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Home My WebLink AboutTC Agd Pkt 2005-09-21 , . ~...~, TOWN OF TIBURON Town Council Chambers 1505 Tiburon Boulevard Tiburon, CA 94920 September 21, 2005 7:30 P.M. - Regular Meeting . . ;i ASSISTANCE FOR PEOPLE WITH DISABILITIES /IIUN In compliance with the Americans with Disabilities Act, if you' need special assistance to participate in this meeting, please contact the Town Clerk at (415) 435-7377. Notification 48 hours prior to the meeting will enable the Town to make reasonable arrangements to ensure accessibility to this meeting. AVAILABILITY OF INFORMATION Copies of all agenda reports and supporting data are available for viewing and inspection at Town Hall and at the Belvedere-Tiburon Library located adjacent to Town Hall. Agendas and minutes are posted on the Town's website, www.cLtiburon.ca.us. Upon request, the Town will provide written agenda materials in appropriate alternative formats, or disability-related modification or accommodation, including auxiliary aids or services, to enable individuals with disabilities to participate in public meetings. Please send a written request, including your name, mailing address, phone number and brief description of the requested materials and preferred alternative format or auxiliary aid or service at least 5 days before the meeting. Requests should be sent to the Office of the Town Clerk at the above address. PUBLIC HEARINGS Public Hearings provide the general publiC and interested parties an opportunity to provide testimony on these items. If you challenge any proposed action(s) in court, you may be limited to raising only those issues you or someone else raised at the Public Hearing(s) described later in this agenda, or in written correspondence delivered to the Town Council at, or prior to, the Public Hearing(s). TIMING OF ITEMS ON AGENDA While the Town Council attempts to hear all items in order as stated on the agenda, it reserves the right to take items out of order. No set times are assigned to items appearing on the Town Council agenda. ' , :. . . Agenda - Town Council Meeting September 21, 2005 Page 2 of 4 AGENDA CALL TO ORDER AND ROLL CALL Council member Fredericks, Councilmember Gram, Councilmember Slavitz, Vice Mayor Smith, Mayor Berger ORAL COMMUNICATIONS Persons wishing, to address the Town Council on any subject not on the agenda may do so now. Please note however, that the Town Council is not able to undertake extended discussion or action tonight on items not on the agenda. Matters requiring action will be referred to the appropriate Commission, Board, Committee or staff for consideration and/or placed on a future Town Council meeting agenda. Please limit your comments to no more than three (3) minutes. REPORTS FROM TOWN BOARDS. COMMISSIONS AND COMMITTEES . Marin Commission on Aging - Allan Bortel CONSENT CALENDAR All items on the Consent Calendar may be approved by one motion of the Town Council unless a request is made by a member of the public, staff or Town Council that an item be transferred to the Regular Agenda for separate discussion and consideration. Likewise, any item on the Regular Agenda may be moved to the Consent Calendar. If you would like to speak on any of these items on the Consent Calendar below, please do so now. 1. Approval of Town Council Minutes - September 7, 2005 2. Recommendation by Director of Administrative Services - Accept Town Monthly Investment Summary - August 2005 3. Recommendation by Director of Public WorkslTown Engineer - Accept 2004-05 Street Rehabilitation Project as Complete a) A Resolution of the Town Council of the Town of Tiburon Accepting 2005 Street Rehabilitation Program 4. Recommendation by Director of Public WorkslTown Engineer - List of Streets for 2005-06 Street Rehabilitation Project 5. Recommendation by Project Coordinator - Approval of Lyford Cove Utility Undergrounding Assessment District Plans and Specifications for Re-bid of Contract 6, Recommendation by Advance Planner - Annual General Plan Status Report for FY 2004-2005 "" Agenda - Town Council Meeting September 21, 2005 Page 3 of 4 Ii :1 (.- Recommendation by Director of Community Development - Application for Irrigation Well Permit - continued from August 17, 2005 7. Sharam Tajback 3 Francisco Vista 039-111-11 Property Owner: Address: Assessor Parcel No, REGULAR AGENDA 8. Recommendation by Director of Public WorkslTown Engineer - Affirm Town Council Prioritization of Rule 20A Public Utility Undergrounding Funds 9. Recommendation by Director of Public WorkslTown Engineer - Town Council Policy Regarding Street Repairs in Conjunction with Utility Undergrounding Projects 10. Recommendation by Director of Community Development - New General Plan Implementation Program Prioritization PUBLIC HEARING 11. Recommendation by Town Attorney and Director of Community Oevelopment - Economic Exception Ordinance - continued from September 7, 2005 . Introduction and First Reading of Ordinance a) An Ordinance of the Town Council of the Town of Tiburon . Adding a new Article VII to Title IV, Chapter 16 of the Tiburon Municipal Code regarding Economic Exceptions COUNCIL AND COMMITTEE REPORTS WRITTEN COMMUNICATIONS Town Council Weekly Digest - September 9, 2005 Town Council Weekly Digest - September 16, 2005 ADJOURNMENT . . . . . . . . . . . . . . . . . Agenda -Town Council Meeting September 21, 2005 Page 4 of 4 FUTURE MEETINGS: . TOWN COUNCIL/HOMEOWNER'S ASSOC, SUMMIT - Saturday, October 1, 2005 - 10:00 a.m, (Founder's Room at Belvedere-Tiburon Library) . LEAGUE OF CALIFORNIA CITIES ANNUAL CONFERENCE - October 5-8, 2005 (Moscone Center, San Francisco) . RUSD SCHOOL BOARD CANDIDATE FORUM - Tuesday, October 11, 2005 - 7:00 p.m, (Town Council Chambers) . TOWN COUNCIL CANDIDATE FORUM - Tuesday, October 18,2005- 7:00 p.m. (Town Council Chambers) . TOWN COUNCILlRUSD JT. MEETING - Wednesday, November 30, 2005 - 7:30 p.m. (Town Council Chambers) FUTURE AGENDA ITEMS - Note: These items are tentative until thev aDDear on the final aoenda Town Manager/Town Attorney Annual Performance Review - (October 5) Risk Management Presentation - (October 5) Encroachment Ordinance - (October 5) Harris & Association Contract for new Deputy Town Engineer -(October 5) South Knoll Playground Renovation Award of Contract - (October 19) Award of Contract to Televise Storm Drains - (October 19) Award of Contract/Railroad Marsh Maintenance and Cat-tail Removal - (October 19) Appeal of Planning Commission Denial of Conditional Use Permit Application for 2nd Story Banquet Facility Expansion Plan for Caprice Restaurant - (continued to NEW date of October 19) 1st Quarter Financial Report - (October) Redevelopment Agency Annual Report - (October) Annual COPS Resolution - (October) Wireless Communication Facilities Ordinance Appeal of Design Review Board Approval of Site Plan and Architectural Review - 77 Round Hill Road - (November 2) . . . ; TOWN COUNCIL MINUTES CALL TO ORDER I;ie,,,- IClh I Mayor Berger called the eeting ofthe Tiburon Town Councilto order at 7:30 p.m. on Wednesda, eptember 7;20~, in Town Council Chambers, 1505 Tiburon Boulevard, Tiburon, C ifornia. ) . ROLL CALL PRESENT: COUNCILMEMBERS: Berger, Fredericks, Gram, '81avitz, Smith Town Manager McIntyre, Town Attorney Danforth, Director of Community Development Anderson, Advance Planner Bryant, Director of Public Works/Town Engineer Echols, Chief of Police Odetto, Director of Administrative Services Bigall, Town Clerk Crane Iacopi PRESENT: EX OFFICIO: Prior to the regular session, beginning at 6:15 p.m., the Council met in closed session to discuss the following matters: CLOSED SESSION CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Section 54956.9(a)) Town ofTiburon 1:'. Sylvia CONFERENCE WITH LEGAL COUNSEL - THREATENED LITIGATION (Section 54956.9(b)) Threatened litigation by County of Marin INTERVIEW - 7:15 D.m. . Frank Doyle, 85 Round Hill Road ANNOUNCEMENT OF ACTION TAKEN IN CLOSED SESSION. IF ANY Mayor Berger said that no action was taken in closed session. Town Council Minutes # 20-2005 September 7, 2005 Page 1 " , ORAL COMMUNICATIONS . John Kunzweiler, 16 Norman Way, said that he had just returned from Baton Rouge, Louisiana and described the "absolute catastrophe" he had witnessed. He urged the Council to focus on disaster preparedness for the Tiburon community. Mr. Kunzweiler said that he was trying to enroll his two nephews (from Louisiana) in Marin County private schools and had encountered obstacles due to caps placed on the number of students by virtue of their conditional use permits. He suggested that a "prudent and speedy way" to deal with this disaster-related scenario be considered. Councilmember Fredericks invited Mr. Kunzweiler to the next meeting of the Be1vedere- Tiburon J oint Disaster Advisory Council. Mayor Berger also noted that the Council was working with police and fIre personnel to "get the word out" about disaster preparedness. APPOINTMENTS TO BOARDS. COMMISSIONS AND COMMITTEES . Design Review Board - (One Vacancy) MOTION: Moved: Vote: To appoint Frank Doyle to the Design Review Board Slavitz, seconded by Smith AYES: Unanimous . CONSENT CALENDAR 1. Approval of Town Council Minutes - August 17, 2005 Amendments were submitted as "late mail" by Councilmember Fredericks and Mayor Berger; Counci1member Gram read his changes to page 7 of the August 17,2005 minutes. (After the first paragraph add, "approval of this application in no way affects the validity of the agreement." E.C. Grayson, President of the Pt. Tiburon Bayside Homeowner's Association, also commented on the August 17 minutes. Mr. Grayson said that Vice Mayor Smith hadbeen "very articulate" in his description of the height of the berm [at the site of the proposed gallows wheels installation at the Donahue building], by stating that if you were to shoot a laser line across the top of the berm, the gallows wheels would not be visible. Mr. Grayson said that an architect/engineer had measured the height ofthe berm and he submitted these measurements and a photograph of the berm to the Council [which also appeared Town Council Minutes # 20-2005 September 7, 2005 Page 2 . -::/ . . . in the September 2,2005 Town Council Digest]. Grayson said this showed that the top of the berm was "nine inches from the baseline." Finally, Mr. Grayson said that another issue that had been brought up was lighting and stated that it was their understanding that there was to be no lighting at the site. He said that the minutes should reflect these items. Mayor Berger replied that the direction given by the Council in its approval of the installation was that the wheels were to be no higher than the berm. Vice Mayor Smith said that he had indeed made the statement about the laser level. Mayor Berger said that "we didn't mention lighting." Town Attorney affirmed that lighting had not been discussed at the [August 17] hearing and said that it could not therefore be added to the minutes. Vice Mayor Smith asked for clarification that the project application as presented did not include _ lighting. Town Manager McIntyre affirmed this statement. Mayor Berger noted that the record now reflected Mr. Grayson's comments as well as the Council's comments. 2. Recommendation by Director of Public Works/Town Engineer - Denial of Appeal of Encroachment Permit Conditions for Installation ofFence and Gate at 696 Hilary Drive a) A Resolution ofthe Town Council ofthe Town of Tiburon Denying an Appeal by Mark Gineris of Encroachment Permit Conditions and Directing Actions for Compliance, Including a 90-day Non-Enforcement Grace Period (Assessor Parcel No. 055-212-04) 3. Request by Chamber of Commerce - Funding for Second Annual Oktoberfest on Main Street, September 30, 2005 4. Recommendation by Town Manager - Retention of Executive Recruiter for Town Engineer/Director of Public Works Recruitment 5. Recommendation by Town Manager - Retention of Consultant for Management Audit, of Community Development Department 6. Request by Reed Union School District - Support of November 8, 2005 Facilities School Bond Town Council Minutes # 20-2005 September 7, 2005 Page 3 \;i, a) A Resolution of the Town Council of the Town ofTiburon In Support of Measure "A" for the Reed Union School District $13 Million Facilities Bond Measure . Christine Carter, Reed Union School Superintendent, gave a brief history and presentation on the latest bond measure needed to complete the school district's facilities plan. She thanked the Council for its support of the measure. MOTION: Moved: Vote: To adopt Consent Calendar Item Nos. 1 through 6, as amended. Slavitz, seconded by Smith AYES: Unanimous REGULAR AGENDA 7. Recommendation by Town Manager - Lyford Cove Utility Undergrounding Assessment District Resolution Authorizing Supplemental Bond Sale - Series 2005-2 a) A Resolution of the Town Council ofthe Town ofTiburon Authorizing Issuance of Limited Obligation Improvement Bonds (Lyford Cove Utility Undergrounding Assessment District) Town Manager McIntyre said that the recommendation was to issue a second series of bonds for . the above district due to the fact that the first series was issued for less than the dollar amount approved by the Council. He stated that the sale would not increase the individual assessments of the property owners in the district, nor would it affect the amount of money available for construction. At the request of the Mayor, Mark Pressman, bond underwriter, explained the situation more fully. He stated that the proponents had not raised enough money to cover the engineering costs of the district, a fact which did not come to light until after the bonds were sold. Typically, the engineering study would be complete prior to the assessments being determined, according to Pressman, but this was not the case in the Lyford Cove district. There were other factors which resulted in the bonds not being sized properly in the first sale, according to Pressman, but by working with bond counsel, the district engineers, and the bank, they had come up with a way to sell $173,000 which would take the total bond sale amount up to the $400,000, This was the amount "everyone expected to pay," and was the same amount approved by Council resolution, according to Pressman. Vice Mayor Smith asked about the cost of the series 2 bonds. Mr. Pressman said that the first series had come in at 88.4% for construction and engineering, with a 2% reserve; series 2 would place 95.6% "into the ground" with a 2% reserve with an additional $4100 in "soft costs." Town Council Minutes # 20-2005 September 7, 2005 Page 4 . -, .- . . . Mr. Pressman said that neither his firm (Wulff, Hansen), bond counsel (Jones, Hall) nor the town had charged any fees for this transaction. CouncilmemberGram asked about the estimated percentage rate for the bond sale. Mr. Pressman said that he expected to sell them at 5.1 %. Gram also asked if the matter had been discussed with the district organizers. Town Manager affirmed this statement. MOTION: Moved: Vote: To adopt resolution authorizing bond sale, as presented. Fredericks, seconded by Slavitz AYES: Unanimous 8. Presentation and Report by Godbe Research - Tiburon Peninsula Public Opinion Research Survey Results The Town Manager re-introduced Brian Godbe and Sean Bridge of Godbe Research, who had conducted the survey. Godbe 'and Bridge provided information concerning the methodology and results of the survey. One highlight was that the respondents rated their overall satisfaction with Town services at 91 %; Godbe and Bridge noted that this was a very high approval rating and that only one other city (Cerritos, in Southern California) had rated higher in a similar survey. Some of the "perceived challenges" uncovered in the survey questions were: . Too much growth . Damaged roads . High cost of living . Traffic and lack of public transportation In prioritizing town services into the categories of "how important" and "how satisfied," the respondents rated "maintaining local streets" both low in satisfaction and low in priority; and "providing building and planning services" as both high in importance and high in satisfaction. Mr. Godbe commented on the portion'ofsurvey thllt dealt with Tiburon's downtown. He said that there was a 15% dissatisfaction rate, which showed room for improvement, and that 38% said that they went downtown 20 or more times per month, and 30% of those respondents said they went downtown on weekdays during the day. Mayor Berger said that these respondents might be commuters. Counci1member Fredericks asked whether there was a comparison between frequency of downtown visits and level of satisfaction. Mr. Godbe replied that the results illustrated this. Town Council Minutes # 20-2005 September 7, 2005 Page 5 Mr. Godbe said that the primary reasons (stated by respondents) for coming downtown were: . Dining out . Shopping for food . Shopping for apparel/gifts . The Vice Mayor commented that there were different perceptions of the parameters of "downtown" Tiburon. Mr. Godbe said that another question concerning downtown was (the lack of) parking question which he said was calculated as a factor but not very high. Other questions regarding downtown asked what kinds of restaurants the respondents would like to see and what kinds of stores. Mr. Godbe said that the 18-39 age group was most interested in seeing additional Asian and family/casual dining restaurants. He said that the most requested stores were "clothing, drugstore, gourmet and children's." Mr. Godbe said that one other question concerned a proposed housing plan for downtown; 46% had agreed with the concept, while 44% had disagreed with the idea. Councilmember Fredericks said that there was no sense of what the disagreement represented; Councilmember Slavitz commented that it could be an opposition to development, generally. Mr. Bridges said that if the survey had focused on a specific [housing] project it would lend more . specific results. Mayor Berger commented that most people had not thought about the concept and that this was probably the first time they had heard the question. Councilmember Gram said that the question focused on housing, and that he thought the question would ask for an opinion on "a retail-serving plan downtown with some housing." These were two very different questions, according to Gram. Mr. Godbe said that the conclusions that could be drawn from the survey were that there was high satisfaction with Town services and satisfaction with downtown but that there was also room to improve. He recommended that the Council review the responses to the "open-ended" questions in the survey results in order to gain insights on how to shape future of the downtown , . area. Mayor Berger opened the public hearing. Allan Bortel asked about the Belvedere- Tiburon library. Mr. Godbe said that both importance and satisfaction were rated "extremely high," with 78% stating it was "very important" and 94% stating they were "very or somewhat satisfied." Town Council Minutes # 20-2005 September 7, 2005 Page 6 . ~,J . Mr. Bortel asked whether going to the library was listed as a reason for going downtown. Godbe said that only 11 % answered this question affirmatively. Mayor Berger said that the library was very valuable to the community. \, Town Manager McIntyre said that the survey results reaffirmed Council's direction on several topics-that the Council had doubled the amount. of money budgeted for street maintenance and repair in the current fiscalyear (but that concerns regarding sustaining this level of funding needed to be addressed). He also stated that the Council had approved a management review of the [services provided by the] Community Development Department. Mr. McIntyre said that the survey provided useful information and that a follow-up survey in a couple of years would let the Town Council review the results of its efforts in these areas. Mayor Berger commented that the issues discussed in the survey were timely in relationship to the downtown area, given that there was a movement for change as a result of changes in property ownership and the like; that the survey was not just a "feel good" effort by the Town. The Town Manager said that additional detail from the survey would be provided to the Council. PUBLIC HEARING . 9. Recommendation by Town Attorney a~d Director of Community Development- Economic Exception Ordinance - continued from June 29, 2005 Introduction and First Reading of Ordinance a) An Ordinance ofthe Town Council ofthe Town of Tiburon Adding a new Article VII to Title N, Chapter 16 of the Tiburon Municipal Code regarding Economic Exceptions Town Attorney Danforth said that the proposed ordinance had first been presented to the Town Council in June. She said that the Council had directed staff to revise the time1ines section and that the Vice Mayor further suggested that the timelines be postponed until after the Town Council had approved a project on the merits. Ms. Danforth said that Fran Layton, attorney for the Last Chance Committee, had proposed additional language to clarify that the applicant be required to come in as soon as possible [to file for an economic exception], as well as language stating that the Town Council would retain jurisdiction to act on an economic exception application after the decision on the merits. Vice Mayor Smith asked for clarification between the two drafts submitted as "late mail." . Town Council Minutes # 20-2005 September 7, 2005 Page 7 ~ Counci1member Gram commented that due to the latest proposed changes to the ordinance, which had just been received by Council this evening, the item should be continued. . Vice Mayor Smith concurred, and said that the staff report should highlight all of the proposed changes to the ordinance, and the pros and cons of adopting this type of procedure. Mayor Berger asked for a defmition of "economically viable" in the context of an expert evaluating the economic viability of a project He asked whether the process of analysis could be amplified and whether standards for judging viability. . Ms. Danforth said that the courts have not established a clear definition of economic viability. The Institute for Local Self Government uses that phrase because it is central to recent takings decisions, according to Danforth. The courts delineate the meaning of economic viability on a case-by-case basis and the Town would do the same. She said that having an [economic exception] ordinance in place would not necessarily avoid takings lawsuits but that it would provide a better basis on which to uphold the Town's decisions. ' Councilmember Fredericks asked if this would also reduce the amount of discovery (in a lawsuit); Ms. Danforth agreed with this statement. Mayor Berger opened the public hearing. Jerry Riessen, 616 Ridge Road, said that staffhad done a good job in preparing the ordinance; he . said that it would encourage a "positive process and be a great tool to safeguard you in land planning." Mayor Berger closed the public hearing. MOTION: Moved: Vote: To continue the item to September 21,2005. Fredericks, seconded by Slavitz AYES: Unanimous 10. Recommendation by Advance Planner - Adoption ofTiburon General Plan a) A Resolution of the Town Council of the Town ofTiburon Certifying the Final Environmental Impact Report for the Adoption of the Tiburon General Plan, Tiburon 2020 b) A Resolution of the Town Council of the Town of Tiburon Adopting Findings, A Statement of Overriding Considerations, And a Mitigation Monitoring Program, relating to the Adoption of Ofthe Tiburon General Plan, Tiburon 2020, pursuant to the California Environmental Quality Act Town Council Minutes # 20-2005 September 7, 2005 Page 8 . 7,1 . c) A Resolution ofthe Town Council ofthe Town of Tiburon Adopting the Tiburon General Plan, Tiburon 2020 Director of Community Development Anderson made some opening remarks and then turned over the floor to Advance Planner Bryant.. . Anderson said that Tiburon 2020 represented a complete update of all the elements ofthe Tiburon General Plan. He said that the town's general plan;had not been updated in 16 years and that the new plan was a big improvement over the last one. Director Anderson said the process had been a smooth and healthy one and that while there were certainly costs associated with the update, the process and end result was in some respects "priceless." He remarked that some bridges had been rebuilt in the community as a result. Anderson praised the talent and professionalism of Advance Planner Kevin Bryant who did a "masterfuljob." He also thanked the Planning Commission, Town Council and EIR consultant Bob Berman for their efforts. Advance Planner Bryant reviewed the. history and process of creating the new general plan, Tiburon 2020. He said that 400 people had provided input into the plan and that all this feedback had been taken into account. He outlined the Planning Commission approval process and the . next steps to be taken by Council. Bryant said that the smooth process and level of participation "speaks to the quality of the ' coIhmunrly;" he said it had been a pleasure to work on the plan with all those who were involved. Bryant introduced members of the Planning Commission, past and present,.who were in the audience: Randy Greenberg(now a Marin County Planning Commissioner); John Kunzweiler and Wayne Snow. Mayor Berger opened the public hearing. George Landau, 82 Sugarloaf Drive, said that something should be added to protect the view of "people who have been here a long time." He urged the Council to insert more view protection language in the General Plan. Councilmember Slavitz commented that the Advance Planner had stated that view issues were more appropriately addressed in the Town Code and other regulations than in the General Plan. . John Kunzwei1er, Planning Commission Chair, said that he respectfully disagreed with Mr. Landau's position and stated that the General Plan was a "big [picture] plan." He said that there had been a lot of "wordsmithing" on all of the issues and that the time had come to complete the process. Town Council Minutes # 20-2005 September 7, 2005 Page 9 Mr. Kunzweiler said. that the Planning Commission recommended unanimous approval of the plan. . Jerry Riessen, 616 Ridge Road, complimented the Planning Commissioners for their work on the new plan, as well as Kevin Bryant, who he said had worked so well with everyone involved. Allan Borte1, Tiburon representative to the Marin Commission on Aging, took issue with a statement in the plan about the perceived lack of future housing county-wide for those with dementia. He said that this statement was not true; that there were now ample market-rate dementia facilities in the County with more coming on-line; otherwise, Bortel said, the plan "looked great for seniors." Mr. Bortel said that the greatest need for seniors in the county was for affordable housing; he recommended that the word "affordable" be inserted before "dementia" in describing the need for housing. Council discussed his recommendation and agreed to insert the language in Section 9-22 of the Housing Element. Advance Planner Bryant said that this action would have no material effect on the plan. Mayor Berger closed the public hearing. Mayor Berger praised the level of discussion and care undertaken in writing the new plan; he said it was a testament to the hard work of the Planning Commission and others who had participated in the process. . Vice Mayor Smith echoed these comments and said that the process had "gone so much better than it could have gone." Councilmember Gram remarked that the Town had a good plan but that the new plan strengthened the ability to improve and upgrade the downtown, as well as providing further protection of open space. Gram praised Mr. Bryant stating that his work was "expertly done," and that he had dealt with people and issues in an exemplary manner. Councilmember FrederickS said that the new plan was not only coherent, but educational; she said it was a tool that clearly setout the priorities of the Town. She said that the actual meaning of the general plan was a "story about our community," made even more compelling by the level of passionate participation throughout the process. Counci1member Slavitz echoed the sentiments expressed by his colleagues and said that the plan was an "excellent vision of the future." Town Council Minutes # 20-2005 September 7, 2005 Page 10 . ,!,I . . . MOTION: Moved: . Vote: MOTION: Moved: Vote: MOTION: Moved: Vote: To approve the resolution certifying the Final Environmental Impact Report Gram, seconded by Slavitz AYES: Unanimous To approve the resolution of findings, a statement of overriding considerations, and a mitigation monitoring plan Smith, seconded by Fredericks AYES: Unanimous To adoptthe Tiburon General Plan, Tiburon 2020 Slavitz, seconded by Smith AYES: Unanimous COUNCIL AND COMMITTEE REPORTS Mayor Berger remarked on the success ofthe Labor Day Parade and especially thanked Tony Iacopi for creating ' the Town's "float." CouncilmemberFredericks asked her fellow councilmembers to review a resolution sponsored by the City of San Francisco regarding broadband service that would be considered for adoption at the League Conference in October. WRITTEN COMMUNICATIONS Town Council Weekly Digest - August 19,2005 Town Council Weekly Digest- August 26,2005 Town Council Weekly Digest ~ September 2,2005 ,", Town Manager McIntyre asked for interest in participating in the "Belvedere Open" golf tournament. . ADJOURNMENT There being no further business before the Town Council ofthe Town ofTiburon, Mayor Berger adjourned the meeting at 9:27 p.m., to the next regular meeting scheduled for September 21, 2005. Town Council Minutes # 20-2005 MILES BERGER, MAYOR September 7, 2005 Page 11 ATTEST: DIANE CRANE IACOPI, TOWN CLERK Town Council Minutes # 20-2005 September 7, 2005 Page 12 . . . . Town of Tiburon STAFF REPORT AGENDA ITEM L . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FROM: Mayor and Members of the Town Council Heidi Bigall, Director of Administrative Services TO: SUBJECT: Monthly Investment Summary - August 2005 ~ MEETING DATE: September 21, 2005 REVIEWED BY: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TOWN OF TIBURON I nstitutionl Agency Investment Amount Interest Rate Maturity State of California LocaJAgency $18,757,259.80 3.179% Liquid Investment Fund (LAIF) Bank of America Other 0 % Total Invested: $18,757,259.80 . TIBURON REDEVELOPMENT AGENCY I nstitutionl Agency Investment Amount Interest Rate Maturity State of California Local Agency $931,333.14 3.179% Liquid Investment Fund (LAIF) Bank of America Other $0 $931,333.14 , Total Invested: Notes to Table Information: State of California Local Agency Investment Fund (LAIF): The interest rate represents the effective yield for the month referenced above. The State of California generally distributes investment data reports in the third week following the month ended. Acknowledgment: This summary report accurately reflects all pooled investments of the Town of Tiburon and the Tiburon Redevelopment Agency, and is in conformity with State laws and the Investment Policy adopted by the Town Council. The investment program herein summarized provides sufficient cash flow liquidity to meet . next month's estimated expenditures. ,-l,; ,.'! . Town of Tiburon STAFF REPORT ~ AGENDA ITEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TO: FROM: SUBJECT: Accept 2005 Street Rehabilitation Project conYfft\s Complete MEETING DATE: September 21, 2005 REVIEWED BY: ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .'. . . On June 1, 2005, the Tiburon Town Council awarded a contract to North Bay Construction, Inc. in the amount of $397,698 for the 2005 Street Rehabilitation Project. DISCUSSION . Project construction commenced in mid-July and was completed in August. The work included resurfacing streets in the Mt. T iburon neighborhood. The final contract p rice was $378,889.85. Contract work was completed in conformance with the project plans and specifications. North Bay Construction is to be commended for their outstanding work quality and efficiency in maintaining traffic flow in the Mt. Tiburon neighborhood during construction. Attached is correspondence from the homeowner's association expressing their appreciation for the work (Exhibit 1). RECOMMENDATION It is recommended that the Town Council accept the contract work performed by North Bay Construction, Inc. for the 2005 Street Rehabilitation Project as complete in accordance with the project specifications, approve the attached resolution and direct staff to file a Notice of Completion. EXHIBIT 1. E-mail from Mt. Tiburon Property Owner's Association 2. Resolution . ...' '-'>' " Pat Echols From: Sent: To: Cc: Mary Ellen WetlesEm [wetlesen@pacbell.net] . Wednesday, August 17, 2005 10:34 PM Pat Echols Alex Mcintyre; Barry Lemieux; Betsy Menzel; Bill Sweet; Charles Ewald; Ed Messerly; John Orvis Re: Mt. Tiburon Road Paving Subject: Dear Pat Echols, The Mt. Tiburon Property Owners Association would like to express our gratitude for your well organized, professionally managed and executed road pavement project. We are very appreciative of your fine efforts resulting in minimum inconvenience, on time completion and superior results. We are sure that our new and improved road will serve Tiburon for decades to come. Tiburon is very fortunate to have you as our Director of Public Works. Congratulations and thank you again for a job well done. Sincerely, Mary Ellen Wetlesen President, Mt. Tiburon Property Owners ,Association . . 1 . /''" " . . . RESOLUTION NO. XX-2005 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ACCEPTING 2005 STREET REHABILITATION PROGRAM WHEREAS, Patrick F. Echols, Town Engineer for the 2005 Street Rehabilitation Program has stated that, as of August 2005, the contract work wassatisfactonly completed in accordance with the contract specifications awarded on June 1, 2005 to North Bay Construction, Inc., Peta1uma, CA. NOW, THEREFORE, IT IS RESOLVED that the Town Council of the Town of Tiburon accepts the contract work as complete, which is more fully described in the aforementioned contract, located within the offices of the Town of Tiburon. . PASSED AND ADOPTED at a regular meeting ofthe Town Council ofthe Town ofTiburon on, Wednesday, September 21,2005, by the following vote: AYES: NOES: ABSENT: COUNCIL MEMBERS: COUNCIL MEMBERS: COUNCIL MEMBERS: MILES BERGER, MAYOR ATTEST: DIANE CRANE IACOPI TOWN CLERK -1- . Town of Tiburon STAFF REPORT if AGENDA ITEM I , . . . . . . . . . . . . . . . . . . . .'. . . TO: Mayor and Members of the Town Council FROM: Pat Echols, Director of Public Worksl Town Engineer ~ SUBJECT: Proposed 2005~06 Street Rehabilitation progr~' " .. , ,.' MEETING DATE: September 21, 2005 REVIEWED BY: . , - . . . . . . . . . . . . . . ... . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . BACKGROUND AND DISCUSSION Staff has reviewed the Town's Pavement Management. Program (PMP) report and developed recommendations for the 2005-06 Street Rehabilitation Program. The proposed program will include resuriacing of Bond Lane, Cibrian Drive, Esperanza Street, Gilmartin Drive, Hillcrest Road, Mar West Street, Old Landing Road, Stony Hill Road, Seafirth Lane, Seafirth Road, Via Paraiso East, and Via Paraiso West . Two of the streets (Mar West Stre.et and Old Landing' Road) listed above are in a failed condition. Consistent with current department practice, staff incorporates failed streets when they are in close proximity to a proposed paving project area or if grant funding is available. The Town expects to receive $122,000 in Federal funds to resuriace Mar West and the Tiburon Peninsula Club will resuriace titsheir frontage as part of their expansion project. The projected cost for the program, including design costs and contingencies, is estimated to be $1.3 million. Except as noted above, funding for the program will be provided primarily from Gas Tax and Street Impact and Refuse Vehicle Funds. RECOMMENDATION It is recommended that the Town Council adopt the above list of streets for inclusion in the 2005-06 Street Rehabilitation Program and -direct staff to prepare plans specifications and estimates for Councii review and approval. . September 16, 2005 1 of 1 t,1' . . . Town of Tiburon STAFF REPORT ~ AGENDA ITEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TO: Mayor and Members of the Town Council FROM: Troy Bassett, Project Coordinator, Dept of Public Works Approve Plans for Lyford Cove Rule 20B Utility Undergrounding Assessment District Project SUBJECT: MEETING DATE: September 21, 2005 REVIEWED BY: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . DISCUSSION When the Lyford Cove Utility Undergrounding Assessment District construction project was bid earlier this year, two bids were received, both of which were substantially higher than the engineer's estimate, Council authorized the rejection of both bids, and authorized staff to restructure the bid package for re-bidding the project later in the year, in an attempt to attract more bidders and more competitive bid prices, (Exhibit 2) Revised plans and specifications have been prepared by Harris & Associates for the construction project (see Exhibit 1 for plans). Revisions include separating the project into two separate contracts, one for the assessment district work, and one for the private service conversions; deleting landscape restoration work (private improvements on public right of ways) from the scope of work; extending the length of time allowed for construction from 6 months to 12 months; extending the length of trench allowed to be plated overnight from 100 feet to 150 feet in anyone location; and allowing contractors the use of the Blackie's Pasture overflow parking lot for staging during construction. The engineer's estimate for the project as currently packaged is $ 3,058,276. The project will be funded by the property owners within the District Staff is prepared to solicit contractor bids for the project and schedule the bid opening in November with contract award scheduled for early January 2006, Construction work would likely begin early next year. RECOMMENDATION It is recommended that the Town Council approve the plans and specifications for the Lyford Cove Rule 208 Utility Undergrounding assessment District Project and authorize staff to solicit contractor bids. EXHIBITS 1. August 17, 2005 Staff Report September 16,2005 1 of 1 Town of Tiburon STAFF REPORT 5 AGENDA ITEM TO: Mayor and Members of the Town Council. FROM: Troy Bassett, Project Coordinator, Dept of Public Works SUBJECT: Approve Plans for Lyford Cove Rule 20B Utility Undergrounding Assessment District Project MEETING DATE: September 21, 2005 REVIEWED BY: DISCUSSION When the Lyford Cove Utility Undergrounding Assessment District construction project was bid earlier this year, two bids were received, both of which were substantially higher than the engineer's estimate. Council authorized the rejection of both bids, and authorized staff to restructure the bid package for re-bidding the project later in the year, in an attempt to attract more bidders and more competitive bid prices, (Exhibit 2) Revised plans and specifications have been prepared by Harris & Associates for the construction project (see Exhibit 1 for plans). Revisions include separating the project into two separate contracts, one for the assessment district work, and one for the private service conversions; deleting landscape restoration work (private improvements on publiC 'right' of ways) from the scope of work; extending the length of time allowed for construction from 6 months to 12 months; extending the length of trench allowed to be plated overnight from 100 feet to 150 feet in anyone location; and allowing contractors the use of the Blackie's Pasture overflow parking lot for staging during construction, The engineer's estimate for the project as currently packaged is $ 3,058,276, The project will be funded by the property owners within the District Staff is prepared to solicit contractor bids for the project and schedule the bid opening in November with contract award scheduled for early January 2006, Construction work would likely begin early next year. RECOMMENDATION It is recommended that the Town Council approve the plans and specifications for the Lyford Cove Rule 208 Utility Undergrounding assessment District Project and authorize staff to solicit contractor bids. EXHIBITS 1, August 17, 2005 Staff Report ~~. . . . September 16, 2005 1 of 1 . Town of Tiburon STAFF REPORT . . AGENDA ITEM TO: Mayor and Members of the Town Council FROM: Pat Echols, Director of Public Worksl Town Engineer SUBJECT: Lyford Cove Rule 20B Utility Undergrounding Assessment District Project Bid Results MEETING DATE: August 17,2005 REVIEWED BY: DISCUSSION On Tuesday, July 2ih, construction contract bids were opened for the Lyford Cove Utility Undergrounding District project; two bids were received, The low bid was submitted by Maggiora & Ghilotti, Inc, in the base amount of $3,957,176 and the second bid was submitted by Golden State Utility Co, in the base amount of $4,460,927, The District Engineer's estimate included in the bid package was $2,525,000, Based on the magnitude of the low bid, both bids will be rejected, The District Engineer and Town staff solicited feedback from planholders and bidders in an effort to determine the factors contributing to the low number of bidders and the two high bids submitted, While there are a number of factors, the primary factor appears to be that engineering contractors are extremely busy at the present time due to the great number of active construction projects in the Bay Area. Also, given the large scale and complexity of the Lyford Cove project, many planholders could not identify or commit the necessary resources to carry out the work in accordance with the project timeline specifications and therefore elected not to bid. Those that submitted bids adjusted their bid prices upward to reflect uncertainties associated with schedule, off-pavement manual labor and landscape restoration, Staff met with the District Engineer (Harris &Associates) representatives and the District proponents to discuss potential bid modifications that could significantly reduce bid prices. Based on contractor feedback, it appears that re-bidding the project later this year (October or November) will likely attract more bidders and more competitive bid prices since contractors are typically not nearly as busy over the winter months, Other' possible modifications are included in the attached memorandum from Harris & Associates, RECOMMENDATION It is recommended that the Town Council authorize rejection of all bids received for the Lyford Cove Rule 20B Utility Undergrounding Assessment District and authorize staff to restructure the bid package as noted above, EXHIBITS 1, Memorandum from Harris & Associates [, t ,._vv~ 1 of 1 Harns & Associates .. MeRlorandum' to: Pat Echols, Town of Tiburon from: Mike Cooper re: Lyford Cove Utility Undergrounding District date: August 2, 2005 cc: Rocco Colicchia, Garry Lee, Russ Moore, Joan Cox This memo is to summarize information gathered from contractors regarding their bids received for the Lyford project and recommendations for action henceforth, We have spoken to representatives of the contractors that bid the project as well as to contractors that did not bid the job, but took out plans and expressed interest in bidding, At this point, we recommend rejecting all bids and rebidding the project The following are comments received that seem relevant to the high bids, Additionally, we have made suggestions to answer some of these concerns in ways that should reduce the cost of the project: · Length of construction is too $hort and raises concerns about the potential for liquidated damage charges, Contractor included costs to allow for liquidated damages in his bid. Change the time of construction to 250 working days. Reduce liquidated damages charge to $1000/day. . The start of construction in the fall is a problem with other work in progress, Rebid in mid September and allow a 60 day bid periOd with bids due after the construction season has slowed in mid November. This will allow construction to begin in January, weather permitting. ' . The Town limit on length of trench allowed to remain plated overnight limits production, Extend length of trench allowed to be plated overnight to 150 feet continuous in anyone location. . Availability during bidding of electtonicfiles for the bid schedules would have made bidding easier. Provide electronic files of Bid Schedule. . Some contractors are more interested in constructing mainline work within the streets rather than service conversions, The same subcontractor was shown for constructing the service conversions for both of the general contractors that bid the project The contractor said the number of bid items was cumbersome to the bid process, Separate the bid into two packages, one for assessment district work and one for private service conversions. " . . . Uncertainty over allowed traffic detours and/or street closures, This does seem legitimate in predicting the contractor's production, which impacts his bid prices, Specify a performance based Traffic Control Plan. Hold a mandatory pre-bid conference with prospective bidders . to clarify expectations regarding detours and road closures. 120 Mason Circle Concord, California 94520 (925)827-4900 FAX (925) 827-4982 concord@harris-assoc,com Admin_ Templales_MemoLogo&Address,dot .. . . · Staging and material disposal. Look carefully at any potential disposal sites that contractor could place and compact the excess trench spoils. Also, determine possible locations for staging and material storage sites closer to the project. . Construction hours. Consider extending construction hours to improve contractors efficiency, subject to City Council approval. Include as an alternate bid item a cost reduction for extended working hours. '. Concern for service locations requiring extra costs to restore surfaces, where a slight adjustment in location could save costs, Include in the bid documents the fact that service locations may be adjusted, with the appro veil of PG&E. . The bid prices for landscape restoration as a part of the service conversion work are extremely high, likely because of the uncertainty of the scope of work required to please the property owners. Delete landscape restoration from the contract and have property owners hire their own landscape contractors. Additionally, other items discussed with Town staff have included several factors that may have no potential solutions; higher cost of materials in Marin, concerns for the tightness of the work area and neighbor inyolvement The only suggestions here are to make it very clear that Town staff will be serving as the Project Coordinator with the property owners and will try to address property owner concerns that may arise during construction, 120 Mason Circle Concord, California 94520 (925) 827-4900 FAX (925) 827-4982 concord@harris-assoc,com Admin _ T empletes _ MemoLogo&Address, dot If' . . . Town of Tiburon STAFF REPORT / (J AGENDA ITEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TO: MAYOR AND MEMBERS OF THE TOWN COUNCIL KEVIN BRYANT, ADVANCE PLANNER vb . ANNUAL GENERAL PLAN STATUS RE~RT FOR FY 2004-2005 J FROM: SUBJECT: MEETING DATE: . SEPTEMBER 21, 2005 REVIEWED BY: ADM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BACKGROUND Government Code Section 65400(b) requires that an annual report be prepared by the planning agency of each town or city, which is then forwarded to the appropriate legislative body, on the status of the General Plan and progress in its implementation. In Tiburon, the "planning agency" is the Planning Commission. The statute specifically requires a progress report on meeting the community's regional fair share housing allocations. The General Plan Guidelines, published by the Governor's Office of Planning & Research (OPR) in October 2003, states that "if the jurisdiction is in the process of a comprehensive general plan update, the progress report can be limited to a brief letter describing the scope of work and anticipated completion date.,,1 During FY 2004-2005, the Town of Tiburon was completing a . comprehensive general plan update, which was adopted on September 7,2005. State law also requires that the annual report be forwarded to the State Department of Housing and Community Development (HCD) and to the Governor's Office of Planning & Research (OPR) in Sacramento each year. The Planning Commission reviewed the draft letter at their regular meeting on September 14, 2005, and has directed Staff to forward the letter to the Town Council RECOMMENDATION It is recommended that the Town Council review the draft letter, make any desired revisions, and direct Staff to send the letter to the State Department of Housing & Community Development and the Governor's Office of Planning & Research. ATTACHMENTS 1. Draft annual report for Fiscal Year 2004-2005 1 State of California Governor's Office of Planning & Research, General Plan Guidelines, October 2003, p. 172. 'I . September 22, 2005 Governor's Office of Planning and Research State Clearinghouse and Planning Unit P.O. Box 3044 . Sacramento, CA 95812-3044 Department of Housing and Community Development Housing Policy Division 1800 Third St. P.O. Box 952053 Sacramento, CA 94252-2053 SUBJECT: ANNUAL GENERAL PLAN STATUS REPORT FOR FY 2004-2005 .ThiS letter is intended to satisfy the statutory requirements,of Government Code Section 65400(b) concerning the status and implementation of the Town of Tiburon General Plan. Because during Fiscal Year 2004-2005 Tiburon was in the process of a comprehensive general plan update, which was adopted on September 7,2005, the Town is submitting a letter describing the scope of work, as described in the current version of the General Plan Guidelines. SCOPE OF GENERAL PLAN UPDATE The Town began a comprehensive update of the General Plan in the summer of 2002, with a public participation program designed to get early input from the community. The Community Development Department (COD) sent out newsletters to every postal customer in the Town and solicited feedback through a General Plan Update Survey. In addition, COD sponsored three General Plan Update workshops covering different topics. Nearly 500 survey responses were received by CDD and 75 people attended the three workshops. Results of the Public Participation Program were published in a Public Participation Report. Following the initial public participation program, the Town conducted the Goal, Policy, and Program Refinement stage of the General Plan Update. CDO Staff produced a series of white papers, called Issues Papers, which provided existing conditions, a review of feedback from the Public Participation Program, .and a review of the Town's 1989 General Plan. The Issues Papers provided ~ OPR & HCD September 22, 2005 Page 2 of 3 . recommended goal, policy, and program language which were the subject of a series of public meetings before the Planning Commission and Town Council. Finally, the Town prepared the General Plan for adoption by publishing a Public Review Draft in February 2005 which was the subject of public review and an Environmental Impact Report (EIR) to comply with the California Environmental Quality Act. This process conqluded on September 7,2005, when the Town Council certified the EIR and adopted the new General Plan, Tiburon 2020. In a letter dated July 3, 2003, the State Department of Housing and Community Development informed the Town that once the Draft Housing Element is adopted, "it will be in full compliance with State housing element law." Because changes in General Plan Land Use Designations and allowable densities were required to accommodate the Town's share of the regional housing need, the Town adopted the Housing Element at the same time as the rest of the General Plan. As reported below, the Town continues to work on achieving its housing goals. HOUSING GOALS During FY 2004-2005, six new single-family homes were completed within the Town of Tiburon. Each of these six new homes is market-rate. . Following is a table which shows the Town's share of the regional housing need and the progress made through the end of FY 2004-2005. TOTAL VERY LOW LOW MODERATE ABOVE NUMBER INCOME INCOME INCOME MODERATE OF UNITS UNITS UNITS UNITS INCOME UNITS ABAG Regional 164 26 14 32 96 Need (1999-2006) New Units in Tiburon Planning 101 4 3 0 94 Area (1999- 2005) The Town continues to meet with the owners of the properties identified in the Draft Housing Element as affordable housing opportunity sites to facilitate quality affordable housing projects. . " OPR & HCD .september 22, 2005 Page 3 of 3 Should you have questions regarding the contents of this letter describing progress on the Town's General Plan Update or housing production, please contact Kevin Bryant, Advance Planner, at (415) 435-7385, or kbrvant@cLtiburon.ca.us. Sincerely, MILES BERGER Mayor . . . . . Town of Tiburon STAFF REPORT 1 TO: FROM: SUBJECT: AGENDA ITEM MAYOR AND MEMBERS OF THE TOWN COUNCIL SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMENT $-- 3 FRANCISCO VISTA COURT; FILE #W05-03 REVIEW OF A WELL PERMIT APPLICATION FOR THE DRI WELL FOR THE PURPOSES OF IRRIGATION MEETING DATE: SEPTEMBER 21,2005 REVIEWED BY: PROJECT OAT":' OWNER! APPLICANT: WELL DRILLER: ADDRESS: ASSESSOR PARCEL NUMBER: FILE NUMBER: . ZONING: GENERAL PLAN: FLOOD ZONE: DATE COMPLETE: SHARAM T AJBACK FORSTER PUMP AND ENGINEERING 3 FRANCISCO VISTA COURT 039-111-11 W05-03 RO-2 (SINGLE-FAMILY RESIDENTIAL OPEN) M (MEDIUM DENSITY RESIDENTIAL) C JULY 28, 2005 BACKGROUND This item was continued from the meeting of August 17, 2005 after questions were raised regarding the adequacy of the applicant's submittal in addressing possible effects on adjoining properties. The Town Council requested additional information from the applicant. Please refer to the minutes of the meeting of August 17, 2005, attached as Exhibit A, for details. In response, the applicant's Engineering Geologist and contractor have submitted letters (Exhibits B and C) providing additional information as requested. The Town Engineer has reviewed these letters, finds them acceptable, and concludes that the applicant has satisfied the Town's requirements for providing information on possible effects on adjoining properties. The staff report, late mail, and other information from the August 17, 2005 meeting is attached as Exhibit D. Tiburon Town Council Staff Report 9/21/05 10f 2 Town of Tiburon STAFF REPORT . I .~ ~y~. .~ ;~;Ii~~r v~~~~ V-:;".A:~(\ Go~,,~ "\ .~ li'iViATNC.' ". , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ---. . . . . . . . . . . . . PRELIMINARY ENVIRONMENT AL DETERMINATION Planning Division Staff has made a preliminary determination that this proposal would be exempt from the provisions of the California Environmental Quality Act (CEQA) as specified in Section 15303. RECOMMENDATION Town Staff concludes that sufficient information has now been submitted in order to make the finding that the granting of the permit would not be detrimental to the public health, safety, or welfare, nor injurious to other properties in the vicinity. Staff recommends that the Town Council determine that the project is exempt from the provisions of the California Environmental Quality Act (CEQA) as specified in Section 15303 of the CEQA Guidelines and adopt the attached resolution of approval (Exhibit E). EXHIBITS A. Minutes of August 17, 2005 meeting. B. Letter from Stephen Korbay, Engineering Geologist, dated 8/29/2005. C. Letter from Roy Forster dated 8/24/2005. D. Materials from August 17, 2005 meeting. E. Draft Resolution of approval. . . Tiburon Town Council Staff Report 9/21//05 2of2 iU. . ::- '. Councilmember Gram also said that he had looked at the site of the proposed gallows wheels from all the [affected] units at Pi. Tiburon and that there was no view obstruction. He said he would vote to approve the application. He also stated that approval of this application in no way affected the validity of the agreement. Vice Mayor Smith said that it was important to respect the history of the town, as well as legal agreements, both of which were being honored in this instance. He said he had considered the possibility of fewer wheels at the site, but felt that the current configuration should not be "tinkered with." , Smith said the wheels should be below the height of the berm and that he wanted a condition of approval to reflect that "the highest point should be no higher than the highest point ofthe berm." Also, he said that plants should go all the way around the configuration but not on top ofthe berm at the high point. In other words, the tops of the plants should be no higher than the top of the berm. He noted that even if the wheels were placed in the rip rap they would be visible. Smith concluded that the area could be used in a manner that was consistent with the historical purpose of the Donahue Building, as well as consistent with the [subdivision improvement] . agreement. MOTION: To approve the installation as presented, subject to the applicant coming back to DRB for approval ofthe design and placement of the plaques; that plants surround the entire installation; that the plants on the berm be placed below the top of the berm so that they don't exceed the height of the berm; Add/Smith: That at no point ,should the wheels exceed the height of the berm; AddlFredericks: That the size of footprint not be expanded. Gram, seconded by Slavitz AYES: Unanimous RECUSED: Berger Moved: Vote: At this point in the meeting, Council returned to Consent Ca1el1dar Item No.4: /' Recommendation by Associate Planner - Approve Application for IrrigationW ell Permit Property Owner: . Sharam Tajback Address: 3 Francisco Vista Assessor Parcel No. 039-111-11 Vice Mayor Smith asked Mr. Judah to clarify his issues with the application. Mr. Judah said that pursuant to the Town Code, he would like someone to sign off on the application as having met the criteria to "not be detrimental to other properties in the area;" in particular the property above the site. Town Council Minutes # 19-2005 August 17, 2005. Page 11 EXHIBIT No.A , \';' Director of Public Works/Town Engineer Echols said that he had prior experience as a geological engineer and that in almost all cases; landslides are usually caused by excess water. He said that a well represented removal rather than addition of water from the site, and that "de-watering does not cause instability." . Mr. Judah disagreed, stating that water from the well would get "sucked up and reintroduced in another place." However, he really said that he was here to discuss the procedural issue of compliance with provisions of the Town code. ' Vice Mayor Smith suggested a continuance of the item. Director Echols said that it might be appropriate for the applicant's engineer to address the question of water impacts or any other questions regarding instability. Council unanimously agreed to continue the item pending receipt of further information from the applicant. Kathleen Gallagher, 166 A venida Miraflores, also asked where the pump for the well would be located. Town Manager McIntyre said that this issue would be decided by the Design Review Board. . 9. Recommendation by Director of Community Development - Review of Martha mpany Property Development Applications a) A solution of the Town Council of the Town ofTiburon Asse its Right of First Review for Development App1icatio ssociated with the Martha Company Property (Assessor Pare 0.059-251-05) b) Appoint Town Council oc Subcommittee to Review Applications Director of Community Development Anderso id that at the Marin County Planning Commission meeting, the Town had been asked to e its intentions regarding the processing of Martha Property applications per the provisions of the ty-wide General Plan. He said that he had prepared a resolution for Council's adoption. Mayor Berger asked what constituted "urban services." Mr. Anderson id that the term was used in the context of the County-wide Plan and examples were sanitary s services necessary for urban development. Mayor Berger opened the matter to the public. There was no public comment. Town Council Minutes # 19-2005 August 17, 2005 Page 12 . Au~ 30 05 OS:43a . STF:PI,n':1\ K KORI3AY. COILSII/.in!J r,;ngincclillg Geo{oy;,;/ SOl Musclll C/.. PelulwllCl, CA 9.1954 (707) 763-7991> FX (707) 65$-] 083 (jcokor:t',i(]lldriue,corn p.2 August 29,2005 Community Development Department Town ofTiburon 1505 Tiburon Boulevard Tiburon, CA 94920 11._;:'. Attention: Scott Anderson, Director Subject: Tajbackhsh,WelJ Permit Application 3 Francisco Vista Court Gentlemen: This letter. is in response to the request by the Town Council for my comments regarding the proposed irrigation well at 3 Francisco Vista Court . . According to your letter dated August ) 8, the Town Council is responding to comments by Mr. Chester Judah and requests that I address his concerns regarding possible surface effects from the well, and fOT me to provide evidence to support the requirement that "the granting 'of the permit would not be detrimental to the public health, safety, nor injurious to other properties in the vicinity" (item 3; Chapter 13F-5 Findings For Approval). Mr. J~dah's property is at 166 Avenida Miraflores, upslope from 3 Francisco Vista Court. My letter regarding the planned well dated June 20, 2005 'was specifically for evaluating the potential for interference or reduction in well yields of nearby wells from the planned well on Mr. Tajbackhsh's property at 3 Francisco Vista Court. My letter was in response to Section B of the Town's Submittal Requirements for Wells that requires a report by a geologist, hydrologist or other qualified person regarding possible effects, if any, on adjoining properties. According to Mr. Judah, my evaluation did not respond to the quoted items above which fall under Chapter 13F Water Well Construction and Use. With regards to public health, safety, welfare, or injury to other properties, I believe this mostly refers to surface conditions in the vicinity of the well site. In this case, the surface conditions including soil stability, drainage, and foundation conditions have been addressed in the geotechnical investigation of 3 Francisco Vista Court by GeoEngineering, Inc., in a report dated December 29, 2002. Water well drilling usually does not cause any more disturbance or vibration to the surface and adjacent improvements than any other heavy machinery including grading and foundation pier drilling, excavation equipment, and even heavy truck traffjc on nearby streets. Most of the well will penetrate hard, vel}' old consolidated sandstone bedrock. For most bedrock wells, ground water occurs in fracture zones that may be several hundred feet deep. It is unlikely that there will be additional bedrock consolidation or settlement from pumping of ground water; therefore there is little or no risk of bedrock consolidation propagating to the surface at the well site or on adjacent properties. Furthermore, there is little risk of surface settlement ,or impact due to withdrawal of the relatively small amount of ground water to b~ us~d tor irrigation from that depth. Yours truly, Stephen R. Korbay, CEG 916 Principal Engineering Geologist Cc: Forster Pump & Engine~rjng Co, .' EXHIBIT NO. t. . 200E~ ". '., /: ,:'::~ i :J \\~ ; :-':.,.."; ~.! B .~ fQlst€, .. PUMP & EI14illE€I'iI14 ille. Wat€l' Sys1€1ns: . Wdls . Tallks . DI'aillae€ . August 24, 2005 Scott Anderson Director of Comm~nity Development Town of Tiburon 1505 Tiburon Boulevard Tiburon, Ca. 94920 Re: Pump Noise I Future Water Well Dear Mr. Anderson, We are writing in response to the question raised at the Town Council meeting on August 18, 2005 regarding the noise issue in connection with a future water well at3 Francisco Vista Ct., Tiburon. . The proposed water well will be drilled at a depth of approx. 300'. Any pump installed will be of the submersible type. This means that the pump & niotorwill be submerged at the bottom of the well. There will be no noise transmitted from the pump. Control equipment for the well will be installed above ground. This equipment makes no noise. If you have any questions I can be reached at 415-459-4770. Sincerely, Roy Forster Vice-President Forster Pump & Engineering . . (415) 459-4770 , EXHIBIT NO c.. 56 Woodland Ave. San Rafael. Ca. 94901-5344 . Lie. No. 426152 · FAX 459-0607. www.forsterpump.com ..,.'., ,7 ','.',.','.' //.' i . . . .' -" STAFF REPORT AGENDAITFM 4 Town of Tihuron . . . . . . . . . . . . . . . . . . . . .. . . . . . .- . . . . . :- . . . . . TO: MAYOR AND MEMBERS OF THE TOWN COUNCIL SUBJECT: . . - . 1 . . . KRISTIN KRASNOVE, ASSOCIATE PLANNER 3 FRANCISCO VISTA; FILE #W05-03 REVIEW OF A WELL PERMIT APPLICATION FOR THE DRILLING OF A WELL FOR THE PURPOSESOFIRRIGA TION. FROM: " ' MEETThlH DATE: AUGUST 17,2005 REVIEWED BY: AM , , ..'. . ." 's . _. . .. ..... .,. .- . PROJECT DATA: , .,; "OWr-JER/'APPL.lCANT: '. ::St-lAiY'M TAJBACK '. ,...." .'. WELL DRILLER: FORSTER PUMP AND ENGINEERING ., ADD.RESSi '.. ' ..' . ..... '. '.,' . .... ..3FRANCISCO VISTA ASSESSORPARG:LNUM~~R:}\'039.;1 11';11 "FILENUMBER:. ...'.'..:',.,.,..,'. ...~',W05-03 . .. ' ".''','',' ,....,. ,..ZONING:".:"i'",,\)\"Y:,.:RO-2(SINGLE-FAMIL Y,RESIDENTIAL 'OPEN) . . "GI:NERAlPLAN:: " ,'>M(M~D.IUMPE~~ITY RESIDi:NTIAL} . ., .,.."',, .,tL()Ot:?~9NE:, ,,::/, ,>. .'. ,.." ' . ",)i,;C:; ".' ".,>..>>.;,;;.::: ."'; '\'.' ..',..,.,....'.' ,. ,"DATECOMPLETE"<:>"",':'JULY282005 ';' :'" .>.' "':"'" . . . .,'" ,;", ">.:: . 'c.:.' ,J.,. :" ;,'," .'. ":", . - ~y;-, ".:. ,;~ "., . :': .'--'-~ ~>;L:,::;,-,:{ '~F<._;~t:.,-;:;::i."::.!':;,.,; _'_,',:., '.';..'::,-:';:;~':;' i,;:';""',; ; ;.'.:; ~,'.~ "',: ~'\ ;." i '<:.'. -,;3'-;<:~': ," ;. . . . " .: :.,','-, . ." ." :.'> >i: '. ;;">;"__"'_";;",... ,.:,:,.:::,~-_,'~,.,/~,'(:~':" hi . ".~..,/>" ::".;,:., :',) / ':'~";::-:'<"j;:"; ~\';;:::':- , '_' .." " -. ::~' ',;..:.'::.:/ ,".' ~>~:<':;':-. -:',,'-'--:.:""'i' '.,:::"-:,~:':.~-:.,,~: ... '.:"- ;<!'..;"~_'I,-;_~-!."'''''' '. ".' ,..'.... .' ,-. ' '.;, "'. ,.' :>,", ,:. ":", . .: ',':' :..,'.,.;:-.. '.,1 n revie,^,ihgWellp'errT1it.Cipplic~tions,.' the .J:OWfl m~st .ensur~~hat thE3 proposal, is' in compliance , ,with therequirern,ents'setGhapter'13Fofthe Municipal Code (water well construction, and use). In accordance wi~h Chapter 13F, staff has made the following conclusions: . "', " . . , '. ,"J. .... . T~e applicCint has providedthenecE2ss'ary documentation to ensure that the contractor to perform the work has the appropriate credentials, and that the location of the proposed well will not affect the properties in the vicinity. . . Tiburon Town Council Staff Report ::mIT ~~:Jl . . . . . . . . . . . . . . . . ". . . ,; . . . . . . . . . . ". .. . . ."". . . . . . . . . ". . . . . . . Town. of Tiburon , , , , , ..STAFFREPORT '"" '- · Based on the submitted materials, it appears that thEJgranting of the permit will not be. detrimental to the public health, safety or welfare, nor injurious to other properties inthe vicinity.' . , , Based on the above conclusions, the project is found to be incorripli~mce with the Town's requirements in respectto the construction of irrigation wells.' , , . PRELIMINARXElWIRONMENTALDEl'ERMlNATION: . Planning Division Sta'tfha~made a preliminary determination that this proposal would be .exempt frorn the provisions oftheCalifornia Environmental Quality Act (CEQA) as specified in . Section 15303. . .....' . ...,. .. ... ...'..,... '. . . . '. I .1 I i TiburonTown Council . Staff Report 8/17/05 . 2of2 Page 1 of2 I'2n n 1'2 f0"~' ~'f:\" tF C~ :.L~.lb ~~_~:' . -, ",t-;, . Scott Anderson From: Chester Judah, Jr: Sent: Thursday, August 18,2005 11 :10 AM To: Mayor, Miles Berger; Vice Mayor, Paul Smith; Council member Tom Gram; Council member Jeff Slavitz; Alice Fredericks; Scott Anderson; Ann Danforth Subject: Agenda Item 4, Tiburon Town Council Public Meeting, August 17, 2005, application for the , construction of an irrigation well permit at 3 Francisco Vista Members of The Town of Tiburon Council and Staff, Just so there is no misunderstanding, all that I am asking for in making your decision on the aforementioned application is what is required by the Town of Tiburon Municipal Code; TIlLE IYLAND IMcPj~DVEMEN'LANttlISE Chapter 13F WATER WELL CONSTRUCTION AND USE . 13F-5 Findings for approval. . (a) In order to approve an application for well permit, the council shall make the following findings: (1) The owner is currently prevented from connecting to the water district's system due to a moratorium. (Note: This finding applies to potable water wells only); (2) The owner has provided a written opinion from a geologist, hydrologist or other qualified person that the water supply of the well will remain reasonably intact during drought periods. (Note: This finding . applies to potable water wells only); (3) The granting of the permit will not be detrimental to the public health, safety or welfare, nor injurious to other properties in the vicinity. (Ord. No. 392 N.S., g 2 (part)) and the SUBMITTAL REQUIREMENTS FOR WELLS form provided by the Planning Division of ' . the Town of Tiburon; IRRIGATION WELLS: B. Report prepared by geologist, hydrologist or other qualified person regarding possible effects, if any on adjoining properties. . What I find unacceptable and insufficient, and I think you should to, in meeting the above requirements is the letter of Stephen R. Korbay, Consulting Engineering Geologist, dated June 20, 2005, and titled "Water Well Interference Evaluation" which is top narrowly drawn and misstates the requirement ofItem B in the Town's Submittal Requirements for Wells; "The purpose ofthis evaluation is satisfy the concerns ofthe Town of Tiburon regarding possible . effects, if any, that the new well may have on other wells. .. in the vicinity, as stated under Item B in the Town's Submittal Requirements for Wells." Chester Judah, Jr. Q /1 Q /'J()(),\ Page 1 of3 "'- From: Chester Judah, Jr. Sent: Wednesday, August 17, 20052:16 PM To: Mayor, Miles Berger; Vice Mayor, Paul Smith; Council member Tom Gram; Councilmember Jeff Slavitz; Alice Fredericks Cc: Kristin Krasnove; Scott Anderson; Kathy Rose Subject: Agenda Item 4, Tiburon Town Council Public Meeting, August 17, 2005, application for the construction of an irrigation well permit at 3 Francisco Vista r2, n, ,n fe, f'f0 f'N, (. , rm.~\V"., lrWLU;; ~7 ". Lfrrfr(rW~- · Scott Anderson Town of Tiburon Council Members, Before you this evening will be the aforementioned subject. I received notice of same yesterday in which I was advised to file written comments with the Community Development Department on or before last Friday which is impossible. ~ I am neither a parliamentarian, a geologist, nor a hydrologist. I am only the neighbor most proximate to the site of this proposed well. I was never advised by the, applicant, my neighbor, of this application. I am not sure what my rights are before you this evening and am appalled at howlate and deficient the notification process has been. However, in order to create a record and protect what legal rights and recourse I may have, I am sending this emai1 to you now. As I read the relevant sections of the Town ofTiburon Municipal Code, the following findings must . be made in order to approve the application. ' IIIb_E IV LA~D IMP~&OVEMENT AND USJ~ Chapter 13F WATER WELL CONSTRUCTION AND USE 13F-5 Findings for approval. (a) In order to approve an application for well permit, the council shall make the following findings: (1) The owner is currently prevented from connecting to the water district's system due to a moratorium. (Note: This finding applies to potable water wells only); (2) The owner has provided a written opinion from a geologist, hydrologist or other qualified person that the water supply of the well will remain reasonably intact during drought periods. (Note: This finding applies to potable water wells only); (3) The granting ofthe permit will not be detrimental to the public health, safety or welfare, nor injurious to other properties in the vicinity. (Ord. No. 392 N.S., 9 2 (part)) In submitting her recommendation that the Council approve the application, Kristin Krasnove, . Associate Planner, states the following in the Town of Tiburon Staff Report submitted to you; "Based on the submitted materials, it appears that the granting of the permit will not be detrimental to the public health, safety orwelfare, nor injurious to other properties in the vicinity. " ' R/17 noo.:;; .. . . Page 2 of3 As best as I can dett(rmine, the "submitted materials", consists ofaletter from Stephen R. Korbay, Consulting Engineering Geologist, dated June 20, 2005. In that letter, Mr. Korbay states that; "The purpose of this evaluation is satisfy the concerns of the Town of Tiburon regarding possible effects, if any, that the new well may have on other wells in the vicinity, as stated under Item B in the Town's Submittal Requirements for Wells." In fact, Item B in the Town's Submittal Requirements for Wells does not restrict itself to "other wells in the vicinity." What it says is; "Report prepared by geologist, hydrologist or other qualified person regarding possible effects, if any, on adjoining properties." In other words, the "submitted materials" restricts itself to the effectthis proposed well will have on other wells in the vicinity. However, Mr. Korbay goes on to say that; "My review of water well records on file at the County Environmental Health Services Department did not show water wells in the neighborhood or within a 1000-foot radius from the Tajback residence." In other words, the "submitted materials" say that thepropo~ed well will have no effect on other wells in the vicinity of which there are none. . On the basis ofthis submission, Kristin Krasnove states that the granting of the permit will not be detrimental to the public health, safety or welfare, nor injurious to other properties in the vicinity. To me, this is grossly insufficient information to make such a statement. In the State of California Department of Real Estate, Disclosures in Real Property Transactions (hlm://www.dre.ca.gov/disclQsures.htm) no mention is made about a seller notifying a buyer that a adjacent well may have some effect on a well on the property for sale. However, the seller must disclose the following; 7. Any settling from any cause, or slippage, sliding, or other soli problems .........'m...........m..n....m.................................. _Yes _No , Slippage is and has been a significant factor in the properties surrounding 3 Francisco Vista and the effect's-ota well on the same has not been addressed. Let me take you on a very short tour up Avenida Miraflores, the street above Francisco Vista, and recite a little history. . i, 150 Avenida Miraflores: The builder of 3 Francisco Vista, as part of the constructiori of same, built a retaining wall along the downhill side of this residence in response to concerns expressed by its inhabits about slippage oftheir hillside. ' , . , , . , ii. . 166 A venida Miraflores: Over the years, and particularly during the construction of 3 Francisco Vista and the working of the soil that it entai1ed,Lcracks llave appeared in walls, and during the annual change of the moisture in the underlying soil doors swing freely or not. And when tress are felled on this property, stumps and roots can not be extricated for doing so may contribute to land slippage. iii. 168 AvenidaMiraflores: About thirty years ago, slippageofthe soil under this house . necessitated the drilling down to bedrock and construction of piles in a sIgnificant project t4attook about a year to complete. iv.. 170 Avenida Miraflores: This house too has had cracks appear over the years and as the underlying soil changes from wet to dry the doors too swing freely or not. I assure you that the files of the Planning Division and the Building Division of the Town of Tiburon are stuffed with documentation of the above and the staff of the Planning Division, especially at the supervisorial level, should be aware of this. And I would also add that the Engineering Geologist did not address this matter in the letter upon which Ms. Krasnove makes her recommendation for he stated therein that; "No subsurface exploration was performed for this evaluation." ~/1 7 noo" Page 3 of3 As I said at the beginning, I am not a geologist nor a hydrologist, but I do live in a house that moves as the moisture of the underlying soil changes. And, the land on either side of me has been documented to have shifted. Other than that I have no knowledge one way or the otherifthe extrication of water by a well, at what appears to be on an industrial scale, and its deposit in another area for the purpose of irrigation would or would not be injurious to other properties in the vicinity. The burden of proof lies on - the applicant to show that it doesn't and create a record for legal recourse if it does, and the Town Council should expect no less before deciding to approve or deny this application. That this proposed well will have no effect on wells in the vicinity, of which there are none, is insufficient grounds to consider this application much less grant its approval. Chester Judah, Jr. 166 A venida Miraflores Tiburon, Ca 94920 8/1712005 ,1 'c . . . ,h' . . . '\ RESOLUTION -DRAFT A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON APPROVING THE-DRILLING OF A WELL FOR IRRIGATION PURPOSES ON PROPERTY LOCATED AT 3 FRANCISCO VISTA. COURT ASSESSOR PARCEL NUMBER 039-111-11 WHEREAS, the Town Council of the Town of Tiburon does resolve as follows: Section 1. Findinqs. A. An application for drilling of an irrigation water well has been submitted by the property owner of 3 Francisco Vista Court. B. The Town Council has reviewed the application and determined that the project is consistent the requirements of Chapter 13F of the Municipal Code concerning water wells and is consistent with the Tiburon General Plan. C. The Town Council has determined that the project is categorically exempt from the requirements of CEQA per Section 15303(d) of the CEQA Guidelines. D. The Town Council finds that the project, as conditioned, will not be detrimental to the public health, safety, or general welfare nor injurious to other properties in the vicinity. E. The Town Council finds that the owner has provided a written report from an engineering geologist stating that the water well is unlikely to produce harmful impacts on neighboring properties or result in subsidence. Section 2. Approval. NOW, THEREFORE, BE IT RESOLVED that the Town Council approves the application for an irrigation water well at 3 Francisco Vista Court subject to the following conditions: 1. The well shall meet all applicable well standards adopted by Chapter 7.28 of the Marin County Code, or successor sections thereto, and any other regulations adopted by the County pursuant thereto. 2. The well shall meet all applicable requirements of the Marin Municipal Water District. 3. No well-related work shall commence until such time as a Well Permit Certificate has been issued by the Director of Community Development. Hours of well drilling and any associated construction work shall be limited to 7:00 A.M. to 5:00 P.M. Monday through Friday, and 9:30 A.M. to 4:00 P.M. on Saturday. Town Council Resolution-DRAFT - Well Permit at 3 Francisco Vista Court EXHIBIT NO. E 4. Any and all equipment and/or vehicles associated with the well construction shall not prevent or substantially impede vehicular passage on any street within the Town of Tiburon. ' 5. Site Plan and Architectural Review approval shall be required for any structures associated with the well, such as water storage containers, which require such approval. 6. This approval may be suspended or revoked for cause, pursuant to Section 13F- 8 of the Tiburon Municipal Code. 7. This approval shall expire and become null and void six months after Council approval. One extension of up to six months may be granted by the Town Manager for good cause. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon on , 2005, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: MILES BERGER, MAYOR TOWN OF TIBURON ATTEST: DIANE L. CRANE, TOWN CLERK S:\Planning\Staff Folders\kkrasnove\Resolutions\3 Francisco Vista WelI.RES,doc Town Council Resolution-DRAFT - Well Permit at 3 Francisco Vista Court '\,:. . . . . r Town of Tiburon STAFF REPORT AGENDA ITEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TO: Mayor and Members of the Town Council Pat Echols, Director of Public Worksl :rown Engineer ~ FROM: Prioritization of Rule 20A Utility undergroundiln lIocation Credits MEETING DATE: September 21, 2005 REVIEWED BY: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. SUBJECT: DISCUSSION The California Public Utilities Commission (CPUC) Rule 20A requires Pacific Gas & . Electric Company (PG&E) to set aside 'allocation credits' to help communities underground their utilities subject to certain rules and restrictions. Telephone and cable providers also participate where Rule 20A funds are programmed. The Town of Tiburon is allocated approximately 60,000 to 65,000 credits per year. The Town's current credit balance is 191,877 (see Exhibit 1). . Because of PG&E's work backlog and inability to concurrently fund all Rule 20A project requests, local agencies must develop a project, establish preliminary district boundaries and submit a resolution of 'intent from the governing body (i.e. Town Council) to form a Rule 20A district. PG&E and SBC have indicated that their existing backlog of undergrounding projects would prevent them from beginning work on any new districts until 5 or 6 years from now. Accordingly, they suggest that communities 'get in line' early to secure commitlTlent for future projects. , General Plan Circulation Element Policy C-8 encouragEls that overhead utilities be placed underground along Tiburon Boulevard, Paradise Drive and Trestle Glen Boulevard. Tiburon Boulevard has been the Town's undergrounding priority since the inception of Rule 20A. At this time, there are several segments along Tiburon Boulevard that have not yet been undergrounded, including Mar West to San Rafael Avenue and Reed Ranch Road to Trestle Glen Boulevard. Qnce these segments are undergrounded, Trestle Glen Boulevard may be considered for Rule 20A funding upon completion of the Tiburon Boulevard segments or sooner if matching funds are identified as part of the Trestle Glen Bikeway Project (Phase 2). . Because the Mar West-San Rafael Avenue segment of Tiburon Boulevard is adjacent to the multi-use path and several schools, the Police station and the Hilarita development, it is staff's opinion that this should be the next Rule 20A priority for the Town. The preliminary cost estimate is $1.2 million. If the Town elected to pursue a single district for this segment, it wQuld take roughly 10 years to accrue sufficient Rule 20A allocation credits to fund the project. This also assumes that the Town would 'borrow' 5 years worth of future allocation credits (currently permitted under Rule 20A). . September 13, 2005 1 of 2 Town of Tiburon STAFF REPORT AGENDA ITEM In order to expedite undergrounding in this segment on a smaller scale, the Town could form two separate districts and phase the construction such that the first phase (Mar West to Ned's Way) would only require about 700,000 allocation credits and allow the Town to move forward within 5 years pending status of the Town's position in the PG&E backlog. The next step is for the Council to confirm the next Rule 20A funding priorities and direct staff to develop a preliminary district boundaries and resolutions of intent for the first two phases. RECOMMENDATION It is recommended that the Town take the following actions: 1. Confirm that Tiburon Boulevard continues to be the Town's Rule 20A funding priority and that the next project priorities would be (a) Mar West to Ned's Way (b) Ned's Way to San Rafael Avenue,. and (c) Reed Ranch Road to Trestle Glen Boulevard. Designate Trestle Glen Boulevard (Tiburon Boulevard to Paradise Drive) as the next priority after Tiburon Boulevard. 2. Direct staff to coordinate with PG&E and other affected utilities to develop preliminary district boundary maps and prepare intent resolutions for Council adoption at a future meeting. . . . September 13, 2005 2 of 2 . Town of Tiburon STAFF REPORT c; AGENDA ITEM TO: Mayor and Members of the Town Council FROM: Pat Echols, Director of Public Worksl Town Engineer SUBJECT: Adopt Street Resurfacing Policy for Rule 208 Utility Undergrounding Districts MEETING DATE: September 21, 2005 REVIEWED BY: DISCUSSION Staff has received multiple inquiries regarding the Town's policy on resurfacing streets within Rule 20B utility undergrounding districts upon completion of work. The Town currently does not have such a policy. Almost all of the previous residential undergrounding projects did not include resurfacing. The streets within the most recent undergrounding project (Stewart Drive) were an exception as they were resurfaced as part of a larger State grant-funded resurfacing project. Staff was directed to develop a policy for Town Council consideration and adoption. . Because of the extensive trenching required to underground utility wires, a portion of the street must be restored and, depending on the trench restoration requirements and existing street pavement width, may be up to roughly one-third to one-half of the total surface area of the street. This presents an opportunity for the Town to resurface the entire street by contributing the cost ,difference between patching and fully resurfacing the street, particularly those which are identified by the Pavement Management Program (PMP) for an overlay within 5 years of the undergrounding. For those streets which are in good condition and not identified as an overlay candidate in the 5-year PMP prior to the balloting for an undergrounding assessment, district, the joint trenches would either be patched in accordance with the Town specifications or fully resurfaced with the additional incremental cost shared between the property owners and the Town. For future undergrounding districts, this incremental cost could be applied as part of the overall Rule 20B assessment for those properties. For districts which are already approved and for which assessments have already been finalized (such as Lyford Cove and Del Mar), the property owners would be given the opportunity to contribute a portion of the incremental cost. For simplicity, staff proposes that the Town would contribute up to 50% of the additional cost increment. For streets that are in very good condition prior to theundergrounding (PCI greater than 70), the Town would fully fund a slurry seal after the utility trenches are restored to Town specifications. RECOMMENDATION . It is recommended that the Town Council consider adoption the resurfacing policy outlined above for Rule 20B utility underground district streets. 1 of 1 .' . . Town of Tiburon STAFF REPORT AGENDA I~ J/L TO: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . MAYOR AND MEMBERS OF THE TOWN COUNCIL SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMENT ~ GENERAL PLAN IMPLEMENTING PROGRAM PRIORITIZATION FROM: SUBJECT: MEETING DATE: SEPTEMBER 21,2005 REVIEWED BY: ADM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BACKGROUND The General Plan adopted by the Town Council on September 7,2005 contains a large number of implementing programs that are typical of such comprehensive plans. In anticipation of the general plan adoption, Staff prepared a list prioritizing these programs, and work is already underway on the highest priority programs. However, the number, scope and complexity of many of these programs will entail an intensive commitment of staff time and resources for many months to come. Some of the programs involve extensive outreach and interdepartmental or interagency coordination, and/or retention of technical consultants. Implementation of certain programs is not likely to be realized for years. Examples include, but are not limited to, a comprehensive update of the Town's traffic mitigation fees (technical consulting needed), development of a parks and recreation master plan, Paradise Drive maintenance/annexation agreements, and open space management programs (interdepartmental or interagency coordination required). Certain General Plan programs must be implemented as soon as possible. These include the e,-<tensive zoning ordinance/zoning map and municipal code amendments that will provide consistency between the General Plan and the Town's implementing ordinances and enable affordable housing' projects and other (especially Downtown) projects to move forward. Current zoning ordinance provisions (e.g., FAR and lot coverage limits, height limits, parking requirements) simply would not allow such projects to be approved. ANAL YSIS Staff has attached the comprehensive list of implementing programs as Exhibit 1. Annotations show the Staff's opinion of the relative priority of the highest-priority programs, and give rough estimates of time to completion and whether hard costs are involved. As funding for the Advance Planner position will end of December 31,2005, (and the position is likely to be Vacated in advance of that date), Staff anticipates that most of the highest-priority I programs will not be implemented by that time. ' Staff believes that options for ongoing forward progress on the implementing programs will need to be discussed in more detail at a future Town Council meeting. Town of Tiburon Town Council Staff Report 9/21/2005 1 STAFF REPORT Town of Tiburon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RECOMMENDATION The Town Council is encouraged to review the prioritization of implementing programs, set forth in Exhibit 1, and provide direction to staff regarding any desired changes in prioritization, ATTACHMENTS 1, List of Prioritized General Plan Implementing Programs (annotated) . . Septembel . c, 2005 page 2 of 2 l;~ . 8 G) CD . @ .~ (v CD::=ASA~. .' ::f) =:: {,IJ >t-l-.: "" G (h,oI '" .(-'~.5 . GENERAL PLAN IMPLEM~I~G ~~~~~~S '( ur- PRIORITIZATION if' - II ' if - rt&'- r &( C'fJs+S L~kc{l HIGHEST PRIORITY . - Zoning/Municipal Code Amendments (LV-a) The Town shall periodically review and, if appropriate, revise its Municipal Code and other regulations to reflect the goals, policies, densities, intensities and the land use designations of this General Plan. (LV-b) The Town shall revise the Zoning Map as necessary to achieve consistency with the General Plan. (DT-a) The Tiburon Zoning Ordinance shall be revised to be consistent with the goals and policies of this Element and to implement the guidelines of the Downtown Tiburon Design Handbook. (H-7) Provision of Mfordable Housing for Special Needs Households. The Town will facilitate programs and projects which meet federal, state and local ~equirements to provide accessibility for seniors, persons with disabilities, large families,. and single-person and single parent households. Specific types of housing include: a. Smaller, affordable residential units, especially for lower mcome single-person and single parent households. b. Affordable senior housing to meet the burgeoning needs of an aging population, including assisted housing and board and care (licensed facilities). c. Affordable units with three or more bedrooms for large family households. d. Affordable housing that is built for, or can easily and inexpensively be adapted for, use by people with disabilities (specific standards are established in California Title 24 Accessibility Regulations for new and rehabilitation projects, augmented by Americans with Disabilities Act guidelines). .r Target: Increase current inclusionary housing provisions from 5% (physically disabled-only) to 10% of new units required to meet the special housing needs in the categories listed above Responsibility: Community Development Department (H-8B) Modify Existing and Adopt New Zoning Provisions for Emergency Shelters, Transitional and Disabled Housing, and Group Homes for More than 6. Persons. Define "emergency shelters" and EXHIBIT1NO.1- o @ (9 "transitional housing facilities" in the Zoning Ordinance. Consistent with SB520 and the Fair Housing Act, adopt an Ordinance relating to requests for reasonable accommodation within the Town's land use regulations. Establish provisions for group homes with more than 6 persons within . multi-family residential and commercial zones through a Conditional Use Permit process. Target: Amend! Adopt Zoning Provisions ,in 2005 Responsibility: Community Development Department (H-13) Modify Zoning in "Old Tiburon". Modify the zoning standards that apply to two-family dwellings in "Old Tiburon" to limit conversion of existing two-family and multi-family dwellings into single-family units or buildings with fewer units than currently legally exist. Adopt provisions to enable two-family and multi-family dwellings to be rebuilt in the event of damage or destruction by fire, earthquake, or similar disaster. Target: Prepare Ordinance amendments in2005 Responsibility: Community Development Department (H-19A) Facilitate Development at Key Housing Opportunity Sites. Initiate the necessary General Plan Amendments, rezonings, and other implementing actions to reduce obvious governmental constraints to the construction of affordable housing at sites identified in Tiburon's Housing Plan 1999-2006 (Table 9.9-1). Target: Incorporate Land Use amendments into General Plan Update and Zoning Amendments to be adopted in 2004. Develop 81 affordable housing units by 2006. Responsibility: Community Development Department, Planning Commission, Town Council (H-19B)Mixed Use Development Incentives. In order to promote well- designed, affordable mixed-use residential! non-residential projects in commercial zones, prepare and adopt a Zoning Ordinance amendment that incorporates some or all of the following incentives to facilitate mixed use development in commercially-zoned areas in the Downtown, on properties identified in Table 9.9-1: a. An increased maximum height limit or height limit bonuses so that second and third stories could be permitted on buildings with commercial use at ground level and housing above; b. Flexible development standards (e.g., FAR, lot coverage) based on the location, type, and size of the units and the design of the development; c. An additive residential component of a mixed use development with a density range of 12.9 to 15.3 units per acre (a yield of 17.4 to 20.7 units . . . 2 . . CD ./~ \J) per acre after the award of a density bonus), with FAR limits applying only to the commercial portion of the mixed use project; d. Flexible parking standards based on the development's location and the type and size of the housing units, such as efficiency apartments and senior housing units. ' e. Shared parking for commercial and residential uses, resulting in a lower overall parking requirement. f. Subsidization of hook-up fees or other fees charged by special districts. g. Eliminate the requirement for the proposed residential component of a mixed use development to receive a conditional use permit. Target: Prepare Zoning Ordinance amendment in 2005; affordable housing development approved at Downtown sites identified in Tiburon's Housing Plan 1999-2006 (Table 9.9-1), totaling 42 units by end of 2006. Responsibility: Community Development Department, Planning Commission Town Council, Private Owners, Others (H-19C) Develop an "Mfordable. Housing Overlay Zone" Zoning Designation. Create and adopt an affordable housing overlay zone that incorporates specific sites on which residential densities will be increased up to 100% if a specified level of afford ability is achieved. This zone shall be applied to between three-quarters-to-one acre (depending on site factors such as access, slope, and proximity to urban infrastructure) of the sites listed in Table 9.9-1: Tiburon's Housing Plan 1999-2006 which are in residential areas: Reed School, OI~JUmi, and Pan Pacific Ocean. Specific considerations in developing the overlay zone include: a. To qualify for the benefits of the overlay zone, proposals should be required to include a minimum of 20 percent very low, 20 percent low and 20 percent moderate income housing units. Above moderate income market rate units should not exceed 40 percent of the total number of units with moderate income rental units counting as market rate units. b. Affordable ownership and rental units shall be deed-restricted for a period of not less than 55 years (in perpetuity if feasible) to ensure affordable resale and rents. c. Permit by-right multi-family residential development. d. Waive some or all local fees. e. Target a percentage of units for special needs populations. Target: Amend Zoning Ordinance in 2005 Responsibility: Community Development Department, Planning Commission, Town Council (H-19D) Density Bonus Zoning and Other Incentives. In order to create incentives for projects with high percentages of very low and low income 3 units, amend the Zoning Ordinance to include use of density bonuses, flexible development standards, fast-track review and other mechanisms, including the following: a. State Density Bonus Law. Offer a density bonus of at at least one other incentive consistent with the State Density Bonus Law (Government Code Section 65915), for developments that include at least: (a) 10 percent of the units for lower-income households; or (b) 5 percent of the units for very low income households; or (c) 10 percent of the units of a condominium or planned development project. b. Flexibility in Development Standards: Provide flexibility in applying development standards (e.g. parking, setback, height standards), . subject to the type of housing, size and unit mix, location and overall design. Higher densities may be appropriate where units are significantly smaller and would have fewer impacts than the market norm. c. Facilitating Affordable Housing Development Review. Affordable housing developments shall receive the highest priority and efforts will be made by staff and decision-makers to: (1) Provide technical assistance to potential affordable housing developers in processing requirements, including community involvement; (2) consider project funding and timing needs in the processing and review of the application; and (3) provide the fastest turnaround time possible in determining application completeness. Target: Prepare Zoning Ordinance amendment in 2005 Responsibility: Community Development Department (:1) ,,~-~ (H-22) Strengthen Existing Inclusionary Housing Regulations. Amend current Zoning Ordinance requirements to include smaller residential projects and increase the percentage of affordable units required in each project. Guidelines for amending the Zoning Ordinance include: a. Apply an in-lieu fee for residential projects involving 2 to 6 units (currently applies only to projects of 2-9 units) b. All residential projects of 7 to 12 units to provide new units at a rate of 15 percent affordable (currently 10% for projects of 10 units or more). c. All residential projects of 12 or more units to provide new units at a rate of at least 20 percent affordable (currently 10% for projects of 10 units or more). d. At least 10% of units designed for special needs households, 5% of which must be for handicapped users (current ratio is 5%). Target: Adopt Zoning Ordinance Amendments by 2005 Responsibility: Community Development Department; Planning Commission, Town Council ' . . . 4 . @Jf (~. \2) (0 A\ eJi) (~,.~., , cL ij- \,~ G0j{ ~'"'''''' >,' (J \ ...,:) \",- . Paradise Drive (LU-f) The Town,' in conjunction with LAFCO and the County of Marin, shall conduct a study to establish the true cost and other implications of annexing Paradise Drive and work to create with the County of Marin and LAFCO a viable financing plan which would make annexation of properties in the Paradise Drive area feasible and fiscally acceptable to the Town. (C-d) The Town shall work with the County of Marin and LAFCO to formulate a long-term plan for maintaining and improving Paradise Drive. (C-e) The Town shall work with the County of Marin and LAFCO to identify and implement "" a "financing strategy for maintenance and improvement of Paradise Drive. Impact/Mitigation Fees (LU-d) The" Town shall periodically update 'its Public Facilities Fee regulations. (C-b) The Town's traffic model shall be used to periodically review the Town's traffic mitigation fees to ensure that they are based on current information and that they are adequately capturing the impacts of new projects on the roadways in the Planning Area. The Town shall update its traffic mitigation fees as necessary. Parks & Recreation (PR-a) The Town should work with the Belvedere - Tiburon Recreation Department and the City of Belvedere to consider the long and short term need for additional parklands, sporting facilities, picnic facilities, play areas, and to develop a master plan for meeting the community's recreational programming and facilities needs. (PR-c) The Town should explore the need and desirability for establishing a community center which would accommodate recreational and other needs for the entire community. 5 0) w (D P(;J ([) @ Housing (DT-c) Fulfill the Tiburon Redevelopment Agency requirements for construction of very-low income housing units through creation of additional units in the Downtown. (H-1A) Commit Town Resources. Marshal and commit Town-controlled resources toward the design, approval, financing, and construction of affordable housing projects on those sites identified in Tiburon's Housing Plan 1999-2006 (Table 9.9-1). Target: Ongoing Responsibility: Town Council, Community Development Department Other Highest Priorities (LV-c) The Town shall periodically revise its application forms, processing procedures, and development review procedures as necessary to reflect and implement the goals and policies of this General Plan. (LV-g) The Town shall identify priority locations for the use of Rule 20A under grounding funds. (OSC-k) Consider the adoption of a wood smoke ordinance to reduce the emission of particulate matter into the air. (G:::-o) Coordinate with Marin County for the adoption of complementary roadway improvement and mitigation fee programs for roads and intersections located in unincorporated sections of the Tiburon Planning Area. MEDIUM PRIORITY Open Space Management (OSC-g) The Town shall develop and adopt an Open Space management program that identifies maintenance projects and funding sources. (OSC-i) The Town shall either establish an inventory of sites which have known archaeological sites or the possibility of containing archaeological sites; or enter. into an agreement with an outside entity which can provide. similar services. Where sites have the possibility of containing archaeological resources, project sponsors shall be required to notify . . . 6 . . . contractors to cease construction activities upon encountering archaeological artifacts or human remains until proper authorities have been notified and a mitigation plan is developed. (SE-d) As part of an Open Space Management program, the Town shall develop a plan, including funding sources and! or other opportunities, such as volunteer groups, for reducing fire hazards and maintaining fire roads on Town-owned open space. (OSC-p) The Town shall develop an ordinance or guidelines for outlining green building principles. (DT-e) Facilitate the long-term future improvement of the four corner properties at the intersection of Tiburon Boulevard and Beach Road and adjacent sites. (DT-n)The Town shall explore the desirability and feasibility of a public parking structure in Downtowa . '" (DT-o) With the owners of Downtown private parking lots, the Town shall examine the feasibility of instituting a preferential parking program for residents. Capital Improvements (DT-s) Install a paved pedestrian pathway or similar suitable improvement along Mar West Street from Tiburon Boulevard to the Tiburon Peninsula Club, and install a pathway connecting Teather Park to Judge Field. (DT -w) Consider the installation of a small public restroom facility in or near Shoreline Park. Actions on Private Property (DT-k) For the Main Street Parking Lot, designate and enhance pedestrian walkways, stairways, lanes and intersection points through signage, pavement markings or other methods, and enhance or replace existing parking lot landscaping along Juanita Lane. The Town and property owner should study alternative vehicular entry and! or exit points for this parking lot. 7 (DT-I) Pave and improve the Tiburon Boulevard pay parking lot located' at 1525 Tiburon Boulevard. If feasible, designate bus parking spaces in this lot, with signage prohibiting the idling of buses. LOWEST PRIORITY (OSC-e) The Town shall establish a clearinghouse of information for public use related to protection of sensitive biological and wetland resources, maintain contacts for agencies responsible for their protection, and encourage programs dedicated to the restoration and management of the remaining natural area. (OSC-f) The Town shall consider revising and expanding the Tiburon Tree Ordinance to provide protection of both individual' trees and native woodlands. Factors to consider in expanding the current ordinance include the importance of protecting smaller sapling trees and balancing their protection against those of designated "protected trees", defining critical management guidelines necessary to maintain healthy woodlands,. and methods to encourage natural regeneration in woodland habitats. (OSC-h) The Town shall create and adopt an overlay zone for the ar~a containing the Town's Inventory of Local Historical Buildings and adopt additional protection measures for the structures identified in the Inventory. (OSC-j) Revise the Town's water conservation ordinance when changes in MMWD's water conservation ordinance require. (DT-b) Adopt a property maintenance ordinance for Downtown that will require that public and private improvements (including signs) be kept in good repair. (DT-d) Over the long-term, implement installation of streetscape improvements to Tiburon Boulevard's public right-of-way as described in the Downtown Tiburon Design Handbook. These improvements may include, but are not limited to, widening sidewalks to a minimum of eight feet; providing a landscaped planter strip between sidewalks and streets on both sides of Tiburon Boulevard; installing new street trees in these planter strips; and replanting the existing median strip with lower- growing vegetation. . . . 8 . (DT-f) The Town shall adopt a street furniture/ outdoor seating plan for Main Street, with possible future extension of the plan to other areas of Downtown. 0DT-g) The Town shall adopt a resolution designating the former Northwestern Pacific Railroad Yard palm tree as a protected tree. (DT -h) Consider installation of a Downtown Tiburon entry sign/ planter area at an appropriate location. (DT-i) Consider adoption of a public art ordinance and establishment of a community program to encourage public art where appropriate. (DT-j) The Town shall install signs or kiosks where appropriate to indicate the location of off-street parking within walking distance of Downtown Tiburon. (DT-p) Install a traffic signal at Mar West Street and Tiburon Boulevard as soon as permission from Caltrans can be secured. . (DT-q) Reduce the bicycle/vehicular conflict at the Mar West Street/Tiburon Boulevard intersection. Study the installation of a delineated left-turn bicycle lane from westbound Tiburon Boulevard to the multi-use path entrance at this location, as well as other options. Such improvements may (but need not) occur in conjunction with signalization of the intersection. (DT -r) Relieve the pedestrian congestion points near the intersection of Juanita Lane and Tiburon Boulevard through physical changes and improved enforcement of the public right-of-way. (C-n) The Town shall promote and publicize the RIDES program to employers and employees as a resource for exploring ways to reduce traffic and parking congestion. (SE-i) The Town shall coordinate with the Marin Municipal Water District to replace the piping and fittings in those water tanks in the Planning Area that are not currently fitted with flexible, earthquake-resistant joints., In addition, the water tanks should be evaluated to ascertain their ability to withstand strong seismic ground shaking. . (SE-j) The Town shall create and implement a Seismic Improvement Program. The Program shall include conducting a seismic risk assessment 9 of existing Town infrastructure, which would help to create a list which would prioritize the buildings and equipment that should be retrofitted. Following risk assessment, the Town should adopt a program that would upgrade vulnerable facilities based on the priority list. (SE-k) The Town shall increase education regarding upgrading of buildings using structural and non-structural mitigation measures. (H-IB) Improve Community Awareness of Housing Needs, Issues, and Programs. Provide or collaborate with other agencies (e.g., County of . Marin, Marin County Housing Authority~ Rotary, Chamber of Commerce, Ecumenical Association for Housing, Housing Council) to prepare presentations and distribute informational. materials to improve awareness of housing needs, issues and programs, and ensure community participation. Distribute materials to neighborhood groups, homeowner associations, religious institutions, businesses, and other interested groups (Rotary, Chamber of Commerce, etc.) in the Tiburon area. Target: Compile and distribute beginning in 2005 Responsibility: Community Development Department Funding: Affordable Housing Fund, General Fund (H-4) Work with Housing Advocates. Coordinate with local businesses, housing advocacy groups, Rotary Clubs, and the Chamber of Commerce and participate in the Marin. Consortium for Workforce Housing in building public understanding and support for workforce, special needs and affordable housing. Target: Ongoing Responsibility: Community Development Department, Planning Commission, Town Council, Town Manager (H-5) Fund County Housing Position. Jointly fund an Affordable Housing Strategist position within Marin County to provide all participating local agencies with technical assistance to facilitate approval and construction of affordable housing projects. This' may include adoption by the Countywide Planning Agency of a Strategic Action Plan for Housing in Marin that will be considered for adoption with each jurisdiction's Housing Element. The Strategic Action Plan should be coordinated by the Marin County Affordable Housing Strategist who would also assist participating cities and towns. Target: Ongoing Responsibility: Community Development Department, Town Council . . . 10 . (H-6A) Staff Training. Hold a training session for Town employees regarding, the receipt, documentation, and proper referral of housing discrimination complaints. Target: Hold training session in 2005. Responsibility: Community Development Department (H-19E) Unincorporated Sites in Housing Element Area. Facilitate development at sites identified in the Tiburon's Housing Plan 1999-2006 (Table 9.9-:1) that are within the Tiburon Housing Element Area but are currently subject to the jurisdiction of Marin County. Initiate prezoning and annexation proceedings for these sites with Marin LAFCO. Target: Initiate prezoning and annexation in 2005; approval of 19 below market rate and 16 above moderate income units by end of 2006: Responsibility:. Community Development Department, Planning Commission, Town Council, Marin LAFCO . (H-20B) Provide Information to Homeowners. Provide an informational guide to homeowners explaining the benefits, "best practices" and procedures for adding or legalizing a secondary dwelling unit. Target: Develop brochure during 2005; Approximately 10 new secondary dwelling units approved during 1999-2006 affordable to low and/ or moderate income households. Responsibility: Community Development Department (H-23) JobsjHousing Fee. Adopt a Jobs/Housing Linkage Fee Ordinance that includes the following or similar exaction requirements: a. Exaction requirements for dwelling units and/ or in-lieu fees should be set according to empirically based evidence and must comply with all other legal tests. b. The inclusion of affordable housing units within developments of hotels, offices, or other commercial buildings if feasible (options may include housing on-site, off-site, subsidizing mortgages or rents, or paying an in-lieu fee for housing production), or . c. Payment into a Housing Trust Fund of in-lieu fees based on a dollar amount per square foot of office, commercial, and industrial building development. d. In-lieu fees would be waived in projects containing significant affordable housing components. Target: Ordinance developed and adopted in 2005 Responsibility: Community Development Department, Town Council . 11 ONGOING (LU-e) The Town shall require that plans for new construction include a lighting plan for review as part of the Site Plan and Architectural Review process. (LU-h) The Town shall review the plan periodically and revise and update the General Plan within 10 to 15 years of its adoption as deemed necessary. (OSC-a) Applicants shall be required to demonstrate that proposals for development minimize environmental impacts and comply with the General Plan and applicable regulations, ordinances and guidelines. The T own shall require an environmental assessment process, similar to that used by the County of Marin, for Precise Development applications filed for large undeveloped properties. (OSC-b) The Town shall review development applications submitted with the County within its sphere of influence and areas of interest in order to encourage conformance with Town policies, including minimizing the visual impact of development on surrounding hills visible from Tiburon. (OSC-c) The Town shall require an environmental assessment for development proposed on sites that may contain sensitive biological resources, including wetlands, occurrences of special-status species and sensitive natural communities, native wildlife nurseries and nesting locations, and native wildlife movement corridors. The assessment shall be conducted by a qualified professional to determine the presence or absence of any sensitive resources which could be affected by proposed development, shall provide an assessment of the potential impacts, and shall define measures for protecting the resource and surrounding buffer habitat. (OSC-d) Where hillslope stabilization is proposed as part of development proposals, or wherever such stabilization is required by the Town to protect public safety, the Town shall require the project to evaluate all slope repair-related modifications such as the secondary impacts of subsurface drainage on site and watershed ecological communities, including special-status species, sensitive natural communities, and wetlands. In the event impacts are likely, modifications to the proposed project shall be considered. In the event avoidance and project modification are infeasible, appropriate on- or off-site habitat mitigation . . . 12 . shall be required prior to project approval, as mandated by the State and federal regulatory agencies. (OSC-I) The Town shall pursue the gradual replacement of the Town's vehicle fleet with zero or low emission vehicles, where appropriate. (OSC-m) The Town shall attach BMP conditions to permits that are issued by the Town, as appropriate. (OSC-n) Recycling bins shall be placed adjacent to refuse cans on the Town's public property, with special emphasis on high traffic areas, such as Shoreline Park and the Richardson Bay Lineal Park. (OSC-o) The Town shall continue to be an example and a resource for the community in recycling by continuing programs such as the construction debris program, household battery program and by reducing the waste of resources in conducting the Town's business; . (DT-m) The Town, along with Downtown property owners and merchants, shall periodically review the relationship between Downtown businesses and the time limit regulations of on-street parking and study changes to the current public street parking regulations to best serve Downtown merchants and their patrons. (DT-t) Actively monitor the San Francisco Bay Area Water Transit Authority process in order to promote ferry use. (DT-u) Facilitate expansion of the Belvedere-Tiburon Public Library by employing streamlined permit review processes typically used for major public projects. (DT-v) Implement recommendations of the Railroad Marsh Maintenance Plan prepared by Wetlands Research Associates. (C-a) The Town shall maintain its traffic model and trclffic monitoring program, which' periodically measures intersection levels of service, evaluates the impact of new projects on the roadway \letwork, and re- evaluates appropriate traffic mitigation fee amounts. (C-c) The Town shall' re-evaluate its list of needed circulation approximately every five (5) years. . 13 (C-f) The Town shall lobby funding agencies such as Metropolitan Transportation Commission and the Transportation Authority of Marin to ensure that funding for critical local roads, including Paradise Dfive. (C-g) The Town shall use the designation of Paradise Drive as part of the Bay Trail as a tool in applying for improvement funding for the road. (C-h) Tl1e Town of Tiburon Traffic Safety Committee shall maintain a list of desired traffic safety improvements for implementation over time. (C-i) The Town shall review the Bicycle and Pedestrian Master Plan periodically, and revise the list of improvements and actions called for in the Plan when implementation of adopted improvements has occurred, and/ or when conditions warrant. (C-j) The Town will work cooperatively with ABAG and neighboring jurisdictions to improve the Bay Trail around the Tiburon Peninsula. (C-k) Encourage the provision of adequate transit facilities in cooperation with other agencies and operators. (C-l) The Town shall make available schedules for buses, ferries, and any transit agencies that connect with those modes. (C-m) The Town shall continue to work with the Reed Union School District and St. Hilary School to promote alternative transportation programs to reduce traffic congestion around schools. (C-p) Maintain an active role in the Transportation Authority of Marin and/ or U.s. Highway 101 Corridor planning program with the purpose of ensuring that improvements enhance inter-city movement. (SE-a) Where possible, the Town should advise residents of the Tiburon Planning Area of ways that they can reduce geologic, fire and flooding hazards. (SE-b) The Town shall require project applicants for new development to prepare a hydraulic and geomorphic assessment of on-site and downstream drainageways that are affected by project area runoff. Characteristics pertinent to channel stability would include. bank erosion, excessive bed scour or sediment deposition, bed slope adjustments, lateral channel migration or bifurcation, and the condition of riparian vegetation. In the event existing channel instabilities were noted, the applicant could . . . 14 . either propose their own channel stabilization program, or defer to the mitigations generated during the Town's environmental review. Any proposed stabilization measures shall anticipate any project-related changes to the drainageway flow regime. (SE-c) Through the application review process, the Town shall continue to require review by the appropriate Fire District for fire prevention considerations. (SE-e) The Town shall continue to review and update the Emergency Operations Plan to ensure that it remains up-to-date. (SE-f) The Town shall adopt a Local Hazard Mitigation Plan to comply with the federal Disaster Mitigation Act of 2000 and maintain eligibility for hazard mitigation funding from FEMA. (SE-g) The Town shall use its best efforts to disseminate emergency preparedness infor~ation to the community: . (SE-h) The Town shall conduct an immediate post-earthquake assessment of critical facilities and buildings in the Planning Area to deter:n1ine the extent of damages, if any, to essential Town infrastructure. This should be performed by trained professional(s) utilizing the current state-of- knowledge regarding post-earthquake assessment. (SE-I) The Town shall evaluate the potential impacts related to hazardous materials during the environmental review process for new developments or businesses where the production, use, storage, transport, or disposal of hazardous materials is proposed. The potential impacts should be fully mitigated. (SE-m) The Town shall coordinate hazardous materials with other public agencies. (N-a) The Town should periodically assess the noise environment to identify noise sources that should be regulated to reduce excessive or offensive noise. (N-b) The Town should contact the appropriate regulatory agencies to ensure, that they are aware of the Town's policy discouraging aircraft flyovers of the Tiburon Planning Area. . 15 (PR-b) The Town shall examine development applications for the existence and potential creation of easements and/ or trails that connect or continue to allow public access to shoreline, recreation and open space areas; Town Staff shall monitor construction with a view toward the successful creation and/ or maintenance of such easements and/ or trails. (H-1C) Foster Meaningful Assistance from Other Agencies. Town staff will proactively meet and work with other public agencies and special districts (water, fire, schools, sanitary districts, etc.) to promote affordable housing through the provision of fee waivers, fee reductions, or other assistance for affordable housing projects. Target: . Hold meetings/governing board presentations in 2005 with schools and special districts. Responsibility: Town Council and Town Staff (H-2) Redevelopment Agency. In addition to expending Housing Set Aside Funds for meritorious affordable housing projects, as set forth in Appendix A, the Town will place some or all of the new property tax margin that will accrue to the Town once the Redevelopment Project Area sunsets into a designated fund for affordable housing. Target: Affordable housing projects on Sites 1-5 & 7, Table 9.9-1 and any other sites within the Redevelopment Area Responsibility: Redevelopment Agency/Town Council (H-3) Apply for Funds. Apply for affordable housing funds generated by Proposition 46 including, but not limited to, the Multifamily Housing Program, the CalHome Program, and the Homebuyer's Downpayment Assistance Program, and other agencies including the Marin Community Foundation by end of 2005. Commit these funds to one or more projects listed in Table 9.9-1: Tiburon's Housing Plan 1999-2006. Target: Apply for funds 2005; Ongoing funding applications. Responsibility: Town Manager, Community Development Department (H-6B) Housing Discrimination Complaints. Refer discrimination complaints to the appropriate legal service, county, or state agency or Fair Housing of Marin. If mediation fails and enforcement is necessary, refer tenants to the State Department of Fair Employment and Housing or HUD. Target: Ongoing , Responsibility: Community Development Department (H-8A) Emergency Housing Assistance. Participate and allocate funds, as appropriate, for County and non-profit programs providing emergency shelter and related counseling services. . . . 16 . Target: Ongoing; Respond to County requests for assistance Responsibility: Town Staff, Town Council ' Funding: Affordable Housing Fund, General Fund (H-9) Develop and Adopt an Employee Housing Assistance Policy and Program. Target: Adopt policy in 2005 Responsibility: Town Manager and Town Council (H-IOA) Rehabilitation Loan Programs. Continue to support rehabilitation loan subsidy programs. In cooperation with the Marin County Housing Authority (MCHA), the Town shall improve citizen awareness of rehabilitation loan subsidy programs. . Target: Residential Rehabilitation Loan Program (MCHA) - 3 low - . income units rehabilitated by 2006. . Responsibility: Community Development Department . (H-IOB) Acquisition of Rental Housing. Work with non-profit sponsors seeking to acquire and rehabilitate rental housing units, in order to maintain ongoing afford ability of the units. This will include, but not be limited to: (1) support necessary to obtain funding commitments from governmental programs and non-governmental grants; (2) assistance in permit processing; (3) waiver or subsidy of fees; and (4) use of local funds if available. Target: Ongoing Responsibility: Town Council, Town Manager, Community Development Department . (H-ll) Condominium Conversions. Preserve rental housing by enforcement of Policy H-ll and the Town's condominium conversion ordinance. Target: Ongoing Responsibility: Community Development Department (H-12) Protect JJ At Risk" Units. Identify assisted properties at risk of conversion to market rates and work with the property owners and/ or other parties to ensure that they are conserved as part of the county's affordable housing stock. No affordable housing units are currently at risk of conversion in Tiburon. Target: Ongoing Responsibility: Community Development Department . 17 (H-14) Density Bonus Provisions application of Zoning Ordinance reconstruction to the same density. Target: Ongoing Responsibility: Community Development Department for Reconstruction.. Continue ( section 6.06.00(c) that allows (H-1S) Rental Housing Assistance. Encourage federal, state and local rental housing programs. Wor~ with the Marin County Housing Authority to implement the Section 8, Project Independence rental assistance programs, Marin Renters Rebate program, and any similar programs. Target: Assist 12 low and moderate-income units by 2006 Responsibility: Community Development Department (H-16A) Work with the Marin Housing Authority. Continue to work successfully with the Marin Housing Authority (MHA) for management of the affordable housing stock in order to ensure p~rmanent affordability, implement resale and rental regulations for below-market rate units, and assure that these units remain at an affordable price level. Target: Ongoing Responsibility: Community Development Department (H-16B) Link Code Enforcement with Public Information Programs. Implement housing, building and fire code enforcement to ensure compliance with basic health and safety building standards and provide information about rehabilitation loan programs for use by qualifying property owners who are cited. Contact owners of structures that appear to be in declining or substandard condition, offer inspection services, and advertise and promote programs that will assist in funding needed work. Target: Ongoing Responsibility: Community Development Department. (H-17) Publicize Energy Conservation and Tenant Assistance Programs. Provide public information on alternative energy technologies for residential developers, contractors and property owners. Publicize available services for tenants and refer tenants to Marin Mediation Services if probl'ems exist. Publicize tenant assistance and energy conservation programs and weatherization services that are available to provide subsidized or at cost inspection and corrective action. Target: Ongoing. Responsibility: Community Development Department' . . . 18 . (H-19F) Architectural Design in MfordablejMarket Rate Projects. Allow affordable units within a market rate development to vary in design from market rate units so long as the project is architecturally harmonious. Attached units, smaller units and other design variations from market rate units are permitted by the Town to reduce costs of providing affordable units and to act as an incentive for their construction. Target: Ongoing implementation through Design Review process Responsibility: Community Development Department . . 19 .,.,.., , Proposed Economic Exception Ordinance Page 1 of 1 Scott Anderson LATE MAL j. II From: Fran M, Layton [Layton@smwlaw.com] ,Sent: Monday, September 19, 2005 10:11 AM To: Ann Danforth Cc: Scott Anderson Subject: Proposed Economic Exception Ordinance SEP 1 ~1 Z005 Ann and Scott, Dj\/!~::i(Jl'tJ TOVVf\! OF T!8UF~Of\J I received and reviewed on Friday afternoon the staff report and revised Economic Exception Ordinance. I think that you two have done a terrific job of explaining very clearly the rationale for the changes you have proposed and addressing the concerns of the Council, particularly Vice-Mayor Smith. One other advantage of the Ordinance, which might be of interest to the Town Council, is that this provision will almost" automatically defeat a facial challenge to the Town's regulations protecting prime open space. Until an applicant applies for this variance, it cannot be said that the Town's regulations on their face will result in a deprivation of all economic use. On the subject of "when" an applicant applies for the Economic Exception, your rewrite is a thoughtful approach to the balance of interests as between the Town's need to understand the basis for a potential takings claim at the earliest possible time and the time required of the property owner to prepare the required materials. Of course, it is in the applicant's interest to know as soon as possible if the Town will grant an exception for the proposed development, and the nature of that exception, so that he can prepare submittal documents accordingly. I would only reemphasize, as I noted in my email of September 7th to you, that the Town's General Plan and zoning regulations are quite explicit as to the restrictions that will affect development of property. Therefore, the applicant should be able to anticipate the need for an economic exception fairly early in the process. Following are a few minor language changes to propose, which are non-substantive in nature: First, paragraph 16-7 .3(b), which pertains to the Council's jurisdiction, says it retains jurisdiction after its initial decision on the project "for the sole purpose of considering a request for an Economic Exception." It might be a good idea to be explicit that it retains jurisdiction until after it takes action on the exception. The remaining proposed minor changes to sections 16-7.3 (a)(2), (b), and ( c), are shown on the attached version of the ordinance. Please don't hesitate to contact me if you wish to discuss'any of this. Fran Layton <<fmI003 (fml edits to Economic Exception Ordinance 9-21 draft),doc>> 9/1912005 , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 ORDINANCE NO. N.S. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ADDING A NEW ARTICLE VII TO TITLE IV, CHAPTER 16 (ZONING) OF THE TIBURON MUNICIPAL CODE REGARDING ECONOMIC EXCEPTIONS The Town Council of the Town ofTiburon does ordain as follows: SECTION 1. FINDINGS. A. The Town Council has held duly noticed public hearings on June 15,2005, September 7, 2005, September 21,2005, and ,2005, and has heard and considered public testimony on the proposed Ordinance. B. The Town Council finds that all notices and procedures required by law attendant to the adoption of this Ordinance have been followed. C. The Town Council fmds that the amendment actions made by this Ordinance are necessary for the protection of the public health, safety, and welfare. D, The Town Council has found that the amendments made by this Ordinance are consistent with the goals and policies of the Tiburon General Plan and other adopted ordinances and regulations of the Town of Tiburon, E. The Town Council finds that this project is categorically exempt from the requirements of the California Environmental Quality Act per Section 15308 of the CEQA Guidelines and under the "general rule", pursuant to Section 15061(b)(3) of the CEQA Guidelines, SECTION 2. AMENDMENT TO MUNIClP AL CODE. A new Article VII to Chapter 16, Title IV, of the Tiburon Municipal Code, entitled "Economic Exceptions," is hereby added to the Tiburon Municipal Code to read ) as follows: , 39 Article VII. Economic Exceptions 40 41 16-7.1. Purpose. 42 Thepurpose of this article is to ensure that the Town applies its General Plan, ordinances, 43 resolutions and other measures that regulate land use for the protection and promotion of 44 the public health, safety, general welfare and the environment (collectively, "Land Use Town ofTiburon Ordinance No, NS, Effective --/--/2005 Regulations") in a manner that treats property owners fairly and in a manner consistent with state and federal law. ' This article authorizes the Town to grant an Economic Exception relaxing the application of the Town's Land Use Regulations to the extent necessary to avoid an unconstitutional taking under the United States or California Constitutions. 16-7.2. Application for Economic Exception. (a) If any appliCant believes that strict application of the Town's Land Use Regulations would not permit an economically viable use of his or her property, or would otherwise effect an unconstitutional taking of property, the applicant may apply for an Economic Exception. The application for an Economic Exception shall include the entirety of all parcels that are geographically contiguous in which the applicant holds an interest at the time of the application. (b) The applicant shall be required to fund all costs associated with independent peer review studies and reports commissioned by theTown of any information submitted by the applicant, or the independent preparation of such information by the Town or its consultants, and may be required to submit an advance deposit upon application to cover such costs. (c) Any applicant that does not submit a request for an Economic Exception as set forth in section 16-7.3 shall be deemed to have waived any objections based on the Takings clauses of the United States and California Constitutions to the strict application of the Town's Land Use Regulations, including, without limitation, any condition of approval, mitigation measure or other measure imposed to implement said regulations. 16-7.3. Time for Filinl! Application. (a) Economic Exception requests should be filed as early as possible in the planning and/or permit process. (1) If the Economic Exception request is based on the facial application of the Town's Land Use Regulations, the applicant shall apply for the Economic Exception before or in conjunction with the first land development application submitted for the property. '(2) The applicant shall apply for an Economic Exception in conjunction with the first land development application submitted for the property if the Town's Land Use Regulations ifit is reasonably foreseeable that application of the Town's Land Use Regulations will require~u~~Ilialo!:t~~e~de,velol?~~~,n!un application or the imposition of a condition of approval, mitigation measure or other measure ~~h,i.~~ the,ap2}A~~J1t" ~eli~'Y,~s, ~.i}}, e,ffe,ct, aJ1, ~l1c()nst~~,ti,<l!lal ta,ki!lg'' of property. " (b) Notwithstanding subsection 16-7.3(a), if the Town Council is the decision- making body for the land development application and the applicant's Economic Exception request is based on the Town Council's .deIli,al oftl1edevelopllll:Ilt applic:<iti()Il " ' or on its imposition of a condition of approval, mitigation measure or other measure,.,QI,e,n'" ",," applicant shall submit the application for an Economic Exception within thirty (30) days Town ofTiburon Ordinance No, NS, Effective --/--/2005 r Deleted: a \..._...._-_._._._....._......_._~_......_.__.,-,.._...__..... r"---'---""'-,..---------., "'j Deleted: a a-." . '" ,-,,,,-,-,, -""",-",---, Deleted: imposed by the Town <::?':':':~~~,_,___"_,______" _m_.'J 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the Town Council's action on the land development application. The Council shall retain jurisdiction over the project after its initial decision on the application for the sole purpose of considering a request for an Economic Exception, which jurisdiction shall expire at the end of the 30-day period ifno such request is filed, This subsection 16- 7 .3(b) shall not apply if the denial, condition of approval, mitigation measure or other measure was reasonably foreseeable when the applicant filed its first land development application for the property. . (c) Notwithstanding subsection 16-7.3(a), if the Planning Commission, Design Review Board, or Town Official is the decision~making body for the land development application and the applicant's Economic Exception request is based on~,~~_J?i~LC?f~l1e~../....' development application or on the imposition of a condition of approval, mitigation measure or other measur'i,by tl1e }>lannillg<:;ol11IIlissi()l1' pesigtl~<::"ie~ Bo~r4,or ToWIl..._. .... Official, the applicant shall submit the application for an Economic Exception within ten (10) days of the decision-making body's action on the land development application, The request for an Economic Exception shall be submitted in conjunction with an appeal filed pursuant to the Town's regular appeal process for contesting zoning permit decisions as set forth in section 16-3.8 ofthis Code, The applicant may submit supporting information for the Economic Exception request for a period ofthirty (30) days following the decision being appealed. Scheduling of the Town Council hearing on the appeal and the requestfor Economic Exception shall be at a date that the Director of Community Development determines will allow sufficient time for the Town to analyze the issues raised by the appeal and the Economic Exception application, This subsection 16-7 .3( c) shall not apply if the denial, condition of approval, mitigation measure or other measure was reasonably foreseeable when the applicant filed its first land development application for the property. (d) For purposes of this section, "first land development application" shall mean the first land development application filed in connection with a particular project 16-7.4. ReQuired Information. 29 (a) The applicant shall provide all of the following information within thirty 30 (30) days of the decision on which the Economic Exception request is being filed: 31 (1) The date the applicant purchased or otherwise acquired the property, 32 and from whom. 33 (2) The purchase price paid by the applicant for the property and a 34 description of any consideration that the applicant received for that purchase price 35 in addition to the property, 36 (3) The fair market value of the property at the time the applicant acquired 37 it, describing the basis upon which the fair market value is derived, including any 38 appraisals done at the time. 39 (4) The general plan, zoning or similar land use designations applicable to 40 the property at the time the applicant acquired it, as well as any changes to these 41 designations that occurred after acquisition. Town ofTiburon Ordinance No, NS Effective --/--/2005 3 , f Deleted: a ..... J r-------'-- -------- , Deleted: imposed (5) A description of any development restrictions or other restrictions on use, other than government regulatory restrictions described in (4) above, that - applied .to the property at the time the applicant acquired it, or which have been imposed after acquisition. (6) A description of any change in the size of the property since the time the applicant acquired it, including a discussion of the nature of the change, the circumstances and the relevant dates. (7) A statement as to whether the applicant has sold or leased a portion of, or interest in, the property since the time of purchase, indicating the relevant dates, sales prices, rents, and nature of the portion or interests in the property that were sold or leased. (8) A title report for the property, as well as copies of any underlying documents referenced therein, and copies of any litigation guaraptees or similar documents that affect or limit the use of all or a portion of the property. (9) A statement describing any offers to buy all or a portion of the property which the applicant solicited or received, including the approximate date of the offer and offered price. (10) An accounting ofthe applicant's costs associated with the ownership of the property, annualized for each ofthe last five (5) calendar years, including property taxes, property assessments, debt service costs (such as mortgage and interest costs), and maintenance, operation and management costs, (11) Apart from any rent received from the leasing of all or a portion of the property, an accounting of any income generated by the use of all or a portion of the property over the last five (5) calendar years. If there is any such income to report it should be listed on an annualized basis along with a description of the uses that generate or have generated such income. (12) A brief written explanation why the application is necessary to avoid an unconstitutional taking. (b) The Director of Community Development may, in his reasonable discretion, require the submittal of additional information that he determines is necessary to analyze the application, (c) The Director of Community Development may, in his reasonable discretion, gnmt additional time for the applicant to submit the required information. 16-7.5. Economicallv Viable Use Determination~ Economic Exception. (a) The Town Council shall hold a public hearing on any application for an Economic Exception, The Town Council shall grant an Economic Exception from strict application of the Town's Land Use Regulations if the Town Council makes the following findings:. . (1) Based on the economic information provided by the applicant or consultants, and considering any other relevant evidence, strict application of the Town ofTiburOli Effective --/--/2005 Ordinance No, NS '- 4 ~, 1 Town's Land Use Regulations would not provide an economically viable use of 2 the applicant's property or would otherwise constitute an unconstitutional taking 3 of the applicant's property, 4 . (2) The Economic Exception granted will result in a project which, to the 5 maximum extent possible while avoiding an unconstitutional taking, (a) complies 6 with the Town's General Plan and Zoning Ordinance and (b) minimizes 7 significant environmental impacts. 8 (b) The Town Council's findings shall identify the evidence supporting the 9 findings. 10 SECTION 3, SEVERABILITY. 11 12 If any section, subsection, sentence, clause or phrase of this chapter is for any 13 reason held by a court of competent jurisdiction to be invalid, such decision shall not 14 affect the validity of the remaining portions of this chapter. The Town Council declares 15 that it would have passed this chapter and each section, subsection, sentence, clause and 16 phrase thereof, irrespective of the fact that anyone or more section, sentences, clauses or 17 phrases be declared invalid. 18 SECTION 4. EFFECTIVE DATE. 19 This Ordinance shall take effect and be in force thirty (30) days after the date of 20 passage, and before the expiration of fifteen (15) days after passage by the Town Council; 21 a copy of the ordinance shall be published with the names of the members voting for and 22 against it at least once in a newspaper of general circulation in the Town of Tiburon. 23 24 This Ordinance was introduced at a regular meeting of the Town Council of the 25 Town ofTiburon on ,2005, and was adopted at a regular meeting of the Town 26 Council of the Town of Tiburon on ,2005, which was noticed pursuant 27 to Government Code Section 65090, by the following vote: 28 29 AYES: 30 NOES: 31 ABSENT: 32 33 34 35 A TrEST: 36 37 38 MILES BERGER, MA YOR TOWN OF TIBURON Town ofTiburon Ordinance No, NS Effective --/--/2005 5 :'"; . . . TOWN OF TIBURON STAFF REPORT ITEM NO. iL To: From: MAYOR AND MEMBERS OF THE TOWN COUNCIL ANN R. DANFORTH, TOWN ATTORNEY ). /'-~'/ SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMENT 9='r-;/t'L.4 " ECONOMIC EXCEPTIONS: FILE Z2005-01; CONSIDER ORDINANCE AMENDING MUNICIPAL CODE CHAPTER 16 (ZONI AN ECONOMIC EXCEPTION PROCESS September 21,2005 REVIEWED BY: Subject: Date: BACKGROUND Takings claims pull the Town into one of the most contentious and unpredictable areas of land use law. Litigation of these cases can be protracted, costly and of uncertain outcome. In response to this predicament, the Institute for Local Seif Government developed a model ordinance that creates a procedure designed to both reduce the number of takings claims against the adopting public agency and ensure that before taking action on a project, the agency has before it all the facts relevant to a potential takings claim. ' At the Council/Staff Retreat in February of this year, the Council directed staff to prepare a similar ordinance for the Council's consideration. Staff presented the first draft to the Council on June 15,2005. At this hearing, the Council voiced concerns about the practical implementation of the Economic Exception process. The June 15th draft ordinance had relatively tight timeframes for the applicant to submit information supporting their claim that strict application of the Town's land use regulations would result in an unconstitutional taking of property. These timelines reflected the State Permit Streamlining Act, which gives the Town only a limited period of time to approve or deny a project application. However, Councilmembers believed that as drafted, the ordinance might not allow sufficient time for the applicant to prepare the required information or for the Town to analyze the application. Staffprepared a revised ordinance for the Council's consideration at its June 29th meeting. This draft addressed the timing problem by authorizing the Community Developm~nt Director to grant extensions to the ordinance's deadlines for filing supporting information. The Council continued the item without discussion. On September ih,Town staff brought the draft ordinance back to Council, after incorporating the approach suggested by Vice Mayor Smith. Earlier that same afternoon, the Town Attorney received a call from Fran Layton, of Shute, Mihaly & Weinberger, who asked for several changes.' . . We thought that the changes were sufficiently helpful to warrant inclusion, despite their "last- minute" submission. 1 However, the Council stated that they needed more time to review the new language. They also requested that the staff present a new report describing the most recent changes and explaining the advantages and disadvantages of adopting the ordinance. /' ANALYSIS 1. Changes Since June 29, 2005 The initial timing problem arose from the constraints of the Permit Streamlining Act. The Act requires Town action on the merits of most project applications within specified deadlines. These deadlines are often difficult to meet, particularly when a project requires an environmental impact report. Ifthe applicant's takings claim arises from a condition of approval, mitigation measure or other measure imposed during the application process, there may be very little time remaining for the Town to consider a request for an Economic Exception. The June 15th draft accordingly contained relatively tight timeframes for presenting and processing a request for an Economic Exception. The Council was concerned that these timeframes would not allow adequate time for the applicant to present re1ev~nt information or for the Town to analyze it; the Council continued the item, directing staff to amend the draft ordinance to allow more time. In response, the June 29th . draft empowered the Director of Community Development to grant extensions as needed to insure fairness to the applicant and adequate Town evaluation of the request. At the June 29th hearing, the Council elected to continue the matter further; Vice Mayor Smith was absent that evening and his fellow Council members wanted his input on the ordinance. The Town Attorney discussed the ordinance with Vice Mayor Smith, who recommended postponing the Economic Exception process until after the Town had made its decision on the merits of the project, thereby avoiding the timing problems created by the Permit Streamlining Act. Sections 16-7.2 and 16- 7.3 were largely re-written for the September 7th draft to reflect these changes. The revised draft allowed applicants to apply for an Economic Exception after the Town had made a decision on the merits of the project. After that point, the Permit Streamlining Act deadlines no longer apply. If the Council is the decision-making body, the applicant would have 30 days to apply for an Economic Exception. If the Planning Commission, Design Review Board or Town Official is the decision-making body, the process would be similar to a zoning permit appeal, except that this Ordinance provides a longer period (30 days) for submitting supporting information for the Economic Exception application. The changes added on September ih are not substantive in nature. At Ms. Layton's suggestion, the ordinance explicitly provides that the Council retains jurisdiction over project applications after making a decision on the merits for the purpose of deciding Economic Exception requests. This is a technical legal modification, designed to defeat a possible form of legal attack on a 1 There was some criticism at the meeting of the late submission of the recommended changes. In fairness to . Ms. Layton, we should note that the draft ordinance was not publicly available until late in the day on Friday, September 2"d, therefore it would have been difficult to submit comnients significantly in advance of the meeting. Tiburon Town Council Staff Report 9/21/2005 2 . . . Council decision. The second change clarifies that applicants are encouraged to apply for Economic Exceptions are early as possible in the development process; the new post-decision procedure is intended only for conditions, mitigation measures, or other measures that are not reasonably foreseeable given the Town's land use regulations. A few minor changes have been made following the September ih meeting. These are primarily formatting changes, but one is the addition of a section authorizing the Director of Community , Development to grant an applicant additional time (beyond the 30 days) to submit the required information and materials for an Economic Exception application (section 16-7.4(c)). This addition seemed reasonable and shows the Town's interest in providing full disclosure of information prior to a final decision. There was some concern at the June 15th meeting that the two findings required for granting an Economic Exception do not provide sufficient protection to the Town's environmental resources, such as ridgelines. These findings have been modified to read as follows: (1) Based on the economic information provided by the applicant, as well as any other relevant evidence, strict application of the Town's Land Use Regulations would not provide an economically viable use of the applicant's property or would otherwise constitute an unconstitutional taking of the applicant's property. - The Economic Exception granted will result in a project which, to the maximum extent possible while avoiding an unconstitutional taking, (a) complies with the Town's General Plan and Zoning Ordinance and (b) minimizes significant environmental impacts. (2) Staff concludes that the General Plan is highly protective of such resources; the ordinance requires maximum compliance with the General Plan and accordingly will give priority to preserving the Plan's protection of these resources. A final draft version of the ordinance (incorporating all changes since June 29) is attached as Exhibit A. A red-lined version showing changes made since June 29 is attached as Exhibit B. 2. Advantages and Disadvantages of the Ordinance The proposed Ordinance would require property owners to request an Economic Exception before making a takings claim and, through the Exception process, the Town would have the opportunity to review all the facts and reasoning relevant to the potential claim. This would enable the Town to fairly balance the rights of the property owner with the Town's interest in enforcing its land use regulations. The Town would be able to tailorjts regulatory programs to avoid an unjust result. Moreover, if the Town finds that normal application of its regulations will not constitute a taking, the Ordinance would assure that the administrative record will contain enough facts to enable the agency to prevail at an earlier stage of litigation. This is potentially a very significant savings in litigation costs. Tiburon Town Council Staff Report 9/21/2005 3 The Council should note that these types of ordinances are relatively untested. However, based on existing takings jurisprudence, we believe that the Ordinance is likely to reduce the incidence of takings claims in Tiburon, and enhance the likelihood of a successful outcome in those cases that are not resolved through the Exception process. The Cities ofMalibu, Lafayette and Napa have somewhat similar procedures, which have not been tested in court as far as staff has been able to ascertain. The City of Livermore has a related process that allows the City Attorney to decide whether a regulatory application constitutes a taking. This process resulted in the City's successful defense of a refusal to grant an exception to its scenic route protection policies. Nevertheless, in the absence of any appellate court decisions upholding an Economic Exception, the potential advantages must be characterized as uncertain. On the other hand, the disadvantages of the ordinance appear to be minimal. The Town has faced few takings claims in the past 20 years, thus it does not appear likely that the ordinance will create a significant administrative burden. RECOMMENDATION The Council should conduct a public hearing on the revised draft ordinance, and then consider whether it wishes to adopt an ordinance establishing an Economic Exception procedure. If it finds in the affirmative, the Council should: 1. 2. By motion, read the ordinance by title only; and Pass first reading of the ordinance by roll call vote. EXHIBITS A. Draft Ordinance ( clean copy) B. Draft Ordinance (red-lined copy) C. Staff Report from September 7,2005 (with draft ordinance exhibit only) D. Staff Report from June 29, 2005 (with draft ordinance exhibit only) E. Staff Report from June 15,2005 (with draft ordinance exhibit only) S:/admin/tc/staffreports/economic exception report 9-21-05,doc Tiburon Town Council Staff Report 9/2] /2005 . . . 4 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 . 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 . 43 44 ORDINANCE NO. N.S. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ADDING A NEW ARTICLE VII TO TITLE IV, CHAPTER 16 (ZONING) OF THE TIBURON MUNICIPAL CODE REGARDING ECONOMIC EXCEPTIONS The Town Co:uncil of the Town of Tiburon does ordain as follows: SECTION 1. FINDINGS. A. The Town Council has held duly noticed public hearings on June 15,2005, September 7,2005, September 21,2005, and ,2005, and has heard and considered public testimony on the proposed Ordinance. B. The Town Council finds that all notices and procedures required by law attendant to the adoption of this Ordinance have been followed. C. The Town Council finds that the amendment actions made by this Ordinance are necessary for the protection of the public health, safety, and welfare. D. The Town Council has found that the amendments made by this Ordinance are consistent with the goals and policies of the Tiburon General Plan and other adopted ordinances and :regulations of the Town of Tiburon. E. The Town Council finds that this project is categorically exempt from the requirements of the California Environmental Quality Act per Section 15308 of the CEQA Guidelines and under the "general rule", pursuant to Section 15061(b)(3) of the CEQA Guidelines. SECTION 2. AMENDMENT TO MUNICIPAL CODE. A new Article VII to Chapter 16, Title IV, of the Tiburon Municipal Code, entitled "Economic Exceptions," is hereby added to the Tiburon Municipal Code to read as follows: Article VII. Economic Exceptions 16-7.1. Purpose. The purpose ofthis article is to ensure that the Town applies its General Plan, ordinances, resolutions and other measures that regulate land use for the protection and promotion of the public health, safety, general welfare and the environment (collectively, "Land Use Town ofTiburon EXHIBIT ~o.A Ordinance No, NS Effective --/--/2005 1 Regulations") in a manner that treats property owners fairly and in a manner consistent 2 with state and federal law. This article authorizes the Town to grant an Economic 3 Exception relaxing the application of the Town's Land Use Regulations to the extent 4 necessary to avoid an unconstitutional taking under the United States or California 5 Constitutions. . 6 16-7.2. Application for Economic Exception. 7 (a) If any applicant believes that strict application of the Town's Land Use 8 Regulations would not permit an economically viable use of his or her property, or would 9 otherwise effect an unc.onstitutional taking of property, the applicant may apply for an 10. Economic Exception. The application for an Economic Exception shall include the 11 entirety of all parcels that are geographically contiguous in which the applicant holds an 12 interest at the time of the application. 13 (b) The applicant shall be required to fund all costs associated with 14 independent peer review studies and reports commissioned by the Town of any 15 information submitted by the applicant, or the independent preparation of such 16 information by the Town or its consultants, and may be required to submit an advance 17 deposit upon application to cover such costs. 18 (c) Any applicant that does not submit a request for an Economic Exception 19 as set forth in section 16-7.3 shall be deemed to have waived any objections based on the 20 Takings clauses of the United States and California Constitutions to the strict application 21 of the Town's Land Use Regulations, including, without limitation, any condition of 22 approval, mitigation measure or other measure imposed to implement said regulations. . 23 16-7.3. Time for Filine Application. 24 (a) Economic Exception requests should be filed as early as possible in the 25 planning and/or permit process. 26 (1) If the Economic Exception request is based on the facial 27 application of the Town's Land Use Regulations, the applicant shall apply for the 28 Economic Exception before or in conjunction with the first land development 29 application submitted for the property. 30 (2) The applicant shall apply for an Economic Exception in 31 conjunction with the first land development application submitted for the property 32 if the Town's Land Use Regulations ifit is reasonably foreseeable that the 33 Town's Land Use Regulations will require a denial or a condition of approval, 34 mitigation measure or other measure to be imposed which the applicant believes 35 will effect an unconstitutional taking of property. 36 (b) Notwithstanding subsection 16-7 .3( a), if the Town Council is the decision- 37 making body for the land development application and the applicant's Economic 38 Exception request is based on a denial or on a condition of approval, mitigation measure 39 or other measure imposed by the Town Council, the applicant shall submit the application 40 for an Economic Exception within thirty (30) days of the Town Council's action on the 41 land development application, The Council shall retain jurisdiction over the project after . " Town ofTiburon Ordinance No, NS Effective --/--/2005 2 . . . 1 its initial decision on the application for the sole purpose of considering a request for an 2 Economic Exception, which jurisdiction shall expire at the end of the 30-day,period ifno' 3 such request is filed. This subsection 16-7 .3(b) shall not apply if the denial, condition of 4 approval, mitigation measure or other measure was reasonably foreseeable when the 5 applicant filed its first land development application for the property. 6 (c) Notwithstanding subsection 16-7.3{a), if the Planning Commission, Design 7 Review Board, or Town Official is the decision-making body for the land development 8 application and the applicant's Economic Exception request is based on a denial or on a 9 condition of approval, mitigation measure or other measure imposed by the Planning 10 Commission, Design Review Board, or Town Official, the applicant shall submit the 11 application for an Economic Exception within ten (10) days of the decision-making 12 body's action on the land development application. The request for an Economic 13 Exception shall be submitted in conjunction with an appeal filed pursuant to the. Town's 14 regular appeal process for contesting zoning permit decisions as set forth in section 16- 15 3.8 ofthis Code. The applicant may submit supporting information for the Economic 16 Exception request for a period of thirty (30) days following the decision being appealed. 17 Scheduling of the Town Council hearing on the appeal and the request for Economic 18 Exception shall be at a date that the Director of Community Development determines 19 will allow sufficient time for the Town to analyze the issues raised by the appeal and the 20 Economic Exception application. This subsection 16-7.3(c) shall not apply if the denial, 21 condition of approval, mitigation measure or other measure/ was reasonably foreseeable 22 when the applicant filed its first land developm~nt application for the property. 23 24 25 (d) For purposes of this section, "first land development application" shall mean the first land development application filed in connection with a particular project. 16-7.4. Required Information. 26 (a) The applicant shall provide all of the following information within thirty 27 (30) days of the decision on which the Economic Exception request is being filed: 28 (1) The date the applicant purchased or otherwise acquired the property, 29 . and from whom. 30 (2) The purchase price paid by the applicant for the property and a 31 description of any consideration that the applicant received for that purchase price 32 in addition to the property. 33 (3) The fair market value of the property at the time the applicant acquired' 34 it, describing the basis upon which the fair market value is derived, including any 35 . appraisals done at the time. 36 (4) The general plan, zoning or similar land use designations applicable to 37 the property at the time the applicant acquired it, as well as any changes to these 38 designations that occurred after acquisition. 39 (5) A description of any development restrictions or other restrictions on '40 use, other than government regulatory restrictions described in (4) above, that Town ofTiburon Effective --/--/2005 3 Ordinance No, NS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 applied to the property at the time the applicant acquired it, or which have been imposed after acquisition. (6) A description of any change in the size ofthe property since the time the applicant acquired it, including a discussion of the nature of the change, the circumstances and the relevant dates. . (7) A statement as to whether the applicant has sold or leased a portion of, or interest in, the property since the time. of purchase, indicating the relevant dates, sales prices, rents, and nature of the portion or interests in the property that were sold or leased. (8) A title report for the property, as well as copies of any underlying documents referenced therein, and copies of any litigation guarantees or similar documents that affect or limit the use of all or a portion of the property. (9) A statement describing any offers to buy all or a portion of the property which the applicant solicited or received, including the approximate date of the offer and offered price. (10) An accounting of the applicant's costs associated with the ownership of the property, annualized for each of the last five (5) calendar years, including property taxes, property assessments, debt service costs (such as mortgage and interest costs), and maintenance, operation and management costs. (11) Apart from any rent received from the leasing of all or a portion of the property, an accounting of any income generated by the use of all or a portion of the property over the last five (5) calendar years. If there is any such income to report it should be listed on an annualized basis along with a description of the uses that generate or have generated such income. . 25 (12) A brief written explanation why the application is necessary to avoid 26 an unconstitutional taking. 27 (b) The Director of Community Development may, in his reasonable discretion, 28 require the submittal of additional information that he determines is necessary to analyze 29 the application. 30 (c) The Director of Community Development may, in his reasonable discretion, 31 grant additional time for the applicant to submit the required information. 32 16-7.5. Economically Viable Use Determination~ Economic Exception. 33 (a) The Town Council shall hold a public hearing on any application for an 34 Economic Exception. The Town Council shall grant an Economic Exception from strict 35 application of the Town's Land Use Regulations if the Town Council makes the 36 following findings: 37 38 39 (1) Based on the economic information provided by the applicant or consultants, and considering any other relevant evidence, strict application of the Town's Land Use Regulations would not provide an economically viable use of . Town ofTiburon Ordinance No N.s. Effective --/--/2005 4 . I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 . 19 20 21 22 23 24 25 26 27 28 31 32 33 34 35 36 37 . 38 the applicant's property or would otherwise constitute an unconstitutional taking of the applicant's property. (2) The Economic Exception granted will result in a project which, to the maximum extent possible while avoiding an unconstitutional taking, (a) complies with the Town's General Plan and Zoning Ordinance and (b) minimizes significant environmental impacts. (b) The Town Council's findings shall identify the evidence supporting the findings. SECTION 3. SEVERABILITY. If any section, subsection, sentence, clause or phrase of this chapter is for any reason held by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remaining portions of this chapter. The Town Council declares that it would have passed this chapter and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that anyone or more section, sentences, clauses or phrases be declared invalid. . . , . SECTION 4. EFFECTIVE DATE. This Ordinance shall take effect and be in force thirty (30) days after the date of passage, and before the expiration of fifteen (15) days after passage by the Town Council, a copy of the ordinance shall bepublished with the names of the members voting for and against it at least once in a newspaper of general circulation in the Town of Tiburon. This Ordinance was introduced at a regular meeting of the Town Council of the Town of Tiburon on ,2005, and was adopted at a regular meeting of the Town Council of the Town of Tiburon on ,2005, which was noticed pursuant to Government Code Section 65090, by the following vote: AYES: 29 NOES: 30 ABSENT: MILES BERGER, MAYOR TOWN OF TIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK Town ofTiburon Ordinance No. N.s. Effective --/--/2005 5 ORDINANCE NO. N.S. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ADDING A NEW ARTICLE VII TO TITLE IV, CHAPTER 16 (ZONING) OF THE TIBURON MUNICIPAL CODE.. REGARDING ECONOMIC EXCEPTIONS The Town Council of the Town of Tiburon does ordain as follows: SECTION 1. FINDINGS. The Town Council has held duly noticed public hearings on June 15,2005, September 7, 2005, ~GPlS;I1Ib_C:L2J,2QD2Land ,2005, and has heard and considered public testimony on the proposed Ordinance" B. The Town Council finds that all notices and procedures' required by law attendant to the adoption of this Ordinance have been followed. A. C. The Town Council finds that the amendment actions made by this Ordinance are necessary for the protection of the public health, safety, and welfare. D. The Town Council has found that the amendments made by this Ordinance are consistent with the goals and policies of the Tiburon General Plan and other adopted ordinances and regulations of the Town of Tiburon. ': E. TheTown Council finds that this project is categorically exempt from t~e requirements of the California Environmental Quality Act per Section 15308 of the CEQA Guidelines and under the "general rule", pursuant to Section 15061(b)(3) of the CEQA Guidelines. SECTION 2. AMENDMENT TO MUNICIPAL CODE. A new Article VII to Chapter 16, Title IV, of the Tiburon Municipal Code, entitled "Economic Exceptions," is hereby added to the Tiburon Municipal Code to read as follows: Article VII. Economic Exceptions 16-7.1. Purpose. The purpose ofthis article is to ensure that the Town applies its General Plan, ordinances, resolutions and other measures that regulate land use for the protection and promotion of the public health, safety, general welfare and the environment (collectively, "Land Use Town ofTiburon Ordinance No. NS Effective --/--/2005 amendments EXHIBIT NO. . . . B . . . Regulations") in a manner that treats property owners fairly and in a manner consistent with state and federal law. This article authorizes the Town to grant an Economic Exception relaxing the application.ofthe Town's Land Use Regulations to the extent necessary to avoid an unconstitutional taking under the United States or California Constitutions. 16-7.2. Application for Economic Exception. @l__.Ifany applicant believes that strict application of the Town's Land Use Regulations would not permit an economically viable use of his or her property, or would otherwise effect an unconstitutional taking of property, the applicant may apply for an Economic Exception. The application for an Economic Exception shall include the entirety of all parcels that are geographically contiguous in which the applicant holds an interest at the time of the application. . ll2.L- 'file applicant sha!H1e required to fund all costs associated with inde'p~n(kmJl~S;Tr(;\j~\\~.;;11JQiG:?Jrl)sLLG12QmS:.9mmi~;; i o!1K.d.hYJh~IQwn Qfilll-Y. infornlation ~jJbllliltg.<:L hythsc~l12plic;<l.n1,.QIn](: i Iltk]2Ql~leIlt pre.n~G!!j.~~Il.gfg!.c;J} information bv the Tgwil or its consultants. and may be required to submit an advance ~pos it IlPQ1lllQP-!jG,1).j(J!UQ.GQYGI.Ji.l1.GJI..Q.ill'1'>., u:l.___Any applicant that does not submit a request for an Economic Exception as set forth in section 16-7.3 shall be deemed to have waived any objections based on the Takings clauses of the United States and California Constitutions to the strict application of the Town's Land Use Regulations, including, without limitation, any condition of approval, mitigation measure or other measure imposed to implement said regulations. (b) The Director may, in his sole discretion to enSUi'e the fairness of the process, gram extensions of any deadlines in this Article iR order to allo',v the applicant a reasonable amount of time to prepare the materials required under Section 16 7.4 for the application and/or to allow the Town enough time to analyze the application. HOVltWer, if any such extension, would irnperil,the Tov;n's ability to comply with other deadlifles established by law (including, v;ithout limitation, the deadlines contained in the Calif{)mla Permit Streamlining Act and the California Environmental Quality Act), the Director may require the applicant to grant an extension to such other deadlines. L 16-7.3. Time for Filinl! Application. (a) The applicant shall app1y for the Economic Exceptionas early as possible in the flroeess of obtaining land use approvals for the subject property, i.e., before or in conjllilction with the first land development application submitted for the property. (b) NOh'lithstanding subsection 16 7.3(a), if the Planning Commission is the decision making body for the land development application and the applicant's Ecollomic EJlC6}3tioB request is based on a condition of approval, mitigation measure or other measure imposed by the Planning Commission, the applicant shall submit the application for an Economic' Exception v;ithin ten (10) days of the Planning CoIllfl:lission's action on Town ofTiburon Ordinance No. N5. Effective :-/-./2005 ( .....t~rma~=-!~~_e~~:_~i':~..!i~=.~:'_... Deleted: The applicant shan be required to fimd all costs associated with independent peer review studies and reports commissioned by the Town of any information submitted by the applicant, or the independent preparation of such information by the Town or its consultants, and may be required to submit an advance deposit upon (application to cover such costs. 2 ... the land development application. The request for an Economic Elweption shall be sl:tbmittcd using the Town's regular appeal process for contesting zoning permit decisions by the Planning Commission. (c) If the Planning Commission acts on the land development application as an advisory body and the applicant's Economic Exception request is based on a condition of approval, mitigation measure or other measure recommended by the Planning Commissiefl, the applicant shall submit the request for an Economic EKccption within ten (10) days ofthe Planning Commission's making its recommendation on the merits of the land deyelopment application. The Town Council shall consider the request for an Economic EKception prior to taking action on the merits of the land development applieation. (d) If the request for Economic EKception is based on a condition of approval, mitigation measure or other measure first proposed at a meeting of the Town Couneil, the applicant may submit the application for an Economic EKception within _ U days of receiving constructive notice of said proposal. (a) Economic r'xception requests should be filed as early as possible in the planning aIlQ[QI'J2,t:IIIIIIl2.!l~c:;;.~, . ,(.11. ....If the Econo111ic:E:xceptiCl~lreqllest is~ased ()n the facial.......... ..... ...., . application of the Town's Land Use Regulations, the applicant shall apply for the Economic Exception before or in conjunction with the first land development application submitted for the property. ...... 'hDeleted: ..-------) ..:. '. Inse~;"" ...., .... ............................ "J __.______._..__.._____.c. QL__.~I'11ea pr lie ant sha 11apRly for (l11 gcoI1Cl111ic, :E:j(ceptiol1 ill .. m .. .' ., .. (!>cl~~~:~:'.-.::..:::=~: . ., '..~] coniunctio.IL~'l:ith tho,.un,t lanel develoj2ment application submitted for the property "' Co;;'I;;;t;';~ld~I;';'-. ......... ..... ........ ..1 ~\L~;';;;:;~~;;;~~~~~;d~;~;;~:J!;~;'flire,a,\;:..., "I~~;l~I~i~fE~~~;~~:o:i.:........: nnposo w ]}.C.Ul~_i:!QQI.1C.,lill..le leves WI o. oct an unconstltutlona ta -Ill!!, 0. '::.\\ submitted for the property property, .:::>..'l~!I!~.:.~!;:.:.:_..~~~",:=~j (b) Notwithstanding subsection 16-7,3(a), if the Town Council is the decision- ...\.(E~~~~,~~,=~~=.==.::=~] making body for the land development application and the applicant's Economic \l.!~serted: will foreseeabl ... "..:J Exception request is based on a denial or on a condition of approval, mitigation measure I Inserted: y 1 or other measure imposed by the Town Council, the applicant shall submit the application for an Economic Exception within thirty (30) days of the Town Council's action on the land development application. The Council shall retain iurisdiction over the proiect after its initial decision on the application for the sole purpose of considering a request for an ['f()l1or~?!c,['0<:ep!io.n:.. \\;]li<:hjllrtsdj<:!i()~?~h~)l ~~pir~at, the encioL!h~ }q~~aXRe~iod ifn,o ... ...... ..' such request is filed. 1Jlis subsection 16-7.3(b) shall notapplv if the denial. condition of . approval, mitigation measnre or other measure was reasonablv..f()reseeahlewhel1tl1e app I ican1,. tiled its first ..lal1dd\'y_c IOl211]$'Jl.~ <Ippl ic:atiCll1 for the property, (c) Notwithstanding subsection 16-7.3(a), if the Planning Commission, Design Review Board, or Town Official is the decision-making body for the land development appFcation and the applicant's Economic Exception request is based on a denial or on a condition of approval, mitigation measure or other measure imposed by the Planning Commission, Design Review Board, or :rown Official, the applicant shall submit the , ------._..~._-, l Deleted: e ..." J [' Deleted: e .:.______'_____) {Deleted: e_~-=~=___-~l ,"":'.., .{ Inserted: e foreseeable when the J ":~'~.:::'~f~~:~~?~t~=~~~~==":===.=:=J \J Inserted: project filed its ftrst land J l;::: ';"~ppli~~rion'f~~;be .......] Town ofTiburon Ordinance No. N5. Effective ../../2005 3 . . . . application for an Ecopomic Exception within ten (10) days of the decision-making body's action on the land development application. The request for an Economic Exception shall be submitted in conjunction with an appeal filed pursuant to the Town's regular appeal process for contesting zoning permit decisions as set forth in section 16- 3.8 of this Code. The applicant may submit supporting information for the Economic Exception request for a period of thirty (30) days following the decision being appealed. Scheduling of the TQ\Y.!lCouncil hearing on the appeal and the request for Economic Exception shall be at a date that the Director of Community Development.<i.€::t~_~Il~s______..-.... . rD~~;r;;;c-;;;'---------------1 will allow sufficient time for the Town to analyze the issues raised by the appeal and the Economic Exception application. This subsection 16-7.3(c) shall not apply if the denial. condition of aj)provaL mitigation measure or other measure was reasonablyJl?~~~~:€::~lJJ~_____...' C~~I~!.':._.._ . J when the applicall~filed itsfirstl;Indde\!eIQ.nnl:ell~ap'plic;~lti()l1X()l:.tll~ prl?Rerty: __mmu.:- -( Inserted: e foreseeable when fue .) (d) For pllrpo,~es of this ~ction, "Jirstland developmeD~application" shall mean. . \~:<.l Deleted: project ... _ __ ._..J the first land devclol1illfllllillplicatio;l tiied mC~l~ll~~tlon ~~itl]a palti~{liarpl:oiect:----- - U\ \.J Inserted: project filed its f"stland J .\ .....( Deleted: use ) ':::...... ~~::~ use application fo..r.... lb.e. .. . ] D1L- The applicant shall provide all of the following information within thirty'" . (d) For purposesoflbis ____ --'-.. (30) days of the decision on which the Economic Exception request is being filed: '. ....'( DeJ~'-~~-'-- --.------1 '. '.( Deleted: use j .,~~;;;;FT;;Ii~os;==") 16-7.4. ReQuired Information. 1. The date the applicant purchased or otherwise acquired the property, and from whol\l. 2. The purchase price paid by the applicant for the property and a description of any consideration that the applicant received for that purchase price in addition to the property. 3. The fair market value of the property at the time the applicant acquired it, describing the basis upon which the fair market value is derived, including any appraisals done at the time. 4. The general plan, zoning or similar land use designations applicable to the property at the time the applicant acquired it, as well as any changes to these designations that occurred after acquisition. 5. A_llc::~t:;lip1i()lL()Li!ny development restrictions or other restrictions on use, other than government regulatory restrictions described in (4) above, that applied to the property at the time the applicant acquired it, or which have been imposed after acquisition. 6. ASks.t:;Ii11tiQLLsxLnny change in the size of the property since the time the applicant acquired it, including a discussion of the nature of the change, the circumstances and the relevant dates. 7. A~JmGmt:.nt-,1~JS2..\Vhether the applic:aIl!_l1a~_~0J.4()r l_e~.s~.d ~_ p()J;!i()~_ ()f1 or interest in, the property since the time of purchase, indicating the relevant dates, sales prices, rents, and nature of the portion or interests in the property that were sold or leased. ." Cl?~~~~i~~~~i~~~f__.__...__..... Town ofTiburon Ordinance No. NS. Effective --/--/2005 4 8. A title report for the property, as well as copies of any underlying documents referenced therein, and copies of any litigation guarantees or similar documents that affect or limit the use of all or a portion of the property. 9. A statement de.scribing any offers to buy all or a portion of the property which the applicant solicited or received, including the approximate date of the offer and offered price. 10. An ilcco!lnting of !,he. ~ppli~~~!'s_(;~~!~_.,!s~_o.(;i<l!~9:_"':~!~ !11~ ()':":l)..~~~l1il'___..: ..' .., of the property, annualized for each of the last five (5) calendar years, including property taxes, property assessments, debt service costs (such as mortgage and interest costs), arid maintenance, operation and management costs. 11. Apart from any rent received from the leasing of all or a portion of the property, ill.LaCccSilll]Jjrrg oCany income generated by the use of all or a portion of the property over the last five (5) calendar years. If there is any such income to report it should be listed on an annualized basis along with a description of the uses that generate or have generated such income. 12. A brief written explanation why the application is necessary to avoid an unconstitutional taking. ili).'fhe ~2i~~tor ()j' Comrnul1ity.pe\:ejoPtlle[}tJll?V:il1.hi.s.re.aS()]lal:lle ~iscretiol1:. ...... ..( Deleted: 13. J require the submittal of additiona I information that he determines is necessar\to,!~alyzf! .../' Deleted: Any other information that the ] the application. Director determines is required (c) The Director ofCornlllunitvDevelopment may. in his reasonable discretion. grant additional tinleJor tl1C_.ill.m:licant to submit the required information. . { Deleted: T '----- ..... rD~i;;:;d;~---.'. Economicallv Viabl~ Use Determination; Economic Exception:.. _.._____m.. 16-7.5. (a) The Town Council ;2lliill.l1oldapublic:h~arillgon<ll1y.applic<lti()IlJ()rat~. . h . Economic Exception. The Town Council shall grant an Economic Exception from strict application of the Town's Land Use Regulations if the Town Council makes the following findings: (1) Based on the economic information provided by the applicant.QI;.c()rlsult.~nts:..._.... and considering .,fillY .0!l1er r~levant. ~vi.dence,.. strict. applic<itioIl. ().f.tl1_e Io.\VI1' s. :r::<in.~..~.se. ....... Regulations would not provide an economicallyviable use of the applicant's property or would otherwise constitute an unconstitutional taking of the applicant's property. (2) The Economic Exception granted will result in a project which, to the maximum extent possible while avoiding an unconstitutional taking, (a) complies with the Town's General Plan and Zoning Ordinance and (b) minimizes significant environmentaljmpaCXii-: .. . (b) The Tl!~LCouncil's findings shall identify the evidence supporting the findings. Town ofTiburon Ordinance No. NS. Effective --/--/2005 ---.---...------.--') l Deleted: will I . . .. ---------------.-----, ! Deleted:. I (Eeleted:. as well as....:.._.____. _J /{ Deleted: damage 5 . . . .. SECTION 3. SEVERABILITY. If any section, subsection, sentence, clause or phrase of this chapter is for any reason held by a court of cornpetent jurisdiction to be invalid, such decision shall not affect the validity of the remaining portions of this chapter. The Town Council declares that it would have passed this chapter and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that anyone or more section, sentences, clauses or phrases be declared invalid. SECTION 4. EFFECTIVE DATE. This Ordinance shall take effect and be in force thirty (~ndays after the date of passage, and before the expiration of fifteen (15) days after passage by the Town Council,' a copy of the ordinance shall be published with the names of the members voting for and against it at least once in a newspaper of general circulation in the Town of Tiburon. This Ordinance was introduced at a regular meeting of the Town Council of the Town ofTiburon on ,2005, and was adopted at a regular meeting of the Town Council of the Town of Tiburon on , 2005, which was noticed pursuant to Government Code Section 65090, by the following vote: AYES: NOES: ABSENT: MILES BERGER, MA YOR TOWN OF TIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK Town ofTiburon Ordinance No. NS Effective --/--/2005 6 lFHlLle @@lPW ~ TOWN OF TIBURON STAFF REpORT . ITEM NO. q To: From: MAYOR AND MEMBERS OF THE TOWN COUNCIL ANN R. DANFORTH, TOWN ATTORNEY SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMENT~ ECONOMIC EXCEPTIONS: FILE Z2005-01; CONSIDER AN ORDINANCE . AMENDING MUNICIPAL CODE CHAPTER 16 (ZONING) TO ESTABLISH AN ECONOMIC EXCEPTION PROCESS September 7, 2005 Subject: Date: BACKGROUND On June 15,2005, the Town Council considered a proposed Economic Exception ordinance. The ordinance was designed to both reduce the number of takings claims against the adopting public agency and ensure that before taking action on a proj ect, the agency has before it all the facts relevant to a potential takings claim. At the first public hearing held on the item, the Council voiced concerns about the practical implementation of the Economic Exception process. The June 15th draft ordinance had relatively tight timeframes for the applicant to submit information supporting their claim that strict application of the Town's, land use regulations would result in an unconstitutional taking of property. These timelines reflected the State Permit Streamlining Act, which gives the Townonly a limited period of time to approve or deny a project application. However, Councilmembers believed that as drafted, the ordinance might not allow sufficient time for the applicant to prepare the required information or for the Town to analyze the application. . Staff prepared a revised ordinance for the Council's reconsideration at its June 29th meeting. This draft addressed the timing problem by authorizing the Community Development Director to grant extensions to the ordinance's deadlines for filing supporting information. The Council continued the item without discussion. In the intervening period, Vice-Mayor Smith suggested that the ordinance be revised again to ensure adequate time for the filing and processing of the Economic Exception request by shifting the time for processing until after the Town has satisfied relevant Permit Streamlining Act deadlines. This revised draft ordinance incorporates that approach. ANALYSIS The revised draft ordinance remedies the timing problems by allowing the applicant to apply for an Economic Exception after the Town has made a decision on the merits of the project. After . that point, the Permit Streamlining Act deadlines no longer apply. If the Council is the decision- EXHIBIT No.L . . \. making body, the applicant would have 30 days to apply for an economic exception. If the Planning Commission, Design Review Board or Town Official is the decision-making body, the process would be similar to a zoning permit appeal, except that this Ordinance provides a longer period (30 days) for submitting supporting information for the economic exception application. Aside from this change, the operation of the exception process is the same as in the draft ordinance previously considered by the Town Council. Project applicants would provide all factual information relevant to their claim and explain why, under the stated facts, the strict application of Town's land use regulations would constitute an unlawful taking. The ToWn Council would hold a hearing on the application and could issue an Economic Exception if it made the following findings: (1) Based on the economic information provided by the applicant, as well as any other relevant evidence, strict application ofthe Town's Land Use Regulations would not provide an economically viable use of the applicant's property or would otherwise constitute an unconstitutional taking of the applicant's property. (2) The Economic Exception granted will result in a project which, to the maximum extent possible while avoiding an unconstitutional taking, (a) complies with the Town's General Plan and Zoning Ordinance and (b) minimizes environmental damage, as required by the California Environmental Quality Act. There was some concern at the June 15th meeting that these findings do not provide sufficient protection to the Town's environmental reso:urces, such as ridgelines. The Council should note that the General Plan is highly protective of such resources; the ordinance requires maximum compliance with the Plan and accordingly will give priority to preserving the Plan's protection of these resources. RECOMMENDATION The Council should conduct a public hearing on the revised draft ordinance, and then consider whether it wishes to adopt an ordinance establishing an Economic Exception procedure. !fit finds in the affirmative, the Council should: 1. By motion, read the ordinance by title only; and 2. Pass first reading of the ordinance by roll call vote. EXHIBITS A. Draft Ordinance B. Staff Report from June 29, 2005 C. Staff Report from June 15,2005 economic exception report3.doc Tiburon Town Council 2 Staff Report 9/7/2005 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 :' /f~ ~e)~CiM~r . - t .'~' Q ('- f /1 rS \. IJV' . ORDINANCE NO. N.S. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ADDING A NEW ARTICLE VII TO TITLE IV, CHAPTER 16 (ZONING) OF THE TIBURON MUNICIPAL CODE, REGARDING ECONOMIC EXCEPTIONS The Town Council of the Town of Tiburon does ordain as follows: SECTION 1. FINDINGS. A. The Town Council has held duly noticed public hearings on June 15,2005,. . September 7,2005, and ,2005, and has heard and considered public testimony on the proposed Ordinance. B. The Town Council finds that all notices and procedures required by law attendant to the adoption of this Ordinance have been followed. C. The Town Council finds that the amendment actions made by this Ordinance are necessary for the protection of the public health, safety, and welfare. D. The Town Council finds that the amendments made by this Ordinance are consistent with the goals and policies ofthe Tiburon General Plan and other adopted ordinances and regulations of the Town of Tiburon. . E. The Town Council finds that this project is categorically exempt from the requirements of the California Environmental Quality Act per Section 15308 of the CEQA Guidelines and under the "general rule", pursuant to Section 15061(b)(3) of the CEQA Guidelines. SECTION 2. . AMENDMENT TO MUNICIPAL CODE. A new Article VII to Chapter 16, Title IV, of the Tiburon Municipal Code, entitled "Economic Exceptions," is hereby added to the Tiburon Municipal Code to read as follows: 40 Article VII. Economic Exceptions 41 42 16-7.1. Purpose. 43 The purpose of this article is to ensure that the Town applies its General Plan, ordinances, 44 resolutions and other measures that regulate land use for the protection and promotion of . Town ofTiburon Ordinance No. N.s. Effective --/--/2005 1 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 . 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 . 42 43 the public health, safety, general welfare and the environment (collectively, "Land Use Regulations") in a manner that treats property owners fairly and in a manner consistent with state and federal. law. This article authorizes the Town to grant an Economic Exception relaxing the application of the Town's Land Use Regulations to the extent necessary to avoid an unconstitutional taking under the United States or California Constitutions. 16-7.2. Application for Economic Exception. If any applicant believes that strict application of the Town's Land Use Regulations would not permit an economically viable use of his or her property, or would otherwise effect an unconstitutional taking of property, the applicant may apply for an Economic Exception. The application for an Economic Exception shall include the entirety of all parcels that are geographically contiguous in which the applicant holds an interest at the time of the application. Any applicant that does not submit a request for an Economic Exception as set forth in Section 16-7.3 of this code shall be deemed to have waived any objections based on the Takings clauses of the U~ited States and California Constitutions to the strict application of the Town's Land Use Regulations, including, without limitation, any condition of approval, mitigation measure or other measure imposed to implement said regulations. The applicant shall be required to fund all costs associated with independent peer review studies and reports commissioned by the Town of any information submitted by the applicant, or the independent preparation of such information by the Town or its consultants, and may be required to submit an advance deposit upon application to cover such costs. 16-7.3. Time for Filin!! Application. (a) If the Economic Exception request is based on the facial application of the Town's Land Use Regulations, the applicant shall apply for,the Economic Exception before or in conjunction with the first land development application submitted for the property. (b) Notwithstanding subsection 16-7.3(a), if the Town Council is the decision- making body for the land development application and the applicant's Economic Exception request is based on a denial or on a condition of approval,. mitigation measure or other measure imposed by the Town Council, the applicant shall submit the application for an Economic Exception within thirty (30) days of the Town Council's action on the land development application. (c) Notwithstanding subsection 16-7.3( a), if the Planning Commission, Design Review Board, or Town Official is the decision-making body for the land development application and the applicant's Economic Exception request is based on a denial or on a condition of approval, mitigation measure orJother measure imposed by the Planning Commission, Design Review Board, or Town Official, the applicant shall submit the application for an Economic Exception within ten (10) days of the decision-making body's action on the land development application. The request for an Economic Exception shall be submitted in conjunction with an appeal filed pursuant to the Town's regular appeal process for contesting zoning permit decisions as set forth in Section 16- 3.8 of this code. The applicant may submit supporting information for the Economic - Town ofTiburon Ordinance No. NS. Effective --/--/2005 2 1 Exception request for a period of thirty (30) days' following the decision being appealed. 2 Scheduling of the Council hearing on the appeal and the request for Economic Exception 3 shall be at a date that the Director of Community Development determines will allow 4 sufficient time for the Town to analyze the issues raised in the appeal and in the 5 Economic Exception application. . 6 16-7.4. Required Information. 7 The applicant shall provide all of the following information within thirty (30) days of the 8 decision on which the Economic Exception request is being filed: 9 1. The date the applicant purchased or otherwise acquired the property, and from 10 whom. 11 2. The purchase price paid by the applicant for the property and a description of 12 any consideration that the applicant received for that purchase price in addition to the 13 property. 14 3. The fair market value of the property at the time the applicant acquired it, 15 describing the basis upon which the fair market value is derived, including any appraisals 16 done at the time. 17 4. The general plan, zoning or similar land use designations applicable to the 18 property at the time the applicant acquired it, as well as any changes to.these designations 19 that occurred after acquisition. 20 5. Any development restrictions or other restrictions on use, other than 21 government regulatory restrictions described in (4) above, that applied to the property at 22 the time the applicant acquired it, or which have been imposed after acquisition. 23 6. Any change in the size of the property since the time the applicant acquired it, 24 including a discussion of the nature of the change, the circumstances and the relevant 25 dates. . 26 7. A discussion of whether the applicant has sold or leased a portion of, or interest 27 in, the property since the time of purchase, indicating the relevant dates, sales prices, 28' rents, and nature of the portion or interests in the property that were sold or leased. 29 8. A title report for the property, as well as copies of any underlying documents 30 referenced therein, and copies of any litigation guarantees or similar documents that 31 affect or limit the us~ of all or aportion ofthe property. 32 9. Any offers to buy all or a portion of the property which the applicant solicited 33 or received, including the approximate date of the offer and offered price.' 34 10. The applicant's costs associated with the .ownership of the property, 35 annualized for eCl-ch ofthe last five (5) calendar years, including property taxes, property 36 assessments, debt service costs (such as mortgage and interest costs), and maintenance, 37 operation and management costs. 38 11. Apart from any rent received from the leasing of all or a portion of the 39 property, any income generated by the use o fall ora portion of the property overthe last . Town ofTiburon Ordinance No. NS. Effective --/--/2005 3 I . 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 . 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 . 38 39 five (5) calendar years. If there is any such income to report it should be listed on an annualized basis along with a description of the uses that generate or have generated such mcome. 12. A brief written explanation why the application is necessary to avoid an unconstitutional taking. 13. Any other information that the Director of Community Development determines is required to analyze the application. 16-7.5. Economic Viability Determination~ Economic Exception. (a) The Town Council will hold a public hearing on any application for an Economic Exception. The Council shall grant an Economic Exception from strict application of the Town's Land Use Regulations if the Council makes the following findings: (1) Based on the economic information provided by the applicant, as well as any other relevant evidence, strict application of the Town's Lap.d Use Regulations would not provide an economically viable use of the applicant's property or would otherwise constitute an unconstitutional taking of the applicant's property. (2) The Economic Exception granted will result in a project which, to the maximum extent possible while avoiding an unconstitutional taking, (a) complies with the Town's General Plan and Zoning Ordinance and (b) minimizes environmental damage. (b) The Council's findings shall identify the evidence supporting the findings. SECTION 3. SEVERABILITY. If any section, subsection, sentence, clause or phrase of this chapter is for any reason held by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remaining portions of this chapter. The Town Council declares that it would have passed this chapter and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that anyone or more section, sentences, clauses or phrases be declared invalid. SECTION 4. EFFECTIVE DATE. This Ordinance shall take effect and be in force thirty (30) days after the date of . passage, and before the expiration of fifteen (15) days after passage by the Town Council, a copy of the ordinance shall be published with the names of the members voting for and against it at least once in a newspaper of general circulation published in the Town of . Tiburon. This Ordinance was introduced at a regular meeting ofthe Town Council of the Town of Tiburonon ,2005, and was adopted at a regular meeting of the Town Town ofTiburon Ordinance No. NS. Effective --/--/2005 4 1 Council of the Town ofTiburon on ,2005, which was noticed pursuant 2 to Government Code Section 65090, by the following vote: 3 4 AYES: 5 NOES: 6 ABSENT: 7 8 9 MILES BERGER, MAYOR 10 TOWN OF TIBURON 11 12 13 14 ATTEST: 15 16 17 18 19 DIANE CRANE IACOPI, TOWN CLERK Town ofTiburon Ordinance No. NS. Effective --1--/2005 . . . 5 . . . ITEM NO. MEETING DATE: .ru:;N'E 29, 2005 . C~ h&~ cf rJ(cU/- TOWN COUNCIL' , SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMENT~I~~-1 ZONING ORDINANCE TEXT AMENDMENT TO ADD PRO SIONS REGARDING ECONOMIC EXCEPTIONS; FILE#Z2005- INANCE-- INTRODUCTION AND FIRST READING TOWN OF TIBURON STAFF REpORT /1 To: From: Subject: Date: June 21, 2005 Reviewed By: BACKGROUND At its meeting of June 15,2005, the Town Council considered a zoning text alnendment creating an application process for "Economic Exceptions" in order to address potential takings claims prior to final action by the Town. The Town Council held a public hearing but took no formal action on the item. Members of the Council expressed concern about the following: 1) The content and scope of the list of information and materials required to be submitted for the Economic Exception application (Section 16-7.4(a). 2) The amount oftime (originally ten days) allowed for the applicant to gather said information aIld materials (Section -16- 7 A(b). 3) The length oftime potentially needed to conduct the Economic Exception application review process, including retention of economic specialists/consultants by the Town. 4) The wisdom of adopting an essentially untested application process. Councilmembers also expressed a desire to hear the. opinions of Vice-Mayor Smith on this matter before taking any specific action, due to his expertise in real estate law. ANALYSIS Staff offers the flowing brief comments on the concerns listed above, in order of appearance. 1) The list Of materials required for submittal of an Economic Exception application is based Closely on the model ordinance created by the Institute for Local Govemment (ILG), which draws upon existing case law by requesting the types of economic data that the courts have used in deciding takings lawsuits. Information regarding current fair market value of the property was purposely excluded from the ILG (and Town) list. The list attempts to elicit valid and useful economic information regarding a property without being onerous. Tiburon Town Council Staff Report. June 29, 2005 J EXHIBIT NO. D 2) To address the concerns about limited time to submit the requested information, Staffhas . added Section 16-7 .2(b) that would allow additional time to submit the materials. This provision also protects the Town by requiring extensions from statutory deadlines where needed. The prior ten (10) day provision has been left "blank" in Sections 16-7.3(d) and 16- 7.4(b) so that the Council may specify a number of days if ten is not acceptable. 3) Staff acknowledges that the Economic Exception application process is new and untested, and that it is unknown how long and/or how smoothly such a process would unfold. The draft ordinance attempts to reasonably accommodate both the applicant and Town through provisions for additional time for the applicant and time extensions for statutory deadlines for the Town when needed. Town Staff should take reasonable steps to anticipate foreseeable needs, such as preparing a list of economic consultants who could be retained on short notice for the Town's review purposes, and who would already be familiar with the Town's ordinance. 4) The Town Attorney strongly believes that while the.Economic Exception process is unlikely to be frequently used, if such a situation arises, its existence could save the Town from protracted litigation and its accompanying high costs in dollars and staff resources. CEQA COMPLIANCE This amendment has no potential to result in an adverse environmental impact and is exempt from CEQA pursuant to Section 15308 and Section 15061(b)(3) of the CEQA Guidelines. RECOMMENDATION . . The Town Council should conduct a public hearing on the proposed zoning ordinance text amendment and address any issues raised. If the Council wishes to proceed with adoption of the text amendment, it should move to read by title only, pass the motion, and hold introduction and first reading ofthe ordinance by roll call vote. The public hearing should then be continued to the meting of July 20,2005 for consideration of a second reading and adoption. EXHIBITS 1. Draft Ordinance. 2. Redlined version showing substantive changes since the hearing on June 15,2005. 3. StaffRepor;t from June 15,2005 meeting. Tiburon Town Council Staff Report June 29, 2005 2 . . I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 . 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 ORDINANCE NO. /} q j l,(,\f\.e- d- , \J tArS'~O~lv N.S. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ADDING A NEW ARTICLE VII TO TITLE IV, CHAPTER 16 (ZONING) OF THE TIBURON MUNICIPAL CODE REGARDING ECONOMIC EXCEPTIONS The Town Council of the Town of Tiburon does ordain as follows: SECTION 1. FINDINGS. A. The Town Council has held duly noticed public hearings on , 2005 and ,2005, and has heard and considered public testimony on the proposed amendments. B. The Town Council finds that all notices and procedures required by law attendant to the adoption of this Ordinance have been followed. C. The Town Council finds that the amendment actions made by this Ordinance are necessary for the protection ofthe public health, safety, and welfare. D. The Town Council has found that the amendments made by this Ordinance are consistent with the goals and policies ofthe Tiburon General Plan and other adopted ordinances and regulations of the Town ofTiburon. E. The Town Council finds that this project is categorically exempt from the requirements ofthe California Environmental Quality Act per Section 15308 of the CEQA Guidelines and under the "general rule", pursuant to Section 15061(b)(3) of the CEQA Guidelines. SECTION 2. AMENDMENT TO MUNICIPAL CODE. A new Artic1e VII to Chapter 16 (Zoning), Title IV, of the Tiburon Municipal Code, entitled "Economic Exceptions," is hereby added to the Tiburon Municipal Code to read as follows: Article VII. Economic Exceptions 41 16-7.1. 42 43 .44 Purpose. The purpose of this article is to ensure that the Town applies its General Plan, ordinances, resolutions and other measures that regulate land use for the protection and promotion of the public health, safety, general welfare and the environment (collectively, "Land Use EXHIBIT NO. I Town ofTiburon Ordinance No. N.S --/--/2005 1 1 Regulations") in a manner that treats property owners fairly and in a manner consistent 2 with state and federal law. This article authorizes the Town to grant an Economic 3 Exception relaxing the application of the Town's Land Use Regulations to the extent 4 necessary to avoid an unconstitutional taking under the United States or California 5 Constitutions. . 6 7 16-7.2. Application for Economic Exception. 8 (a) If any applicant believes that strict application of the Town's Land Use 9 Regulations would not permit an economically viable use of his or her property, or would 10 otherwise effect an. unconstitutional taking of property, the applicant may apply for an 11 Economic Exception. The application for an Economic Exception shall include the 12 entirety of all parcels that are geographically contiguous in which the applicant holds an 13 interest at the time of the application. Any applicant that does riot submit a request for an 14 Economic Exception as set forth in Section 16-7.3 shall be deemed to have waived any 15 objections based on the Takings clauses of the United States and California Constitutions 16 to the strict application of the Town's Land Use Regulations, including, without 17 limitation, any condition of approval, mitigation measure or other measure imposed to 18 implement said regulations. The applicant shall be required to fund all costs associated 19 with independent peer review studies and reports commissioned by the Town of any 20 information submitted by the applicant, or the independent preparation of such 21 information by the Town or its consultants, and may be required to submit an advance 22 deposit upon application to cover such costs. 23 (b) The Director may, in his sole discretion' to ensure the fairness of the process, 24 grant extensions of any deadlines in this Article in order to allow the applicant a 25 reasonable amount of time to prepare the materials required under Section 16-7.4 for the 26 application and/or to allow the Town enough time to analyze the application. However, 27 if any such extension, would imperil the Town's ability to comply with other deadlines 28 established by law (including, without limitation, the deadlines contained in the - 29 California Permit Streamlining Act and the California Environmental Quality Act), the 30 Director may require the applicant to grant an extension to such other deadlines. . 31 32 16-7.3. Time for Filin1! Application. 33 (a) The applicant shall apply for the Economic Exception as early as possible in 34 the process of obtaining land use approvals for the subject property, i.e., before or in 35 conjunction with the first land development application submitted for the property. 36 (b) Notwithstanding subsection 16-7.3(a), if the Planning Commission is the 37 decision-making body for the land development application and the applicant's Economic 38 Exception request is based on a condition of approval, mitigation measure or other 39 measure imposed by the Planning Commission, the applicant shall submit the application 40 for an Economic Exception within ten (10) days of the Planning Commission's action on 41 the land development application. The request for an Economic Exception shall be . Town ofTiburon Ordinance No. NS. --/--/2005 2 . \ / . 20 21 22 . I submitted using the Town's regular appeal process for contesting zoning permit decisions 2 by the' Planning Commission. 3 (c) If the Planning Commission acts on the land development application as an 4 advisory body and the applicant's Economic Exception request is based on a condition of 5 approval, mitigation measure or other measure recommended by the Planning 6 Commission, the applicant shall submit the request for an Economic Exception within ten 7 (10) days of the Planning Commission's making its recommendation on the merits of the 8 land development application. The Town Council shall consider the request for an 9 . Economic Exception prior to taking action on the merits of the land development 10 application. 11 (d) If the request for Economic Exception is based on a condition of approval, 12 mitigation measure Of other measure first proposed at a meeting of the Town Council, the 13 applicant may submit the application for an Economic Exception within _ U days 14 of receiving constructive notice of said proposal. 15 16 16-7.4. Required Information. 17 (a) The applicant shall provide aH of the following information: 18 1. The date the applicant purchased or otherwise acquired the pfoperty, and from 19 whom. 2. The purchase price paid by the applicant for the property and a description of any consideration that the applicant received for that purchase price in addition to the . property. 23 3. The fair market value of the property at the time the applicant acquired it, 24 describing the basis upon which the fair market value is derived, including any appraisals 25 done at the time~ . 26 4. The general plan, zoning or similar land use designations applicable to the 27 property at the time the applicant acquired it, as well as any changes to these designations 28 that occurred after acquisition. 29 5. Any developmentxestrictions or other restrictions on use, other than 30 government regulatory restrictions described in (4) above, that applied to the property at 31 the time the applicant acquired it, or which have been imposed after acquisition. 32 6. Any change in the size of the property since the time the applicant acquired it, 33 including a discussion of the nature of the change, the circumstances and the felevant 34 dates. .' 35 7. A discussion of whether the applicant has sold or leased a portion of, or interest 36 in, the property since the time of purchase, indicating the relevant dates, sales prices, 37 rents, and nature of the portion or interests in the property that were sold or leased. Town of Tiburon Ordinance No. NS --/--/2005 3 1 8. A title report for the property, and any litigation guarantees or similar 2 documents that affect or limit the use of all or a portion of the property, including copies 3 of relevant underlying documents referenced therein. 4 9. Any offers to buy all or a portion of the property which the applicant solicited 5 or received, including the approximate date of the offer and offered price. 6 10. The applicant's costs associated with the ownership oftheproperty, 7 annualized for each ofthe last five (5) calendar years, including property taxes, property 8 assessments, debt service costs (such as mortgage and interest costs), and maintenance, 9 operation and management costs. 10 11. Apart from any rent received from the leasing of all or a portion of the 11 property, any income generated by the use of all or a portion of the property over the last 12 five (5) calendaryears. If there is any such income to report it should be listed on an 13 annualized basis along with a description of the uses that generate or have generated such 14 mcome. . . 22 16-7.5. Economic Viability Determination~ Economic Exception. 23 (a) The Town Council will hold a public hearing on any application for an 24 Economic Exception. The Council shall grant an Economic Exception from strict 25 application of the Town's Land Use Regulations if the Council makes the following 26 findings: 27 (1) Based on the economic information provided by the applicant, as well as any 28 other relevant evidence, strict application of the Town's Land Use Regulations would not 29 provide an economically viable use of the applicant's property or would otherwise 30 constitute an unconstitutional taking of the applicant's property. 31 (2) The Economic Exception granted will result in a project which, to the 32 maximum extent possible while avoiding an unconstitutional taking, (a) complies with 33 the Town's General Plan and Zoning Ordinance; and, (b) minimizes environmental 34 damage as required by the California Environmental Quality Act. 35 . (b) The Council's findings shall identify the evidence supporting the findings. 36 37 38 . Town ofTiburon Ordinance No. NS --/--/2005 4 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 . 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 . SECTION 3. SEVERABILITY. If any' section, subsection, sentence, clause or phrase of this chapter is for any reason held by a court o~ competent jurisdiction to be invalid, such decision shall not . affect the validity of the remaining portions of this chapter. The Town Council declares that it would have passed this chapter and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that anyone or more section, sentences, clauses or phrases be declared invalid. SECTION 4. EFFECTIVE DATE. This Ordinance shall take effect and be in force thirty days after the date of passage, and before the expiration of fifteen (15) days after passage by the Town Council, a copy of the ordinance shall be published with the names of the members voting for and against it at least once in a newspaper of general circulation in the Town of Tiburon. This ordinance was introduced at a regular meeting ofthe Town Council of the Town ofTiburon on ,2005, and was adopted at meeting of the Town Council of the Town ofTiburon on ,2005, which was noticed pursuant to Government Code Section 65090, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: MILES BERGER, MAYOR TOWN OF TIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK 5 / AJ. ~""- (1" G ~o S( O~ e- B 0 .trj~i-+ r to '- Town ofTiburon Ordinance No. NS. --/--/2005 5 ~ TOWN OF TIBURON STAFF REpORT . ITEM NO. S MEETING DATE: JUNE 15,2005 Date: TOWN COUNCIL ANN R. DANFORTH, TOWN ATTORNEY SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMENT ~ ZONING ORDINANCE TEXT AMENDMENT TO ADD PROVISIONS REGARDING ECONOMIC EXCEPTIONS; FILE #Z2005-01; ORDINANCE-- INTRODUCTION AND FIRST READING June 10, 2005 To: From: Subject: BACKGROUND One of the most contentious. and unpredictable areas of land use law involves takings claims. Applicants who find their proj ects denied or subjected to stringent conditions of approval often claim that the permitting agency has violated the constitutional prohibitions against taking property without . compensation. Courts tend to review such claims on a case by case basis, utilizing a number of factors to determine the constitutionality of the challenged actions. As a result, litigation of these cases can he protracted, costly and of uncertain outcome. At the February 7,2005 Town Council/Staff retreat, the Council stated that it would like to consider adoption of an ordinance that would allow applicants to apply for an Economic Exception I from strict application of the Town's land use regulations. The Institute of Local Self Government (ILG) has developed a model ordinance that creates an economic variance procedure. This procedure is designed to both reduce the number oftakings claims against the adopting public agency and ensure thatbefore taking action on a project, the agency has before it all the facts relevant to a potential takings claim. Staff has used this ILG model ordinance as a starting point, expanding its scope to include conditions of approval, mitigation measures and similar factors that may arise during the approval process. The Planning Commission held a public hearing on the proposed zoning text amendment on June 8, 2005 and recommended favorably by adopting Resolution No. 2005-07 (Exhibit 1). The I The proposed ordinance uses the term "exception" instead of "variance." The existing Zoning Ordinance already has a variance procedure that uses the statutory meaning of the term (a permit granted for a structure that is not otherwise permitted by the zoning regulations pursuant to Gov. CodeS 6509). The Council determination authorized by the proposed ordinance more closely resembles an exception than a variance in this context. ) . Tiburon Town Council Staff Report June 15, 2005 1 EXHIBITNO. E . . . Commission made some additions to the application submittal materials list .and raised some additional concerns discussed below. ANALYSIS Takings litigation generally falls into two broad categories; The first category, known as "facial" claims, are claims that a regulation, by its mere existence, effectively takes an owner's property without compensation. For example, if a city passed an ordinance that banned all potential use of a parcel of property, the owner could file a facial takings challenge to that regulation. However, such claims are valid only if there is no administrative procedure to obtain a variance or exception allowing the land to be used in an economically remunerative way. The proposed ordinance would create such a procedure, effectively insulating the Town's General Plan, Zoning Ordinance and other land use regulations from facial attack. The second broad category of takings claim is the "as-applied" challenge. In these cases, a property owner claims that a governmental agency's application .of land use regulations to his or her property effectively takes that property without compensation. The alleged taking generally assumes one of three forms: (1) physical invasion (the property owner is required to surrender an interest in the property and the requirement is not adequately related to a project impact); (2) destruction of value (the property owner is deprived of all economically viable use of his or her property); or (3) undue interference with reasonable, investment-backexpectation.2 Physical invasion claims are relatively straightforward, hence relatively tare in recent years. However, the second and third types of claims, commonly called "regulatory takings," are more complex and rely on numerous facts relating to the property in question. In the absence of a physical invasion of property, the courts have been unable to develop any set formula for determining whether an illegal taking has occurred. However, the U.S. Supreme Court has, enumerated several factors,that are critical to the inquiry and directed courts to make a case by case inquiry. Most recently, the Court said the following: The Court in Penn Central acknowledged that it had hitherto been "unable to develop any 'set formula'" for evaluating regulatory takings claims, but identified "several factors that have particular significance." . . . Primary among those factors are "the economic impact of the regulatiOIf on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.". . In addition, the "character of the governmental action" -- for instance whether it amounts to a physical invasion or instead merely affects property interests through "some public program adjusting the benefits and burdens of economic life to promote the common good" -- may be relevant in discerning whether a taking has occurred. The Penn Central factors -- though each has given rise to vexing subsidiary questions 2 Until very recently, the Supreme Court recognized an additional takings test: whether the regulation substantially advanced a legitimate state interest. This test was derived from Agins v. City of Tiburon (1980). On May 23, 2q05, the Supreme Court eliminated this test from takings jurisprudence in Lingle v. Chevron U.S.A.. Tiburon Town Council Staff Report June 15, 2005 2 ~ -- have served as the principal guidelines for resolving regulatory takings claims that do not fall within the physical takings or Lucas rules) . The courts have identified a number of factual circumstances relevant to determining whether a regulation causes a regulatory taking. These types of facts may be absent from the record in the normal land use application process. If the facts are not in the record, a takings challenge is likely to turn on external evidence, which means a protracted and costly discovery process, . followed by an evidentiary hearing. The proposed Ordinance would require property owners to request an Economic Exception before making a takings claim and, through the Economic Exception process, the Town would have the opportunity to review all the facts and reasoning relevant to the potential claim. This would enable the Town to fairly balance the rights of the property owner with the Town's interest in enforcing its land use regulations. The Town would be able to tailor its regulatory programs to avoid an unjust result. Moreover, if the Town finds that normal application of its regulations will not constitute a taking, the Ordinance would assure that the administrative record will contain enough facts to enable the agency to prevail at an earlier stage of litigation. This is potentially a very significant savings in litigation costs. The Council should note that these types of ordinances are relatively untested. However, based on existing takings jurisprudence, we believe that the Ordinance is likely to reduce the incidence of takings claims in Tiburon, and enhance the likelihood of a successful outcome in those cases that are not resolved through the Economic Exception process. The Cities ofMalibu, Lafayette . and Napa have somewhat similar procedures, which have not been tested in court as far as staff has been able to ascertain. The City of Livermore has a related process that. allows the City Attorney to decide whether a regulatory application constitutes a taking. This process resulted in the City's successful defense of a refusal to grant an exception to its scenic route protection policies. The operation of the Economic Exception process is fairly simple. Project applicants must request an Economic Exception as early as possible in the approval process. Staff has expanded the procedure to include challenges to conditions of approval, mitigation measures, and similar impositions on project applications, because we believe them to be the most likely source of takings claims in Tiburon. The applicant must provide all factual information relevant to their claim and explain why, under the stated facts, the strict application of Town regulations would constitute an unlawful taking. The Town Council would hold a hearing on the request and could issue an Economic Exception ifit made the following findings: (1) Based on the economic information provided by the applicant, as well as any other relevant evidence, strict application of the Town's Land Use Regulations would not provide an economically viable use of the applicant's property or would otherwise constitute an unconstitutional taking of the applicant's property. 3 Lingle v. Chevron U.S.A. 2005 u.s. Lexis 4342 (U.S. May 23,2005) (citations omitted). Tiburon Town Council Staff Report June 15, 2005 3 . . . . (2) TheEconomic Exception granted will result in a project which, to the maximum extent possible while avoiding an unconstitutional taking, (a) complies with the Town's General Plan and Zoning Ordinance; and, (b) minimizes environmental damage. ISSUES RAISED BY THE PLANNING COMMISSION The Planning Commission raised certain concerns and asked Staff to address these issues in the report to the Town Council. These issues are as follows: (1) The Planning Commission expressed concern that Section 16-7.3 of the Ordinance might encourage excessive filing of applications for Economic Exception, and gave the appearance of encouraging such filings at the outset of a project application. Section 16-7.3(a) reads as follows: (a) The applicant shall apply for the Economic; Exception as early as possible in the process of obtaining land use approvals for the subject property, i.e., before or in conjunction with the first land development application submitted for the property. Staffbelieves that this provision will not encourage excessive filing of Economic Exception applications with the original application submittal, since there would be no basis for such a filing unless a "facial" taking was being alleged. Such claims are very rare, and Staff believes that the purpose of this "early as possible" provision is to cover the remote possibility of such facial claims, with the understanding that they will almost never occur, since it is the "application" of the Town's land use regulations that would trigger virtually all takings claims that might be filed. (2) The Planning Commission questioned whether information regarding the fair market value of the property, and/or the value of the property assuming project approval, should be required with submittal of the Economic Exception application. Staff believes 'that the ILG model ordinance purposefully excluded such information from the submittal requirements. Such information may be generated independently by the Town or its consultants as needed during. the Economic Exception Analysis; requiring such information from the applicant may not secure the interests of objectivity. (3) The Planning Commission received a request from a member ofthe public (Jerry Riessen) to modify Section 16-7.5 (a)(2) to read as follows (new text italicized): (2) The Economic Exception granted will result in a project which, to the maximum extent possible while avoiding an unconstitutional taking, (a) complies with the Town's General Plan and Zoning Ordinance; and, (b) minimizes environmental damage, and to the maximum extent feasible, protect prominent ridges. Tiburon Town Council Staff Report June 15, 2005 4 Some Commissioners believed that ridges would already receive preferential protection . under the Town's General Plan policies, and that the additional text was unnecessary. One Commissioner favored inclusion of the additional text. While the Commission did not include this text revision in its adopted .resolution, it did request that the Town Council consider inclusion before adoption, after hearing the opinion of the Town Attorney on the matter. CEQA COMPLIANCE This amendment has no potential to result in an adverse environmental impact and is .exempt from CEQA pursuant to Section 15061(b)(3) of the CEQA Guidelines. RECOMMENDATION The Town Council should conduct a public hearing on the proposed zoning ordinance text amendment and address any issues raised. Ifthe Council wishes to proceed with adoption ofthe text amendment, it should move to read by title only, pass the motion, and hold introduction and first reading of the ordinance by roll call vote. EXHIBITS 1. 2. 3. 4. Resolution recommending adoption to Town Council. Draft Ordinance. Excerpt from Institute for Local Government (ILG) website Draft minutes of 6/8/2005 Planning Coillmission meeting (to be provided at the meeting). . Tiburon Town Council Staff Report June 15, 2005 5 . .', . . ORDINANCE NO. N.S. , /' ~. \0 /""\ (}._X'\ e,/ '-..J .' ,_~Q('- . I I?{ ,;) \jv AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ADDING A NEW ARTICLE VII TO TITLE IV, CHAPTER 16 \ (ZONING) OF THE TIBURON MUNICIPAL CODE REGARDING ECONOMIC EXCEPTIONS The Town Council of the Town of Tiburon does ordain as follows: SECTION 1. ADDITION TO MUNICIPAL CODE- A new Article VII to Chapter 16 (Zoning), Title IV, of the Tiburon Municipal Code, entitled "Economic Exceptions," is hereby added to the Tiburon Municipal Code to read as follows: Article VII. Economic Exceptions 16-7.1. Purpose. The purpose of this article is to ensure that the Town applies its General Plan, ordinances, resolutions and other measures that regulate land use for the protection and promotion of the public health, safety, general welfare and the environment (collectively, "Land Use Regulations") in a manner that treats property owners fairly arid in a manner consistent with state and federal law. This article authorizes the Town to grant an Economic Exception relaxing the application ofthe Town's Land Use Regulations to the extent necessary to avoid an unconstitutional taking under the United States or California Constitutions. 16-7.2. Application for Economic Exception. If any applicant believes that strict application of the Town's Land Use Regulations would not permit an economically viable use of his or her property, or would otherwise effect an unconstitutional taking of property, the applicant may apply for an Economic Exception. The application for an Economic Exception shall include the entirety of all . parcels that are geographically contiguous in which the applicant holds an interest at the time of the application. Any applicant that does not submit a request for an Economic Exception as set forth in Section 16-7.3 shall be deemed to have waived any objections based on the Takings clauses ofthe United States and California Constitutions to the strict application of the Town's Land Use Regulations, including, without limitation, any condition of approval, mitigation measure or other measure imposed to implement said regulations. The applicant shall be required to fund all costs associated with independent peer review studies and reports commissioned by the Town of any information submitted by the applicant, or the independent preparation of such information by the Town or its consultants, and may be required to submit an advance deposit upon application to cover such costs. EXHIBIT NO. :J. 1 16-7.3. Time for Filin2 Application; (a) The applicant shall apply for the Economic Exception as early as possible in the process of obtaining land use approvals for the subject property, i.e., before or in conjunction with the first land development application submitted for the property. (b) Notwithstanding subsection 16-7.3( a), if the Planning Commission is the decision-making body for the land development application and the applicant's Economic Exception request is based on a condition of approval, mitigation measure or other measure imposed by the Planning Commission, the applicant shall submit the application for an Economic Exception within ten (10) days of the Planning Commission's action on the land development application. The request for an Economic Exception shall be submitted using the Town's regular appeal process for contesting zoning permit decisions by the Planning Commission. (c) If the Planning Commission acts on the land development application as an advisory body and the applicant's Economic Exception request is based on a condition of approval, mitigation measure or other measure recommended by the Planning Commission, the applicant shall submit the request for an Economic Exception within ten (10) days of the Planning Commission's making its recommendation on the merits of the land development application. The Town Council shall consider the request for an Economic Exception prior to taking action on the merits of the land development application. (d) If the request for Economic Exception is based on a condition of approval, mitigation measure or other measure first proposed at a meetingofthe Town Council, the applicant may submit the application for an Economic Exception within ten (10) days of receiving constructive notice of said proposal. 16-7.4. ReQuired Information. (a) The applicant shall provide all of the following information: 1. The date the applicant purchased or otherwise acquired the property, and from whom. . . . 2 . . . 6. Any change in the size of the property since the time the applicant acquired it, including a discussion of the nature of the change, the circumstances and the relevant dates. 7. A discussion of whether the applicant has sold or leased a portion of, or interest in, the property since the time of purchase, indicating the relevant dates, sales prices, rents, and nature ofthe portion or interests in the property that were sold or leased. 8. A title report for the property, and any litigation guarantees or similar documents that affect or limit the use of all or a portion of the property, including copies ofrelevant underlying documents referenced therein. 9. Any offers to buy all or a portion of the property which the applicant solicited' or received, including the approximate date of the offer and offered price. 10. The applicant's costs associated with the ownership of the property, annualized for each of the last five (5) calendar years, including property taxes, property assessments, debt service costs (such as mortgage and intere~t costs), and maintenance, operation and management costs. 11. Apart from any rent received from the leasing of all or a portion of the property, any income generated by the use of all or a portion of the property over the last five (5) calendar years. Ifthere is any such income to report it should be listed on an annualized basis along with a description of the uses that generate or have generated such mcome. 12. A written explanation as to why the application is necessary to avoid an unconstitutional taking. . 13. Any other information that the Director determines is required to analyze the application. . (b) The foregoing information must be submitted within ten (10) days of submission of the application for an Economic Exception. 16-7.5. Economic Viability Determination~ Economic Exception. (a) The Town Council will hold a public hearing on any application for an Economic Exception. The Council shall grant an Economic Exception from strict application ofthe Town's Land Use Regulations ifthe Council makes the following findings: (1) Based on the economic information provided by the applicant, as well as any other relevant evidence, strict application ofthe Town's Land Use Regulations would not provide an economically viable use of the applicant's property or would otherwise constitute an unconstitutional taking of the applicant's property. (2) The Economic Exception granted will result in a project which, to the maximum extent possible while avoiding an unconstitutional taking, (a) complies with the Town's General Plan and Zoning Ordinance; and, (b) minimizes environmental damage. 3 \ ,\ (b) The Council's findings shall identify the evidence supporting the findings. SECTION 2. SEVERABILITY. If any section, subsection, sentence, clause or phrase of this chapter is for any reason held by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remaining portions of this chapter. The Town Council declares that it would have passed this chapter and each section, subsection, sentence, clause and phrase thereof,. irrespective of the fact that anyone or more section, sentences, clauses or phrases be declared invalid. SECTION 3. EFFECTNE DATE. This Ordinance shall take effect and be in force thirty days after the date of passage, and before the expiration of fifteen (15) days after passage by the Town Council, a copy of the ordinance shall be published with the names ofthe members voting for and against it at least once in a newspaper of general circulation in the Town of Tiburon. This ordinance was introduced at a regular meeting of the Town Council of the Town ofTiburon on ,2005, and was adopted at meeting of the Town Council of the Town ofTiburon on ,2005, which was noticed pursuant to Government Code Section 65090, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: MILES BERGER, MAYOR TOWN OFTIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK A.: " , , . . . 4