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HomeMy WebLinkAboutCC Minutes 1988-06-06SRCC MINUTES (Regular 6/6/88 Page 1 IN CONFERENCE ROOM 201 OF THE CITY OF SAN RAFAEL, MONDAY, JUNE 6, 1988 AT 7:00 PM. Regular Meeting: CLOSED SESSION CLOSED SESSION TO DISCUSS LITIGATION - File 1.4.1.a No. 88-13(a) - (#1) Mai Nguyen, Phuoc Duong and Thuy Duong, a Minor Vs. City of San Rafael, et al. No. 88-13(b) - (#1) Southern Pacific et al. Vs. Board of Equalization, et al. No. 88-13(c) - (#7). No reportable action was taken. IN THE COUNCIL CHAMBERS OF THE CITY OF SAN RAFAEL, MONDAY, JUNE 6, 1988 AT 8:00 PM. Regular Meeting: 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 CONSENT CALENDAR Councilmember Breiner moved and Councilmember Frugoli seconded, to approve the recommended action on the following Consent Calendar items: Item 2. Approval of Minutes of Special Meeting of April 20, 1988 (CC) 3. Call for Applications Due to Expiration of Term of Planning Commissioner Joyce Rifkind, as of End of June, 1988 (CC) - File 9-2-6 4. Resoluton of the City Council, Acting as Board of Appeals, Upholding Appeal and Granting Request for Variance from Section 504 of the Uniform Building Code Re Opening of Doorway on Property Line; 1500 Fourth Street; Roger Smith, Owner; AP #11-202-14 (PW) - File 1-6-1 x 9-3-40 6. Appointment of City Representative to County Commission on Aging (CM) - File 199 Recommended Action Approved as submitted. Approved staff recommendation: a. Call for applications to fill one 4 -year term on Planning Commission, deadline Tuesday, June 28, 1988 at 12:Noon, City Clerk's Office; term to expire end of June, 1992. b. Set date for Special Meeting of City Council to interview applicants, including incumbent, for Tuesday, July 5, 1988 at 6:00 PM in Conference Room 201. RESOLUTION NO. 7739 - CITY COUNCIL (IN ITS CAPACITY AS THE BOARD OF APPEALS) GRANTING CONDITIONED APPROVAL OF AN APPEAL FROM SECTION 504 OF THE BUILDING CODE AT 1500 FOURTH STREET (RE PENETRATION OF PROPERTY LINE FIRE WALL) (ROGER SMITH) Approved staff recommendation: Council reappointed Anna Stern as the City's Representative to County Commission on Aging for 3 years, beginning July 1, 1988 through June 30, 1991. At expiration of 3 year term, appointment will be advertised. SRCC MINUTES (Regular) 6/6/88 Page 1 SRCC MINUTES (Regula_ 6/6/88 Page 2 8. Legislation Affecting San Rafael (CM) - File 9-1 9. Claims for Damages: 5. 7. a. Rose Marie Harris (PD) Claim No. 3-1-1329 Approved staff recommendation: OPPOSE SB 2827 (L. Greene) Manufactured Housing. City Ability to Designate its Location Removed. SUPORT HR 4127 (Udall) Land and Water Conservation Fund. Approved Insurance Consulting Associates, Inc. recommendation for denial of claim a. b. General Engineering Group (PW) Approved City Attorney's Claim No. 3-1-1330 recommendation for denial of claim b. AYES: COUNCILMEMBERS: Boro, Breiner, Frugoli, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None BID OPENING AND AWARD OF CONTRACT FOR ONE LOT OF TRAFFIC CONTROL REPLACEMENT EQUIPMENT (GS) - File 4-1-418 Mayor Mulryan asked why there was only one response for this bid. Public Works Director Bernardi stated they did not call for any parti- cular model and it was sent to all suppliers they felt could provide them with the controller equipment, and Econolite Control Products, Inc. was the only company that responded. Traffic Engineer Rumsey explained that one problem with this bid was the size requirements and that other manufacturers could not meet them. He noted if they went to another vendor they would be looking at a larger cabinet which would be expensive,and that the bid price is reasonable. He mentioned the County uses a very large cabinet which costs over $10,000. Mr. Rumsey went on to explain within the next few years they would look into telecommunications equipment that would allow one controller to talk to another which is in the developing stages, and that they would not be purchasing more controllers until the FAU project is ready. RESOLUTION NO. 7740 - AUTHORIZING THE PURCHASE OF ONE LOT OF TRAFFIC CONTROL EQUIPMENT, PHASE I OF PROJECT (from Econolite Control products, Inc., only bid received, for lot price of $75,769.86) AYES: COUNCILMEMBERS: Boro, Breiner, Frugoli, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None IMPLEMENTATION OF AN EMPLOYEE ASSISTANCE PROGRAM (EAP) FOR CITY OF SAN RAFAEL EMPLOYEES (Per) - File 4-3-199 x 7-4 Mayor Mulryan inquired whether in view of the City's financial situation, staff would reconsider this item. City Manager Nicolai recommended that the program go forward, stating it is one of the elements of the on-going Risk Management efforts, and moving into the area of Workers' Compensation in dealing with some of these issues the EAP is a key part and recommended as part of the budget for this Fiscal Year. She stated the management group evaluated different programs that might not be funded this year in order to meet this year's budget problems, and this was one of the programs staff did not want to give up. She noted if the contract is approved it would be affective from July 1, 1988 and there would be no further costs during the next Fiscal Year for the City. She concluded that it is one of the programs that will be a benefit to the City in the future. SRCC MINUTES (Regular) 6/6/88 Page 2 SRCC MINUTES (Regula 6/6/88 Page 3 Councilmember Breiner moved and Councilmember Thayer seconded, to adopt the Resolution as presented, and that the program be reviewed at the end of the year as to its merits and cost effectiveness. RESOLUTION NO. 7741 - AUTHORIZING ESTABLISHMENT OF AN EMPLOYEE ASSISTANCE PROGRAM AND EXECUTION OF A CONTRACT WITH LIFE CARE SYSTEMS (for a term of 12 months at a fee not to exceed $10,000) AYES: COUNCILMEMBERS: Boro, Breiner, Frugoli, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 10. REVIEW OF FINAL EIR FOR GENERAL PLAN 2000 (Pl) - File 115 Senior Planner Freitas stated the California Environmental Quality Act requires that an EIR be prepared for any project that has a poten- tial to have a significant environmental effect. It is an information document for both the public and decision makers; is intended to identify significant environmental effects; possible ways to mitigate or minimize those significant effects and describe reasonable alternatives to projects such as the General Plan as well as development projects. The General Plan 2000 and draft EIR have been designed as companion documents and much of the information contained in the General Plan background is also contained in the draft EIR and Planned Policies provide nearly all of the Mitigation Measures that are called for in the EIR. The General Plan EIR has received extensive review and comment and was originally released on November, 1986, revised and re-released in February, 1988. On March 17, 1988, the City Council held a public hearing on the revised draft EIR and the public comment period ended on March 21, 1988. Staff has responded to all of the public hearing and written comments which have also been sent out to the people who sent in or testified on the EIR. Comments received focused on the adequacy of the EIR responding to a variety of issues. The primary issues were as follows: Wetlands Protection, Threatened and Endangered Species Protection, Questions about Water Supply, Odor Easements, Interim Level of Service Standards, Flood Protection and Fill Height Standards, Land Uses for the St. Vincents/Silveira Properties and legal questions about "takings" or "inverse condemnation". Ms. Freitas indicated that tonight, the Council was to review the adequacy of the responses to comments with direction provided to staff if the Council does not feel that specific comments have been adequately responded to. Staff would then provide additional information prior to the final EIR Certification. She mentioned if there are to be any changes to the EIR as a result of any Council changes to the General Plan, those changes could be incorporated into the EIR prior to Certifi- cation. Staff provided proposed changes to the Plan and EIR for Council review as a result of the written comments. Questions and Comments by Councilmembers Councilmember Breiner - Concerning Level of Service, consider requiring four votes by Council for exemptions, similar to an urgency Ordinance, if there were to be a high percentage of affordable and low and moderate income households or high tax generating uses or neighborhood serving uses. Ms. Freitas responded this should be considered at the decision making time of the Plan. Regarding Fill Standards, Mrs. Breiner asked if staff was modifying the evaluation of the fill of levee height, evaluation of heights, to add a foot. Ms. Freitas indicated this was not being proposed but is an option. She stated the Public Works Department has recommended that a study first be done to provide a strong basis, looking at the most recent information on rising sea levels and seeing what the appropriate Levee Fill Height Standards should be. SRCC MINUTES (Regular) 6/6/88 Page 3 SRCC MINUTES (Regulaz 6/6/88 Page 4 Councilmember Thayer - Concerning new proposed Wetlands Policy on page 3 of the backup material. She indicated the first sentence could be divided into two sentences, noting that one is more of a mitigation measure which should be in the implementation portion of the Plan and also addressed in the EIR. Ms. Freitas agreed. Councilmember Thayer - Concerning 31 and 3m, pages 5 and 6 in the backup material. She felt these were modifications that were two inconsistent provisions, indicating if Alternative 1 is the same as the Plan, it is stated in 31, that the amount of environmentally sensi- tive resource habitat lands on the St. Vincents/Silveira sites expected to remain in either Alternative is essentially the same. 3m states, "To the extent this Alternative would prohibit development on historic Baylands and would therefore prohibit development on several parcels, the City or other Agencies may be subject to Inverse Condemnation." She asked if this applied to only Alternative 1, or if it applied to the General Plan as now proposed. Ms. Freitas responded that in the General Plan, there is a Land Reserve Designation, i.e. agriculture, recreation and land reserve, indicating these are reasonable uses of the property. She noted in the Alternative 1 which would prohibit development on any Wetlands and Baylands, it would essentially leave no economic use of the property. In response to Councilmember Thayer's concern of use of the term "Inverse Condemnation" regarding the St. Vincents/Silveira sites which are zoned right now as agricultural, Planning Director Moore stated that the language is in the second section of 3m because approximately 13 years ago, the County cancelled the Williamson Act Agricultural Preserves,which was a major County Policy determination concerning the viability of agricultural use of the property which pre -supposes that on the part of the property owner and the County that it is not viewed as a viable long term use of the property. She indicated there is a problem with the existing zoning of the property but that is a County problem and not a City problem. She stated if the City were to pursue a Land Use designation that would allow only agricultural use there would need to be a companion program which would be to make application through the County and LAFCo, but indicated that staff has not researched the legality of this. She stated she was not certain if the City could be an applicant to reinstitute the Williamson Act Agricultural Preserve Contracts on these properties. Ms. Moore stated this is why the two statements are made even though the main difference between the proposed Plan and the Maximum Environ- mental Protection Alternative is strictly the Recreation Use potential and the Land Reserve designation for Post 2000 year considerations. Ms. Moore indicated that rather than use the words "Inverse Condemnation", this could be modified where the City or other agency may be questioned as to the viability of any reasonable use of the property, to essentially use the definition rather than use the term "Inverse Condemnation", and a change could be made in the document. Councilmember Boro - Asked whether Alternative 1 speaks for no use at all on any of the lands, and Ms. Moore responded negatively, noting if there is a low level of development it is allowed up to one unit for five acres in the area West of the railroad tracks, but there is no development in the Bayland areas. Councilmember Thayer - Referred to NE -20, page 3 of backup material, regarding buffers, and indicated she would like to see a minimum of a 50 foot setback. Regarding 3q, in response to Mr. Paul Cohen's statement that this Alternative would reduce considerably the areas total development potential subject to City's possible Inverse Condemnation Claims ... where he stated that this statement was not true and the response was, "In some instances, no reasonable economic use would be permitted on indivi- dual parcels in such an instance and that the City could be subjected to Inverse Condemnaton Claim." SRCC MINUTES (Regular) 6/6/88 Page 4 SRCC MINUTES (Regulai. 6/6/88 Page 5 Councilmember Thayer stated if this Alternative is tied into a specific traffic level for one reason as is the Plan, how would they be subjected to Inverse Condemnation Claims on that basis? Ms. Freitas stated it is referring to properties such as Canalways that are Wetland parcels and have no upland areas and where absolutely no development would be allowed under this Alternative; in this instance there is no reasonable economic use of the property. City Attorney Ragghianti indicated that the Courts have spoken frequently about the ability of public entities to reduce and in some instances dramatically remove economic development potential from the site without "taking" it under the Fifth Amendment of the United States Constitution. He noted, however, where a Land Use designation does not permit any development potential whatsoever on the property, there would probably be a successful "facial challenge" made of that regulation and it would more than likely draw the attention of the Court. Councilmember Thayer indicated it would be justifiable if it was tied into Health and Safety issues, and Mr. Ragghianti stated this is an entirely different matter and indicated he did not believe that it could permanently deprive the property owner of all economic use of his property. He noted the first English Lutheran Case dealt with "temporary takings" based on claims of public safety and is an entirely different matter than depriving a property owner of all economic use forever. He added then he believed the public entity would have "bought" it. Ms. Moore stated the City is more constrained in this regard than counties or jurisdictions in more rural settings; for example, Marine Fisheries or Agricultural uses where something that was ongoing is really economically viable within the City's jurisdiction. This then would always be perhaps a low economic return and in some cases not, but certainly a non -urban type development, but a use that would be reasonable and economically viable. A lot of communities rely on agri- cultural uses or such designations to avoid this kind of difficulty. The City's location and setting is such that it is very difficult to rely on those kinds of non -urban type uses and be able to find there is a reasonable use of property left. She stated that is why the absolute cancellation by the County of the Agricultural Contracts at St. Vincents/Silveira is so critical. Councilmember Breiner referred to page 49 in the blue book, response to No. 1, as to who "they" are in the last sentence. Ms. Freitas stated it is referring to Corte Madera. Councilmember Boro referred to the hearings of May 17 and 21, 1988, where Mr. Colbert raised the issue of a buffer zone at the Sanitation Plant at Las Gallinas. He questioned whether on CCPH-4, it is the responsibility of the Sanitation District to provide the buffer zone and not the City's. Ms. Freitas responded affirmatively, if it is determined that the project would create that problem then a Mitigation Measure would be required in the EIR, which is a buffer zone. Mr. Boro stated they were requested to put something in the Plan that the City provide the buffer zone as part of the zoning. Ms. Moore stated the City has an obligation to plan well and to insure incompatable uses close to the plant are not allowed, such as high density residential. However, she indicated for the Sanitation District to expect the City or rely on the City to allow no uses within a speci- fied district, is not proper and would cause the same kind of "Inverse Condemnation" discussion. She indicated the approach used by the Central Marin Sanitation Agency was much more direct and effective, whereby they purchased an easement of a property close to their proposed plant so they would never face the potential for development in close proximity to the parcel. SRCC MINUTES (Regular) 6/6/88 Page 5 SRCC MINUTES (Regula, 6/6/88 Page 6 Ms. Moore stated the City is acting in a responsible manner by not allowing high intensity or density urban uses in close proximity to the plant, and being responsible to the taxpayers of San Rafael and not exposing the City to any Inverse Condemnation Claims by the property owners by not allowing anything. Mr. Ragghianti added that there is a theory called "Inequitable Pre - condemnation Activity" and a famous case called "Clopping", a Southern California case, and stated what Councilmember Boro raises and what Ms. Moore just said is important for the public and Councilmembers to understand. He indicated if the City were in any way to facilitate another entity's acquisition of a piece of property at a reduced fair market value by virture of any Land Use regulation, the City could very well be caught up in what this whole process will utlimately be, and that is a theory of an "ultimate taking". He stated this is what the law calls "Inequitable Pre -condemnation activity", an attempt to depress the fair market value of a piece of property so it can be taken later by a public entity. Mayor Mulryan noted it was his understanding the City cannot zone odor easement outside the actual boundaries that the Sanitation District might use and Mr. Ragghianti agreed. Councilmember Thayer asked if this is true, why is down zoning permissi- ble? Mr. Ragghianti responded that the Courts have uniformly ruled that down zoning is permissible because you can "take", remove value, from a piece of property and development potential until you reach a kind of "fog area" that the United States Supreme Court says is a case by case ad hoc determination where you have stepped over the bounds and removed all economic development potential, all reasonable invest- ment backed expections, all profit potential from the property. A "60 Zoning" in West Marin imposed by the County, one unit per 60 acres, has been upheld by the Court. There have been decisions upholding reductions of over 90 percent in the valuation or economic development potential of the site upheld by the Federal Courts in the 9th Circuit. Mr. Ragghianti commented that he cannot say where one reaches the point, but only informed Council to beware when they are dealing with these types of regulations. In response to Mayor Mulryan's question whether the City, in this case, could conceivably zone the area around the future treatment plant as agricultural, for example, but could not put in an odor ease- ment even though those two might accomplish the same thing, Mr. Ragghianti stated if the agricultural use permits some viable use of the property, it would be alright. If the combination of the two would be to prevent any type of use, the City would be in difficulty. He added, it is the result imposed after all of the regulations have been placed on the property, and stated that agricultural use is still a viable use. He noted by designating an odor easement, if it does not permit even agricultural use, the City would be in difficulty. Mayor Mulryan asked the audience for their comments and there were none. Mr. Ragghianti stated the Certification of the Final EIR will occur at a later date with public notice, and reiterated that this meeting on this item was held for the Council to review the adequacy of the responses to the comments received from the public. 11. SECOND READING AND FINAL ADOPTION - ORDINANCE NO. 1543 - An Ordinance of the City of San Rafael Amending Section 19.10.060(3) of the San Rafael Municipal Code Pertaining to Hours of Use in Open Space Lands (PW) - File 13-14.1 x 1-5 The title of the Ordinance was read: "AN ORDINANCE OF THE CITY OF SAN RAFAEL AMENDING SECTION 19.10.060(3) OF THE SAN RAFAEL MUNICIPAL CODE PERTAINING TO HOURS OF USE IN OPEN SPACE LANDS." SRCC MINUTES (Regular) 6/6/88 Page 6 SRCC MINUTES (Regulai 6/6/88 Page 7 Councilmember Breiner moved and Councilmember Boro seconded, to dispense with the reading, to refer to it by title only, and adopt Charter Ordinance No. 1543 by the following vote, to wit: AYES: COUNCILMEMBERS: Boro, Breiner, Thayer & Mayor Mulyran NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None ABSTAINED: COUNCILMEMBERS: Frugoli 12. SECOND READING AND FINAL ADOPTION - ORDINANCE NO. 1544 - An Ordinance of the City of San Rafael Providing for the Sale and Conveyance of Public Real Property to the San Rafael Redevelopment Agency (1313 Fifth Avenue), AP #11-205-01 (RA) - File 2-7 x (SRRA) R-16 x R-228 x R-245 The title of the Ordinance was read: "AN ORDINANCE OF THE CITY OF SAN RAFAEL PROVIDING FOR THE SALE AND CONVEYANCE OF PUBLIC REAL PROPERTY TO THE SAN RAFAEL REDEVELOPMENT AGENCY". (1313 Fifth Avenue, AP #11-205-01) Councilmember Breiner moved and Councilmember Boro seconded, to dispense with the reading, to refer to it by title only, and adopt Charter Ordinance No. 1544 by the following vote, to wit: AYES: COUNCILMEMBERS: Boro, Breiner, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None ABSTAINED: COUNCILMEMBERS: Frugoli 13. CONSIDERATION OF ENDORSEMENT OF BAY -DELTA ESTUARY PROTECTIONS RESOLUTION - File 9-1 x 136 Mayor Mulryan indicated that various members of the Council asked to have this item placed on the agenda as they had concerns about what has been happening in the Delta. Councilmember Breiner moved and Councilmember Thayer seconded, to adopt the Resolution. RESOLUTION NO. 7742 - ENDORSING THE SAN FRANCISCO BAY -DELTA ESTUARY PROTECTIONS RESOLUTION AYES: COUNCILMEMBERS: Boro, Breiner, Frugoli, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 14. CONSIDERATION OF MEETING WITH COUNTY OF MARIN SUPERVISORS RE FUTURE DEVELOPMENT OF CIVIC CENTER/COUNTY PROPERTY IN NORTHGATE AREA - File 9-1 x 10-2 x 10-1 Councilmember Breiner stated with so much development on the County property affecting the City's interchanges in terms of traffic and development, she asked that a joint meeting be held between the City and the Marin County Board of Supervisors to discuss future develop- ment of the Civic Center/County Property in the Northgate Area. Council agreed that a meeting be aimed for mid-July to be held in the City, and that City/County staffs meet in advance to discuss the subject and report back to Council. ADD ITEMS: 1. POLICE DEPARTMENT REPORT ON CRIME - File 9-3-30 Councilmember Boro inquired about a statistic from the Police Crime Report, dated April, 1988, concerning an increase in bad checks listed from 70 to 271 for that period. Police Chief Ingwersen to report back. 2. EMPLOYEES OF THE SAN RAFAEL SCHOOL DISTRICT BEING ELIGIBLE FOR LOW AND MODERATE INCOME HOUSING - File 13-16 Councilmember Boro mentioned communication from School Superintendent Dr. Nancy Dalton, requesting employees of the San Rafael City Schools SRCC MINUTES (Regular) 6/6/88 Page 7 SRCC MINUTES (Regular, Page 8 who are eligible also be given priority for the lotteries of low or moderate income housing, and asked for input by staff. 3. ESTABLISHING SISTER CITY RELATIONSHIP WITH LONATE POZZOLO - File 128 Councilmember Boro received communication from a group of San Rafael citizens requesting consideration of a sister city relationship between Lonate Pozzolo, Province of Varese, Italy and San Rafael, and asked staff to have this item placed on the Council agenda for the next meeting. 4. DISTRIBUTION OF THE PROPOSED 1988/89 BUDGET FOR THE CITY OF SAN RAFAEL - File 8-5 City Manager Nicolai announced that the proposed 1988/89 Budget would be sent to the Council early next week and would be available for the public at the same time. There being no further business, the meeting was adjourned. JEANNE LEONCINI, City Clerk APPROVED THIS DAY OF 1988 MAYOR OF THE CITY OF SAN RAFAEL SRCC MINUTES (Regular) 6/6/88 Page 8