HomeMy WebLinkAboutTC Minutes 2015-03-04TOWN COUNCIL
MINUTES
CALL TO ORDER
Mayor Doyle called the regular meeting of the Tiburon Town Council to order at 7:30 p.m.
on Wednesday, March 4, 2015, in Town Council Chambers, 1505 Tiburon Boulevard, Tiburon,
California.
ROLL CALL
PRESENT: COUNCILMEMBERS
PRESENT: EX OFFICIO:
ORAL COMMUNICATIONS
There were no comments.
PRESENTATION
Doyle, Fraser, Fredericks, O'Donnell, Tollini
Town Attorney Danforth, Director of
Administrative Services Bigall, Director of
Community Development Anderson, Planning
Manager Watrous, Minute Clerk Hennessy
Federal Communications Commission (FCC) Wireless Siting Policies — Greg
Stepanicich, Marin Telecommunications Agency (MTA)
Mr. Stepanicich reviewed the Telecommunications Act of 1996 regulating wireless facilitates
and cell towers and interpretations of FCC requirements since its adoption. In 2014 the FCC
published an interpretation of statute 6409(x) that requires any application for co -location of a
wireless facility at any licensed wireless facility that existed prior to 2012 and approved under
local requirement, to be approved as long as the changes are not found to be substantial. He
stated that local jurisdictions must approve a tower or facility outside the public right-of-way,
with an increase in height of 20' or 10%, whichever is greater, and a tower within the right-of-
way, with a heightdricrease of 10% or 10', whichever is greater. He stated that building codes
and safety standards reasonably related to health and safety will apply. The review period is
limited to 60 days after an application is complete, although this can be extended by mutual
agreement. If the reviewing entity fails to act, the application is deemed to be approved. He
reviewed rules regarding when the review period clock starts and limitations on incompleteness
letters. The new rules become effective April 8, 2015.
He suggested the Town review its current rules and procedures as the Planning Commission will
not have the discretion to deny an application for many changes on existing facilities. In
response to questions by the Council, Mr. Stepanicich stated facilities can be reviewed and
L Town Council Minutes 06-2015 March 4, 2015 Page 1
limitations can be imposed regarding height standards. He noted that the FCC has federal
standards regarding environmental concerns of emissions from radio towers, and as long as the
changes meet the federal standards, the emissions cannot be considered in making a decision. He
stated new facilities would still be subject to discretionary review and that there is a very clear
prohibition on requiring more stringent standards than what federal standards have declared.
Director of Community Development Anderson stated that staff is not particularly concerned
about the new regulations due to the small number (only five) and nature of the existing wireless
facilities in Tiburon to which the new collocation rules would apply.
CONSENT CALENDAR
1. 2340 Paradise Drive — Adopt resolution of findings for denial of an appeal of Design
Review Board approval of a site plan and architectural review for the construction of
additions to an existing two-family dwelling (Community Development Department)
The Mayor asked for public comment. There being none, he called for a motion.
MOTION: To adopt Consent Calendar Item No. 1, as written.
Moved: Fraser, seconded by Fredericks
Vote: Unanimous
ACTION ITEMS
1. Appointments to Town Boards, Commissions and Committees — Consider reappointment
of commissioners and appointments to fill vacancies on Town Boards, Commissions and
Committees (Town Clerk Crane Iacopi)
There was a brief discussion of the Town Council, and they agreed to accept the Town Clerk's
recommendation for reappointing of interested candidates to expired terms, and to make
appointments to the Heritage & Arts Commission and the Building Code Appeals Board.
MOTION: To appoint Laura Fennema to the Mosquito & Vector Control District
Moved: O'Donnell, seconded by Fredericks
Vote: Unanimous
MOTION: To appoint Sandra Chin to the Heritage & Arts Commission
Moved: O'Donnell, seconded by Fraser
Vote: Unanimous
MOTION: To reappoint the following persons:
Erica Williams to Planning Commission
Linda Emberson and John Kricensky to Design Review Board
Peter Winkler to Parks, Open Space & Trails Commission
Mark Swanson to Building Code Appeals Board
Town Council Minutes 06-2015 March 4, 2015 Page 2
Jerry Riessen and Jane Jacobs to The Ranch Committee
Moved: O'Donnell, seconded by Tollini
I Vote: Unanimous
Councilman Fraser expressed appreciation to all who have served as volunteers on the Town's
Boards, Commissions and Committees.
MOTION: To direct staff to advertise for existing vacancies for the following
positions:
Heritage & Arts Commission
Building Code Appeals Board
Library Agency Board
Moved: Fredericks, seconded by Tollini
Vote: Unanimous
2. Town Attorney Services — Consider Approval of Request for Proposals for the Provision of
Town Attorney Services (Danforth, Bigall, Curran)
Town Attorney Danforth stated the Request for Proposals for the Provision of Town Attorney
services was included in their agenda packet. She suggested Council seek public comment,
review and revise the RFP if desired and direct staff to circulate the final RFP to municipal law
firms in the region, the League of California Cities Department of City Attorneys, and other
potentially interested parties.
Councilmember Fraser requested that the RFP not be limited to law firms, but that sole
practitioners also be considered if they meet all the requirements.
In response to Councilmember O'Donnell, Town Attorney Danforth stated the position will be a
contract relationship whether an individual or a firm.
MOTION: To modify the Request for Proposal for the Provision of Town Attorney
Services to include sole practitioners who meet the requirements, as well
as firms, and to circulate the RFP to appropriate entities.
Moved: Tollini, seconded by O'Donnell
Vote: Unanimous
PUBLIC HEARINGS
1. 110 Solano Street— Consider appeal of Planning Commission review of permit to operate a
portion of an existing two-family dwelling as a Seasonal Rental Unit (Community
Development Department) — continued from January 21, 2015
Owners/Applicants:
Appellants:
Courtney and Sandy Anderson
Cathy and Joe Haraburda
Town Council Minutes 06-2015 March 4, 2015 Page 3
Address: 110 Solano Street
Assessor Parcel No.: 059-143-35
Planning Manager Watrous reviewed the staff report. On August 27, 2014, the Planning
Commission conducted a review of the seasonal rental unit permit for the property located at 110
Solano Street. After considering testimony from the applicants and neighboring property owners,
the Commission determined that the applicants were operating in substantial compliance with the
requirements of their seasonal rental unit permit. The owners of the property at 120 Solano Street
(Cathy and Joe Haraburda), filed a timely appeal of the Commission's determination.
Mr. Watrous described the history of the seasonal rental unit, beginning in 2013 with complaints
from the owners of the property at 120 Solano Street about the use of the subject property as a
seasonal rental unit. On May 6, 2013, staff conditionally approved the subject application,
including a condition of approval stating that the approved permit was for the upper dwelling
unit only. On May 16, 2013, Joe and Cathy Haraburda, owners of the adjacent property at 120
Solano Street, filed an appeal of this decision. The Planning Commission considered the appeal
on June 26, 2013, and on July 24, 2013 the Planning Commission adopted Resolution No. 2013-
07 partially granting the appeal and adding conditions of approval to the seasonal rental unit
permit regarding use of the private driveway and swimming pool and requiring a one year review
of the permit.
The Planning Commission conducted the one year review of the permit on August 27, 2014 and
heard testimony from the applicants and the appellant, as well as from several renters who spoke
about the behavior of the appellants toward them. The applicant's attorney suggested that the
Planning Commission continue the review hearing to give the applicants, appellants and their
attorneys an opportunity to attempt to revise an existing maintenance agreement between the
property owners to address the issues that have arisen from the seasonal rental unit. The
Commission asked the appellants if they would be willing to consider a continuance for this
purpose. Mr. Haraburda said that they would not be agreeable to such a discussion. The
Commission encouraged the applicants and the appellants to meet to work out their differences,
but after the appellants indicated that they would not agree to a continuance, the Commission
voted to find that the applicants were operating in substantial compliance with the requirements
of their seasonal rental unit permit. On September 8, 2014, the appellants filed a timely appeal of
this determination.
Mr. Watrous reviewed the grounds for the appeal. He stated that the Planning Commission
acknowledged that it was difficult for the Town to determine the veracity of complaints
regarding the seasonal rental unit, but noted that suspicion of non-compliance was not proof of
non-compliance. The Commission determined that none of the testimony presented by the
appellants at the meeting demonstrated definitively that the applicants had not complied with the
requirements of their permit. The Planning Commission also reviewed the numerous e-mails to
Town staff by the appellants and applicants collectively and heard from the applicants,
appellants, their respective attorneys and others at the August 27, 2014 meeting. The
Commission found much of this evidence to be contradictory and acknowledged the difficulty in
monitoring and definitively determining compliance with the conditions of approval. However,
Town Council Minutes 06-2015 March 4, 2015 Page 4
the Commission determined that based on the staff recommendations, evidence in the record and
presentations and comments made at the meeting that the applicants were in substantial
compliance with the terms of their permit.
Mr. Watrous stated that the Planning Commission appropriately conducted its review of the
subject seasonal rental unit permit and that, based on the preponderance of the evidence in the
record, it appears that the applicants are operating in substantial compliance with the
requirements of their permit. He recommended that the Town Council hold a public hearing, take
testimony on the appeal, and close the public hearing, deliberate and, if prepared to do so,
indicate its intention to deny the appeal and direct Staff to return with a resolution denying the
appeal for consideration at the next meeting.
Planning Manager Watrous reviewed the appeal procedure and in response to various Council
questions, stated that the definition of a Seasonal Rental was "any dwelling unit rented for a
period of 31 days or less." He stated that the Town does not have resources other than website
searches to see if the unit is being rented out. In response to questions, he stated that the Town
has no information whether the units have separate meters but the area sometimes referred to as a
"third unit" does not have a kitchen and is not considered a unit.
The Mayor opened the public hearing.
Chris Skelton, attorney representing the appellants Cathy and Joe Haraburda, used a power point
presentation, copies of which he gave to Council and staff, to illustrate his statements. He stated
that the Town is at a crossroads for dealing with seasonal rental units. He asked the Council
whether seasonal rentals were a privilege or a right, stating that currently the Town treats them as
a privilege since conditions of approval are imposed. He noted that his clients believe that this
property was not well suited for a seasonal rental unit and he suggested additional conditions
might be imposed.
Mr. Skelton presented an overview of the applicant's and appellants properties, and stated that
the Planning Commission's concerns about this application at the beginning were well founded.
He stated that residents and vacationers have different mentalities.
Mr. Skelton presented advertisements from different home rental websites indicating that the
studio unit is available for rent with the seasonal rental unit and that home exchanges were still
occurring for all units. He presented screenshots of the online advertisements, including one
from Stopsleepgo.com, which depicted a "luxury 5 bedroom with pool"; a home exchange
website advertising a "luxury, 2, 3, 4 or 5 bedroom unit" and TiburonVacationRental.com
indicating two units for rent.
Mr. Skelton compared this seasonal rental unit to another permit application that had been denied
by Town staff. He submitted a chart which illustrated the permit conditions of approval and his
clients' contentions that these conditions had been violated. He stated that the garage was
unavailable for parking by his clients on one occasion. He felt that there was inadequate parking
on the site and that, based on the advertising and use of the property, 4.5 or 5 parking spaces
Town Council Minutes 06-2015 March 4, 2015 Page 5
should be required. He noted that a B&B would require one parking space per guest. He cited an
extensive review of correspondence between the Town, and applicants and appellants, as well as
copies of ads on different websites.
Mr. Skelton stated that the applicant seemed to demonstrate a creative use of categorizing guests,
such as family, friends, and house sitters, to circumvent the seasonal rental permit process. He
acknowledged that there have been allegations back and forth about who is using the pool and
short of hiring a private investigator he did not know what the appellants could do to document
these violations. He suggested making seasonal rentals a use by right and not a conditional use.
He stated that the conditions of approval were carefully crafted by the Planning Commission and
the applicant had not demonstrated compliance with these conditions.
Mr. Skelton, on behalf of his clients, stated that the seasonal use permit should be revoked or
additional conditions should be imposed, including a 6 or 12 month review of compliance; a 24
hour advance written notice of new renters; staff pre -approval of all advertising material;
demonstrate compliance with current parking requirements; and continue imposition of the
current conditions of approval.
Courtney Anderson, applicant, representing himself and his wife Sandy, stated that only one
neighbor has a problem with his permit. He stated that the ads submitted by Mr. Skelton were
prepared several years ago and current ads were changed when the conditions of approval were
imposed. He said that originally did not understand that the seasonal rental conditions applied to
home exchanges, and stated that at one point he had to refund about $40,000 in rental fees.
Mr. Anderson presented a power point presentation and asked Council to reject the appeal. He
stated that the issues in the appeal did not have anything to do with the seasonal rental unit and
he felt that the appeal was about damaging his family, friends and anyone associated with them.
He enumerated several instances when the Town of Tiburon's resources (police, building
inspector, planning staff) were used for the purpose of damaging him and his wife. He reviewed
claimed that the Haraburdas violated the maintenance agreement and park their car too close to
washer/drier and cabinets so that there is no access to the garage. He claimed that there was
constant harassment of his family and guests, stating that his sons were afraid to have friends
over to visit. He said that they had to resort to short term rentals as their long-term renters
complained about harassment from the Haraburdas. He stated that other neighbors do not
complain about the use and have signed letters stating that there are no issues. He stated that
most renters have one car and are vetted and go through security checks. He said that they rent to
a maximum of 4 adults and 2 children and that the tenants do not disturb the neighbors.
He cited the benefits of seasonal rental units to Tiburon, asserting that vacation rentals in
Tiburon contribute approximately $4 million annually to downtown restaurants, shops, grocery
and drug stores. He stated that the appeal has nothing to do with the seasonal rental and that they
follow every permit stipulation, even though the driveway restriction is an inconvenience to
guests who are old or frail.
Town Council Minutes 06-2015 March 4, 2015 Page 6
Mr. Anderson stated that there is a solid concrete wall and no windows on the back side of the
house facing the Haraburdas' home and that sound tests with an OSHA certified sound meter
showed no sound above ambient levels. He said that he and guests congregate on the water side
of his house, which has two decks.
In response to Councilmember O'Donnell, Mr. Anderson stated that there have been
approximately 25 seasonal rentals over the past 2%2 years. In response to Vice -Mayor Tollini, Mr.
Anderson stated that approximately 25 business associates and friends stayed at this address
during the same period. In response to Councilmember Fraser, Mr. Anderson stated he does not
have a permanent residence in Tiburon and that he has stayed in the lower unit about 150 days in
the past year.
The Mayor opened the public hearing.
Andrea Howard stated that she has rented the upper unit for the past 4 months. She stated that
she has used the driveway twice and both times she was approached by Mrs. Haraburda. She said
that there are not a lot of people coming and going all the time from the units.
There being no further comments, the Mayor closed the public hearing.
Chris Skelton stated that he was disappointed that the hearing tumbled into "character
assassination." He stated the ads he showed tonight from different web sites were posted after
the November 4, 2013 conditions were imposed. He stated that the number of neighbors
complaining did not matter, as one neighbor was the focal point. He inquired whether the Town
has received the benefits of this use and asked the Council to look into whether the 25 renters
paid Transient Occupancy Tax (TOT). He stated that a revised maintenance agreement cannot
provide resolution to the issues at hand.
Paul Smith, attorney for the Andersons, stated that this process was being subverted for the
appellants' concerns. He stated that there are no neighbors complaining, just the co-owners, as
three properties share amenities. He suggested that the maintenance agreement between the
property owners be amended to set rules, but the Haraburdas refuse to do so. He stated that John
Sharp, the attorney for the Haraburdas at the Planning Commission meeting, tried to negotiate a
review of the maintenance agreement and they refused, and now Mr. Sharp is no longer
representing them. Mr. Smith characterized the Haraburdas' actions as a vendetta and stated that
they were sucking up Town resources. He stated that the Town standards for seasonal rental units
are specific and deal with off-site noise and external disturbances. He said that this was an
unusual situation with the applicant and appellants as co-owners and he felt that the solution was
to set rules between them and that it was inappropriate for them to use this process to further a
vendetta.
In response to Councilmember Fredericks, Mr. Smith stated that it took some time for the
Andersons to understand how the seasonal rental requirements work and that they now
understand and for quite some time have been abiding by the rules. Councilmember O'Donnell
stated that when the rules are set, participants are expected to abide by the rules. Mr. Smith
Town Council Minutes 06-2015 March 4, 2015 Page 7
responded that the Andersons have received repeated approvals of the seasonal rental permit and
that the issues the Council was hearing tonight were being used to pursue a vendetta.
Mr. Anderson reiterated that ads shown in the screen shots were old, and he did not know
initially that home exchanges were considered to be seasonal rentals. Councilmember O'Donnell
questioned Mr. Anderson as to whether he had taken any actions that would aggravate the
Haraburdas. Mr. Anderson responded that he did not believe so and added that they were paying
the transient occupancy tax.
Councilmember Fraser pointed out that the issue before the Council was whether the Andersons
adhered to the conditions of approval and he found it difficult to tell whether they were in
compliance. He said that he was a bit surprised that Mr. Anderson did not refute any of the
accusations of the applicant or present any evidence. He felt that this was a civil issue.
Mr. Anderson stated that he had supplied the Planning Division with copies of rental contracts.
Councilmember Fredericks asked staff for guidance regarding the appropriate evidentiary
standard to apply on this matter. In response, Town Attorney Danforth stated that she did not
believe that the ordinance provides any such guidance. She noted that the Council had two
contradictory accounts of events and should determine which account is more credible. The
more credible party would have the preponderance of evidence on their side, but that the burden
of proof is usually on the accuser (i.e., the appellant). Councilmember Fredericks asked if the
appellant has not overcome the presumption of innocence, whether the Council should uphold
the Commission's determination, and Ms. Danforth replied affirmatively.
Councilmember O'Donnell asked if there was any possibility for staff to determine compliance
or violation. Ms. Danforth stated that compliance is difficult to prove and that staff looks for
evidence of non-compliance.
Councilmember O'Donnell asked if it would be a good idea in the future for the Town to require
applicants to submit an annual report of exactly the number of tenants that would determine the
Transient Occupancy Tax. Director of Administrative Services Bigall replied that the Town
currently gets a statement for rentals less than 31 days, but it does not provide the level of detail
that as suggested.
Councilmember O'Donnell agreed that all the bad blood and stories are irrelevant. He did not
think that the burden of proof was met that the property was being misused. He said that he
would vote to deny the appeal. Having said that, he definitely believed that the Andersons have
not acted in good faith at all times and he believed that has created animosity and was
unfortunate. He said that he would vote to deny the appeal because there was no concrete
evidence that the terms have been violated.
Councilmember Fredericks agreed that the issue was whether there was compliance with the
terms of the permit. She recognized the difficulty of neighbors to document violations. She felt
that the Council did not have enough evidence to prove violations. She stated that she would
Town Council Minutes 06-2015 March 4, 2015 Page 8
deny the appeal but was concerned about the whole process and felt sympathy for people who
are faced with people constantly coming and going. She said that it was difficult to find peace
with the situation, but she did not see any evidence that the terms of the permit have been
violated.
Vice -Mayor Tollini stated that she was on the Planning Commission when this permit was first
reviewed. She said that it was sad to see contention between neighbors, but the horrible things
have nothing to do with the process. She said that she was not sure whether she would vote to
approve this permit if it initially came to her today. She stated that the Planning Commission
tried to create something that would work, but it has not worked. She thought that there was
evidence in the record that the permit was violated in 2013 with the home exchanges, but that the
screenshots were not convincing evidence. She hoped that the neighbors would get along better.
She stated that there was insufficient evidence of violation and she would deny the appeal, but
she did not feel that there had been adherence to the spirit of the approval.
Councilmember Fraser agreed with his fellow Councilmembers and said that he would vote to
deny the appeal. He said that this was a civil matter and that he did not have hard evidence of
compliance or noncompliance. He said that the only people who can fix this situation are the two
neighbors. He said that it was difficult for the Council to follow this and perhaps difficult for the
neighbors, too. He stated that the appellant has exhausted all the resources of the Town and he
suggested that they can ignore it or try to work something out.
Mayor Doyle agreed and said that this was disconcerting and had been handled badly between
the parties. He felt that such vacation rentals can cause a loss of neighborhood feeling. He agreed
with Paul Smith that this matter has to be dealt with in a civil manner. He said that going forward
the applicant knows what they can and cannot do and he told them to make sure that their ads are
correct. He said that he was upset with the amount of time, including that of Town staff and the
applicants and appellants, that has been used to deal with this.
Councilmember O'Donnell asked if the Town could update its policy on Seasonal Rentals to
include requirements for an annual report, including a calendar showing what dates the property
was rented for seasonal rental purposes, so that there is a way to verify compliance. Director of
Community Development Anderson stated that this could be added as a condition of approval for
future permits.
MOTION: Direct staff to return with a Resolution denying the appeal.
Moved O'Donnell, seconded by Fredericks
Vote: Unanimous
TOWN COUNCIL REPORTS
Vice -Mayor Tollini reported the RBRA workshop will be on March 14 from 9:00 a.m. to 2:30
p.m. at the Bay Model. She noted that there is a greater influx of boats being dumped in the Bay
and residents of West Shore Road in Belvedere are threatening to sue.
Town Council Minutes 06-2015 March 4, 2015 Page 9
TOWN MANAGER REPORT
None.
WEEKLY DIGESTS
• Town Council Weekly Digests of February 20 & 27, 2015
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There being no further business before the Town Council of the Town of Tiburon, Mayor Doyle
adjourned the meeting at 9:55 p.m.
1
FRANK DOWE,ORJ/
ATTEST:
TERRY HENNESSY, MINUTES CLERK
Town Council Minutes 06-2015 March 4, 2015
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