HomeMy WebLinkAboutTC Minutes 2015-10-21TOWN 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, October 21, 2015, 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 Stock,
Director of Community Development Anderson,
Associate Planner O'Malley, Town Clerk Crane
Iacopi
ANNOUNCEMENT OF ACTION TAKEN IN CLOSED SESSION, IF ANY
There was no closed session.
ORAL COMMUNICATIONS
George Landau suggested the addition of lighting to the public signboard at Blackie's Pasture.
Christine Spaulin, Avenida Miraflores, addressed the Council about the condition of the playing
fields in Tiburon, especially the poor condition of McKegney Green. Seven young people spoke,
stating how dangerous it is to play soccer in these kinds of conditions.
Councilmember O'Donnell noted that the Town had recently initiated meetings with the Tiburon
Peninsula Soccer League to address this issue.
Elena Stephens, representing residents in support of a Hawthorne Terrace and Pilgrim Heights
Utility Undergrounding project, said they had recently submitted their petitions to the Town, and
made the required $150,000 deposit for initiating the district. She said the RFP for engineering
had been sent out yesterday. Ms. Stephens asked the Council to continue its support of the
project and to encourage staff to move forward with it, as well.
Sara Klein, Hawthorne Drive, spoke about the risks of making housing loans to public
employees. She said the Town was lucky to have a Town Manager with integrity but that was
Town Council Minutes #19-2015 October 21, 2015 Page 1
not always the case. She said that the taxpayers should not be encumbered with housing and
interest rate risks.
Ms. Klein said that employee compensation negotiations take place behind closed doors; she
urged the Council to structure its benefit program with the next manager so that "government
perks" do not "crowd out services" to the taxpayers. She said that she had read that funding for
the Yellow Bus Program might not be available next year. She wondered if this was an example
of how such public funding could be better used.
PRESENTATION
• 19TH Annual Heritage Presentation Award — Dave Gotz, Recipient
Elizabeth Merrill made the presentation on behalf of the commission. She said the commission's
mission is "to preserve the Town's unique historic character and to advance the arts in the
community."
Chair Merrill said Gotz had demonstrated this vision during his 13 years on the Heritage & Arts
Commission, as Landmarks' Society Archivist, and most recently as Town Historian. She said
that during his tenure, Gotz "has uncovered a treasury of historical information, preserved
documents, photos and artifacts, and in general has provided us with a window straight into our
remarkable history".
Gotz accepted the award and said what a pleasure it was to live and work here. He thanked his
colleagues and commissioners, past and present, for the honor. He said he was now also
exploring the history of Belvedere which continued to broaden his understanding of the area's
unique history. He said that truly, "every week there is something new that fascinates me about
the place."
The Council congratulated Gotz on his award.
CONSENT CALENDAR
1. Town Council Minutes — Adopt minutes of September 2, 2015 Regular meeting (Town
Clerk Crane Iacopi)
2. Town Council Minutes — Adopt minutes of September 16, 2015 Regular meeting (Town
Clerk Crane Iacopi)
3. Citizen of the Year — Adopt resolution commending Joan Palmero upon her selection as the
2015 Tiburon Peninsula Chamber of Commerce Volunteer Citizen of the Year (Town Clerk
Crane Iacopi)
Town Council Minuses #19-2015 October 21, 2015 Page 2
4. 1694-1696 Tiburon Boulevard — Adopt resolution denying appeal of conditional use permit
approval for construction of a new three-story mixed-use commercial and residential
Building intended for condominium -type ownership (Community Development Department)
5. Town Investment Summary — Accept report for month ending August 31, 2015 (Director
of Administrative Services Bigall)
6. Town Investment Summary — Accept report for month ending September 30, 2015
(Director of Administrative Services Bigall)
7. Dairy Knoll Solar Panels — Consider adoption of Amendment to Lease for Dairy Knoll
building to authorize The Ranch to enter into a contract to install solar panels on site (Town
Manager Curran)
MOTION: To adopt Consent Calendar Items 1 through 7, as written.
Moved: O'Donnell, seconded by Fredericks
Vote: AYES: Unanimous
ACTION ITEMS
1. Marin Community Homeless Fund — Consider release of budgeted funds for contribution
to Marin Community Homeless Fund (Town Manager Curran)
In her report, Town Manager Curran gave some background on how the request for funding had
originated, from a committee comprised of representatives from each jurisdiction, started by the
Marin County Council of Mayors and Councilmembers (MCCMC). She said the Town had
ultimately voted to include $12,000 in this year's municipal budget for this purpose, although the
request is for three years of support. She noted the amount was based on a per -city allocation, by
percentage of population.
Curran said that the Marin Manager's Association (MMA) had been tapped to provide reporting
and oversight. She said the Manager's subcommittee recommended that the funds be collected
by the Marin Community Foundation, because they already fund various programs, and they
could hold them for this purpose.
In response to questions from Council, the Town Manager said that MMA will track how the
funds are used and report back to MCCMC.
Councilmember Fraser asked whether there are any new programs that would be funded. Curran
said this year, it appears that no new services or programs will be funded by the cities but are
intended to be used for an expansion of the REST program.
Town Council Minutes #19-2015 October 21, 2015 Page 3
Councilmember Fredericks expressed concern about the oversight and management of the funds,
as they represent a substantial amount of taxpayer dollars. She said she hoped that this outlay
represented a one-year renewable commitment by the Town, to be followed by an annual report
with a list of priorities for spending, and that future Councils have the opportunity to vote on
whether or not to fund whatever programs are presented.
Town Manager Curran concurred; stating that there needs to be adequate oversight and a track
record of how the funds are utilized.
Fredericks added that not only how the funds are used, but how the priorities are determined for
these funds, should be reported annually and discussed publicly.
MOTION: To approve the release of $12,524, to provide one year of funding for the Marin
Community Homeless Fund; that subsequent year funding will be considered
during future budget processes; and Council expects to receive an annual report
on spending and priorities.
Moved: Fredericks, seconded by Fraser
Vote: AYES: Unanimous
2. Regional Land Use Planning — Consider approval of letter opposing Metropolitan
Transportation Commission (MTC) proposal to transfer Association of Bay Area Governments
(ABAG) Land Use Planning staff and associated funding to MTC (Councilmembers Fraser and
Fredericks)
Director of Community Development Anderson said there had been consternation about the
MTC proposal to move the ABAG planning staff to its jurisdiction. He said the upshot of this is
that a letter had been prepared for Council's review to state the Town's position on this matter.
Councilmembers Fraser and Fredericks provided additional background. Councilmember Fraser
said that MTC, the Bay Area's regional transportation agency, provides funding for the
Association of Bay Area Governments, and the two agencies work together in many ways.
However, Fraser said that concern was expressed about this unilateral move and that at the last
meeting of the ABAG Executive Committee, attended by nine Marin cities and one Supervisor, it
was requested that MTC pause and not move forward without further consideration. He said a
proposal was made to bring in a consultant to study the matter and make a recommendation.
Fraser said that MCCMC had adopted a resolution in support of this process, as well.
Councilmember Fredericks gave an even broader overview. She said that SB 375 requires
linkage between transportation and planning processes in order to meet the State's targeted
reduction of greenhouse gas emissions. She said that many counties in the State had one planning
and transportation agency, which is not the case in the North Bay. Hence, she said that ABAG
provides planning services and MTC provides transportation services. Fredericks said the
Town Council Minutes #19-2015 October 21, 2015 Page 4
In her report, Ms. O'Malley also noted that the town has consistently interpreted this section as
requiring limitations only within the front yard setback, and this particular line of argument has
not previously been raised as an objection in the context of a design review application.
Mayor Doyle opened the hearing to the appellants.
The first appellant, Michael Roy, Hacienda Drive, directly across the street from 1 Benton Court,
referenced Councilmember O'Donnell's comments about common sense and the real world. He
said that staff's interpretation of the Code is not how real people deal with things. He said he
was a property owner in town for over 40 years and never had to make an appeal before. He
noted that the incumbents [on the Council] who were standing for re-election were doing so
based on "quality of life" issues; he said he hoped they would direct their efforts toward
preserving neighborhood character. Mr. Roy said that the noise, design and location of the pool
would contribute to the deterioration of their neighborhood's quality of life.
Mr. Roy went on to say that a pool on the property, which was recently built up 10 feet on
landfill, would pose a risk to downhill neighbors from possible floods or earthquakes. He added
that the Code section seemed unambiguous to him.
Roy said the siting of the house acted as a megaphone, and the pool would significantly add to
the projected noise. He said the addition of a six-foot fence [atop this elevation] would give the
property a "penitentiary appearance"; also, he said no story poles were erected to give the
neighbors a sense of this already "artificially -heightened site".
He asserted that the Building Department review of the R-1 zone required a 15 -foot setback and
the pool is barely 10 -feet back from the setback line. He said the project drawings clearly show
this. He asked the Council to overturn this proposal from a "corporate -owned property" that
would reduce the quality of life for the immediately -affected neighbors.
Gloria Horns, Hacienda Drive, wife of the previous speaker, said she relied on her legal training
to analyze the section of the Code in question. She provided Council with a detailed analysis.
She said that the staff report and emails from Town staff seemed to provide contradictory
interpretations of Section 16.30.030. Ms. Horns maintained that the correct interpretation could
be found in Section 16.30.030(b) that contains the language, "unless exempted". She said the
answer to the question of what was exempted is swimming pools.
Ms. Horns asserted that staff could not provide data on prior approvals of front yard pools. She
said she found two on Google—one on Stewart Drive and one on Burrell Court. She said one of
these applications was approved through the granting of a variance; the other had a landslide
associated with it, after the fact.
The second group of appellants, Mr. and Mrs. Avery and Loretta Lieberman, gave their
presentation using photos and drawings. They said their children's bedroom would be less than
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Morgan said that he was in compliance with the 15 -foot front yard setback. He said it was more
than 25 feet, and closer to 40 feet. He said that he agreed with staff's interpretation of the Code
section. He said that five neighbors had signed off on the proposal, but now one (Peterson) had
apparently changed his mind.
Mr. Morgan introduced an acoustical engineer who was working on noise abatement for the pool
equipment.
Alan Rosen, RDG Acoustics, said that he had performed a sight line analysis at several heights to
determine the effect of sound emanating from the property. He said he determined that a 4-1/2
foot fence would be adequate to reduce sound on Benton Court, and that a higher fence, six feet,
would be needed for Hacienda. He said he had not yet analyzed the pool equipment but noted
that he was familiar with Town regulations about such equipment, with a maximum of 65
decibels and 55 at property line. He said the equipment would be located in a sort of "well"
between the house and the pool.
Rozen said studies showed that a fence would reduce sound by 5 decibels, as long as there are no
cracks or breaks in the fence. He said that a glass fence would provide the same sound reduction.
Mayor Doyle opened the hearing to public comment.
Karl Hoppe, Belvedere native now residing on Hacienda Drive, stated that he had helped the
applicant buy the house but had not been informed of the pool plan, nor had the other affected
neighbors. He said he agreed with Councilmember Fraser's reading of the Code section, and
noted that his father once told him that "words mean exactly what they say...." He said the
Code's reference to "front yard" means the "front yard".
Hoppe said that the neighbors living "underneath" the property were right to be concerned about
[slides from] the fill. He said that Mr. Morgan had been involved in two Novato properties that
were in litigation due to slides; he said that past behavior indicated future behavior.
Mr. Hoppe said that the purpose of the story poles would be to see what the fence looked like,
not the pool, and that they would like to see this even if the fence were to be clear glass. He
reiterated his opposition to the pool in the front yard.
Linda Frender, Warren Court, resident since 2001, said the [new] house was a monstrosity, and
asked why the pool was not included in the original plans. She said that she supported the appeal
and that adding a pool later was a way to "slip in" the approval.
Caroline Talbott, Warren Court, farthest away of the speakers, said hers was the first home built
in the Hacienda area and that the neighborhood had changed dramatically over the years. She
said the house in question was a bit of an eyesore and would be made worse by a fence. She said
she knew County rules required a six-foot fence; she asked that story poles be erected for a visual
representation of the Town's requirements.
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David Mittelman, Rowley Circle, said he did not have a stake in this project but he did have a
stake in the Town's Zoning Ordinance. He said that it is bad policy if the community cannot
read or understand its zoning ordinance.
Mittelman said that Town staff had interpreted the Code incorrectly. He went on to say that
Town staff has created its own secret rules and interpretation. He said the Code section in
question (16.03.030) is plain and unambiguous, and the sentences are independent of each other.
He said that staff should ask for a zoning text amendment for clarification.
Mr. Mittelman said there is no a precedent for approval of front yard pools because there is no
community outcry for front yard pools. He said that some communities do have, but not
Tiburon. He said the Town could ban them as an attractive nuisance, not to mention
consideration of other issues like decency and safety. Mittelman said he felt sorry for Mr.
Morgan to go through this, but that his remedy to ask for a variance. He said that Ground No. 1
of the appeal should be upheld.
Mayor Doyle asked Design Review Boardmember Gordon Cousins for his comments on the
decision.
Mr. Cousins said that at the first hearing, the Board accepted the explanation that a front yard
pool complied with the Code and the Board went with that interpretation. He said that there was
already a terrace and a fire pit in the proposed location, and that it's on the sunny side of the
house which seemed to be the best place to locate a pool. He said it was still a fair distance from
other properties.
Mr. Cousins agreed that the house was built on a large bank (of fill) which made it more
prominent; that, and the fact that the vegetation had not yet taken hold. He said that the Board
had suggested planting within a metal fence to protect the landscaping from deer.
Mr. Cousins said it was suggested to the Board that the noise could be mitigated through the
installation of solid fencing, a suggestion the Board accepted. He said that along with additional
planting, this was thought to be an acceptable compromise with the neighborhood.
The appellants provided a rebuttal. Mr. Roy said the house acts as a megaphone, and because of
this, the pool had been left out of the original plans. Mr. Lieberman said that Mr. Morgan's
characterization of the distance between the pool and his children's bedroom (50 feet at the
farthest point) was wrong. Mrs. Lieberman said that there was room in the backyard for a pool;
and that the glass fence still needed story poles.
The applicant gave a rebuttal. He said that he had, in fact, built the house on speculation, but
was now living in it. He said the fence would be built 54 inches off the ground for safety, and to
create a favorable sound barrier. He said the Town's Building Department had granted him a
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utility undergrounding waiver due to the location of the power pole. He said his garbage
enclosure would be finished soon.
Mayor Doyle closed the public hearing. Council asked various questions of staff.
Vice Mayor Tollini asked about the story poles and the different requirements for setbacks and
how they were measured: 10 feet for back yard, 8 feet for side yard, and 15 feet for front yards.
Director of Community Development Anderson clarified that for the R-1 zone [in which the
property is located], the front setback from the property line along Benton Court is 15 feet and
the side setback from the property line on Hacienda Drive is 8 feet.
Councilmember Fredericks asked to address the issue of statutory compliance, especially in light
of the few opportunities to apply them to front yard pools.
Town Attorney Stock said that first of all, the Town Council interprets the Municipal Code. He
said that staff s interpretation was based on the use of setbacks, front and side yard, and that the
two following sentences (in the Code section) dropped those words.
Councilmember Fredericks asked for clarification of the staff report that states, the "Town has
consistently interpreted this section..." as such. Director Anderson said that the Town has been
consistent in its application of required "setbacks", rather than the more generic concept of
"yards", to regulate uses, buildings and structures. He noted that the distance between a
residence and any given property line varies greatly across town and could be very large on many
properties; it made no logical sense to prohibit sheds and accessory structures between a
residence and a property line, no matter how great the distance might be, simply because it was a
"yard" area. He stated that the required setback is the area of limitation.
Vice Mayor Tollini read the paragraph regarding accessory buildings and added the word
"setback" for clarification. Director Anderson said that while pools and spas are not accessory
buildings, the word could be added in that section for clarification. Vice Mayor Tollini said that
regardless of the interpretation, this section should be clarified.
Councilmember Fraser asked staff whether story poles could have been required for the fence.
The answer was affirmative.
Councilmember O'Donnell asked whether there was a minimum fence height for swimming pool
enclosures. Director Anderson responded that he believed the required fence height surrounding
a swimming pool was somewhere between four and six feet pursuant to the California Building
Code.
Mayor Doyle asked if all the grading was done to Code. Director Anderson said that would have
been verified prior to finalization of the building permit for the house.
Town Council Minutes #19-2015 October 21, 2015 Page 10
Councilmember O'Donnell asked if the new storm water runoff regulations applied to this
project. Anderson said no, because it had been built prior to adoption of the new regulations.
However, he said there were other codes that applied.
Vice Mayor Tollini asked if there was any other place in the zoning code that discussed
swimming pools. Anderson responded that he was not aware of any.
The Council began its deliberations on the item.
Councilmember Fredericks said that she understood the impacts of noise from pools, and that
they were used as a place of congregation for parties, music and the like. She also said she heard
the noise from her neighbor's pool equipment. She also acknowledged that neighborhoods do
change over time. She said that eventually the vegetation will grow and provide screening.
Fredericks said she felt staff's interpretation of the Code was reasonable, especially in reasoning
that the topography [height] of the pool area would help reduce the noise. She said the Town
might be setting a precedent in approving the application but that she would vote to uphold the
decision of the Design Review Board. Fredericks also said she might consider adding a
condition to approval to ban amplified music in the pool area.
Councilmember O'Donnell said that he had a pool in his front yard. He said that one of the
challenges of Tiburon's topography is difficulty of siting things. He said that if his pool was
located in the back yard, it would not get sun all day.
O'Donnell said that he, too, would vote to deny the appeal. He said that the setback issue was a
"close call", but that he would concur with staff's interpretation and support the Boards'
decision. He agreed that there would be noise associated with the pool, but noted that there was
already a patio in that location where there would be activity anyway. He also agreed that the
fencing should be glass or plexiglass, and not an opaque structure.
Vice Mayor Tollini said that she understood how a reasonable person could interpret the Code
section differently. She said she would like Section 16.30.030 to be stated more clearly. But she
said it would not be fair if the Council interpreted it one way, and then changed it after the fact.
Tollini said she also wished there had been story poles to show the location and height of the
fence. She said that [tall] fences were off-putting and she did not like this look in Tiburon. The
Vice Mayor said that everyone was worried about the effects of El Nino, and earthquakes, but
that the only [factual] thing the Council could rely on was the geotechnical opinion. She would
vote to deny the appeal.
Councilmember Fraser said it was unfortunate that there seemed to be a "gray area" in the Town
Code, and that the code section's interpretation could go either way. He said that both sides of
the issue deserved respect, and he agreed that everything we do affects our neighborhoods.
Fraser said that there was noise from pool equipment, which ran all the time. He said that proper
Town Council Minutes #19-2015 October 21, 2015 Page 11
mitigations should be ensured, and that the Building Department has the skills to ensure
compliance in the other matters.
Fraser said he was troubled by the height of the fence, and that the elevations were not clear from
the drawings. He said it might be worth seeing story poles to evaluate the fence from the
different viewpoints and elevations. He wondered whether asking for the story poles could help
provide additional information; he said if he lived there, he would like to know, so he was
inclined to vote in favor of the appellants as things stood now.
Mayor Doyle said he was inclined to agree with Councilmember Fraser. However, he said he
was not bothered by the noise issue, as he, too, had neighbors with pools. (He commented that he
did not hear noise from the adjacent ones, just the farthest one.) He said he was okay with the
pool location, because there was already a patio there now. He said he was more concerned with
what was around it. Doyle said that he was somewhat worried about the glass fence and whether
it would cause a reflection.
The Mayor said that in the plans for new homes, the landscape plans always looked great. He
asked whether larger plants might be put in to expedite the screening. He said a good example of
screening was the landscaping in front of the Art and Garden Center [on Tiburon Boulevard].
The Mayor said that he would like to envision the entire project better — with vegetation, fencing
and the like -- before deciding. Councilmember Fraser said that a rendering would be beneficial.
Councilmember Fredericks said she had walked around the house and acknowledged the
perception of a seemingly "huge mound" of fill. She said she wondered whether the vegetation
would make that much difference in this perception.
Vice Mayor Tollini continued to maintain that story poles might help complete the picture.
Councilmember O'Donnell agreed, if it was going to be a solid fence, but with a glass fence, he
said he did not concur. He believed that glass fencing would be much less visually intrusive
because you could see through it.
Councilmember Fredericks asked exactly what the story poles would show. Councilmember
Fraser said that it would show height from the street, the perception of the neighbors. He said it
might look minor, or it might not.
Mayor Doyle reminded everyone that the appeal was about the pool in the front yard, not what
the fence looks like. He asked for a motion.
MOTION: To direct staff to return with a resolution of findings to deny the appeal, with an
amendment to the application to require glass fencing at the required height for
pool enclosures, and for enhanced landscaping outside of the fence.
Town Council Minutes #19-2015
October 21, 2015 Page 12
Councilmember Fredericks asked if there was support for further limitations on noise [amplified
music]. Councilmember O'Donnell said he would not support this.
Motion stood, as written.
Moved: Fredericks, seconded by O'Donnell
Vice Mayor Tollini said she would vote for the motion, but only because of the glass fencing. If
it were opaque fencing, she said she would not vote to adopt the motion.
Vote:
AYES: Fredericks, O'Donnell, Tollini
NOES: Doyle, Fraser
Councilmember Fredericks noted that a majority of the Council would like to see future
clarification of Section 16.030.30, such that it clearly pertains to setbacks and not a prohibition of
pools in the front yard.
2. Seasonal Rental Units — Amendments to Chapter 16 (Zoning) of the Tiburon Municipal ode
to prohibit seasonal rental units (Community Development Department) — continued without
discussion to November 4, 2015
The Town Manager noted that due to the need to schedule meetings of the Council
subcommittee, it was recommended that the hearing be moved forward to November 18.
Council concurred.
MOTION: To continue the hearing to the November 18, 2015 regular meeting.
Moved: O'Donnell, seconded by Tollini
Vote: AYES: Unanimous
TOWN COUNCIL REPORTS
None.
TOWN MANAGER REPORT
Review of proposed agenda for Heritage and Arts Commission Workshop with Town Council on
Oct 27, 2015
Town Manager Curran reviewed the draft agenda and accepted suggestions from the Council.
Town Council Minutes #19-2015 October 21, 2015 Page 13
WEEKLY DIGESTS
• Town Council Weekly Digests — September 18 & 25, 2015
• Town Council Weekly Digests — October 2, 9 & 16, 2015
Received.
ADJOURNMENT
There being no further business before the Town Council of the Town of Tiburon, Mayor Doyle
adjourned the meeting at10:05 p.m.
ATTEST:
DIANE CRANE IACOk, TOWN CLERK
Town Council Minutes 1419-2015
October 21, 2015 Page 14