadlier stated that he was involved deeply in that. He explained that not only had the Park & Recreation Commission denied that application, the City Council did so also. He noted this was for 500 square -feet, not half an acre. Mr. Bloomfield was also incorrect in that the owner of that property, Dr. Marlene Smith, was aware this was an encroachment because the prior owner told her; she believed she could get by without anyone noticing. He commented that it probably would have happened had she not erected a big red fence which drew attention to the fact that the fence was on City property. Dr. Smith was required to remove the fence and move her improvements off City property. Mr. Sadlier recommended that the property at 81 McNear be returned to its original condition with no land swaps. Ensure that staff costs and associated fees were borne by the encroaching party and that any survey costs be borne by the encroaching party. He recalled that when the 140 Convent Court issue was SRCC Minutes (Regular) 05/18/2009 Page 8 SRCC Minutes (Regular) 05/18/2009 Page 9 being discussed in both the Park & Recreation Commission and City Council meetings, one of the Park & Recreation Commissioners suggested that the Council adopt an ordinance that required the encroaching parties to pay for the surveys. Hugo Landecker, Gerstle Park, stated he totally disagreed with the Park & Recreation Commission's recommendation for partial approval. He stated it was clear to him that the application for an exception did not meet any of the required findings for approval. He had read all the reasons in the staff report provided by the applicant and her attorney for making the findings; however, the rationale stated was for conditions that were self-imposed. He believed it should also have been readily apparent to anyone with reasonable intelligence that there were encroachments into adjacent land. The applicant signed the papers at escrow which included a map of the parcel and adequate documentation was available showing the house on the parcel. He noted Ms. Hill reported she had reviewed the Planning Department's file which contained that information. Noting the applicant proposed a land swap as being a win-win alternative to abatement, Mr. Landecker stated he failed to understand how this amounted to anything other than a win -lose, with the public on the losing side. He suggested giving the property owner ten days to remove fences, walls, etc. and restore the open space to its natural state. Jeff Snvder stated he owned the property that backed up to the open space at the encroachment area. Regarding the fire danger, he noted a fence goes from one end of Dr. Dill's property to Ms. Hill's property that is impossible to get through - six -feet tall with three strands of barbed wire on top that runs most of Ms. Hill's property. Towards Dr. Dill's property where the fences connect, there is one small gate, which recently was tied shut. Wires at the bottom prevented walking an animal into open space. He stated that his and his wife's biggest problem related to the fire situation as they could be hurt. Noting open space should be forever, he hoped the City Council would decide not to accept this encroachment, rather have it taken care of as soon as possible because of the fire dangers. Gerlinde Semone, Driftwood Court, stated her major concern was that, should there be a fire, it would travel up leaving no escape for them to get out because everything was blocked with no easement remaining. James Skull, Attorney and CPA, stated he was an avid user of the open space in the area. Impressed with the system of law in the country, he noted that one of its tenets was the system of real estate law. He explained that when someone buys a piece of property they are forewarned of the dimensions of the property. To not understand or be negligent in reviewing the details left the purchaser at fault — ignorance of the law was no excuse. Should the potential purchaser be deceived about the area of the property there was legal recourse against the real estate broker and title insurance company, or the contract could be rescinded. Mr. Skull noted that in this country, the legal system did not allow the public to take private land, whether by eminent domain or otherwise, they must be compensated. Likewise, a property owner may not encroach upon open space; there was encroachment in this instance, which should be remedied. Mr. Skull read a letter from Gloria Snyder, adjacent property owner, who was unable to attend. "Tonight I would like to mention a few things to you. Between three of the homeowners that back up to open space parcel B collectively, we have over 100 years of residency in the area in question. I realize the community hasn't been here for 100 years but the point I want to bring out is that we have established a history. Some of you may not have lived here during the Oakland fire. A friend of mine actually was flying home from Japan and saw it from the plane and not until he got closer to his home did he find out he had lost his home. We were out of town. Our housekeeper told us she sat watching the plumes of smoke and ash come across the Bay toward our home. No one knows what direction it will come, north, south, east or west, how it will start - the kid playing with a firecracker, tossed cigarette butt, dry lightning. A brush removal device in fact could have caused the recent Santa Barbara fire. Someone was actually trying to help in fire prevention but a spark came from a machine. I believe that was reported in the media. We cannot, and should not, have to live through one more fire season with a fence clearly sitting on open space without ingress or egress. We must have accessibility going towards Peacock Gap if the fire comes from China Camp. Neighbors on McNear Drive may have to come through Glenwood — the fence must come down. A lot of lives and animals are depending on it. What is the definition to community — I like this definition from Webster's —'A unified body of common individuals.' I am asking tonight that our community begin to join together in helping to save our community. The Fire Department is trying to educate people about clearing up — I have tried. Maybe they don't think it will happen to them. I don't understand how anyone after SRCC Minutes (Regular) 05/18/2009 Page 9 SRCC Minutes (Regular) 05/18/2009 Page 10 watching so many disasters that have happened over the past few years lets scotch broom grass grow remotely near their property taller than three inches. I humbly request the community, Fire Department and City Hall rally together and remove the dead wood in parcel B, the easements restored in case the need arises for any of us to get out. God forbid that a disaster could happen in our back yard - Sincerely, Gloria Snyder." Nona Dennis, Marin Conservation League, stated she did not have a long history with the open space of San Rafael. She did not have a long history with this particular site; however, she was sharing a long, 75 -year history of Marin Conservation League. Explaining why they became involved, Ms. Dennis stated that they have three criteria they follow in making a decision as to whether Marin Conservation League would speak out: 1) Whether the case involves resources of countywide significance — it could be argued in this case that there were no endangered species; 2) Would it set a precedent — clearly this criterion is met because it would set a precedent; 3) Whether this is a legacy issue — clearly it was. It was the acquisition of open space for public use. There were clear policies in General Plan 2020. There was a clear statement for this piece of open space and the City had no choice but to follow the already established policies. Ms. Dennis reported having toured the property. She saw it from the lower side, coming up from the neighbors' perspective to reach the fence, which forms the first barrier, and then moving up the hill, with some difficulty, into the actual landscaped areas. Ms. Dennis believed that the third and fourth Findings clearly applied in this case because the neighbors around this open space did not have any way to get out. She urged the City Council to follow the recommendation in the staff report and as stated eloquently by the neighbors "this has gone on too long." Mark Doms, Driftwood Court, believed that someone purchasing something that was stolen could have recourse against the person who sold it to them. With regard to the comment that Ms. Hill was a good steward of the land, he indicated that large areas were not well maintained. With regard to the five-year moratorium on the fence and perhaps installing gates, he did not believe this to be an adequate solution. He believed the fence to be in clear violation. Jack Rvan, McNear Drive, urged the City Council to deny the request for an exception. He reported that they watched with great interest and pleasure as the three houses at the top of McNear Drive were formed as a subdivision. At that time part of the transfer was the origin of the open space and he recalled from meetings, discussions, etc., the purpose of the open space was for the enjoyment of the neighbors. He believed that granting an exception would be opening a Pandora's box and the request for an exception should be denied. He saw no reason for a five-year period and a land swap was a poor suggestion. John Semone, Driftwood Court, stated that since the construction of 81 McNear many years ago, he had experienced considerable flooding and any additional intrusion would result in further flooding and perhaps landslides. He commented that the deer fence looked more like something from a concentration camp; it was very high, had barbed wire, there was no accessibility to get beyond that point, and all of it was in open space. Sandra Sellinqer, Glenwood Homeowners Association, noted they forwarded a letter opposing the exception. She stated that Glenwood was nestled in between the arms of the ridge that extended east of Highway 101 and they take their open space very preciously. She noted that at times it could be a curse because of the fire danger; however, it was also a blessing. To have someone take the open space for their own personal enjoyment did not do the community any service. Noting many large homes on the hills above her neighborhood, Ms. Sellinger stated that this incident caused them to consider other homes that were encroaching beyond their own property lines. They would be evaluating these to ascertain what types of codes were being violated, which would be brought to the City's attention. Ms. Sellinger stated that the Glenwood Homeowners Association supported the staff report recommendation. SRCC Minutes (Regular) 05/18/2009 Page 10 SRCC Minutes (Regular) 05/18/2009 Page 11 Marion Hill stated she understood the comments made by the speakers this evening. She confirmed that she did not install the encroachments, which had been in place a long time, and she was a purchaser who was unaware of the extent of the encroachments. She indicated it was clear from the disclosure statements of the seller that the only issue disclosed was the deer fence; therefore, she was under the impression that the lawn and portion of the area up the hill were fine. Ms. Hill stated she understood the concern with precedent and confirmed they were only requesting an exception of time. While the five-year figure was mentioned, they were just looking for a reasonable amount of time to try to work with City staff and the neighbors to find some type of compromise where she could mitigate the damages. Noting the comment from a neighbor that she was not a good steward of her property, Ms. Hill reported that she stopped clearing when Code Enforcement contacted her. She stated that this would be a huge loss for her family. She was only requesting an exception for a limited amount of time to try to work something out that all parties would be comfortable with. Ms. Hill reported having met with her neighbors and believed they understood the situation. She believed however, that the concern related to precedent. Mr. Bloomfield stated that over 10,000 people visited this property for the Marin Showcase. He recalled that neighbors indicated they did not like the fence that was erected twenty years ago; however, none had spoken until today. Mr. Bloomfield stated that an exception was similar to a variance where every time one was granted it meant bending the code; however, the purpose of the legislation for exceptions was that sometimes the code needed to be bent. Noting a lot of conversation regarding fire danger and safety, Mr. Bloomfield stated these were not issues in this case. Ms. Hill had done what she could to abate fire danger. Being near open space was a fire danger; however, taking the fence down did not remove the fire danger. It was a box canyon type of situation in that getting past that fence brought one to the Water District fence, which would still be a problem. Mr. Bloomfield urged the City Council to consider what really were three separate matters: 1) Exception for the lawn area; 2) Exception between the lawn areas and the top of the gate - there were Manzanita trees in that area and should Ms. Hill not be granted some appropriate relief, these trees which had been there for twenty years, would die for lack of irrigation; 3) Wild life was not a consideration in the exception ordinance. No harm would occur to wild life resulting from this exception. Realizing a larger area was involved with the deer fence and that Ms. Hill had some indication that the deer fence might not be the property line, Mr. Bloomfield stated however, that she had no indication that the pool, lawn or man-made rock walls around it were encroaching. All the disclosure documents had been provided to the City Council, which specifically stated that there were no encroachments. Having read the City files, he indicated he did not see anything different and in fact, David Faw, consultant, saw nothing different when he read the City files. Mr. Bloomfield believed Ms. Hill was misled and he hoped the City Council would see fit to grant a reasonable exception, particularly for the lawn area A, secondly for Area B, while recognizing that Area C could be harder to provide relief on. He noted that with Ms. Hill's proposal to put gates in, the public access issue could be eliminated. There being no further comment from the audience, Mayor Boro closed the public hearing. Mr. Mokhtari confirmed that staff stayed with their recommendation. With regard to the issue concerning the Residential Building Record, City Attorney Robert Epstein, noted the closure notice referred to activity in the front yard area and was not with reference to the rear yard issue noted in 2000. SRCC Minutes (Regular) 05/18/2009 Page 11 SRCC Minutes (Regular) 05/18/2009 Page 12 Mayor Boro invited Mr. Epstein to read the definition of Open Space Mr. Epstein stated the Government Code made some reference to Open Space in connection with required General Plans and the Open Space Element and he had some information from the Open Space Element in San Rafael: "Government Code §65564 provides that the Open Space Element shall contain an action program consisting of specific programs which the legislative body intends to pursue and it requires adoption of an Open Space zoning ordinance consistent with the element. It must designate exclusive agricultural zones, large lot zones and special overlay requirements for hazard areas without taking or damaging private property without compensation. Government Code §65560, 65563 and 65564 provides that the Open Space Element also must contain goals and policies for preserving and managing open space and an inventory of all open space property whether privately or publicly owned. The primary purpose of the Open Space Element is to assure that cities and counties recognize that open space land is a limited and valuable resource which must be conserved whenever possible and to discourage premature and unnecessary conversion of open space land to urban uses and non contiguous development patterns — Government Code §65561(a)(b)." From the Open Space Element in the City of San Rafael General Plan: Goal 30 — "It is the goal of San Rafael to preserve and protect open space and the natural environment for all to enjoy. Preservation of open space and the natural environment have been a priority for San Rafael residents for many years. Whenever possible, the natural terrain and vegetation of the community should be preserved and maintained. Open Space Policy 1 — Open Space Preservation - Preserve through a variety of methods the open space areas identified in the inventory of potential open space sites. Retain and protect open space areas that serve as delineators between neighborhoods and adjacent communities as wild life habitat and as visual assets for the community. Open space areas can also function as connections between neighborhoods, for example with the creation of pathways in environmentally appropriate areas. Cluster development is encouraged as part of the Development Review Process to encourage the clustering of development to preserve desired open space. Open Space Policy 3 — Provides - protect and preserve the natural value of open space and wildlife habitat areas while permitting educational and recreational uses compatible with these resources. Specific use objectives include: a) Open space areas should be maintained in a natural state; b) Open space areas are a community resource for use and enjoyment by the residents of San Rafael; c) Uses of open space areas shall be secondary to open space preservation and limited to those uses with a minimal impact on the environment. Open Space Policy 3(a) — Management of private open space provides that in designating open space as part of a development project or with the dedication of land for open space, identify limitations to uses in those areas, such as restrictions on ornamental landscaping structures and fences. Open Space Policy 4 — Encourages provision of access to open space areas in the design of adjacent development. Secure access paths as part of subdivision approvals and design access paths to avoid and minimize neighborhood and user conflicts with sensitive wildlife habitat areas." Councilmember Connolly stated his first observation was, as had been noted by many, that the protection and preservation of open space in the community was invaluable and as reflected in City policies, it was of paramount consideration for the benefit of the public. By that he meant it was a public benefit in the broadest sense, not only for human use, enjoyment and safety, rather also wildlife. Expressing concern as to the type of precedent set by any action taken, Councilmember Connolly stated he was opposed to the idea of in any way trading, selling or swapping public property in exchange for private use of that property, which he SRCC Minutes (Regular) 05/18/2009 Page 12 SRCC Minutes (Regular) 05/18/2009 Page 13 believed would be a bad precedent to set. Having visited the site, Councilmember Connolly stated he was looking at it preliminarily in three ways: 1) Bigger area involving the deer fence, which to him was not a close call. In looking at the criteria in determining whether to grant an exception to the encroachment, he believed the criteria were not met. He concurred with the neighbors' assessment that the fence should be removed and the area returned to open space use. 2) Larger landscaped area, which included a shed - Again, this was not a close call, and he did not believe an exception was warranted in that area, which should be abated and returned to open space. 3) The closer call would be the area of the rock wall around the pool and the lawn. He questioned whether there were countervailing considerations in terms of the fact that this property owner, by all appearances, did not understand that that area was open space when she purchased it. He considered the evidence in the record at best unclear as to what was available in the public record on that issue, and it was not as self-evident to him, looking at the property first hand. Councilmember Connolly inquired whether staff considered the issue of the rock wall and lawn in evaluating whether exceptions existed, and if not, why not. Responding Mr. Mokhtari stated staff's position was that no portion of any public open space shall be taken by a private property owner. Councilmember Connolly confirmed there was no analysis on this. Councilmember Miller stated that he, too, visited the property from all sides and got a good sense of the area. He had a great deal of empathy for the petitioner and a great deal of empathy for the neighbors. It was not a matter of not trying to understand where people were coming from. He came to the project in the same way as the Public Works staff — it was public space devoted for the public use in perpetuity. He believed that in selling those homes, the price included the fact that the land would be in perpetuity. The concept of taking public space to be used privately was a non-starter for him. He believed staff did a good job in terms of exceptions. The open space was for the public and all creatures of the earth and he would approve the staff recommendation. With regard to the deer fence, Councilmember Heller inquired whether this was considered part of Ms. Hill's property, as it did not appear to be anywhere near her property line. Mr. Mokhtari confirmed that it was not on Ms. Hill's property. He believed it was installed by a previous owner; therefore, Ms. Hill should abate it. Mr. Epstein confirmed that it would be consistent with City practice when someone makes improvements in public open space — they or their successor in interest would be requested to remove those improvements. Councilmember Heller stated that having looked at the property she could not get around the fact that it was public open space and she would vote to deny the request for an exception. She suggested that a lot line adjustment be discussed for the piece of wall that went right by the pool. Councilmember Brockbank thanked everyone for attending this evening, uncomfortable as it often was. Indicating he was unsure whether he was prepared to vote for either side, he stated he wished to propose alternatives. He disagreed with a number of statements on both sides, was uncomfortable with the state of things as they were now and what was needed to arrive at a better decision. With regard to the fact that the City did not meet with Mr. Bloomfield, Councilmember Brockbank stated this sounded unreasonable, except that on further reflection, he believed it was completely reasonable, because the job of City staff was to help interpret City policies and in the absence of City policies, it was perfectly reasonable not to meet; therefore, he did not believe there was any ill intent to be inferred from refusing to meet when there were no guidelines on one of the major problems underlying the entire issue. SRCC Minutes (Regular) 05/18/2009 Page 13 SRCC Minutes (Regular) 05/18/2009 Page 14 With regard to exceptions and extraordinary circumstances, Councilmember Brockbank stated he also was concerned about precedent and opening the floodgates to similar requests. Councilmember Connolly indicated he was concerned about a precedent; however, Councilmember Brockbank was unsure whether he meant it the way most of the neighbors did. Councilmember Brockbank was concerned about the precedent the City would set if the staff recommendation to deny was followed. He believed there were problems with the City Council being put in the position of having to interpret the statute as to whether or not it met the criteria. Regardless of being attorneys, he was unsure the City Council should have to do this. He believed a better statute was needed that applied to a broader category of circumstances such as this one. This statute apparently was put into place as an exception rule under a prior issue and it did not apply very well to this situation. Councilmember Brockbank stated he had different standards for someone who was aware of the encroachment or a relatively innocent owner. He was aware a lot of the neighbors were absolutely convinced that Ms. Hill was aware of the encroachment, yet Ms. Hill indicated she did not. One of the many issues he was uncomfortable with was whether as Councilmembers, they should be put in the position of triers of fact to determine what she did or did not know. Councilmember Brockbank stated that the idea of a trade or land swap, unappealing as it was in many respects, appealed to him for a limited period of time to explore, because, he too, was looking for a win-win, to achieve a balancing of interests. Holding open space as sacrosanct as anyone else, as Mr. Bloomfield pointed out, the current statute did call for exceptions at times, and the only exception used was for a septic field underneath a small portion of open space. Therefore, should a small exception be allowed, he questioned when a larger one would be allowed, which was the reason he was uncomfortable with the statute as it stood. He commented that when Mr. Garcia indicated to Mr. Faw that the file was closed with no pending violations, he noted the City Attorney pointed out that this was the front yard only. With regard to Convent Court, Councilmember Brockbank was unsure whether this was a precedent, believing this was sufficiently different to be distinguished. Noting a moratorium was mentioned, Councilmember Brockbank stated he would like a pause, hold or continuance to ascertain whether something could be worked out which was a win-win solution. Councilmember Brockbank noted Mr. Epstein indicated that previous owners and realtors disclosed to Ms. Hill; however, those previous owners and realtors probably would be motivated to state what they did to avoid liability. That position appeared to be contradicted by the written record received this evening which indicated on the disclosure forms that there was no notice of encroachment provided. Noting Ms. Hill indicated this was a lie, which it probably was, Councilmember Brockbank reported that the previous owner telephoned him stating that he told her. Rather than trying to decide on "he said, she said" he believed what counted more was what was in the record, and the record showed that the previous owned signed a statement under penalty of perjury stating that there were no disclosures. Noting Mr. Sadlier stated Ms. Hill should have conducted a survey, Councilmember Brockbank stated he was a little uncomfortable with expecting Ms. Hill, or any other homeowner, no matter how wealthy the home, to be held to a different standard to others. With regard to the deer fence, Councilmember Brockbank agreed it was too big and too far from the lot line. It was not needed, caused too many problems and should be moved; however, he was unsure whether it was a fire danger. He indicated the type of win-win he favored was one that made the entire neighborhood safer. Councilmember Brockbank indicated that a win-win scenario would be along the following lines: Ms. Hill would like to preserve her yard — by his calculations this was approximately two-tenths of one percent of the 22 acres of open space in this parcel. That two-tenths of one percent, should she retain the yard, would not deprive the community of any significant access, would not increase the danger of fire, would not reduce wildlife or do any of the ills mentioned. He believed a win-win would not only want to improve the situation for Ms. Hill, who would be deprived of most of her yard should staff's recommendation be granted, it should improve the neighbors' situation and the people of San Rafael's use of open space. Without any of those he would not grant an exception, and absent a deal, he was unsure the City Council was ready to make SRCC Minutes (Regular) 05/18/2009 Page 14 SRCC Minutes (Regular) 05/18/2009 Page 15 any decision this evening, denial or approval. Councilmember Brockbank noted ways to improve the situation: • Flood danger — these improvements had been there for twenty years unchanged; • Fire danger — he did not believe fire danger would be increased with retaining the yard; • Enjoyment — he did not observe a lot of people walking through the area and should Ms. Hill retain the yard, he did not believe people's right to walk through there would be significantly impaired. Councilmember Brockbank noted it would be very easy to state that an owner of property had strict liability; however, this did not provide fairness or equity. He believed the City Council's job was to do a balancing of harms. To take away Ms. Hill's yard would be a significant harm for a minimal improvement to the neighbors. He commented that close calls and hard cases made bad law and he would be uncomfortable with setting a precedent based on what was known at this time. He favored exploring other options to ensure this would not be a precedent and that no one who knowingly encroached on open space was rewarded in any way with any extra land. Mayor Boro noted that forty years ago he was a founding member of the Marin County Open Space District. From the beginning, the purpose of open space was to protect the land in perpetuity for the enjoyment and use of the public in a passive way. Mayor Boro stated that this land was not acquired by ballot or a gift, rather it was acquired via a development subdivision agreement. One of the speakers read from that agreement which indicated this was part of the deal on this property — that the land surrounding it would be preserved in open space. Mayor Boro believed the City Council had the responsibility to maintain the integrity of open space in the community. He was not particularly interested in how it happened, he was unaware what Ms. Hill did or did not know, nor what the prior owner did or did not reveal to her; however, the City could do nothing about that. Ms. Hill had recourse through the courts to go to that seller, she could go to the title company and realtor. The City's responsibility was to maintain the integrity of open space and there was no question that if the City did not do this, it would be setting a total precedent. The City was aware of other areas in the San Rafael with similar problems and trades or win-win solutions would not work. He believed the win-win was to maintain open space in the condition it was intended, which was for public use; therefore, he considered this very precedent setting. Mayor Boro stated he would like staff to provide a reasonable timeline to implement the removal of the encroachment. He did not believe more time was warranted; the issue was clear. He felt sorry for Ms. Hill — the property was beautiful — he did support a lot line adjustment to protect the wall around the perimeter of the pool because to tear this out would truly have an impact on her enjoyment of her home. He urged the City Council to follow the staff recommendation, have them decide on a reasonable timeline and generate necessary language for lot line adjustment to protect the wall. The community was very dedicated to open space; the City Council had a moral obligation to protect it and he believed this evening's recommendation was the way to do it. Councilmember Connolly agreed with staff with regard to where to begin and end by going down this road of evaluating each case. At the end of the day he was persuaded by the main policy objective. With regard to timelines, Mr. Epstein clarified that the issue was not before the City Council this evening with regard to timing, which was a Code Enforcement matter. With regard to a lot line adjustment, that also was not before the City Council this evening. This would go to the Community Development Department. It would also have to be reviewed by the Public Works Director and if that direction were being returned to the City Council, it would be in the form of approval of deeds reflecting the lot line adjustment concerning the area in question. Councilmember Miller moved and Councilmember Heller seconded, to adopt the Resolution. RESOLUTION NO. 12745 — RESOLUTION DENYING AN EXCEPTION UNDER SAN RAFAEL MUNICIPAL CODE SECTION 19.10.070 FOR ENCROACHMENT OF PRIVATE IMPROVEMENTS UPON CITY OPEN SPACE ADJACENT TO 81 MCNEAR DRIVE SRCC Minutes (Regular) 05/18/2009 Page 15 SRCC Minutes (Regular) 05/18/2009 Page 16 AYES: COUNCILMEMBERS: Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: Brockbank ABSENT: COUNCILMEMBERS: None Mayor Boro indicated he would like the record to show that the majority, if not the entire Council, supported the concept of a Lot Line Adjustment. With regard to timing, he expressed the hope that by the end of the year the issue would be resolved. Mr. Nordhoff, City Manager, stated staff would report to the City Council, once the issue became a Code Enforcement matter, of having contacted the owner and what the timeline would look like to remedy the property back to its proper condition and what those steps would be, keeping the community apprised. Mayor Boro paused the City Council meeting briefly at 9:45 p.m., resuming at 10:00 p.m. OTHER AGENDA ITEMS: 17. DISCUSSION RE CITY'S BUDGET FOR 2009- 2011 (CM) — FILE 8-5 • Presentation of Two -Year Objectives • Financial Status City Manager Ken Nordhoff reported that staff had conducted an extensive amount of budget development and discussed at length financial and revenue projections. The City faced a substantial deficit, which had not yet been completely resolved. He did not wish to lose sight of the fact that, regardless of how the budget problems were solved, or how many employees were working for the City, the City of San Rafael would remain a substantial organization with a budget of tens of millions of dollars, and with the expectation of accomplishing a great number of things on behalf of the community, residents, businesses and stakeholders. Mr. Nordhoff stated that before the City Council was a first draft of a series of two-year objectives from the departments assembled in a rooms of the house format consisting of four rooms and a foundation made up of the administrative functions holding the house together. Mr. Nordhoff reported that Exhibit A in this evening's packet outlined the City Council's Areas of Priorities and Emphasis which had been revamped into a final draft. A tally of the program service areas regarding prioritization of public services in the ensuing two years was included as Exhibit B — this document was being used as a guide in making important decisions that would ultimately culminate in a downsizing of the organization, beginning in July, 2009. Mr. Nordhoff explained that this evening staff would focus on projections and accomplishments. He noted this was written absent having made final decisions around the budget; therefore shrinking services or downsizing the organization and accepting everything from eliminating vacant positions to early retirements to layoffs, would influence or season some of the content. He indicated that short presentations would be made by staff and questions answered. The expectation was that subsequent to adopting the budget on July 6, 2009, staff would reshape a final set of goals to be presented to the City Council this summer. Public Safety — Fire Department, Police Department, Emergency Services: Page 9 — Preventing and Responding to Emergencies — Chief of Police Matt Odetto stated City public safety and emergency personnel carry out ongoing police operations, fire suppression, paramedic services and emergency preparedness. Areas of Emphasis: • Emergency Preparedness • Regionalization Efforts • Proactive Community Policing SRCC Minutes (Regular) 05/18/2009 Page 16 SRCC Minutes (Regular) 05/18/2009 Page 17 Fire Chief Chris Gray explained that staff would be working through a number of objectives qualified by the City Manager, some of which could have to be reevaluated pending the circumstances of budgetary reductions. For the most part, there would be enhanced cooperation and coordination among Police, Fire and Emergency Services leveraging the availability of not only employees, but community members. Staff had been trying to work with not only enhancing efforts within the community, rather regionalizing efforts with the County agencies and other fire and police agencies. Emergency Services Manager Steven Hancock concurred with both Chief of Police Odetto and Fire Chief Gray. He confirmed for Mayor Boro that agreements had been instigated with the City of Larkspur to provide Emergency Management Services, as well as Battalion Chief services. Councilmember Heller stated it was a great idea to continue offering services to other agencies. Mayor Boro thanked the Police and Fire Chiefs for the great work the members of their staffs do in protecting the community. He also commended Mr. Hancock for his work. Neighborhood and Economic Vitality: Community Development Director Bob Brown stated that in the next two years staff would concentrate on updating General Plan 2020 and the Housing Element and implementing the General Plan where possible, principally through grants, together with attempting to create organizational capacity to implement the new Climate Change Action Plan. Economic Development Director Nancy Mackle stated the Economic Vitality Work Plan detailed a lot of ways of attempting to build back the City's economic base and create jobs locally. She noted the Parking Division was also a big part of the health of downtown and she welcomed Vince Guarino, new Parking Services Manager. Mayor Boro welcomed Mr. Guarino and thanked Ms. Mackle and Mr. Brown and their staff for their work. Quality of Life: David Dodd, Library Director, noted that they deal with the elements of City services that provide enrichment and cultural services through recreation, literature and the other finer things that make a city a city. A lot of goals were outlined; however, staff wished to highlight some of the items being done collaboratively or that meshed with each other, in particular, trying to promote collaborations with other regional entities. He noted MarinNet has always been a good regional collaboration for libraries and it was intended to continue this. Technologically, opportunities were being explored in terms of services. Carlene McCart, Community Services Director, reported that in the next two years, the Community Services Department would focus on two demographics: older citizens — new initiatives had started to expand senior programs in conjunction with some of the Whistlestop services; and younger citizens — taking care of children. She stated they had a bold prediction that they would be able to serve 100% of the needs, which would not be through Community Services staff alone, rather through partnerships they hoped to be able to serve every family who needed after school care for their children. Staff would also be looking for opportunities for the community to come together, through neighborhood picnics, activities at the community centers with low investment from a financial standpoint; however, with high returns for the community. In the program area staff was looking towards health and fitness components in every program and service provided. With regard to technology, Ms. McCart stated that quick search was a goal for the next two years. Mayor Boro thanked Ms. McCart and Mr. Dodd and their staffs for the great work they do. Public Assets: Mr. Nordhoff noted that Mr. Mokhtari, Interim Public Works Director, had been working with his staff and other departments to generate a Capital Improvement Program to be presented at the next City Council meeting to afford the City Council a sense of specific projects with funding attached that staff anticipated doing in the SRCC Minutes (Regular) 05/18/2009 Page 17 SRCC Minutes (Regular) 05/18/2009 Page 18 next few years Mr. Mokhtari stated that staff hoped to present the Capital Improvement Program to the City Council in June for adoption. In maintenance, parks and street maintenance there were a few vacancies and early retirements and pursuant to these taking place, the entire maintenance division, parks and streets would be evaluated to come up with a program to hopefully not cut any maintenance activities but continue, utilizing fewer staff. Should anything need to be reduced or eliminated this would be reported to the City Council prior to implementation. Mayor Boro thanked Mr. Mokhtari and his staff. Mr. Nordhoff noted that some additional information was put together for the Sanitation District and should Supervisor Kinsey require a copy this could be made available. The Foundation: Mr. Nordhoff stated beginning on page 75 was the Foundation which included all the administrative infrastructure of the City — City Clerk and City Attorney's offices, City Manager's office, Human Resources, Information Technology and Finance. Mr. Schutz would present this set of information. Assistant City Manager Jim Schutz commented that the Foundation was by far the most important part of the house because without it the house would collapse. Mr. Schutz reported that this group was all about financial and organization stability. Implementation of the Recession Action Plan was the main issue being worked on. He noted the approval of Human Resources and Information Technology Strategies. Special efforts such as Critical Facilities, San Rafael Connects, developing new ordinances, administering elections were continuing. Mayor Boro noted that for the past several months the City Council had been meeting regularly on the budget and goals and objectives. The City was facing huge cuts -- $3 million had to be reduced by July 1, 2009 from the existing budget; therefore, that coupled with the $2 million already cut this year, out of a $62 million budget, this was a substantial reduction in the amount of money available. Mayor Boro complimented staff for working together to generate this package. Recalling a former City Manager, Ted Gabler, wrote a book entitled "Reinventing Government." Mayor Boro reported that Mr. Gabler was in attendance one evening when objectives were being reviewed and commented that "while every city puts them together, very few follow through. Mayor Boro thanked Mr. Nordhoff and his staff for not only putting these together but providing results from the past. Mr. Nordhoff stated that at the last meeting on this issue staff proposed a number of items that resulted in a deficit of approximately $3.2 million. The worksheet distributed to the City Council listed additional clean up items, summarized to $239,000, that staff believed would reduce the budget, the most significant of which was the allocation of costs between fire personnel and how much was picked up by the Paramedic Tax. Mr. Nordhoff reported internal deliberation concerning the sinking fund put aside for fleet replacement and without harming the replacement of any priority emergency response vehicles, staff believed that by deferring most of these replacements the charges for the current year could be avoided, amounting to approximately $750,000. This would results in a $2.2 million gap. At the next City Council meeting, staff would present specific recommendations on services tied into the prioritization tally included in the report. Perry Litchfield, as a side note, stated he was not present for the meeting of April 20, 2009 and appreciated the action taken. With regard to the income part of the budget, Mr. Litchfield inquired where the income stream was coming from and how it correlated to the expense items. Specifically, with regard to a parking budget of $2.6 million, he inquired as to the income generation specific to that department, whether it matched the budget or whether it was running at a deficit. Similarly, with Community Development and its different departments, he inquired as to what was being set off against fees being collected. He indicated that this would allow him as a member of the public to have a better understanding of where the revenue sources were and why the fees SRCC Minutes (Regular) 05/18/2009 Page 18 SRCC Minutes (Regular) 05/18/2009 Page 19 were as they were Mr. Litchfield stated Mr. Nordhoff explained to him that that type of document was considered on April 29, 2009; therefore, he presumed that he as a businessman could look at that and arrive at some conclusions. With regard to the salary reductions of 5%, Mr. Litchfield stated he still perceived a heavy emphasis on the Recession Action Plan as opposed to the Economic Vitality Plan. He believed the City needed to pay strong attention to this and he did not favor the language of "we will be back in July with cuts, layoffs and reorganization." Mr. Litchfield believed reorganization to be a good thing as a lot of efficiency could be addressed during this period with more staff time available. With regard to the concept of business friendly, Mr. Litchfield believed there had been some regression around this and the City needed to evaluate how things could be better streamlined to allow more efficiency for businesses when they wanted to come to San Rafael or do something different, whether it be a development, change in sign, etc. He noted that it could become a very burdensome and expensive process under the present organization. Mr. Nordhoff noted he offered Mr. Litchfield any of the documents pertaining to the April 29 meeting. In the spirit of Economic Vitality and business friendliness, Mr. Nordhoff stated that the Building Division of Community Development runs "Coffee and Codes" sessions. The next session, May 22, 2009, would focus on landlords, tenants, property owners and trying to help them get accustomed to what they are required to do, what things to ask prior to signing the lease, what types of issues could be encountered in applying for a permit at the Building counter, etc. CITY MANAGER'S REPORT: 18. Critical Facilities Education Phase II: - File 9-1 x 9-2-57 Mr. Nordhoff reported that staff had embarked on the Phase II education effort. Four dates were set — May 30, June 6, June 13 and June 20 — where people would be out helping to educate the citizenry about the needs of City facilities. Lists were being generated to walk neighborhoods talking to the community about the problems and how they could be resolved. COUNCILMEMBER REPORTS: (Including AB 1234 Reports on Meetings and Conferences Attended at City Expense) 19. Marin Energv Authoritv: - File 9-1 x 271 Councilmember Connolly reported on having attended a recent meeting of the Marin Energy Authority. The Board adopted a Request for Proposal that would go out to the marketplace to ascertain interest. Next step would be a bidders' conference where prospective bidders could interact with consultants, staff and members of the board with the ideal of flushing out how this could proceed. He reported that he chaired the committee that wrote the Request for Proposal and was happy with the product. Marin Green BERST — Buildinq. Energv. Retrofit and Solar Transformation: - File 9-1 x 9-3-85 Mayor Boro issued an invitation for a Councilmember to volunteer to serve on the Marin Green BERST committee with Bob Brown, together with a Planning Commissioner or Design Review Board Member. Mr. Brown stated this could be a six to nine month timeframe. Councilmember Brockbank stated he would be happy to serve on this committee. There being no further business, Mayor Boro adjourned the City Council meeting at 10:33 PM ESTHER C. BEIRNE, City Clerk APPROVED THIS DAY OF 2009 MAYOR OF THE CITY OF SAN RAFAEL SRCC Minutes (Regular) 05/18/2009 Page 19