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HomeMy WebLinkAboutCC Minutes 1989-04-03SRCC MINUTES (Regular) '/3/89 Page 1 IN CONFERENCE ROOM 201 OF THE CITY OF SAN RAFAEL, MONDAY, APRIL 3, 1989 AT 7:00 PM. Regular Meeting: CLOSED SESSION 1. CLOSED SESSION TO DISCUSS LITIGATION AND LABOR NEGOTIATIONS - File 1.4.1.a No discussions held. IN THE COUNCIL CHAMBERS OF THE CITY OF SAN RAFAEL, MONDAY, APRIL 3, 1989 AT 8:00 PM. Regular Meeting: San Rafael City Council Present: Lawrence E. Mulryan, Mayor Albert J. Boro, Councilmember Dorothy L. Breiner, Councilmember Gary R. Frugoli, Councilmember Joan Thayer, Councilmember Absent: None Also Present: Pamela J. Nicolai, City Manager; Gary T. Ragghianti, City Attorney; Jeanne M. Leoncini, City Clerk ORAL COMMUNICATIONS OF AN URGENCY NATURE: U.S. IMMIGRATION ACTIONS TAKEN IN CANAL AREA - File 100 Mr. Fred Persly, resident of Novato, representing Marin County Human Relations Commission, spoke of their concern with regard to actions taken by the Immigration Naturalization Service last Wednesday, picking up Hispanic people at the 7-11 Store in the Canal area, to determine whether they are legal County residents. He asked that action be taken by the City Council, the County Board of Supervisors, Marin County's Congressional Representative Barbara Boxer and Senators. He announced that a public hearing will be held on this issue at a date to be set. City Manager Nicolai stated the Police Department had no advanced warning of this activity; however, a report will be brought back to Council as to what took place. Staff directed to have the report include the lines of authority and roles of responsibility between the City and the Immigration Naturalization Service explained. CONSENT CALENDAR Item 2. Approval of Minutes of Regular Meetings of March 6, and March 20, 1989 (CC) 4. Resolution of Findings - Denying Appeal of Building Official's Enforcement of Chapter 35 (Sound Transmission Control) Appendix Condition (i) of Uniform Building Code at 1015 Second Street Re Sound Proofing of New Jerusalem Church, AP #12-075-06 (PW) - File 1-6-1 x 9-3-40 5. Resolution Amending Cost Sharing Agreement for Corps of Engineers' Flood Control Study of the San Rafael Canal (PW) - File 12-10 x 12-9 Recommended Action Minutes approved as submitted. RESOLUTION NO. 7932 - CITY COUNCIL, IN ITS CAPACITY AS THE BOARD OF APPEALS, DENYING APPROVAL OF AN APPEAL FROM CHAPTER 35 OF THE UNIFORM BUILDING CODE AT 1015 SECOND STREET (RE SOUND TRANSMISSION REQUIREMENTS - NEW JERUSALEM CHURCH) RESOLUTION NO. 7933 - AUTHORIZING CITY MANAGER, DIRECTOR OF PUBLIC WORKS AND ASSISTANT DIRECTOR OF PUBLIC WORKS TO EXECUTE AGREEMENT WITH UNITED STATES ARMY (CORPS OF ENGINEERS) ENTITLED "AMENDMENT ONE OF THE GENERAL INVESTIGATIONS, FLOOD CONTROL STUDY, FEASIBILITY PHASE" (Total feasibility study cost $740,000) SRCC MINUTES (Regular) 4/3/89 Page 1 SRCC MINUTES (Regular) 1/3/89 Page 2 7. Authorization to Call for Applications to Serve on Board and Commission: (CC) a) Board of Library Trustees, Due to the Expiration of Terms of Members: Jim Gilliland, Chair and Ivy Wellington - File 9-2-3 b) Cultural Affairs Commission, Due to Expiration of Terms of Members: Lionel Ashcroft, Chairman, Nanette Londeree and Daniel Simonsen - File 9-2-24 8. Resolution Authorizing Applica- tion for Grant Funds Under the Roberti-Z'Berg Open Space and Recreation Program for Pickleweed Park Improvements (Rec) -.File 4-10-230 x 9-3-66 9. Resolution Authorizing City of San Rafael to Contract with PERS as the City's Health Provider (Pers) - File 7-1-34 x 7-9 10. Resolution Amending Resolution NO. 7839 by Creating New Classi- fication of Child Care Coordinator (Pers) - File 7-8 x 9-3-65 11. Resolution Ratifying Execution of Agreement by City Manager for Special Services between the City of San Rafael and the Law Firm of Liebert, Cassidy and Frierson (CM) File 4-3-214 Approved staff recommendation: a. Called for applications to fill 2 vacancies on Board of Library Trustees (4 year terms ending April, 1993); and 3 vacancies on Cultural Affairs (4 year terms ending April, 1993.) b. Set deadline for receipt of applications for Tuesday, Noon, April 25, 1989. c. Set Special Meeting for 6:00 PM, May 1, 1989, Conference Room 201 to interview applicants (incumbents and new applicants) for Board of Library Trustees (2), and Cultural Affairs Commission (3) for appointment/ reappointment. RESOLUTION NO. 7934 - APPROVING APPLICATION FOR GRANT FUNDS UNDER THE ROBERTI-Z'BERG OPEN SPACE AND RECREATION PROGRAM FOR PICKLEWEED PARK IMPROVEMENTS RESOLUTION NO. 7935 - CITY OF SAN RAFAEL ELECTING TO BE SUBJECT TO PUBLIC EMPLOYERS' MEDICAL AND HOSPITAL CARE ACT AND FIXING THE EMPLOYER'S CONTRIBUTION AT AN AMOUNT GREATER THAN THAT PRESCRIBED BY SECTION 22825 OF THE GOVERNMENT CODE RESOLUTION NO. 7936 - AMENDING RESOLUTION NO. 7839 BY CREATING NEW CLASSIFICATION OF CHILD CARE DIVISION COORDINATOR (Salary Range from $2,218.00 to $2,549.00) RESOLUTION NO. 7937 - RATIFYING EXECUTION OF AGREEMENT BY CITY MANAGER FOR SPECIAL SERVICES BETWEEN CITY OF SAN RAFAEL AND LAW FIRM OF LIEBERT, CASSIDY AND FRIERSON (For Supervisory Training and Other Special Services to Employees of City of San Rafael, Cost $2,000) 12. Legislation Affecting San Rafael APPROVED STAFF RECOMMENDATION: (CM) - File 9-1 OPPOSED - AB 498 (POLANCO). REDEVELOPMENT. MANDATORY USE OF ALTERNATIVE FINANCING BEFORE TAX INCREMENT 13. Claims for Damages: a. Gordon Lynn Shaffer (PD) Claim No. 3-1-1386 b. Lewis C. Lovell (PW) Claim No. 3-1-1395 c. Bart A. Passero (PW) Claim No. 3-1-1396 AYES: COUNCILMEMBERS: Boro, NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None Approved City Attorney's recommendations for denial of claims a, b & c. Breiner, Frugoli, Thayer & Mayor Mulryan SRCC MINUTES (Regular) 4/3/89 Page 2 SRCC MINUTES (Regular) 4/3/89 Page 3 3. REQUEST FOR INCREASE IN CONSULTANT'S FEES FOR MERRYDALE OVERCROSSING PROJECT (PW) - File 4-3-128 x 11-16 Mayor Mulryan asked staff to further explain the amount of money being asked for the Merrydale Overcrossing and Assistant Director of Public Works Strom stated the amount of $124,000 would come out of the project cost funded through the Federal Aid Urban (FAU) primary funds and traffic mitigation funds. He stated in speaking to the consultant he was told costs are related to unanticipated costs that came out of dealings with CalTrans. He noted this project was delayed for two years and increases have arisen in their basic service cost of $25,000. Much of the costs relate to the Northbound on-ramp. One of the big delays is the Federal requirement that the project needed to be at 50 percent Federally funded and the overcrossing did not meet that requirement. Staff then took the Northbound on-ramp (a CalTrans' project), combined the two to get the 50 percent and took over the design and management of the whole project. CalTrans was to have laid out the geometrics, but when the consultants worked on it, there was additional work to be done. The costs will be negotiated with CalTrans when they administer the project, which will be done at the City's expense; they indicated the City will be given consideration on some of these costs. The consultants have been asked for a future breakdown. Councilmember Thayer asked when Wilsey & Ham bid on the project, if some of the costs were foreseeable. Mr. Strom noted Wilsey & Ham were selected because of all the consultants who submitted proposals, they were the only ones who did site work and engineering and came up with an alternative that far surpassed what staff originally envi- sioned which was to construct the overpass from Merrydale Road and bring it into a T -intersection further uphill to below the former Velvet Turtle Restaurant. Councilmember Thayer asked if the delay costs were offset by the decreased level of activity required, and Mr. Strom responded billings are based on time actually spent, noting an estimate of what time would be spent on the work was submitted. Councilmember Breiner referred to page two of the letter from Wilsey & Ham, No. I. Delay Costs, and asked for an explanation, and Mr. Strom stated he was not certain, but would find out and get back to Council later. Councilmember Boro asked upon the return of Public Works Director Bernardi, that he explain the Delay Costs to Council because there seemed to be a conflict of statements. Mr. Strom stated a memo on questions raised would be forthcoming. Councilmember Frugoli moved and Councilmember Boro seconded, to approve staff recommendation and to grant the increase. RESOLUTION NO. 7938 - AUTHORIZING THE DIRECTOR OF PUBLIC WORKS TO SIGN LETTER AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND WILSEY & HAM, FOR INCREASED COMPEN- SATION FOR THE MERRYDALE OVERCROSSING PROJECT, IN AMOUNT OF $124,000. (Funding to come from FAU monies and traffic mitigation fees). AYES: COUNCILMEMBERS: Boro, Breiner, Frugoli, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 6. REPORT ON BID OPENING AND AWARD OF BID FOR MULTI CHANNEL COMMUNICATIONS RECORDING SYSTEM FOR POLICE DEPARTMENT (PD) - File 4-2-237 Mayor Mulryan announced that this item was being pulled off the agenda to meeting of April 17, 1989. Mayor Mulryan pulled Item No. 21 from the "Item for Discussion at the Request of Mayor and Councilmembers" portion of the agenda. There were no objections. 21. REQUEST FOR RECONSIDERATION OF COUNCIL ACTION ON HOWARD JOHNSON PLAZA HOTEL PROJECT PRIORITY STATUS - File 115 Councilmember Frugoli moved that Council reconsider the action taken SRCC MINUTES (Regular) 4/3/89 Page 3 SRCC MINUTES (Regular) /3/89 Page 4 on the Howard Johnson Plaza Hotel Project Priority Status, stating Councilmember Boro was concerned about the design of this project but noted this project is not looking at the design but on the trip allocation at the East end of San Rafael in the Canal area. Request denied due to lack of a second to motion made by Councilmember Frugoli. 14. PUBLIC HEARING P89-3 - AMENDMENT TO TITLE 15 (SUBDIVISION ORDINANCE) OF THE SAN RAFAEL MUNICIPAL CODE PERTAINING TO SLOPE PROVISIONS (Pl) - File 10-3 x 10-6 Mayor Mulryan declared the public hearing opened, noting this would be consideration of an interim slope Ordinance to be in effect for approximately six months. Planning Director Pendoley stated this item was brought before Council on March 20, 1989, and the basic change is staff's recommendation of the one acre minimum lot size for lots proposed at slopes over 40 percent. He noted the approach is comparable with a number of other jurisdictions in the Bay area, and added only three proposed projects would be affected by the proposed one acre minimum. Thirty Citywide hillside parcels which might be affected have been analyzed, but he stated the exact extent of impact might be difficult to conclude with any real specificity. Mr. Harry Winters, President of West End Neighborhood Association, stated he supports the changes to the interim Slope Ordinance. He referred to the 12 General Plan criteria listed for consideration for lots greater than 25 percent slope and suggested a 13th, to address public, health and safety considerations not listed in the first 12. Mr. Jeff Mulanax, Spokesperson for the Montecito Neighborhood Associ- ation, stated they supported the increase in the lot square footage on slopes under 40 percent. He asked to have a top scale of 40 percent and noted nowhere did he see street frontages as a requirement as it is in the old Slope policy. Planning Director Pendoley stated there is no proposed change to that provision. Mr. Chris Craiker, 851 Irwin Street, San Rafael, referred to the one acre minimum plus the minimum lot width and stated this to be inappropriate. He stated every lot requires individual attention noting they cannot be generalized and lumped together. He felt the Planning Commission's advice that each lot be reviewed on a case by case basis is correct, and suggested that Section 15.34.020(b) should apply to all lots whether they exist or are proposed in subdivisions and not just existing lots, noting what is needed is good design. He recommended Council listen to the Planning Commission's recommenda- tions. Mrs. Maryann Shaw, President of Loch Lomond Homeowners' Association, stated she supports the changes in the Slope Ordinance with the excep- tion of the case by case review to be done by the Planning Commis- sioners, noting they do not inspect the sites upon which they make their judgments. She cited the case by case basis as unacceptable, noting long after the Planning Commissioners are gone, San Rafael will be left with an incomplete Ordinance regarding slopes above 40 percent and more, stating it is unfair to the residents, developers and Planning Department staff who are guided by the existing Ordi- nances. She stated they also take exception to the map freezing device used by the City on hillside developments which have been approved by City Agencies and are now going through public hearings, and asked if this was fair. Mayor Mulryan asked Mrs. Shaw if she understood that this has been brought to Council's attention by homeowners' representatives and that Council has responded to it quickly and fully. Mrs. Shaw stated the Planning Department did a good job on the changes but objected to the points raised. Hearing no further comments from the public, Mayor Mulryan closed the public hearing. SRCC MINUTES (Regular) 4/3/89 Page 4 SRCC MINUTES (Regular) 1/3/89 Page 5 Planning Director Pendoley referred to the map freezing provisions which are from State law and not the Planning Department's. He responded to Mr. Craiker's comments stating they agree with most of the points he made except that the Ordinance does allow the Planning Commission to recognize special circumstances and to make exceptions on a case by case basis depending on the particulars of the lot. He referred to Mr. Winters' suggestion of adding item 13 and stated it is not necessary, because the Ordinance being adopted already states it is to protect the public's health and safety. Councilmember Boro suggested an expiration date of a year be included in the interim Ordinance to give Council an incentive to further study the issues, and then finalize the Ordinance. Councilmember Thayer was concerned about a long-range solution to preserve the hillsides by tightening up the slopes lower than 40 percent, referring to the Zoning Ordinance, and Planning Director Pendoley responded although the Zoning Ordinance has not as yet been revised, the (d) & (e) sections are in the existing Slope Ordinance. He noted they are saying they are not available for use at this time until a more thorough policy has been developed. Councilmember Breiner moved and Councilmember Frugoli seconded, to adopt the Resolution Certifying the Negative Declaration. RESOLUTION NO. 7939 - CERTIFYING NEGATIVE DECLARATION FOR AN ORDINANCE TO AMEND TITLE 15 (SUBDIVISIONS) OF THE MUNICIPAL CODE PERTAINING TO SLOPE PROVISIONS AYES: COUNCILMEMBERS: Boro, Breiner, Frugoli, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None The title of the Ordinance was read: "AN ORDINANCE OF THE CITY OF SAN RAFAEL AMENDING SECTIONS 15.34.010, 15.34.020 AND 15.34.030 OF THE SUBDIVISION ORDINANCE TO PRECLUDE CREATION OF NEW LOTS FOR DEVELOPMENT WHICH HAVE A PERCENT OF SLOPE OVER 40%, AND TO ASSURE ADEQUATE ON-SITE PARKING, (as amended to include a one year sunset provision and one extension)" Councilmember Breiner moved and Councilmember Boro seconded, to dis- pense with the reading of the Ordinance in its entirety and refer to it by title only and pass Charter Ordinance No. 1561 to print by the following vote, to wit: AYES: COUNCILMEMBERS: Boro, Breiner, Frugoli, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 15. PUBLIC HEARING - ED 88-92 & s88-15 - APPEAL OF PLANNING COMMISSION'S CONDITIONALLY APPROVING AN ADDITION OF SEVEN UNITS TO AN EXISTING SINGLE FAMILY HOME AND A DUPLEX; AND CONSOLIDATION OF TWO PARCELS; 29-33 BROOKDALE AVENUE; PEDERSEN REVOCABLE TRUST, OWNER; DALE PEDERSEN, REP.; BROOKDALE NEIGHBORS AND HOMEOWNERS ASSOCIATION, K. WILGENBUSH/K. ARCHIBALD, REPS./APPELLANTS; AP 11-093-03 & 04 (Pl) - File 10-7 x 10-8 Mayor Mulyran declared the public hearing opened. Planning Director Pendoley stated this project involved the consolida- tion of two 5,900 square foot lots, the removal of a unit from an existing duplex and the construction of eight new units creating a total of 10 units in the combined parcel. He noted that the Brookdale Homeowners' Association has appealed the project based on the following: 1) The project is too dense for the neighborhood. 2) The R-4 Zoning is inappropriate for Brookdale Avenue. 3) The size of the proposed living units is too small. 4) The street is substandard and will not support additional traffic; and 5) Access should be provided from Lincoln Avenue rather than Brookdale. Mr. Pendoley responded to points (1) and (2), as they relate to the General Plan and Zoning designation and stated this area has been designated "High Density Residential" and the present zoning of R-4 has been in place for sometime. He noted a survey was conducted in SRCC MINUTES (Regular) 4/3/89 Page 5 SRCC MINUTES (Regular) 4/3/89 Page 6 1984 in response to neighborhood concerns, and at that time it appeared that property owners supported the existing R-4 zoning. Accordingly, when the Council and Planning Commission considered this area in the General Plan 2000 the determination was made not to change the General Plan designations. Regarding (3), size of the proposed lots, Mr. Pendoley stated six of the ten units are listed as being 400 square feet; however, it is important to note that each unit includes a 200 square foot loft which is useable floor area making it 600 square feet. Regarding (4) and (5), Mr. Pendoley stated this is regarding traffic concerns and noted the Traffic Engineer has studied the matter and finds that Brookdale Avenue is currently at Level of Service "A", which is the highest standard of service, and that this will not be diminished if this project is constructed. The Traffic Engineer also found that the traffic circulation policies are quite specific in discouraging additional access from Lincoln Avenue as a way to preserve flow and safety on that thoroughfare. Mr. Pendoley stated based on these considerations, the Planning Commis- sion approved the project, finding it consistent with the General Plan Goals and Policies. He stated the General Plan gives a range of actual densities within the broad notion of high densities. Gross densities can vary from 15 to 32 units per acre within this designa- tion. This project is actually developed at 26 units to the gross acre. In response to Mayor Mulryan's question if there were other densities proposed, Mr. Pendoley responded negatively and stated the issue was raised very late during the course of the public hearing before the Planning Commission. He said the Applicant responded at that time that he did not think at that late date it would be economically feasible to reduce densities. Mr. Pendoley stated the final 10 units reflect the results of their negotiations. Councilmember Frugoli referred to the R-4 Zoning in 1984, and stated when meeting with the Brookdale Homeowners' Association, they felt that Lincoln Avenue should have been the high density area. He noted that Brookdale, which is the only street on the east side of Lincoln Avenue, has only about 30 homes on that street and the residents are concerned about their street being substandard having older homes. He said he would like Council to look at this when they review the General Plan each year to see if it could be brought back to medium density instead of high density. Councilmember Boro stated that after having looked at the street, his concern is more long-term as to what might happen in the next 10 to 15 years, noting he hoped they could find a way to reduce the density. Appellants Mrs. Karen Wilqenbush, member of the Brookdale Homeowners' Association, stated the neighbors and homeowners are concerned about the overdevelop- ment on Brookdale and feel the proposed development is out of character with the neighborhood. She felt this proposal would bring the value of their property down because of higher density, increased traffic, influx of added renters and absentee landlords. She indicated they are not against property owners developing their land, but feel this is too much on too little land on too little a street, and noted they want the General Plan changed to reflect their density from high to medium or low. Mr. Herbert Pitman, 15 Brookdale Avenue, a resident for 28 years spoke against the project. His concern was about traffic and safety of the children playing in that area. Ms. Sharen Iribarne, 12 Brookdale Avenue, spoke against the project, citing parking and traffic problems. Ms. Kathleen Serrill, 71 Brookdale Avenue, spoke against the project also citing parking, traffic and safety. Ms. Kathy Archibald, 42 Brookdale Avenue, referred to the 1984 study done regarding zoning and stated most of the 60 percent were absentee landlords and therefore they do not know about the living conditions SRCC MINUTES (Regular) 4/3/89 Page 6 SRCC MINUTES (Regualr) 4/3/89 Page 7 on the street. She felt some consideration should be made about the homeowners having substantial say on how this property should be developed. She stated they approached Council in 1985 on this issue and were told the City would look very closely at any future develop- ment, and referred to Councilmember Frugoli's suggestion that there could be a future Ordinance or amendment so the zoning could be down- graded to a minimum level. Mr. Euqene Kenton, 36 Brookdale Avenue, stated he moved on this street because of the quiet neighborhood, noting their concern is not only on the current development but also with the future long term issue. Ms. Leslie Simonsen, 23 Scenic, San Rafael, representing "Marin Heritage", stated although the renderings of the project are attractive, the density is the only complaint. She commented more square footage, less traffic and longer term residency should be considered for each unit. Mr. Dale Pedersen, Developer, stated they had worked with the Planning Commission on 12 units at the start. He noted this is not the ordinary apartment complex, but that it has a single family unit, a duplex family unit, a triplex and fourplex family unit and is landscaped. In response to Mayor Mulryan's question if Mr. Pedersen met with members of the Brookdale Homeowners' Association to discuss this project on the density, he responded affirmatively, noting they had an early meeting before the Planning Commission meeting and at the time no mention was made of any definite number of units. He noted all the sketches were shown to them. Councilmember Frugoli stated the size of the units was a concern and noted some of the neighbors felt if the four units in back could be made into two one bedroom units, it would change the project from 10 to eight units and would help with their traffic concerns. He also mentioned that parking is available to the tenants on site. Mr. Pedersen responded this could be considered and added there are two additional guest parking spaces in this project. Mayor Mulryan asked City Attorney Ragghianti if without a proposal of two lesser units, could Council reduce the amount of units at this time, and Mr. Ragghianti responded affirmatively, noting or Council could increase the units. Mr. Michael Lyon, co -developer, stated their decision to purchase this property and upgrade it was based on the existing R-4 Zoning and its conformity with the General Plan 2000 which encourages the consolidation of smaller lots and promotes higher density residential development. He noted they worked closely with the Design Review Board and got their approval in November and waited until February to be heard by the Planning Commission who also gave them approval on the project. He noted the 10 units is under the maximum allowed under the guidelines. The question of the studio units could suggest a highly transient tenant mix but this is the last thing they want. He noted the price of construction and development does not allow one to rent studio units to transients; also, he thought it a policy of the City and County to encourage moderate income housing. He stated there is a problem with water hook up and stated they need approvals tonight. Mr. Peter Pedersen, Landscape Architect on the project, spoke on the open driveway, parking court and trail that winds up along the creekside allowing access to the site. He noted it is a privately owned area but the plan gives the neighborhood an opportunity to walk through the site. He stated the walks will be lit at night and will be a very nice amenity to the project. There being no further comments, Mayor Mulryan closed the public hearing. Councilmember Frugoli stated he preferred the units be reduced from ten to eight and suggested when Council reviews the General Plan on a yearly basis, they change the area from high to medium density at that time. Mayor Mulryan stated if Council were to approve eight units, that it be subject to final design approval by staff. SRCC MINUTES (Regular) 4/3/89 Page 7 SRCC MINUTES (Regular) ./3/89 Page 8 Councilmember Breiner referred to a letter relating to the substandard open and closed culvert and asked if there is a requirement that this be upgraded on this parcel. She also stated she would support the reduction to eight units if they were to be one bedroom units. Councilmember Thayer stated she had voted for a lower density along Lincoln during the General Plan hearings as well as throughout the area and believed it should be changed to R-2 Zoning, especially on this street. Councilmember Thayer moved to uphold the appeal and deny the project. Motion died for lack of a second. Councilmember Boro noted he did not want to make a decision tonight because of the water issue. Also, even though the land is zoned R-4, Council has the ability to come up with the range and he was uncertain if eight units is right, citing many property owners have spoken of their concerns. Planning Director Pendoley stated the General Plan range looking at a whole acre would be 15 to 32 units; in terms of this property, which is about a third of an acre, it works out to six to 12 units. Councilmember Frugoli moved and Councilmember Breiner seconded, to allow the project at eight units rather than 10 units and that the two units in the back be changed to one bedrooms; and that this area be considered for change to a Medium Density as part of the General Plan review done on a yearly basis. RESOLUTION NO. 7940 - CITY COUNCIL OF THE CITY OF SAN RAFAEL, DENIED THE APPEAL OF ED88-92 AND UPHELD DECISIONS OF THE SAN RAFAEL PLANNING COMMISSION TO CERTIFY A NEGATIVE DECLARATION AND CONDITIONALLY APPROVE AN ADDITION OF FIVE UNITS (AMENDED FROM SEVEN NEW UNITS) TO AN EXISTING SINGLE FAMILY HOME AND DUPLEX, AND CONSOLIDATION OF TWO PARCELS AT 29-33 BROOKDALE AVENUE AYES: COUNCILMEMBERS: Breiner, Frugoli & Mayor Mulryan NOES: COUNCILMEMBERS: Boro and Thayer ABSENT: COUNCILMEMBERS: None 16. PUBLIC HEARING - s87 -10(a) - APPEAL OF PLANNING COMMISSION'S GRANTING OF A NEGATIVE DECLARATION AND CONDITIONAL APPROVAL OF A 3 -LOT SUBDIVI- SION; 1 HIGHLAND AVE.; JIM SKAAR, OWNER; MIKE BURGESS/DIETRICH STROEH, REPS.; MONTECITO NEIGHBORHOOD ASSN., JEFF MULANAX, APPELLANT; AP 15-202-37 (Pl) - File 10-8 Mayor Mulryan declared the public hearing opened. Councilmember Breiner excused herself from this item upon advice of City Attorney Ragghianti, due to conflict of interest because of her residence being located approximately within 2,500 feet of the property in question, and left the Council Chambers. Principal Planner Johnston stated on February 28, 1989, Planning Commission approved this project and it was subsequently appealed by the Montecito Neighborhood Association. The project involves three lots with two exceptions; One is for Lot one, which is at the top of the hill and needs an exception that it does not have public street frontage. Also, each lot requires an exception because access will be provided over private right-of-way versus street frontage,and given the slope of this property it is not practical to have direct street driveway access from Highland Avenue. This project is adjacent to the Massa subdivision which was reviewed a few months ago and denied by the City Council, by upholding an appeal. The Skaar property was denied by the Planning Commission in October, 1988 and at that time it was a four lot subdivision then resubmitted as a three lot proposal. Mr. Johnston pointed out a number of issues with respect to the appeal: Loss of vegetation leading to increased erosion and flooding; Traffic and safety hazards; Neighborhood compatibility; Visual impact and concerns with the Slope Ordinance. SRCC MINUTES (Regular) 4/3/89 Page 8 SRCC MINUTES (Regular) 1/3/89 Page 9 The Planning Commission felt that the project will be compatible with the neighborhood and will not be a significant visual impact. They considered the density of surrounding development design standards for the homes, and when this project is fully developed and the land- scaping matures, will blend with the neighborhood. He noted the site is 2.9 acres, which would develop about 6 to 19 units per acre if the low density residential category is used that is currently assigned to the site. He noted, however, this is a three lot proposal and therefore well under the General Plan density range, but consistent with policy LU -10 which allows the City to review sites and determine what appropriate density is based on site criteria, such as potential constraints, hazardous conditions, traffic and circulation, access of infrastructure and City design policies. He noted they do have the authority to approve a lower density project. In this case, Mr. Johnston stated it is a highly visible hillside area which is visible from many areas in the neighborhood. Mr. Johnston referred to the exceptions and pointed out in order to grant these exceptions, Council would need to make certain findings, particularly that there are special circumstances or conditions affec- ting the property, that the exception is necessary for the preservation of substantial property rights and that the project will not be detri- mental to public health, safety and welfare. Under these conditions, the Planning Commission did not feel the exceptions were unreason- able and should be approved. Councilmember Frugoli referred to the 50 percent slope on Lot Three and asked if this was looked at because it is higher than the 40 percent passed in the interim Slope Ordinance, and Mr. Johnston re- sponded affirmatively, stating this was an issue where this project was submitted in December, before revisions to the Slope Ordinance were discussed. Under the Map Freezing Rule, staff is dealing with this particular subdivision based on the standards in effect at that time. He noted that Lot Three at 50 percent slope is 27,000 square feet in size, and is larger than the 23,000 square feet which was standard and applied at that time. Mr. Jeff Mulanax, Spokesperson for the Montecito Neighborhood Associa- tion, outlined the concerns of the neighborhood, referring to the steep slopes, traffic, narrow streets, parking problems and various lots being developed in piecemeal fashion and noted this mandates the neighborhood plan as requested once before. The main concern of the neighborhood is the 50 percent slope which to them is very steep. He asked Council to deny the project. In response to Mayor Mulryan's question as to how this would fare under the interim Slope Ordinance passed earlier tonight, Mr. Johnston stated if applied, Lot Three would have to be a minimum of one acre, which now at 27,000 square feet would need to be increased to 43,000 square feet. The adjacent Lot Two is roughly 24,000 square feet which does not leave enough room between lots two and three to create two lots, unless major reductions are made to the lot on top of the hill. He did not believe Lot Three could be adjusted, in total, to receive one acre. Mr. Robert Grime, 61 Highland Avenue, stated when he found out the home on Lot Two was to be built very close to his lotline, he was against the project. Mr. Clifford Elbinq, representing Montecito Neighborhood Association, spoke against the project, noting the driveway to these proposed lots is too narrow and poses problems, stating the road should be a minimum of 25 feet of width in order for a fire engine to be able to pass each other. Mr. Don Dickenson, 327 Jewell Street, one block away from the site, spoke against the project. Mr. Denis Fishwich, spoke in opposition of the project. Mrs. Maryann Shaw, President of Loch Lomond Homeowners' Association, spoke against the project. Terrel Mason, Attorney, on behalf of Mr. Jim Skaar, owner and developer of One Highland Drive, spoke regarding the slide on the property SRCC MINUTES (Regular) 4/3/89 Page 9 SRCC MINUTES (Regular) /3/89 Page 10 stating with the proposed plan, the end result will bring about more of a stable hillside than there is now. He noted fire trucks have been at the site and were able to turn around on the existing road and this was done without any improvements, adding a fire hydrant is proposed to be placed on the site. There also are two water pressure reduction valves on his property. Mr. Mason gave background as to when Mr. Skaar took over the property and how his proposed plans would improve the site. Mr. Bill Schenk, of Stuber-Stroeh Associates, planner with the firm who worked on the project from the beginning, spoke on the slope of the property and adequacy of the lots and drainage problems that will be improved. He referred to having houses on the properties pointing out the smallness of the houses in comparison to the size of the lots. He stated the Slope Ordinance focused on reducing the density and visual density in hillside areas, but in this case, the location, size and distance between the houses is generous and con- sistent with the type of development that now exists in the neighbor- hood. Mr. Mason pointed out in consideration of the requisite square footage that is needed to calculate the necessary lot that would be determined under the Ordinance, it is quite common to use easements, whether they are sewer easement, water easement, utility easement or private roadway easement, for those calculations. Also, findings made by the Planning Commission were that they felt the significance of the impact in the neighborhood would ultimately be positive and not be a detriment. Mr. Mason stated the project is consistent with the General Plan and the R-1 Zoning, noting because of the size of the almost 3 acre parcel there is a density level of 5 units up to 19 units, and what they are proposing is essentially 2 additional units. He urged denial of the appeal and adoption of the Resolution upholding the Planning Commission decision. There being no further comments from the public, Mayor Mulryan closed the public hearing. Councilmember Thayer noted the old Ordinance trails off at 40 percent and there were 500 square feet increments at each percent point, and asked would that mean an increase in lot size of 5,000 square feet should be required on a 50 percent slope? Principal Planner Johnston responded in this case, even if the lot's minimum size from 20,000 to 25,000 square feet was a requirement, the appellants would still meet it. The Ordinance assumes gross acreage and does not specifically extract any easement areas; in essence, it is an acreage of the lot with exception of a public right-of-way. That lot which is 50 percent is 27,000 square feet, so even if the more stringent standards were applied, it would still meet it. Councilmember Thayer had problems especially with the steepness of Lot Three, noting it would be stretching special circumstances if they reduced it to two units or even one, and stating it would prove detrimental to the preservation of substantial property rights. Councilmember Boro stated his concern is not with the exceptions but with the public safety issues with the slope. Councilmember Frugoli stated his concern also is with the slope and suggested they could reconfigure the lots and have it go back to planning staff, noting the number Two Lot is very steep and would have a problem with the downside of Highland Avenue and Hubbell Court. Councilmember Thayer moved and Mayor Mulryan seconded, to grant the appeal and deny Planning Commission's Granting of a Negative Declaration and Conditional Approval of a Three Lot Subdivision. AYES: COUNCILMEMBERS: Boro, Frugoli, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Breiner (Councilmember Breiner returned to Council meetinq. SRCC MINUTES (Regular) 4/3/89 Page 10 SRCC MINUTES (Regular) 4/3/89 Page 11 17. PUBLIC HEARING - UP88-5 - APPEAL OF PLANNING COMMISSION'S CERTIFYING A NEGATIVE DECLARATION AND CONDITIONAL APPROVAL OF A USE PERMIT FOR A PROPOSED 110,000 SQUARE FOOT OFFICE BUILDING; McINNIS PARKWAY; H & H MANAGEMENT, OWNER; J. SHEKOU/M. ARDALAN, REPRESENTATIVES; APPELLANTS: MARIN AUDUBON SOCIETY (BARBARA SALZMAN), MARIN CONSERVATION LEAGUE (CHIP WRAY), TERRA LINDA HOMEOWNERS ASSOCIATION (MARY CONTE) AND MONT MARIN HOMEOWNERS ASSOCIATION (JOHN ROJAS) (P1) - File 10-5 Mayor Mulryan declared the public hearing opened. Mr. Dwight Winther, on behalf of Planning staff, stated the Planning Commission approved the Negative Declaration and the Use Permit for the Civic Center North offices, concurrently denying, without preju- dice, an application for Environmental and Design Review. The Use Permit and Negative Declaration are being appealed and the staff report describes the items being appealed with one exception, staff recommends that the appeal be overturned. The one exception regards an additional Condition of Approval requiring the applicant to acquire 14,000 square feet of surplus right-of-way in order to make the property the right size to meet the floor area ratio under the General Plan. Mayor Mulryan asked if this is a situation where the appeals are based on issues that were not worked out by the Planning Commission, and Mr. Winther stated most of the issues were discussed before the Planning Commission or covered in the staff report, such as endangered species protection, parking lot encroachment and habitat setback. Mayor Mulryan asked if the Planning Commission split the concept and approved it without ironing out all the details, and Mr. Winther responded the Planning Commission denied the Environmental Design Review without prejudice and approved the Use Permit and Negative Declaration. Mayor Mulryan asked whether they then kept for further consideration, the design aspects, and Mr. Winther stated the design aspects of the building, the exterior of the building, etc. were not approved. He noted, the Use Permit approval did grant approval of the 110,000 square feet and the building footprint and generally, the site plan. He added the Planning Commission asked that the site plan be adjusted to provide for additional pedestrian orientation and a wider setback from the creek bank. Mayor Mulryan stated he was concerned about handling projects on a split basis. Councilmember Thayer stated she too was concerned about the project being handled on a split basis, noting it creates a tremendous amount of confusion. She felt this item should go back to the Planning Commis- sion. Planning Director Pendoley stated the Planning Commission was sensitive to the issues the Council is also concerned about. He noted what the Council needs to be aware of, and which the Planning Commission was aware of, is that the City is faced with the Permit Streamlining Act and when the Planning Commission acted on it there were only 25 days left and after this time passed, the project would be deemed automatically approved if there were no action by the Planning Commis- sion. He stated the effect of the appeal is to stop the clock; if this is sent back to the Planning Commission, they would only have 25 days left to deal with it. Mayor Mulryan asked what would be entailed if this were sent back with the items Council is concerned about to be worked out and prepared properly by the Planning Commission, and Mr. Pendoley responded it could be done but the problem is the shortness of time. Their concern was to be able to look at the Environmental Design Review, strictly design aspects in light of the Embassy Suites which is not as far along as this is. Councilmember Boro was concerned about the process and in reviewing Council Minutes of August 1, 1988 where this item was discussed, the item read, "Presentation of Civic Center North Hotel and Office Projects". He noted Council expressed the opinion at that time that they wanted to have the ability to look at both the hotel and office site together at some point before these projects were finalized. He indicated the problem is Council has a design on the office site that is not before Council because it was denied and Council does not have a design on the hotel site because it has not been processed, and yet Council is being asked to approve a Use Permit tonight. SRCC YiNUTES (Rejalar) 4/3/89 Page 11 SRCC MINUTES (Regular) 1/3/89 Page 12 Councilmember Breiner agreed. William T. Baqley, Attorney representing Joe Shekou stated he did not think the application was inconsistent with what Councilmember Boro stated, noting it was filed 14 months ago. Nine months ago it was before the Design Review Board and got general approval. He stated that staff asked that this Use Permit application be held up and not come before the Planning Commission until a few weeks ago, and not come before Council until tonight, because staff wanted to work on the hotel project. He stated what Mr. Boro was saying is that they wanted to look at the design of both of the projects together. He noted they delayed for approximately one year not pursuing the application for a Use Permit until the hotel was completed in the processing sense; it now has a Use Permit. He stated if they are treated differently than the hotel, mentioning the water situation, then this is not a fair process. He asked for a Use Permit for the office project, so they could apply for a water connection. Councilmember Boro stated before the Use Permit was given to the hotel, many meetings were held before Council with public input and when it was done Council was committed to a footprint, to a number of rooms, to everything but the ultimate design and had reviewed a number of designs but could not conclude one. He noted this applica- tion had not come before Council until tonight and they are being asked to look at it just based on the Use Permit. He did not think they did one thing for one applicant and one for another and noted circumstances were different with the hotel than with this particular site. Paul Cohen, Planning Commission Chairman, shared the Council's concern about taking this split approach to projects and stated it is important that they not allow the way this particular subdivision has been treated to establish a precedent for future review. He pointed out when the other part of this subdivision was previously reviewed, namely the hotel, he was the sole Planning Commissioner who voted against the concept of splitting the Use Permit and Environmental Design issues apart. He noted in response to Councilmember Boro's comments, it is precisely in the interest of reviewing the design of this project, along with the design of the hotel which the Planning Commission has not arrived at, that they took the approach that they did, because they had a project before them with the time limit almost out; a project that on the face of it was consistent with the zoning that allows for the square footage and with design that met the criteria of the zoning in that it is compatible with the Civic Center; a project with the design taken separately from the hotel that a number of Commissioners favored were it not for the hotel project being immediately adjacent to it. He stated, given the City's concern and everyone in the neighborhood associations' concern about coming up with a building that is compati- ble with the hotel, they took the same approach with this project they took toward the hotel so they might process the application in a timely manner and continue to be able to look at the design after they have a hotel design that the City can be proud of. He concluded there are special circumstances and this should not be precedent setting for any other application. Mayor Mulryan asked staff if Council were to deny the appeal and let this procedure go forward, would any and all of the issues raised on the appeal still be able to be compromised where necessary at the Planning Commission and Planning staff level. Mr. Winther stated if the appeal was denied Council would also deny the appeal of the Negative Declaration; therefore, Council, in essence, would be approv- ing the Negative Declaration and that issue would be behind the Council for the Use Permit. Regarding the issues that had been appealed with respect to the Use Permit, dealing with building height, encroachment into setbacks, etc., Mr. Winther stated while building height is covered in the Use Permit conditions, Council would be approving the building height. The Planning Commission asked for a wider setback from the creek, so that issue is not settled. The definition of whether or not parking lots should be allowed to encroach into this setback established by the General Plan is likewise subject to future design review. He stated some of the issues would be settled if Council denied the appeal and some would not. SRCC MINUTES (Regular) 4/3/89 Page 12 SRCC MINUTES (Regular) 4/3/89 Page 13 Councilmember Breiner stated, with some of the questions still outstanding, she would find it difficult to let the Negative Declaration stand because of those specific issues. Councilmember Frugoli stated the Planning Commission put themselves into a box by Certifying a Negative Declaration and approving a Use Permit while concurrently denying without prejudice, the Environmental and Design Review. He noted he has never seen this done and it makes it difficult for the Council. Mayor Mulryan stated the fact that it (the property) was subdivided is not something the Council ever had in its mind when the PUD was approved six or seven years ago. This PUD was approved as a master plan concept consisting of all the elements described, the restaurant in the front, the hotel, the office and the residential in the back; the overall project was looked at. He indicated there are problems on both sides but Council has to look at this as a single development, half of which has gotten beyond Use Permit stage. Mr. Bagley responded to Councilmember Breiner by stating there are two entirely separate issues, the Negative Declaration talks about environmental aspects, traffic and mitigation and not about design review and the setback is not a part of the EIR in this situation, noting the setback has to do with how the Council and Planning Commis- sion want to interpret the General Plan language. Therefore, he stated the approval of the Negative Declaration is totally consistent and is not related to the question of design review. He noted the Planning Commission did not deny approval but simply said, without prejudice, come back with their design review. With regard to the Negative Declaration, Mr. Bagley stated the Miti- gation Measures have been taken care of and there is an insignificant environmental impact, noting that is different from design review and that he saw no inconsistency. Planning Director Pendoley responded to Mr. Bagley's comments and stated in this case the setback issue is an environmental issue, noting it was done as mitigation to the project by the Planning Commission and staff concurred with it. He added it is a little difficult to separate from the Negative Declaration. Ms. Barbara Salzman, representing Marin Audubon Society stated the Planning Director is correct, adding that the setback is a critical part of the Negative Declaration and the Environmental Review and they strongly oppose the issuance of a Negative Declaration at this time. She stated they are talking about habitat for two endangered species and the setback is a critical part of their habitat; these species depend upon tidal marsh habitat which is what these creeks are and depend on the upland areas adjacent to the tidal marshes when the tide gets high and they must leave the marsh. She noted without knowing how wide the setback is going to be and what is going to be in it, she could not see how the Negative Declaration could be approved. She referred to 21 (a) and 21 (c) and stated the cumula- tive impact on this project along with all the other projects that have been approved are being considered in this habitat need to be evaluated. She then quoted from a letter from the Marin Audubon Society to the City Council relating to the California Department of Fish and Game not being consulted during the Environmental Review process. Mrs. Jean Starkweather, representing Marin Conservation League stated they are concerned about the cumulative effect of building north of the Civic Center and are appealing this issue because of both the process and the project. She then gave background of how this project came to this point and stated this is considered to be a short circuit of the planning process and a poor way to plan any area, particularly such an important one. Mr. Chip Wray, representing Marin Conservation League stated with respect to the EIR, their main concern is that the project impacts on endangered species, policies on setbacks and the cumulative effect of the many large projects being proposed or built in this area need to be addressed and the EIR would do that. He then described the mass of the building and how views would be affected, and urged 36 feet as a maximum height to be allowed. He stated the conditions may conflict with information on the habitat impacts and mitigation measures which would be obtained SRCC MINUTES (Regular) 4/3/89 Page 13 SRCC MINUTES (Regular) 1/3/89 Page 14 from a focused EIR and that is the minimum they are asking for. Also, he stated the habitat enhancement plan has not been presented for this site as was required by both adjacent projects, the Embassy Suites Hotel and the Marin Lagoon Housing, including not having a cross section of the creek buffer and parking lot submitted with this project. In conclusion, they consider the building too large and overwhelming for the site adjacent to the Frank Lloyd Wright Civic Center design. He urged this appeal be granted and the project be sent back to the Planning Commission. Mr. John Rojas, President of Mont Marin Homeowners' Association, stated they feel cheated that they were not able to get in on the office building complex to look at it thoroughly. He noted they were at all of the Planning Commission meetings and several of the Council meetings including the design review for the hotel with artists' conceptions of what the office building would look like, but stated there was no combined effort to show the hotel in perspective with the office building. He stated they asked the Planning Commission in their letter of July 28, 1988, to look at the master plan and all buildings together in a scale model with detailed architecture. Mrs. Georqianna McCardy, 14 year resident of San Rafael, speaking on behalf of the Environmental Forum of Marin, noted the Forum supports the decision of interested parties to appeal the Planning Commission Certification of a Negative Declaration and Conditional Approval of a Use Permit for this office building and hoped the Council would support the position of the appellants. She went on to read a letter to Council. Cecelia Bridqes, Attorney representing Joe Shekou stated the staff report shows the setbacks that are proposed for this project are consistent with the General Plan and questions raised concerning the setbacks indicate the appellants disagree with the adopted General Plan. She stated they were all here when the General Plan was adopted and heard these arguments then and tonight are hearing in the context of the appeal of this project, repeats of those prior arguments, and if Council chooses to take this opportunity to amend the General Plan, that is one thing, but it should be very clear as to what is properly a legislative matter in the context of the adoption of the General Plan versus a specific matter of this project. Regarding the question of endangered species, Ms. Bridges stated she made a correction to her prior letter in her letter submitted tonight, and said between the office site and the Gallinas Creek areas shown as endangered species habitat, exists the Marin Lagoon project of which a large part is built. She stated they should not talk of this effect on the endangered species in the context of pre- tending there is nothing between this site and that potential habitat. There is a very large project that is being constructed right now that was approved by Council. She stated as far as separating the Environmental Design Review Permit from the Use Permit, in a cooperative spirit and in recognition of what she believes to be the Planning Commission's request, that there be minor design changes on the site plan in order to create a greater setback from Gallinas Creek, noting they chose not to appeal the Planning Commission's denial without prejudice of the ED. She supposed if they had at the same time that the Use Permit had been appealed, chosen to appeal the denial without prejudice of the ED, Council would have before them tonight both the ED and the Use Permit. Instead, they directed their engineer to begin work on alternative plans that would increase the setback by 12 feet which would create a setback averaging 50 feet. She believed the numbers vary from 32 to 60 something with an average setback of 50 feet, and that is the approach they took. She questioned if she took the right approach or not, noting what she is hearing is that Council would have preferred to see the ED tonight as well as the Use Permit. Regarding the request for a Focused EIR, Ms. Bridges stated this should be made very clear that it is not a proper matter for an EIR or a Negative Declaration to make policy matters. This matter of what is to be included in the setback that is defined in the General Plan (defining in more detail what setbacks to structures means in the General Plan), does it include the parking lot or not. She noted this is not a proper matter of a Focused EIR. SRCC MINUTES (Regular) 4/3/89 Page 14 SRCC MINUTES (Regular) 1/3/89 Page 15 Ms. Bridges stated for six months they had a model in front of the Council and wanted Messrs. Wray and Rojas to know that it was on view for the public, although Mr. Rojas may have not found it suffi- cient. In conclusion, Ms. Bridges stated the last speaker stated the matters before Council tonight were not adequate because Council did not have cumulative impacts of the entire area, and she believed the speaker started calling out land, Scettrini, Marin Lagoon (already approved) and noted Council would have to decide at what point will Council consider this entire area, noting that was the point of the Master Plan. Barbara Salzman stated they were not asking to have the policy matter addressed in the Focused EIR, and added that the Clapper Rail and Harvest Mice do not stop at the Marin Lagoon project but go down all of the channels. Dwight Winther then spoke about the endangered species habitat, refer- ring to the map, and stated when the Northgate Activity Plan was before Council years ago the marsh adjacent to the Marin Lagoon project was designated as possibly containing the Salt Marsh Harvest Mouse and the California Clapper Rail. Subsequent trapping found one mouse in the area. When the project was then approved for rezoning, there were setbacks established into the PD Master Plan Zoning to mitigate the proximity of these endangered species. The office project adjoins a portion of the creek and at this point there is no evidence staff has that there are endangered species in the creek adjoining the office project. He noted all of the Marin Lagoon intervenes between the two projects. Furthermore, the General Plan itself and its EIR includes a map which shows areas of threatened and endangered species. Mr. Winther showed a circled area where there is a marsh and stated the map does not designate this creek as being an area of threatened and endangered species. Mr. Winther stated there was a series of things done, including a separate assessment which was for the hotel. The consultant who prepared the assessment is a qualified consultant whose.opinions are respected by staff. He noted a conclusion was made that it is unlikely that either the Clapper Rail or the Harvest Mouse would use the adjacent salt marsh on a regular basis, noting he was talking about the hotel in that particular case, but stating it is essentially the same channel. He stated the conclusion that has been reached for this project, for Marin Lagoon and for Embassy Suites in justifying a Negative Declaration for the endangered species, is justified. Mr. Winther indicated in addition to the map shown, a very large model has been prepared at the request of the Council and Homeowners' Associations to show all of the projects together. If the model were large enough to show great detail of each of the buildings it would probably occupy the entire room. The models have been updated as each of the hotel designs have been revised. He noted with regard to the building height, there is some question of interpretation, (does it mean literally three stories or 36 feet, the higher of the two, or does it mean the lesser of the two). Staff recommends it should be interpreted to mean, either/or. He stated in this case, if it was interpreted as 36 feet literally, it would not leave the possibility to have any three story office buildings in the City other than having flat roofs because there would be no room to go above 36 feet after you get 3 stories, 12 foot floor to floor. There being no further comments, Mayor Mulryan closed the public hearing. Councilmember Breiner referred to the consultant who did the initial study and asked if he was hired by the proponents of the project. She explained there is some challenge to the validity of the results of the initial study on which the Negative Declaration by the Planning Commission has been based, and the challenge to those results has to do with the fact that this is a consultant for the developer of the project. She asked if this is normal. Mr. Winther responded stating the bulk of the conclusion with respect to endangered species is the environmental documents that were pre- viously done; the Northgate Activity Center EIR and more importantly, the General Plan EIR, which is now only six or eight months old, SRCC MINUTES (Regular) 4/3/89 Page 15 SRCC MINUTES (Regular) 4/3/89 Page 16 and in addition to that Negative Declarations which were done for both Marin Lagoon and the hotel projects which lie on both sides of this and came to the same conclusion. The review and determination by the applicant's consultant was included in the hotel Negative Declaration and is part of the reference that goes on in this partic- ular Negative Declaration. Mr. Pendoly stated in an initial study it is very common and, in fact, usual, to have the applicant present data to support findings for a Negative Declaration in the Initial Study which is independently reviewed by staff and the Planning Commission and/or Council to decide whether or not this is credible evidence. He noted they can easily conclude that it is credible based on the data that is in EIRs which were prepared by independents which is the better way to go for an environmental impact report. Councilmember Boro stated his conclusion at this point is that this application is not working because the process is not working well. He did not feel that because of the size of the building, its location and the impact it is going to have, they could do this. He referred to Ms. Bridges' statement if she had appealed the ED, it would have been before Council this evening and stated the problem is they do not have the hotel to compare it to because the hotel design is not done. He noted he is concerned about granting the Use Permit without having the ED to look at and relate to. Councilmember Frugoli referred to the Master Plan in 1983 and the Northgate Activity Plan all going through the same plan. He noted even though it is in private ownership, it was planned as the Council perceived it, as a residential, office building, hotel and restaurant. There might be different players, but it is still a planned development that was agreed to many years ago. He felt the applicant has met all the requirements and that the Negative Declaration and Use Permit should be approved because of the time constraints. He stated it could be done together and both looked at through the design review and Planning Commission for the design part of it. Councilmember Boro stated the record should show that the applicant was asked to hold back and he did, but in the process of doing that, prior to now, the applicant had an interest in the other site and it was obviously to his advantage to hold back at that time to get that site processed. He stated it is unfortunate he is trapped by the water moritorium but did not feel not giving applicant the same treatment Council has given the hotel, is unfair. He added Council has worked with Mr. Shekou on the former site as well as Embassy Suites and tried to accommodate both the neighborhood and the applicants, but by his standards they are stretching it. Councimember Boro moved and Councilmember Breiner seconded, to grant the appeal and deny the Planning Commission certification and Negative Declaration and direct staff to prepare a Focused EIR to specifically address the issue of endangered species and that at a future time, this project be brought back to Council, both the ED and the Use Permit at the time Council has completion of this plan along with the design of the hotel. AYES: COUNCILMEMBERS: Boro, Breiner, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: Frugoli ABSENT: COUNCILMEMBERS: None 18. REPORT ON PEACOCK GAP PARK CONSTRUCTION (PW) - File 6-37 Assistant Public Works Director Strom stated last week, he, Public Works Director Bernardi and Recreation Director McNamee met with representatives of homeowners adjacent to the Peacock Gap neighborhood park. He noted the homeowners are anxious to have the park built according to the approved Master Plan. He stated the plans are prepared and funding already collected from the Assessment District. He mentioned that Brian Wittenkeller, architect, will do additional review on the update of cost estimates but as yet they have not received the information. Staff feels this project could go out to bid and be structured with various alternates to basically build out as much as they can with the funding available. Mr. Strom indicated they are concerned about the maintenance aspects of the park, stating that staff maintenance is stretched to the minimum and could not take on the maintenance of this project with their current staffing level, noting they would need additional staff. SRCC MINUTES (Regular) 4/3/89 Page 16 SRCC MINUTES (Regular) 1/3/89 Page 17 Mayor Mulryan stated previous discussions mentioned paring down or phasing this park until maintenance could be done, such as the bath- rooms. Mr. Strom stated maintenance alternatives were discussed, but that the sentiment of the homeowners is to proceed with the park in its totality, but he indicated there is not too much that could be built that would be usable or be an amenity that would not take a consi- derable amount of maintenance, whether it be parks or tennis courts. Mr. Jim Finkelstein, resident of Peacock Gap Greens stated they would like work on the park to begin August 1, 1989 with completion December 31, 1989. The phasing of that work could be at the discretion of staff with priority given to low maintenance and low water use items first. He stated they would like the City of San Rafael, rather than the homeowners to find a creative financing alternative for main- tenance. They suggest the examination of the feasibility of floating a one million dollar bond issue or establishing a special Assessment District under the Lighting and Landscaping Act of 1972 in order to finance the maintenance of this park as well as other maintenance areas in East San Rafael that seem to be "bundled" together with the project. He stated apparently, there has been no discussion or concern with maintenance fees during the period of January, 1980, when the original discussions began through December, 1986, which would have prevented or delayed the park from being constructed, and thus would have prevented $345,000 from being expended during the period of June, 1985 to December, 1986. In summary, Mr. Finkelstein stated they have nothing that resembles the park, the funds have been depleted to a $600,000 balance, there is a question mark as to whether the existing Master Plan can be completed for that amount and there are no funds to maintain the park. He indicated it is clear they are at a stalemate and the Council has not been able to take decisive action in building the park because of concerns there are not enough funds to build and maintain it. Staff was directed to work with the community to find alternatives and yet staff told them all along there were no funds to maintain the park. He noted the community wants the park built according to the originally approved Master Plan and indicated a phased -in approach is acceptable but anything short of completion of the original plan will not be totally acceptable. The community wants positive action and dates for completion and they are here to lobby the Council to provide additional maintenance funds. He asked Council to adopt a Resolution to initiate the actions to cause the park to be completed; rebidding and awarding of contracts, etc. so construction can begin August 1, 1989 and be completed December 31, 1989; also, to direct staff to examine the feasibility of floating a bond issue, or establishing a special Assessment District to finance the maintenance of the Peacock Gap Community Park as well as the maintenance of other areas of East San Rafael. In response to Councilmember Frugoli's question of staff having a proposal for a cost analysis for maintenance, Mr. Strom stated Parks Superintendent Hyde prepared one and noted the analysis cost is $100,000 for the first year which included the purchase of various equipment, etc. then would drop to around $70,000 or $80,000 but that would include putting money into a "sinking fund" for equipment replacement. The big cost is in personnel, noting manpower comes out to two people which would cost over $50,000. In response to Mayor Mulryan's question on phasing progress, City Manager Nicolai stated she needed clarification from Mr. Finkelstein concerning the phasing, if he meant phasing to be between August and still have the entire park finished by December 31, 1989. Mr. Finkelstein responded if it requires building the tennis courts, the tot area, the teen area and starting with that, leaving the turf and bathrooms for later until the water crisis is resolved, that is fine as long as there is a commitment to complete the park as originally designed. He noted they state December 31, 1989, because they want to move forward, but if staff indicates it needs to be a 12 month period they are willing to consider that. Councilmember Breiner asked if they are obligating themselves to over $900,000 worth of a park and not taking in that much, and Mr. SRCC MINUTES (Regular) 4/3/89 Page 17 SRCC MINUTES (Regular) 4/3/89 Page 18 Strom responded stating the original estimate was about $900,000 but under the Assessment District, what was taken in was about $750,000 and a good portion of that has been expended. He noted to the untrained eye, the area looks like there is no semblance of a park but a con- siderable amount of work has been done, i.e. all grading has been done, drainage has been installed, all utilities are in, about 80 to 90 percent of trees have been put in plus the drip irrigation has been installed, some of the frontage improvements and fencing. They are at the point now where any improvements put in will require daily or multi -weekly maintenance. He noted one concern about phasing is that they might take a piece at a time with no additional staff and then a year and a half down the line the park is built and there will not be any people for maintenance. In response to Councilmember Breiner's question regarding maintenance for tennis courts, Mr. Strom stated trash receptables need to be emptied regularly and the courts usually get hosed down two or three times a week. Mayor Mulryan asked staff to come up with a recommendation between now and either the next meeting or meeting thereafter, with specific types of phasing such as the water issue for turf and bathrooms pos- sibly in Phase 2, noting they would know more about the water issue by April 12, 1989, including incremental manpower requirements. City Manager Nicolai mentioned that the Landscaping and Lighting Act has been one of the major items of consideration of the Revenue Options Committee who have been meeting since December, 1988, and one of the issues listed as a priority, is how to maintain parks and landscaped areas. She noted they would appreciate support on a recommendation that might come out on generating those new sources of revenue so they can do a better job of maintaining parks, open space, etc. Councilmember Boro stated their idea is fine but had one restraint, noting there is only $600,000 in the fund to build the park, and whatever is built, the neighbors should not think it will be over $600,000. He reiterated that the City has a one hundred million dollar deficit in the Capital Improvement Projects, and could not see how they could tap any other resources in the City. He stated if the park could be built over the next year as promised, for the money available, it should begin, noting the longer we wait the more expen- sive the capital will become. At the same time, hard choices on the maintenance will have to be made and they might have to take from others to give some minimal maintenance here. Mr. Finkelstein stated they tried to check off of the original Master Plan what they believe has been completed and the cost of those com- pletions and noted if you take away the contingencies for 10 percent inflation adjustment and the 10 percent design fee, there would be about $100,000 to $140,000 left over from the $600,000 that remains if all the elements of the park are completed. He said to be careful when talking about phasing in, that you are looking at the original intention of the park, noting part of the bathroom construction is a maintenance storage area that will store equipment not just to service the park but to service other parks in the area. He noted they are very concerned about bundling all of this together. Councilmember Breiner moved and Councilmember Boro seconded, to autho- rize staff to move forward on the Peacock Gap Park Construction with the financial limitations as discussed, and phasing with various uses to be coordinated, and to come back to Council with a definite time -table. AYES: COUNCILMEMBERS: Boro, Breiner, Frugoli, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 19. SECOND READING AND FINAL ADOPTION - ORDINANCE NO. 1560 - AN ORDINANCE OF THE CITY OF SAN RAFAEL ADDING SECTION 14.04.070 TO THE ZONING ORDINANCE PROHIBITING USES, DENSITIES AND INTENSITIES, AND DEVELOPMENT STANDARDS SUCH AS HEIGHT LIMITS NOT CONSISTENT WITH THE ADOPTED GENERAL PLAN 2000 (P1) - File 115 The title of the Ordinance was read: SRCC MINUTES (Regular) 4/3/89 Page 18 SRCC MINUTES (Regular) '/3/89 Page 19 "AN ORDINANCE OF THE CITY OF SAN RAFAEL ADDING SECTION 14.04.070 TO THE ZONING ORDINANCE PROHIBITING USES, DENSITIES AND INTENSITIES, AND DEVELOPMENT STANDARDS SUCH AS HEIGHT LIMITS NOT CONSISTENT WITH THE ADOPTED GENERAL PLAN 2000" Councilmember Frugoli moved and Councilmember Thayer seconded, to dispense with the reading, to refer to it by title only, and adopt Charter Ordinance No. 1560 by the following vote, to wit: AYES: COUNCILMEMBERS: Boro, Breiner, Frugoli, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 20. STATUS REPORT ON FAIRCHILD PROPERTY (COSTCO) - File 115 x 10-2 City Manager Nicolai stated several questions have come up over the last several weeks on the status of the Fairchild Property, noting in the past they had met with Mr. Tom Jones of Environmental and Safety Investigations, Limited, who represents Fairchild and has been working with them on various aspects of their closure plan and they have been keeping staff informed as to what their activities are. Mr. Jones introduced Tom Trap, Attorney with Landles, Ripley and Diamond at 450 Pacific Avenue, San Francisco, who stated the Fairchild Property is located at 4300 Redwood Highway in San Rafael; it is about a 10 acre site and has been occupied by Fairchild from 1960 until March 1988 and used for the manufacture of transistors, diodes, rectifiers, etc. Because of a leak in 1982 in an underground tank in another Fairchild site, Tom Roberts, President of Fairchild at that time, issued a directive that all Fairchild facilities have soil and ground water investigations conducted to see whether similar occurrences had happened on other properties, and from 1982 to 1984 an investigation was conducted by the Canonie Environmental Services Corporation at the San Rafael site. It was found that industrial solvents were in the groundwater at this site. He pointed to the site on a drawing showing the property line and one representing a slurry wall. It was discovered that there were industrial solvents in the groundwater, primarily the chemical TCE (Trichoetheline), an industrial solvent used at the site. The two basic groups of chemicals used were solvents to clean and acids to etch the semi -conductor devices. The solvent TCE was found in relatively low concentrations in the 10's to 100's of parts per million range; technically speaking for this chemical, that does not rise to a level that would be defined as hazardous waste for this site. He noted this is a site of a former marsh that was filled in to a depth of 15 feet in the late 1950's before Fairchild occupied the property. The water is saline, it is not drinkable, there is no discernible gradient, that is, the groundwater does not move in any discernible direction across the site, and there are no drinking water wells nearby. The chemicals got into the environment as a result of a series of leaks and spills and minor disposals around the site, and they did not discover (because there were none) underground storage tanks at the site nor is there any evidence of a massive spill or disposal. Thirty monitoring wells have been installed and over 1,500 water samples taken at the site; 65 soil borings and over 100 soil samples taken. The chemicals are primarily in this saline groundwater that exists at a depth of 15 feet overlying the original soil. Based on the findings, Canonie evaluated different risks involved and because there was no risk of it being consumed through in drinking water and because the chemicals were not moving over the years, it appeared they were limited to approximately 40 percent of the site in certain areas which corresponded to chemical storage areas. They concluded that no action was really necessary in terms of human health or the environment at the site. To be conservative, Canonie recommended a slurry wall containment system and a wall was installed down to a depth of 35 feet, keyed into the older Bay mud creating a clay bathtub at the site. Fairchild management also elected to take on an active cleanup program at the site, consisting of groundwater removal and treatment. The initial proposal was to extract groundwater from two trenches, extract, treat and then reinject if they could to flush the soil underneath the site. The slurry wall was installed in the 1984/1985 time period, verification tests were done to show it worked and then the flushing program was set up which did not work because the fill soil at the site contains enough clay, noting they could get the water out (water) but could not be put back in. At that point, they were faced with pumping out the water, treating it and disposing SRCC MINUTES (Regular) 4/3/89 Page 19 SRCC MINUTES (Regular) /3/89 Page 20 of it off-site. Also, at that time the treatment requirements were lowered basically from a standard of 100 parts per billion to 5 parts per billion, so they had to redesign what they initially proposed as an aeration treatment system, to what is now being proposed, which is a granular activated carbon system. Mr. Trap stated they have an application pending before the Las Gallinas Valley Sanitary District to pump out, treat and discharge to the Sanitary District, the groundwater at the site. This has been inde- pendently reviewed by the consulting firm of Kennedy, Jenks/Chilton for the Sanitary District and they have recommended that the Sanitary District accept discharge subject to terms and conditions and effluent limitations, all of which are acceptable to Fairchild. Mr. Trap stated a public meeting was held last Thursday night and the majority of the people believe this to be an appropriate solution for the site. He noted a Dr. Russell, speaking on his own behalf, and not on behalf of the Marin Conservation, was concerned about the salt in the groundwater affecting Marin Municipal Water District's reclamation program out there during the summer months, but stated they are not proposing to discharge during the summer months, and they believe that accommo- dates both Fairchild's need to clean up the site as well as the District's concern about salt. Mr. Trap stated they have requested that the District make a decision as soon as possible and understood it will be on their agenda for April 13, 1989 and they are hopeful they will make a decision at that point. Mr. Trap stated another development has been raised as of last week which he wanted to discuss, indicating the Department of Health Services (DHS) issued a report of violation to the company stemming from an inspection conducted by DHS while the plant was operating in January of 1986 and again in January and February 1988 which they received last Tuesday and are still reviewing. He noted it is clear that the allegations in the report do not allege any release of chemicals into the environment. In fact, he noted the site has already undergone formal closure by the DHS who have formally approved the closure, and stated all raw materials, chemicals and waste chemical handling facilities have been wiped clean, tested and all of that has been taken care of. There are no chemicals on the site except for the residues in the soil and groundwater. He stated most of the violations involve paperwork types of violations, noting there is one allegation that the company was operating the wastewater treatment system,not the groundwater treatment system, without having a permit or variance and their initial review of that indicates that the DHS is wrong, stating there was a variance granted for the wastewater treatment system. Other violations alleged have to do with improper labeling and improper aisle spacing of drums in a drum storage area; those were brought to their attention on February 3, 1988, and violation was corrected by removing all of those drums from the site which was done within 48 hours. DHS came back out in 48 hours and stated they were in compliance. He stated they have now, a year later, received a citation repeating that violation, indicating they are preparing a response and reviewing those matters. He noted in any event, all of those violations do not allege releases of chemicals in the environment, and have nothing to do with the remedial program going on at the site. In response to Councilmember Breiner's question if he would return to Council should the Las Gallinas Valley Sanitary District not accept the treated water, Mr. Trap answered in the affirmative. Mayor Mulryan asked if an assessment has been done on the health hazard, if any exists, and Mr. Trap responded they did an assessment by way of engineering review of the data, but have not done a full blown EPA style, public health evaluation manual assessment. He indi- cated, in his opinion, the site does not warrant that kind of a study. Councilmember Boro asked if there was any construction on the site whether there would be a soil problem and Mr. Trap stated there are residual chemicals in the soil, and they have reviewed with Costco what their plans are for construction at the site. He noted they know what Costco's plans are for excavating and they will be there first, testing before they go. He noted Costco is proposing an expansion of the building to the South, with a loading dock with lighting standards SRCC MINUTES (Regular) 4/3/89 Page 20 SRCC MINUTES (Regular) 1/3/89 Page 21 and stated all of the foundation excavations are within the one to two foot range and chemicals are not expected to be found there. He stated the loading dock will be deeper to about 8 feet and parking lot lighting standards will be deeper to about 6 to 8 feet and samplings will be done beforehand to make sure there are no chemicals or if there are hazardous levels there, then they will remove them so they can turn the site over to them for construction. In response to Councilmember Boro's question, Mr. Trap stated Fair- child's obligation to the site is set out in a 1984 order issued by the Regional Board on consent with Fairchild, approving the remedial action plan that Fairchild advocated for the site, which was slurry wall containment, groundwater withdrawal treatment and discharge, and predicted the program will go on for 5 to 10 years. In response to Councilmember Breiner's question whether the City has an obligation to have an outside or third party monitoring the soil if there are contaminants discovered when excavations are done, Mr. Trap stated they have no problem with having an independent technical consultant review the existing data or the data that is produced from the soil sampling program. Councilmember Breiner directed staff to look into this matter. Councilmember Boro stated there does not seem to be an overall management plan for this site as far as who is responsible and who would do what. He stated staff should come back with a management plan for this site; what is the responsibility of Fairchild,what is the responsibilit. of Costco, where does the State come in, what is the City's responsibility and who is the point person. Mayor Mulryan stated the City has requested a detailed response from the State as to what they view to be their obligations which has not been received as yet. Councilmember Frugoli asked if Fairchild is responsible or the land- lord, and Mr. Trap responded Fairchild will be responsible, stating the Regional Water Quality Control Board is the lead on the site and not DHS, and noted they have been issuing all of the regular monitoring reports to them. In response to Councilmember Thayer's question as to the type of filtering system they have, Mr. Trap stated they are proposing a triple stage, granular activated carbon system, preceded by two cart- ridge filters, noting this is to remove the organic chemicals at the site. He added they are not proposing to treat salt, noting Kennedy, Jenks has recommended different limits for salt for the dry and wet season, and they would not be able to meet the dry season limits without treating by reverse osmosis but they can meet the wet season limits without doing that, so they are proposing to pump during 6 months of the year. Councilmember Breiner asked Mr. Trap to begin as soon as possible, so that by the time anything does come to Council for review, in terms of a use permit or whatever, they do not run into uncertainties similar to the PG&E site. Ms. Bonnie Brown, member of the Citizens for Responsible Development of the Fairchild Site, stated what she saw tonight is kind of a case where a developer or potential developer or tenant of the site, gives the initial information on a site that sometimes can be slanted and not always well grounded with omissions made and having some misunder- standings. She stated they formed their group in the last four months, noting when this came up for Priority Projects with a possible future tenant, they were told another agency was overseeing the toxic situa- tion. They found that the Regional Water Quality Control Board has about 3 people to monitor 300 sites around the Bay, noting this is essentially a self-monitoring system by Fairchild and they are, in fact, the people responsible for the toxins being in the soil in the first place. Mr. Trap represents that these leaks happened by spills, stating they were all above ground, drums, and anyone could see the bottom of the drums were wet and damp. She stated citizens are very concerned about the expediency with which the company managed the site and are trying to watch over this. She noted when Fairchild first applied to the Sanitary District to put their water into the Sanitary District system about one year ago, the Sanitary District came back with a list of questions to be answered and Fairchild never responded for about 6 months. They immediately went to the Regional Water Quality Control Board and applied to go right into the creek. SRCC MINUTES (Regular) 4/3/89 Page 21 SRCC MINUTES (Regular) /3/89 Page 22 She stated there was of great public concern at meeting Supervisor Robert Roumiguiere held, with citizens complaining vehemently about dumping directly into the creek, and they are now back to the Sanitary District. She stated they encouraged the Sanitary District to take this toxic water, feeling it would be properly supervised and monitored by them, noting they have complete faith in them and their consultants. However, Ms. Brown stated they are asking that an EIR be done, noting the mitigation measures that need to be taken in order to put a tenant in there. She stated the toxic ground level, as Mr. Trap said, is not 15 feet under the ground but 5 feet from the surface level, noting this is ground water level. It was stated by Kennedy, Jenks/Chilton, the consultants for the Sanitary District, that it is a known fact that it is 5 feet underground. The proposed tenant wants to put in "shallow foundations", noting there are a lot of questions out there; a lot of mitigating measures in getting this pumping and filter- ing system up and running and it may take quite a while. She stated they are concerned that this, asking what if more wells need to be drilled and there is another tenant there; that would mean stopping his business. She stated the slurry wall is not effective, noting it was built 4 or 5 years ago, and the consultants to the Sanitary District stated that the slurry wall is not effective unless a negative grading is created or getting the pressure off the slurry wall and pumping the toxins out of there. She said this has not been done for 4 or 5 years, indicating it took two years to get from the original statement that there was a problem in 1982 to Fairchild getting a plan in order in 1984, and noting that -is a lot of time for toxins to leak out. Ms. Brown concluded they want to see things happen fast but not so fast that it is not handled properly and noted an EIR is imperative on this site; she also encouraged Council to not consider a Use Permit on this site until Fairchild can prove that it can get a pumping and filtering system that works this time, noting the last one failed. She stated the Council has an opportunity on a local level to help in the enforcement of this cleanup, because the State Agencies are underfunded and undermanned, and have said to them it is almost impossible to enforce. Mayor Mulryan thanked both speakers for their input. 22. REQUEST FOR AUTHORIZATION TO HIRE TEMPORARY BUILDING INSPECTOR (PW) - File 9-3-40 x 7-3 Councilmember Breiner moved and Councilmember Boro seconded, to accept the staff recommendation to hire a full time temporary Building Inspector. AYES: COUNCILMEMBERS: Boro, Breiner, Frugoli, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None There being no further business, the meeting was adjourned at 1:05 AM. JEANNE .'--LEONCINI, �ity Clerk APPROVED THIS DAY OF MAYOR OF THE CITY OF SAN RAFAEL SRCC MINUTES (Regular) 4/3/89 Page 22