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HomeMy WebLinkAboutTC Minutes 2014-08-20TOWN COUNCIL MINUTES CALL TO ORDER Mayor Fredericks called the regular meeting of the Tiburon Town Council to order at 7:30 p.m. on Wednesday, August 20, 2014, in Town Council Chambers, 1505 Tiburon Boulevard, Tiburon, California. ROLL CALL PRESENT: COUNCILMEMBERS: Doyle, Fraser, Fredericks, O'Donnell, Tollini PRESENT: EX OFFICIO: Town Manager Curran, Town Attorney Danforth, Director of Community Development Anderson, Director of Public Works /Town Engineer Barnes, Planning Consultant O'Rourke, Minute Clerk Terry Hennessy ORAL COMMUNICATIONS Sara Klein, Reed School parent, thanked the Council for the Yellow Bus Challenge and suggested that it failed due to its timing, short notice, summer vacations and the contingency provisions. She also suggested different bus routes and questioned the impact of the school district's new drop -off and pick -up times, which are all scheduled for 2:30 pm. She requested that the Town add additional buses and subsidize the costs of the program from Town reserves. CONSENT CALENDAR Councilmember Tollini requested Item 4 be removed for discussion. 1. Town Council Minutes - Adopt Minutes of June 18, 2014 2. Town Council Minutes - Adopt Minutes of July 2, 2014 3. Town Council Minutes - Adopt Minutes of July 16, 2014 5. Notice of Completion - Recommendation to Approve Resolution Accepting the 2014 Pavement Management Improvements and Authorize Filing of Notice of Completion (Public Works Director Barnes) 6. Town Investment Summary - Accept Report for period ending June 30, 2014 and July 31, 2014 (Director of Administrative Services Bigall) 7. Belvedere FEMA Appeal - Approve Letter of Support for Appeal to be Filed by the City of Belvedere of the Federal Emergency Management Agency's Preliminary Flood Insurance rate Study and Maps Related to the Coastal Flood Study dated 2014 (Community Development Director Anderson) Town Council Minutes #12- 2014 August 10, 2014 Page 1 MOTION: I Moved: Vote: To adopt Consent Calendar Items 1, 2, 3, 5, 6 & 7. O'Donnell, seconded by Fraser AYES: Unanimous ( Tollini abstained on Item 2) 4. Single Use Carryout Bag Regulations - Consider adoption of ordinance adding Chapter l0A to Title III of the Tiburon Municipal Code for the purpose of regulating carryout bags in certain types of establishments - Adoption of Ordinance (Community Development Director Anderson) Councilmember Tollini questioned whether parts of Section I OA.060(B) should still be included in the ordinance given the Council's direction at the prior meeting. Town Attorney Danforth agreed there was a clerical error that would need to be corrected prior to adoption. The item was continued to the next meeting for staff to return with corrected text. PUBLIC HEARINGS 1. Housing Element - Consider Adoption of an Updated Housing Element of the General Plan and Adoption of a Negative Declaration - (Community Development Department) I Director of Community Development Anderson presented the Staff Report, which provided a chronological list of previous actions taken by the Town to adhere to State mandated housing element update, with this cycle spanning the years 2015 -2023. The purpose of tonight's meeting is for the Town Council to hold a public hearing on the Draft Housing Element, and if acceptable, adopt it along with a Negative Declaration of environmental impact. He stated the Draft Housing Element is little changed from the Preliminary Housing Element reviewed by the Council in April. The staff report focused on revisions made to the Draft Element in response to HCD comments received in June, which included text revisions and the addition of a few new programs that appear to be of a minor nature. Anderson stated that the issue of "Junior Second Units" was added as a program and has been discussed at the County Planning Directors meeting. Most communities in Marin County will be considering a similar program. Staff has no major issues with changes as proposed by HCD. The Planning Commission held a public hearing and recommended approval of the Element to the Town Council. Anderson recommended that the Town Council hold a public hearing and take testimony from interested persons, discuss and make comments on the document, and adopt the Resolution approving the Negative Declaration and the updated Housing Element. In response to Councilmember O'Donnell, Anderson noted the State recognizes housing is a matter of statewide concern and in 1980 required that housing elements be reviewed and certified by a state agency. Town Council Minutes #12 -2014 August 20, 2014 Page 2 The Mayor opened the public hearing. There being no comments, the Mayor closed the public hearing. MOTION: To Adopt the Resolution as submitted. Moved: O'Donnell, Seconded by Doyle Vote: AYES: Unanimous 2. Mariluana Dispensary Ban - Consider Amendments to Title IV, Chapter 16 (Zoning) of the Tiburon Municipal Code for the Purpose of Prohibiting Marijuana Dispensaries in All Zones - Introduction and First Reading of Ordinance (Community Development Department, Town Attorney) Director of Community Development Anderson presented the Staff Report. He noted that marijuana dispensaries have been established in several locations in the state, and some local agencies have reported increases in illegal drug activity, illegal drug sales, robbery of persons leaving dispensaries, littering around dispensaries, falsely obtaining `identification cards' to qualify for medical marijuana and other increases in criminal activity. As a result, such dispensaries would be inconsistent with the residential and village character of the Town. Other municipalities in Marin County have already banned medical marijuana dispensaries and the Town does not wish to find itself in the position of being one of the few, or the only city in the County, where such dispensaries are not prohibited. Anderson reviewed the discussion held by the Planning Commission at its June 11 and June 25, 2014 meetings. The Commission was concerned the proposed definition of medical marijuana dispensaries was too broad. The Planning Commission's ultimate recommendation to the Town Council was to adopt an ordinance using the definition of medical marijuana dispensary upheld by the state Supreme Court, and making all necessary associated changes to reflect the narrower scope of the ordinance. Anderson noted the proposed zoning amendments are exempt from CEQA under Section 15305 of the CEQA Guidelines and also on the basis that they have no potential to result in adverse impacts on the environment. Anderson stated staff s recommendation to the Town Council was to hold a public hearing, take testimony, and indicate via motion which version of the proposed ordinance should be read. The Mayor opened the public hearing. There being no comments, the Mayor closed the public hearing. The Mayor clarified that the issue was regulating the sale and distribution of marijuana within the Town's jurisdiction. Councilmember O'Donnell agreed and noted that the Council is not interested in discussing or passing judgment on the efficacy of medical use of marijuana. He L stated that the Town makes decisions on zoning issues and decides what type of establishments the Council wants finds in Tiburon. He used the example of the Town not allowing fast food Town Council Minutes #12- 2014 August 20, 2014 Page 3 establishments in Downtown Tiburon. MOTION: To read by title only. Moved: Fraser, seconded by O'Donnell VOTE: AYES: Unanimous The Mayor read "An Ordinance of the Town Council of the Town of Tiburon Amending Municipal Code title IV, Chapter 16 (Zoning) to Ban Marijuana Dispensaries." MOTION: To introduce the ordinance with the broader definition of marijuana (Exhibit F in the staff report) and to hold first reading and waive additional readings. Moved: O'Donnell, seconded by Doyle Vote: AYES: Tollini, Fraser, Doyle, O'Donnell, Fredericks NAYS: None 3. 1897 Mar West Street - (McCullough Encroachment Permit Appeal) - Consider Appeal of the Public Works Director's Denial of an Encroachment Permit to Install a Driveway, Stairway, Retaining Wall and Parking Area in the Mar West Street Public Right -of -Way (Community Development Director Anderson, Public Works Director Barnes) Director of Community Development presented the Staff Report. He reviewed the project history including the two related encroachment permit applications acted on by the Town Council in 2011. The `Barley Stairs" application was approved by the Council, but its construction was contingent upon approval of the second application. The second application, �- referred to as the "McCullough Garage" was denied by the Council as inconsistent with the Town's encroachment policy. Staff reports and minutes of these prior (2011) actions were attached to the written staff report. Anderson noted that Chapter 19 of the Municipal Code establishes the encroachment permit requirement, process and procedure; actual policy concerning encroachment permits is set forth in Town Council Resolution No. 16 -2010. The Town Council adopted the encroachment policy to provide clarity and consistency concerning the purposes of encroachment permits. The policy contains lists of "allowable" and "impermissible" uses for encroachment permits, and has proven to be a highly useful tool for Town staff. Anderson described the current project, referred to as the "McCullough Driveway ", as substantially different from the "McCullough Garage" application denied by the Town Council in 2011, as it would not result in the expansion of an enclosed garage located partially on public street right of way. Instead, the owners propose a new angled driveway, supported by a retaining wall that would begin at the existing driveway entrance to the 1897 Mar West Street garage and extend to the western property line, where an existing elevator shaft is built into the residence. Parking for two vehicles in tandem would be possible along the length of this driveway, although the lower space would be relatively steep and in all likelihood a single vehicle would use the driveway for paring purposes. A substantial majority of the improvements would be on the public right of way, including most of the parking area being created. It appears that the retaining wall could reach approximately 8 feet in height, tapering in height as it approaches the Town Council Minutes #12 -2014 August 20, 2014 Page 4 existing driveway. The drawings submitted are schematic. More detailed drawings would be required for site plan and architectural review, building permit and final encroachment permit approval. Anderson spoke to the solitary ground set forth in the appeal, which cited Section C -5 of the Town's Encroachment Resolution "to accommodate required parking where the Town finds that (a) the applicant cannot feasibly locate such parking on private property; or (b) the public safety or welfare is better served by allowing such parking to encroach." Anderson noted two family uses in modern times typically require three on -site parking spaces. However, uses that have been in existence for a very long time (this main building dates back to 1900) are grandfathered with respect to "required parking ", hence the Town's acceptance of the one car garage as meeting parking requirements. Staff concluded that Section C -5 is inapplicable on that basis. However, should the Town Council choose to do so, it may review the application on a "de novo" basis and not exclusively on the ground set forth in the appeal. Staff also expressed concern in the Staff Report that the proposed work would in practical effect privatize and provide exclusive permanent use of that portion of the street right -of -way for the owners of 1897 Mar West, in that an encroachment permit holder is unlikely to remove a physical improvement of this cost and magnitude without a protracted legal fight should the Town demonstrate reasonable cause and seek its removal at some point in the future. Anderson described two possible options for the Council: A. Direct staff to return with a Resolution denying the appeal, or B. a. Modify the Town's encroachment permit policy; b. Require the applicant to submit more detailed plans for staff review that will allow staff to fully evaluate the effects of the project on the hillside, sight distance and adjacent properties; C. Consider conditions of approval requiring as follows: (i) widen and be responsible for the costs of widening Mar West Street below the proposed retaining wall a minimum of two feet in order to improve sight distance and public safety of the street in the vicinity of the property frontage. A separate low retaining wall will likely be required to create the street widening. (ii) the extent of retaining wall encroachment shall be reduced by approximately five (5') feet to allow adequate space for only tandem parking on the proposed driveway by narrowing the width of the driveway in that area. The narrowing shall occur such that at least a portion of any parked vehicle would be located on private property of 1897 Mar West Street. (iii) construction of the Barley Stairs by the permit holder is required as part of the project. (iv) a Memorandum of Encroachment shall be required that memorializes the revocable nature of the permit and other conditions. d. Direct staff to return at the next meeting with a resolution memorializing the granting of the appeal and direct the Town Engineer to issue the encroachment permit Town Council Minutes #12- 2014 August 20, 2014 Page 5 substantially based on the above conditions in addition to the standard permit conditions, following site plan and architectural review and building permit approval. In response to Mayor Fredericks, Anderson stated that there is insufficient proposed widening of the right -of -way to provide new street parking and that the low retaining wall is not proposed; only the retaining wall to support the driveway is proposed. He also pointed out that the owner of the property is required to maintain the sidewalk located in the right -of -way along private property frontage. Town Attorney Danforth cited Municipal Code Chapter 24, which outlines responsibility of the adjacent property owner for certain improvements in the right of way. In response to Councilmember O'Donnell, Anderson stated that if the street were widened, there might be a gain of one street parking space that wasn't too close to the center line of the road such that a car using it would not be subject to citation. The Director of Community Development reviewed the appeal process, where the appellant has 20 minutes; members of the public then have 3 minutes each to speak; and if the appellant feels it is necessary, he has three minutes for rebuttal. The applicants were represented by Christopher Skelton, Ragghianti/Freitas LLP. Mr. Skelton referred to his previously- submitted letter. He noted the denial was based on staff's interpretation that the application was inconsistent with the Town's policy. He asserted that findings were not made to support the denial. Mr. Skelton reviewed the Town's Resolution, which provides policy allowing encroachment into the public right -of -way where such features would: 1. Allow access to private property for ingress /egress; 2. Allow applicants to replace landscaping; 3. Allow applicants to accommodate required parking where the Town finds that (a) the applicants cannot feasibly locate such parking on private property, or (b) the public safety or welfare is better served by allowing such parking to encroach; and 4. Allow applicants temporary relief from unusually severe topographic or other physical circumstances that create practical hardships to the creation of proper access. Mr. Skelton stated that these issues were identified in the encroachment application and evidenced in the design submittal; he believed facts supported the findings and findings could be made to approve this permit. He stated that any one of the above items was sufficient to approve the permit application and that in totality the evidence overwhelmingly favored granting the encroachment permit. The property is a challenging site and these encroachments would alleviate the challenges. He noted that staff suggests that because this house was built in 1900 it may continue to provide one or two parking spaces; however, the applicant is proposing updating and improving the property to meet modern codes; he would think the Council would prefer to encourage residents to provide additional parking. Mr. Skelton noted that many properties on Mar West Street have improvements that encroach L into the right -of -way. He felt allowing parking would improve public safety and serve the community. He suggested he didn't think someone would be inclined to fight to the bitter end to Town Council Minutes #12 -2014 August 20, 2014 Page 6 retain these improvements should their removal be sought at some future time by the Town. Mr. Skelton concluded by asking Council to hold a de novo hearing and render a decision based on evidence and findings. John Merten, co- appellant and landscape architect, said he had prepared the schematic drawings. He noted the diagonal driveway on private property would get a car as close to the house and away from visibility of the neighborhood as possible. He noted the steep slope of the property and the improved landscaping being proposed. In response to Councilmember Tollini, Mr. Skelton stated the existing garage would remain. In response to a question by Councilmember O'Donnell, Mr. Merten agreed that it was an undersized garage. Mr. Merten stated the driveway lane would be used for parking too, but not the existing driveway space behind the garage. In response to a question by Mayor Fredericks, he stated the plan was to build the `Barley Stairs" in conjunction with this driveway project. The Mayor opened the item to public comment. Bill Lukens, 160 Los Lomas Lane, stated he appreciated the goal of additional parking and improvements to beautify property. In response to his questions, Director Anderson stated that according to the County Assessor's office, the use on the site is a two family dwelling. The proposed project would provide parking for two cars on the driveway and one in the existing garage. Mr. Lukens noted the former owner had a mechanism in the garage to accommodate two cars. Mr. Skelton stated that mechanism had been removed. Jennifer Lambert, 1894 Mar West Street, noted there is an easement behind the property that the applicants use quite often for caterers, children and guests as it provides much easier access to their house. She had safety concerns about the application; noted it is a heavy traffic area; there is a Mar West Street staircase nearby that is heavily used by pedestrians; she didn't know why the applicant would want to encourage more traffic from his driveway in that area. She felt the area was safe and quiet with naturally slow traffic due to restrictions of roadway width and she wanted it to stay that way. She noted that there is permit parking on Mar West Street for residents only, and usually there are no cars parked along the property frontage because people are at work. She stated that widening the street in that area would be a problem because it would increase traffic speed and she liked the area's small town atmosphere as it provides the charm for the neighborhood. In response to Mayor Fredericks, Ms. Lambert stated the easement provides parking for the first two houses in from Las Lomas Lane and not for the subject property. There is 4' wide path that allows cars to back up and unload; they can't park at the subject property using that easement. There being no further public comments, the Mayor closed the public hearing. In rebuttal, Mr. Skelton summarized the appeal; stated this neighborhood had a lot of action; getting cars off the street is important; it would improve the overall circulation of this site and Town Council Minutes #12- 2014 August 20, 2014 Page 7 _ area; access for parking for this house is from Mar West Street only; asked Council to grant the encroachment permit without condition C requiring them to widen the street. In response to Councilmember Fraser, he stated there was currently only a one -car garage, and the site with improvements could accommodate up to four cars. The item was returned to Council for deliberation. Councilmember Doyle noted nothing in the front of the house will change. The hillside would remain as is with the exception of driveway cut behind it. He didn't see a huge change that will affect anyone and it seemed this plan got cars off the street. He supported the proposed plan with some changes. The Mayor stated she saw the issue as "public benefit" versus "private use ". The Town protects the public right -of -way for all of us to use; we need to be very careful not to turn over a public right -of -way to private benefit. She thought the purported public benefit here was marginal even if it creates public parking spaces. She said that the homeowners association had sent an email to its members arguing that the project might be purely a private benefit unless it included widening the street to create some public benefit. She thought the improved landscaping would benefit only the property owner, and that other owners of constrained properties have managed to get by in the neighborhood. The Mayor said that she was reluctant to turn over public right -of -way for what appeared to be mostly private benefit. Councilmember Tollini stated she had reviewed the Town's regulating documents and thought it was clear that the policies seek protect the public right -of -way from privatized use. She noted that Section D of the Town's policy contained a list of "impermissible purposes ", and she didn't see how the Council could get around paragraph 1 ("Encroachments for the purpose of, or having the practical effect of, privatizing the affected area for the exclusive use or benefit of one or a limited number of individual owners in lieu of the general public ") without first amending the policy. Councilmember Fraser noted Mar West Street is a highly- trafficked street; in 2011 he supported the previous application; he believed improved ingress and egress would benefit the public; landscaping is a public benefit as well as a private benefit; there isn't enough parking along Mar West Street and if the area can be improved by getting cars off the street it is a positive. He said he could make findings to approve the application and didn't believe the Council needed to change the policy document prior to acting on the appeal. He suggested that discussion this evening be limited to the appeal and not amendments to the policy. He was not in favor of widening the street. He suggested Council focus on this particular appeal and provide direction to staff for an appropriate resolution and improved drawings. The Mayor noted that the staff has suggested if the Council wishes to grant the appeal, it should look into changing the policy resolution and she believed the application did not conform with the Town's existing policy. Town Attorney Danforth noted a great deal more information would be needed to make sure this is a feasible project. She noted the Town Council can bring back a modified policy at another Town Council Minutes #12 -2014 August 20, 2014 Page 8 date. Councilmember O'Donnell stated he supported the application in 2011 for the improved garage and thought this application was aesthetically better. He supported Councilmember Fraser's remarks that Council grant the appeal subject to additional information being received prior to issuance of the encroachment permit. He believed that one has to look at this project in the context of a home built in 1900 in a neighborhood completely out of code, and that one has to determine the appropriate lens through which to view what is reasonable for the applicant and what is reasonable for the public. It is a benefit for private property but also the public; the staircase and trail nearby are used by commuters and that reducing congestion is a public benefit. He would like to see the application proceed. Councilmember Tollini didn't think the project could be approved at this meeting because the Council would need to amend the encroachment permit policy first. Town Attorney Danforth noted that the policy was adopted by resolution, which is less formal than adoption by ordinance. The Council can decide now that the current project is worthy of approval and, using the project as a case study, decide that the policy should be modified at a future meeting. In other words, the Council can uphold the appeal tonight and direct staff to return with an appropriate modified policy in the future. She noted the staff report lists several suggested conditions and asked Council to consider them. She suggested that Council direct staff to come back with a resolution setting forth the Council's action on the appeal. MOTION: Having considered the appeal on the basis of a "de novo" hearing, uphold the appeal and find the project suitable for processing as an encroachment permit application, subject to certain conditions listed on page 4 of Staff Report, specifically: 1) Require the applicant to submit more detailed plans for staff review that will allow staff to folly evaluate the affect of the project on the hillside, sight distance, and adjacent properties; 2) Construction of the Barley Stairs by the permit holder is required as part of the project; 3) A Memorandum of Encroachment shall be required that memorializes the revocable nature of the permit and other conditions. Staff was directed to return at the next meeting with a draft resolution for consideration of adoption at the next meeting incorporating this direction. Moved: O'Donnell, seconded by Fraser Vote: AYES: Fraser, Doyle, O'Donnell NAYS: Tollini, Fredericks Town Manager Curran stated it would be staff s intent to propose any policy change as narrowly as possible to reflect this particular project and not broadly looking at changing policy. 4. Smoldna Ordinance - Consider Amendments to Title VI, Chapter 28 (Smoking and Tobacco Regulations) of the Tiburon Municipal Code for the Purpose of Adding the Use of Town Council Minutes #12- 2014 August 20, 2014 Page 9 �. Electronic Smoking Devices (E- Cigarettes) to the Definition of Smoking - Introduction and First Reading of Ordinance (Community Development Department and Town Attorney) The Director of Community Development presented the Staff Report, which outlined the intent of the amendment to the ordinance to add electronic smoking devices to be placed under the same Town smoking regulations as traditional cigarettes. The drift ordinance has been noticed for public hearing and comes before the Town Council for review and consideration. It was noted the Council received an email from Sally Warren, 42 Ned's Way, asking for consideration of a grace period for the continued use of E- cigarettes in apartment buildings, since e- cigarettes are part of secession programs and these take time to be successful. The Mayor opened the public hearing. Bob Curry, Smoke -Free Marin Coalition, supported inclusion of E- cigarettes in the Town's smoking ordinance; studies indicate there is an increase in use of E- cigarettes instead of regular cigarettes There being no further comments, the Mayor closed the public hearing. There was a brief discussion regarding adding a delay in the applicability of the ordinance with regard to use of E- cigarettes in multi-unit complexes. It was agreed to extend a one year grace period for use of electronic smoking devices in multi-unit complexes. The Council voted unanimously to continue the item to the next meeting and direct staff to return with an accordingly revised ordinance for first reading. 5. Contract Bidding - Consider Amendments to Title I, Chapter 3A (Town Contracts) of the Tiburon Municipal Code for the Purpose of Adjusting Bidding Thresholds - Introduction and First Reading of Ordinance (Town Attorney, Town Manager) Town Attorney Danforth presented the Staff Report. The ordinance proposed for amendment establishes maximum contract authorization amounts for the Town Manager and department heads and procedures for the bidding, award and execution of authorized contracts. Staff has identified several sections that warrant updating. The proposed updating reflects that, since the Council adopted Chapter 3A, the State legislature has increased the threshold amounts for major and minor public works contracts from $125,000 to $175,000; and for small minor public works contracts from $30,000 to $45,000. These categories determine the process required for awarding the contracts. The Town Attorney noted that the Town's ordinance includes automatic escalator clauses, but said that the Code would be more useful if it contained the updated amounts. Staff suggested adding an automatic escalator clause of future increase in the threshold between small and medium public works projects. Other suggested changes: authorize the Town Manager to execute contracts up to $60,000 from current $40,000 for previously appropriated expenditures through the budget process; authorize Town Council Minutes #12 -2019 August 20, 2014 Page 10 �. the Town Manager to settle a claim or litigation for up to $15,000 from a current $10,000 after consultation with the Mayor; and publish a bidding notice 14 days, instead of the current 10 days, before a bid opening. Councilmembers O'Donnell and Fraser were uncomfortable with the escalator clause and questioned the small scale of Tiburon's projects versus State projects. There was also discomfort expressed about the settlement of claims without the input of the full Council; one Council member suggested that the Town Manager consult with both the Vice Mayor and Mayor before making any such settlement. The Town Attorney noted the proposed changes to thresholds affected only the process of selecting contractors; the larger projects required a formal process that was both more expensive and more time consuming. The Town Manager noted that the Town rarely settled small claims that would come within her settlement authority. Council directed Staff to reconsider the matter and, if appropriate, return with an amended proposal reflecting the Council's stated concerns. TOWN COUNCIL REPORTS Mayor Fredericks suggested, and Council agreed, to place on a future agenda the "Yellow Bus Challenge" suggested by Ms. Klein previously this evening in order to educate the public as to the contingencies needed, the bus routes chosen, and so forth. Town Attorney Danforth suggested an item be placed on the next Council agenda to formally appoint an ad -hoc Council Committee to work on this project. TOWN MANAGER'S REPORT There was no report. ADJOURNMENT There being no further business before the Town Council of the Town of Tiburon, Mayor Fredericks adjourned the meeting at 10:00 p.m. , C ALICE FREDERICKS, MAYOR ATTEST: DIANE CRANE IACO , TOWN CLERK Town Council Minutes 912- 2014 August 20, 2014 Page 11