HomeMy WebLinkAboutTC Agd Pkt 1999-06-16
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TIBURON TOWN COUNCIL
AGENDA
REGULAR MEETING
TOWN OF TIBURON
1505 TIBURON BLVD.
MEETING DATE:
MEETING TIME:
CLOSED SESSION:
June 16, 1999
7:30 P.M.
7:00 P.M.
PLEASE NOTE: In order to give all interested persons an opportunity to be heard, and to ensure the presentation of all
points of view, members of the audience should:
(1) Always Address the Chair; (2) Slate Name and Address; (3) State Views Succinctly; (4) Lim~ Presentations to 3 minutes; (S)
Speak Directly into Microphone.
A. ROLL CALL
B. ANNOUNCEMENT OF CLOSED SESSION ACTION (If any)
C. PUBLIC OUESTIONS AND COMMENTS
Please confine your comments during this portion of the agenda to matters not already on this agenda. other
than items on tlle Consent Calendar. TIle public will be given an opportunity to speak on each agenda item
at the time it is called. Presentations are limited to three (3) minutes. Matters requiring action will be
referred to the appropriate Commission, Board, Committee or Staff for consideration and/or placed on a
future meeting agenda.
1) INTRODUCTION OF ADMINISTRATIVE SUMMER INTERN - (Michael Josselyn)
D. COUNCIL. COMMISSION & COMMITTEE REPORTS
E. CONSENT CALENDAR
The purpose of the Consent Calendar is to group items together which generally do not require
discussion and which will probably be approved by one motion unless separate action is required on
a particular item. Any member of the Town Council, Town Staff, or the Public may request removal of
an item for discussion.
2) TOWN COUNCIL MINUTES - #1164 - May 19,1999 - (Adopt)
3) AMICUS BRIEF REQUEST: Vallejo Ridgecrest HOA v. City a/Vallejo - (Court of
Appeals, First Appellate District No. A085723) - (Approve)
4) BAY AREA WATER TRANSIT INITIATIVE - Endorsement - (Adopt Resolution)
F. APPOINTMENTS TO BOARDS. COMMISSIONS & COMMITEES
5) BEL VEDERE/TffiURON LIBRARY AGENCY BOARD -
A) Appoint Tiburon Representative - (Incumbent Lynn Wellman Barr)
B) Ratify Reappointment ofRUSD Liaison - (Bonnie Ross)
6) HERITAGE & ARTS COMMISSION - (Appoint two new Members)
7) MARIN COMMISSION ON AGING - (Expiration of Term of Tiburon Representative Jim
Rice - June 30, 1999)
G. PUBLIC HEARING
8) APPEAL OF PLANNING COMMISSION DENIAL - (Rezoning Lot Line Adjustment, and
Amendments to Tiburon Highlands Master Plan & Precise Plan) - AP No. 34-360-11, 38-
182-30 & 38-322-11 - (Fred Grange, Applicant & Appellant) - Continuation of May 19, 1999
Public Hearing
9) ADA MAIN STREET LITIGATION - Connally v. Main Street Businesses & Town of
Tiburon - (Adoption of Settlement Agreement)
10)UPDATE TIDURON MUNICIPAL CODE - Ordinance Amending Chapters 2,3 & 16 of
Code Pertaining to Town Administration - (2nd Reading & Adoption)
ll)UPDATE TOWN MUNICIPAL CODE - Ordinance Amending Sections 13A-12; 13B-10;
13-F-12; 15A-1O; 19-11; 20-39; and 25-3 Pertaining to Code Enforcement - (1st Reading by
Title only)
12)UPDATE TOWN MUNICIPAL CODE - Ordinance Amending Chapter 13 Pertaining to
Building Regulations - (1" Reading by Title only)
H. NEW BUSINESS
13) LA CRESTA PEDESTRIAN ROADWAY EASEMENT - Discussion & Recommendation
re: Town Acceptance - (planning Director)
14) NOVEMBER 2,1999 MUNICIPAL ELECTION-
A. Resolution Ordering and Calling Election for the purpose of Electing Two
Councilmembers - (Adopt)
B. Resolution Consolidating Election & Requesting Services of County Clerk - (Adopt)
C. Resolution Regarding Cost of Printing Candidate's Statement - (Adopt)
D. Discussion of Appointment Process in Lieu of Election
I. UNFINISHED BUSINESS
15) BAY TRAIL PLAN - Request by ABAG for Town Endorsement - (Adopt Resolution)
J. STAFF & TOWN MANAGER REPORTS
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K. COMMUNICA nONS
16) MARIN COUNTY CIVIL GRAND JURY - Letter to Tiburon Mayor, dated June 4, 1999-
(Request for Response concerning Emergency Response Training for Residents)
17) SFO NEW RUNWAY CONFIGURATION PROGRAM - Community Meeting Public
Notice
L. ADJOURNMENT
Future Al!enda Items
--Traffic Safety Committee Report & Recommendotions re: Reed Ranch RoatVI'iburon Blvd Improvements -July 7
-Stewart Drive Intersection Council Committee Status Report - July 7
-Ferry Dock Realignment Project - July 7
No.7 - June 16.1999
NOTICE OF STATUTORY AUTHORITY FOR HOLDING
CLOSED MEETING OF THE TIBURON TOWN COUNCIL
Pursuant to California Government Code Sections 54950 et seq., the Town Council will hold a Closed
Session. More specific infonnation regarding this meeting is indicated below:
1. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
(Section 54956.9(a))
Connally v. Main Street Businesses & Town ofTiburon
(USDC NO. C-95-00875)
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TOWN COUNCIL
MINUTES
D~.,. ~-
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CALL TO ORDER
Mayor Bach called the regular meeting of the Tiburon Town Council to order at 7:32 p.m.
on Wednesday, May 19, 1999, in Town Council Chambers, 1505 Tiburon Boulevard, Tiburon,
California.
A. ROLL CALL
PRESENT: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
Bach, Gram, Hennessy, Thompson
Matthews
PRESENT: EX OFFICIO:
Town Manager Kleinert, Planning Director
Anderson, Senior Planner Watrous, Superintendent
of Public Works Iacopi, Town Clerk Crane
B. ANNOUNCEMENT OF CLOSED SESSION ACTION (If any)
Mayor Bach said no closed session was held.
C. PUBLIC OUESTIONS AND COMMENTS
None.
D. COUNCIL. COMMISSION & COMMITTEE REPORTS
1) PRESENTATION OF HERITAGE & ARTS COMMISSION ANNUAL
PRESERVATION AWARD - (Landmarks Society, 1999 Recipient) - (Susan Travis,
Chair)
Chair Susan Travis, on behalf of the Heritage & Arts Commission, presented the award to Nancy
von Ravensway, President of the Belvedere- Tiburon Landmarks Society. Travis said that
previous winners of the award were Ed Zelinsky for his work to preserve downtown Main Street,
Dr David Steinhardt for his preservation of the Lyford House and surrounding Audubon wildlife
refuge areas, and the Angel Island Association for its work of historical interest.
Ms. von Ravensway acknowledged the Board and volunteers of the Landmarks Society, and
noted that they were celebrating their 40'h year She pointed out the group's most notable
community landmarks: St. Hilary's Church and Open Space preserve, the China Cabin, the
Railroad Museum, and the Art and Garden Center on Tiburon Boulevard, currently under
construction.
2) JT. RECREATION COMMITTEE ANNUAL REPORT - (Vice Chair RiessenlDirector
Creamer)
Director Barbara Creamer reported that the Committee had provided 1300 classes to adults
throughout the course of the year and four summer day camps for children of the Tiburon
Peninsula.
Town Council Minutes #1164
May 19. 1999
Page J
In addition, Creamer said, the Committee had participated in the Reed Union School District
strategic planning process with the goal in mind of developing future programs to be consistent
with the School District's long-range plans. She also noted that the Committee's revenue had
increased by 37%, but in order to meet the demands for after-school activities, the issue for more
indoor space needed to be addressed.
Vice Chair Riessen said the Committee was well run by Staff. He concurred that they had entered
a period oflarge growth and that it would make sense to work with the School District to achieve
a more efficient use of their facilities for the academy (after-school) programs.
E. CONSENT CALENDAR
3) TOWN COUNCIL MINUTES - #1162 - (April 21, 1999) - (Approve)
4) SHORELINE PARK LIGHTS - Installation & Replacement of Fixtures - (Approve)
5) PT. TffiURON COrv1MUNITY FACILITIES DISTRICT 1985-1 SPECIAL TAX LEVY
- Fiscal Year 1999/2000 - (Adopt Resolution)
6) 1972 OPEN SPACE GENERAL OBLIGATION BONDS - Override Tax Rate for Fiscal
Year 1999-2000 - (Adopt Resolution)
7) GANN LIMIT (Article XIII B Appropriation Limit) - Fiscal Year 1999/2000 - (Adopt
Resolution)
MOTION:
Moved:
Vote:
To approve Consent Calendar Items 3 - 7 Above
Thompson, Seconded by Gram
AYES: Unanimous
ABSENT: Matthews
F. PUBLIC HEARING
8) APPEAL PLANNING COMMISSION DENIAL - (Rezoning, Lot Line Adjustment, and
Amendments to Tiburon Highlands Master Plan & Precise Plan) - AP Nos. 34-360-11, 38-
182-30 & 38-322-11 - (Fred Grange, Applicant & Appellant)
Senior Planner Watrous reported that the appeal had been continued from March 3, 1999 in an
attempt to mediate the issues among the neighbors, but no satisfactory solution had been reached.
He said that among the solutions explored was the idea of selling portions of the former railroad
parcels to the adjoining neighbors.
Watrous said that Town Staff favored the applicant's current proposal for a two-home
development on Lot 15 because it would be poor site planning to build on the two railroad
parcels. However, Watrous stated that it was highly probable that the applicant, Mr. Grange
could gain development rights to these two parcels.
Watrous said that Staff also recommended that conditions be placed on the development of Lot
15: a) that an open space conservation easement be created on the adjoining railroad parcels; that
b) building be prohibited outside approved the building envelope; and c) that the size of the
homes be limited to a 5,000 square feet house with a 600 square foot garage.
Town Council Minutes #1164
May 19. 1999
Page 2
In response to a question from Vice Mayor Gram, Watrous said that adjoining Highlands homes
in the area were 5,010 square feet (18 Warren's Way) and 5,003 square feet (10 Warren's Way
[Lot 14 ]).
In response to a question from Councilmember Hennessy, Watrous noted that the houses could be
larger (approximately 8,000 square feet) per the Town's FAR requirements if the total acreage
was calculated on Lot 15 A & B.
Watrous noted that should the railroad lots be developed separately, the current zoning
restrictions did not offer much protection regarding house size, and that it would be up to the
Design Review Board to ensure that the houses would be appropriate to the neighborhood.
Vice Mayor Gram asked Staff is they thought the railroad lots were legal [buildable] lots.
Planning Director Anderson replied that the lots had been recognized by a certificate of
compliance ( with conditions) and had to be considered as legal building sites as long as there was
legal access to them.
Mayor Bach opened the public hearing.
Mr. Tom Newton, Planning Consultant, spoke on behalf of the applicant/appellant. He said that
Staff had done a thorough job. He summarized his client's position: That he [Fred Grange]
owned three lots at the end of Warren's Way, but he had subsequently sought a lot line adjustment
for two lots to be more consistent with the neighborhood and because he agreed with Staff that it
would be a better development solution.
However, Newton said his client did not agree with the proposed condition oflimiting the size of
the houses. He said Mr. Grange wanted to be able to develop one 6,000 square foot house and
one 8,000 square foot house, and suggested letting the Design Review Board review and evaluate
the buildings on their merits.
Mr. Newton also said that the proposed driveway to Lot 15B was in excess of 18% grade. He
suggested that language be added to the mitigation monitoring plan regarding this grade to state, "
. . .or anything as may be approved by the Fire District." He told Vice Mayor Gram that the
grade would approximate 22%. Planning Director Anderson said the Town's ordinances had
allowed up to 25% grade, and suggested language that would allow approval by Fire District, "up
to 25%."
Mayor Bach opened the hearing to public comments.
Peggy Hill, 358 Karen Way, said the Highlands development should be considered separately
from the railroad lots. She questioned how one man [Mr. Grange] could come in and change the
whole subdivision's Master Plan. She stated that it was terrible poor precedent if Council allowed
this to happen. She questioned why Mr. Grange could not just sell the railroad lots to the
adjoining neighbors and develop one lot like he had originally planned.
Town Council Minutes #1164
May 19, 1999
Page 3
Christopher Wand, owner of the lot adjacent to No. 15, said that Grange was going to sell the lots
and not develop them. He said Council would be in "collusion" with Grange if they accepted the
proposed compromise.
Tom Bomar, 71 Reed Ranch Road, said that as a real estate lawyer he had concluded that Mr.
Grange could not legally build on the railroad lots. He said the Staff report's conclusion of a
"probability" of developing those lots was being traded for the extra house on Lot 15.
Bomar said that Grange "knows he can't build on the railroad lots," and challenged his right of
ownership. Bomar said the lots were bought in a tax sale and there was no clear title. He said
that Civil Code section 1211 stated that unless it was proven that the parcels could not be used as
a railroad right-of-way, the [railroad] easements would revert to the abutting landowners.
Forden Athern, neighbor, said he would like to keep the railroad lots as open space and felt that
building two houses was a less offensive plan. He also said that Mr. Grange was promised that if
he reduced the number of houses from three to two, he would win [Town] approval for the
project.
During rebuttal, Mr. Newton said his client did have title to the property and title insurance.
In Town Attorney Danforth's absence, Planning Director Anderson responded to Vice Mayor
Gram's query that both Danforth and previous Town Attorney Ewing had reviewed the question
of reversionary rights. Gram also asked if title insurance would specifically grant an exception to
the provisions of Civil Code section 1211.
Anderson noted that the lots had been deeded by the railroad to Tom Deffenbach in the 1970's, a
number of years prior to being sold off in tax sales.
Mr. Bomar commented that title reports only spoke to matters of record and did not address
issues that were not of record.
Mr. Newton said that his client already had financing for the project, in response to a remark by
Mr. Bomar questioning his client's ability to get financing.
Newton also noted that other railroad lots had been built upon in the same area. Planning
Director Anderson concurred, citing a lot adjacent to Blackfield Drive.
Mayor Bach closed the public hearing.
Councilmember Thompson said that many hours were spent in a cooperative process on the
HigWands Master Plan and said that it would be a fundamental betrayal of those people and
property owners who had worked on the Plan to grant the appeaL
Town Council J.,jinu/es #1164
May 19. 1999
Page 4
Thompson said he was tired of seeing massive houses being "shoehorned onto postage stamp size
lots." He also said he questioned whether the lots were legal lots.
Mayor Bach said he had spent a lot oftime trying to mediate the problem, but said that as a
practical matter two houses seemed better than three and that he would concur with Staff's
recommendations. Bach said that houses built on the railroad lots would have a greater impact on
the neighbors, but said he thought there was no doubt that they could legally be built upon.
Councilmember Hennessy said she also agreed with Staff's recommendations, but said the Town
should ask for additional open space dedication on the non-buildable portion of Lot 15. Hennessy
said the Council was elected to serve "everyone," not just people who lived in the Highlands. She
said if Council denied the appeal, Mr. Grange would sue the Town.
Councilmember Thompson disagreed with this argument. He said that by denying the appeal,
Council would simply be stating that the approved plan would be upheld and there would be no
lot split.
Vice Mayor Gram said he could not consider changing the approved plan unless he knew what the
Town was getting in return. He said if the railroad lots were legal lots, the Town would benefit
from the dedication of the emnt. However, i~tJ1e~ ;?jfre not legal, the Town would not be
gaining anything and the tht ffies should be !lfll'roved. However, Gram noted that he would
not approve the request for a 6,000 or 8,000 square foot home.
Gram said he would also like to hear from the Town Attorney regarding the issues raised by Mr.
Bomar, and proposed a continuance of the hearing.
Mr. Grange said that the fair thing to do would be for Council to approve the application and let
Staff and the City Attorney decide the other issues. He noted that other people had successfully
built on railroad parcels.
Mike Bowman, 7 Burrell Court, asked why Council disagreed with the Planning Commission's
denial. Mayor Bach said they were not in a position to discuss it because the public hearing was
closed.
Moved:
Vote:
To Grant the Appeal with the conditions outlined by Staff, subject to final approval
by the Town Attorney (by the applicant providing proof of ownership and any
other evidence required)
Hennessy, Seconded by Bach
AYES: Hennessy, Bach
NOES: Gram, Thompson
ABSENT: Matthews
MOTION:
Motion tied.
MOTION:
To continue the hearing until June 16, 1999.
[Appellant agreed.]
Town Council Minutes #1164
May 19, 1999
Page 5
Moved:
Vote:
Thompson, Seconded by Gram
AYES: Bach, Gram, Thompson
NOES: Hennessy
ABSENT: Matthews
G.
None.
NEW BUSINESS
H.
None.
UNFINISHED BUSINESS
L COMMUNICA nONS
9) MMWD FIREFLOW PIPELINE REPLACEMENT PROJECT - (Letter to Greenwood
Beach Road Water District Consumers, dated May, 1999)
Communication noted.
10) IDGHWAY 101/131 SOUTHBOUND OFF-RAMP - (Marin County Congestion
Management Agency Letter to CAL/TRANS, dated April 26, 1999)
Communication noted.
II) SF AIRPORT EXPANSION - (Letter from William Sweet, President ofM!. Tiburon
Property Owners' Association, to Town Manager, dated April 12, 1999)
Vice Mayor Gram said the concerns about airplane noise and the airport expansion were regional
issues and should be addressed in the appropriate forum. Council directed Town Manager
Kleinert to bring the matter to the attention of the Marin County Council of Mayors' and
Councilmembers. Kleinert said he would also discuss the issue with the Marin City Managers at
their next meeting.
J. STAFF & TOWN MANAGER REPORTS
None.
L. ADJOURNMENT
There being no further business before the Town Council of the Town of Tiburon, Mayor Bach
adjourned the meeting at 9: 12 p.m., sine die.
MOGENSBACH,MAYOR
ATTEST:
DIANE L CRANE, TOWN CLERK
Town Council Minutes #1164
May 19. 1999
Page 6
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CITY OF VALLEJO
JOHN M. POWERS
City Attorney
555 SANTA CLARA STREET . P.O. BOX 3068 . VALLEJO . CALIFORNIA . 94590-5934 . (707) 648-4545
FAX (707) 648-4687
June 3, 1999
TO: All California City Attorneys
RE: AMICUS BRIEF IN VALLEJO RIDGECREST HOA V. CITY OF VALLEJO
u REQUEST TO CITIES TO JOIN AS AMICUS (COURT OF APPEAL
FIRST APPELLATE DISTRICT, CASE NO. A085723; SOLANO COUNTY'
NO. LOO8047)
ISSUE: WHETHER A CLASS ACTION IS APPROPRIATE AS A DEVICE
PROPERTY OWNERS MAY USE TO CHALLENGE CITY ADMINISTRATION
OF LANDSCAPE MAINTENANCE DISTRICTS UNDER CCP SECTION 526a
(TAXPAYERS' ACTIONS).
REPLY REQUESTED BY JULY 9, 1999
The League of California Cities' Legal Advocacy Committee has authorized the City of
Vallejo to ask your city to support an amicus brief to be filed in this case. Harriet Steiner, City
Attorney of Davis and Marci Coglianese. -both of the firm of McDonough, Holland & Allen have
graciously agreed to prepare the amicus brief pro bono.
DESCRIPTION OF CASE AND ISSUES
The appellants challenged the City's administration of its landscape maintenance district
program on a wide variety of grounds. Through their class action, they sought to have the City
account for virtually all of its LMDs' activities as far back in time as they could convince the Trial
Court to consider. Their combined class-taxpayer action arose after a small group of discontented
property owners in one of the lesser landscape maintenance districts questioned the City's financial
and administrative management of their own district. One of many examples of their arguments was
that the City should have apportioned the cost of gas when City inspectors drove between existing
LMDs and as-yet unaccepted LMDs in the same inspection trip. Their efforts to micro manage the
LMD program included review of over 15,000 pages of City documents.
Printed on 0 RecyCled Paper
All California Cities
June 3, 1999
Page 2
The City demurred initially based on the statute of limitations, then followed with a summary
judgment motion based on appellants' failure to exhaust under the Revenue and Taxation Code.
Both those efforts failed, as did the appellants' class certification motion. Before the case went to
trial. appellants filed their appeal of the denial of class certification, arguing their ability to do so at
that time under the "death-knell" doctrine.l
SIGNIFICANCE TO CALIFORNIA CITIES
Class Certification
Clearly. class certification in this case would lay precedent for deep and wide review of any
assessment district in the state. Any challenge on limited grounds would have to be considered as,
possibly, a review of the entire program. For example, here, the appellants argue that their district
was over-charged for utilities and other services. They sought to have Vallejo review 24 LMDs to
account for all expenditures for every year the districts were in existence. Assuming an audit showed
some overcharges (from years ago), it would be difficult to reimburse all of the appropriate parties.
For example, if reimbursement was due for activities in Year One, but was discovered in Year Four,
and a new homeowner lived in that property, to whom would reimbursement go?
Statute of Limitations 2
Additionally, assessment districts typically are given the benefit ofrelatively short statutes
of limitations. Those limitations periods (in the Revenue and Taxation Code) are codification of this
policy -- something the trial court did not seem to grasp. If this case is allowed to proceed, no
California city could rest assured that there had been closure on an LMD's financial transactions.
My experience with this case convinces me that cities would be well-advised to strongly
advocate limited access to class actions against assessment districts and other financing or budgetting
matters. This case exemplifies why -- four or five property owners are seeking to rewrite the history
of the City's LMD program, despite no other opposition, literally, for decades. If the appellants
succeed on any grounds, they will ask for significant damages, including attorney's fees and costs.
Failure to certify the class amounted to functional adverse judgment.
2
The statutes of limitations are not directly at issue here, as the trial court denied
motions raising them in the City's support. Thus, Vallejo's exposure may be
unlimited in time.
All California Cities
June 3, 1999
Page 3
ARGUMENTS TO BE MADE ON APPEAL
City's Brief
The City will focus on the merits of appellants' arguments. Vallejo will stress that the Trial
Court, as the court closest to the issue, conscientiously considered matters such as the lack of the
required substantial benefit to the Court; a conflict between the interests of the appellants and other
class members; and disparity between the nature of appellants' status and that of the proposed class
members. On the first factor, the City will make the broad argument that there is little or no benefit
in class certification because the case has questionable merit given exhaustion and limitations issues.
Furthermore, the appellants, for example, have arranged to maintain their own district for the last
several years, out of self-perceived frustration with the City's contractual landscapers; thus, their
situation is not typical, and, if anything, at odds with other districts who might have different
perceptions about how much to spend on landscapers.
Amicus Brief
The amicus brief will focus on policy matters. It will stress the need for certainty in
assessment district accounting; for example, that threats of audits of matters several years old makes
planning prohibitively difficult. Furthermore, it will expand on the difficulty class litigation presents
public entities, who must finance defense of such litigation even when it is clearly groundless, or,
when a "test" case makes far more sense to create a precedent that would be followed regardless of
class certification.
ANTICIPATED FILING SCHEDULE
The City will file its Response Brief by June 12th, 1999. The Reply Brief will be due
approximately 20 days later. Thus, an Amicus Brief should be filed approximately the week of July
12th, 1999. We therefore ask that cities wishing to join as amici return the enclosed form, using the
enclosed self-addressed envelope by July 9th, 1999.
CONCLUSION
We think this matter is of great interest to all cities, as it threatens to make burdensome
precedent on two fronts: class action litigation, and assessment district challenges. Your amicus
support will highlight that such precedent is not good public policy. If you need any further
information, please contact me at the phone number listed above, or, bye-mail at
All California Cities
June 3, 1999
Page 4
pomidor@ci.vallejo.ca.us. Copies of the City's Brief also may be had by such e-mail. You may
also e-mail Hametathamet-steiner@mhalaw.com.andMarciatmarci-coglianese@mhalaw.com.
Thank you in advance.
Sincerely,
JOHN M. POWERS
City Attorney . D
V~c/n7?7;Juf-f7
JOHN J. POMIDOR
Assistant City Attorney
JJPlbls
cc: Hamet Steiner, Esq., McDonough, Holland and Allen
Marci Coglianese, Esq., McDonough, Holland and Allen
JoAnne Speers, General Counsell Asst. Director - League of California Cities
Kristi E. Turner, Municipal Legal Fellow, League of California Cities
amicus.ltr
TOWN OF TIBURON
STAFF REpORT
ITEM NO. ~
MEETING DATE: 6/16/99
To:
From:
Subject:
Date:
TOWN COUNCIL
SCOTT ANDERSON, PLANNING DIRECTOR ~
BAY AREA WATER TRANSIT INITIATIVE
JUNE 10, 1999
BACKGROUND
A bold plan to vastly expand and improve water transit in the San Francisco Bay Area is currently
underway and is spearheaded by the Bay Area Council (BAC), a private business association.
The project is known as the Bay Area Water Transit Initiative.
The Planning Commission discussed the Bay Area Water Transit Initiative at meetings held on
5/12/99 and 6/9/99. Planning Commission Chairperson Lisa Klairmont is a working staff member
to the Bay Area Water Transit Task Force, and has shared her insights on this grand effort to
restore water transit in the Bay Area with the Planning Commission.
At its meeting on June 9, 1999 the Planning Commission voted 4-0 to recommend that the Town
Council adopt a resolution endorsing the Bay Area Water Transit Initiative.
DISCUSSION
The Bay Area Water Transit Initiative is widely viewed as a partial solution to the problem of
increasingly crowded freeways. It could be especially valuable if new facilities in the North Bay
area are created to divert vehicular traffic before it reaches southern Marin County.
RECOMMENDATION
Adopt the Resolution (Exhibit 1) as recommended by the Planning Commission.
EXHIBITS
I. Draft Resolution.
2. Planning Commission minutes of 5/12/99.
Tiburo/l Town Council
Staff Report
6116/99
RESOLUTION NO.
A RESOLUTION OF THE TOWN COUNCIL OF THE
TOWN OF TmURON RECOMMENDING THE CREATION OF THE SAN
FRANCISCO BAY AREA WATER TRANSIT AUTHORITY WITH EMPHASIS
ON THE ENCOURAGEMENT, EXPANSION, AND IMPROVEMENT OF
WATER TRANSIT SERVICES TO TmURON AND NORTH BAY COUNTIES
WHEREAS, the California State Senate has directed the Bay Area Council and Bay
Area Economic Forum to create a Blue Ribbon Task Force to form a regional action plan for
water transit on San Francisco Bay for the 21'( Century; and
WHEREAS, said Task Force has issued its report; and
WHEREAS, the residents of the Town of Tiburon have enjoyed the considerable
benefits of water transit through the Red and White, and Blue and Gold ferry services, and
appreciate the considerable convenience, beauty, energy efficiency, economic benefits, and
emergency importance of water transit to our community; and
WHEREAS, the Town ofTiburon seeks continued improvements along the lines of
the report such as increased frequency, improved facilities, expanded service to wider
locations around the bay area; and
WHEREAS, the Town of Tiburon wishes to encourage water transit facilities in other
North Bay communities; and
WHEREAS, the realization of expanded and improved water transit facilities will help
to alleviate the automobile traffic congestion and air pollution resulting from automobile
traffic that is such a pressing issue in Tiburon, Marin County, and other North Bay Counties.
NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of
Tiburon endorses the formation of the San Francisco Bay Area Water Transit Authority, and
strongly recommends that this Authority take reasonable action to increase the frequency,
improve the service and facilities, and expand the service area of water transit for Tiburon,
and to include expansion to both South Bay and North Bay communities.
Town of Tiburon Resolution No.
Page 1
June 16, 1999
EXHI B(T
PASSED AND ADOPTED at a regular meeting of the Town Council of the
Town of Tiburon on June 16, 1999, by the following vote:
AYES:
NOES:
ABSENT:
COUNCILMEMBERS:
COUNCILMEMBERS:
COUNCILMEMBERS:
MOGENSBACH,MAYOR
TOWN OF TmURON
ATTEST:
DIANE L. CRANE, TOWN CLERK
water transit reso.doc
Town of Tiburon Resolution No.
Page 2
June 16, 1999
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during the rush hour. However. traffic movement along Tiburon Boulevard is much worse at those
school times because the cross-street activity (pedestrian and vehicular) greatly inhibits traffic flow
on Tiburon Boulevard.
Commissioner Stein stated that he would like to see a better definition of "private open space" and
he agreed with Mr. Berger's suggestion of examining a density bonus in the downtown area.
Vice-Chair Berger suggested that if an owner used the second story for senior housing, they could
be allowed a bonus in their FAR calculation to help accomplish the Town's goals for affordable
housing. Mr. Anderson said second stories are addressed in the General Plan only in general terms
and that the Zoning Ordinance discussed that more fully.
Other suggestions were that the secondary ridgelines be included in the General Plan; that the
ridge trail be defined more specifically to keep it accessible and a map be included in the Parks
& Recreation Element; and that the principles and policies for wireless communications facilities
be included.
MIS Slavitz/Berger to direct staff to return with an outline for the process. (4-0)
) 3.
BA Y AREA W A 'fER TRANSIT INITIATIVE: The Planning Commission will review
the Executive Summary and Summary Report of the Regional Ferry Plan Update
prepared by the Metropolitan Transportation Commission (MTC). A video regarding
the initiative will also be shown.
The video for the Bay Area Water Transit Initiative was shown.
Chair Klairmont commented that as a matter of comparison, the Colma extension of BART to
the airport was costing 2 billion dollars, and the cost of this entire ferry system was projected
at 2 billion dollars. The work has not been done yet. This is just a proposal.
Commissioner Stein stated that he could not wholeheartedly support this proposal. The original
plan had terminals at Hamilton Field and Port Sonoma. Both have been eliminated and neither
one is shown in even the final stage of development. He felt this was unfortunate, as the Port
Sonoma terminal is a logical one for the North Bay. The Hamilton terminal was eliminated
because a small group objected to the amount of dredging which they felt would be harmful to
wildlife.
Chair Klairmont emphasized that this was just an advisory task force. They were
recommending a massive ferry system be created. Once that has been approved, then all the
necessary studies can be done. They met with environmental groups and those groups were not
going to support the project unless some of the sites were removed. There was not enough
time to delve into all the local issues involved.
Commissioner Stein felt that the proposal was too specific in rating the various sites.
TIB!;RON PLANNING COMMISSION MINUTES OF May 12. 1999
MINUTES NO. 805
4
Ex~dstT :J
,
"0-
hOS.
'/0 ~
Iy
/
.,.;
Vice-Chair Berger suggested that a resolution in support of the proposal could state that as
Marin residents who have ferry access and like having that option, the Town supports having
more ferry service in the bay.
Commissioner Stein would support that with the understanding that more study is needed
concerning North Bay terminals.
Commissioner Slavitz thought that it was a tremendous project and that even if those terminals
are excluded, when the rest gets done, they will see that it is in their best interest to be part of
the system.
It was agreed that Vice-Chair Berger would draft a resolution to present at a future meeting for
a public hearing. MIS Slavitz/Klairmont to continue (4-0).
ADJOURNMENT
Having no further business, the Commission adjourned at 9:25 p.m.
LISA KLAIRMONT, CHAIR
Tiburon Planning Commission
ATTEST:
SCOTT ANDERSON, SECRETARY
m990S 12
TIBURON PLANNING COMMISSION MINUTES OF May 12. 1999
MINUTES NO. 80S
5
-
TOWN OF TIBURON
STAFF REPORT
To:
From:
Subject:
TOWN COUNCIL
TOWN CLERK
JUNE, 1999 EXPIRING TERMS & VACANCIES -
TOWN BOARDS, COMMISSIONS & COMMITTEES
June 16, 1999
ITEM NO. ~
f
~/ 7-
Date:
BACKGROUND
The Council has on its agenda this evening the appointment to several commissions and
committees: The Belvedere- Tiburon Library Agency Board; Heritage & Arts Commission; and
the Marin County Commission on Aging. Pursuant to Town Council Resolution No. 3263, all
openings have been duly posted and advertised.
ACTION REOUIRED
AGENDA ITEM NO.5 -
BELVEDERE TmURON LmRARY AGENCY
A) Appoint Tiburon Representative -
Tiburon resident and incumbent Lynn Barr has applied for reappointment to the Library
Board. No other candidates applied.
B) RatifY Reappointment ofRUSD Liaison -
RUSD Superintendent Chris Carter recommends ratifYing the reappointment of their
representative to the Library Board, Bonnie Ross.
AGENDA ITEM NO.6 -
HERITAGE & ARTS COMMISSION
On May 5, 1999, Council approved the addition of two members to the current five-member
commission. Council interviewed candidates Diane Smith and Bran Fanning at its June 2, 1999
meeting.
An additional candidate. Meg Winther, submitted her application on June I, 1999, but was
unavailable for an interview tonight. Although the application deadline was May 31, Staff
accepted the application because May 31 was a holiday and Town Hall was closed.
Staff Report for June 16,1999
Page 2
Council previously interviewed Ms. Winther in November 1998 for a vacancy on the Design
Review Board. According to Resolution No. 3263, it would not be necessary to re-interview Ms.
Winther except that Council may want to do so in order to refresh its memory of the candidates
and/or because the vacancy is for a different commission.
If Council wishes to schedule another interview with Ms. Winther, Staff should be directed to
continue the item to July 7, 1999.
AGENDA ITEM NO.7 -
MARIN COUNTY COMMISSION ON AGING
The term of Tiburon appointee Jim Rice will expire on June 30, 1999. Staff has been unable to
reach Mr. Rice by telephone or letter, and to date has received no other applications from
interested residents.
The deadline for receipt of applications is June 30,1999. No action is required for appointment
tonight.
D.L. Crane, Town Clerk
EXHIBITS
--Letters to/from Lynn Wellman Barr
--Letter from RUSD Superintendent Carter
--Application ofMeg Winther
--Letter to Jim Rice
.
TOWN OF TIE URON
DUPL CATt
1505 TlBl!RON BOULEVARD. TlBURON . CALIFORNIA 94920 . (415) 435-7373
FAX (415) 435-2438
May 4, 1999
Elizabeth Lynn Wellman Barr
4 Via Capistrano
Tiburon, CA 94920
SUBJECT
APPLICATION FOR RE-APPOINTMENT TO LffiRARY BOARD
Dear Lynn:
Thank you for your letter dated April 29, 1999 indicating your interest in continuing to
serve on the Belvedere- Tiburon Library Board of Trustees. Town Manager Kleinert has
forwarded copies of the letter to the Tiburon Town Council for their information and
consideration.
According to Resolution No. 3263, the Town ofTiburon is required to post a Notice of
Pending Vacancy and seek applications for expiring terms on its appointed boards and
commissions. The attached notice concerning your term, which expires June 30, 1999,
was posted at Town Hall and the Belvedere-Tiburon Library on May 4, 1999.
The Town Council will most likely schedule the Library Board appointment at its June
16,1999 regular meeting. The Council is not required to interview incumbents, but
appreciates your willingness to do so.
Thank you again for your interest in serving the Tiburon Community.
7JlL
Diane L Crane
Town Clerk
Enclosure
cc: Town Council
Town Manager
Elizabeth Lynn Wellman Barr
4 Via Capistrano
Tiburon, CA 94920
April 29, 1999
t4
O-
pt"
CO
Mr. Robert Kleinert, Town Manager
Town ~ Tibyron
1505 Tiburon Blvd.
Tiburon, CA 94920
RE: Application for Appointment to the Belvedere- Tiburon Ubrary Agency
Dear Mr Kleinert and Members 01 the Tiburon Town Council:
After carwful consideration, I would like to apply for appointment to the thrM-year
T1buron seat on the Belvedere- Tiburon Ubrary Agency which will be vacant this JUly 1. As
you know, I have been a representative of Tlburon on this Agency Board lor tl'le past two
years. (I took the Place of Sharon Bass when she resigned to become President of the
Peninsula Ubrary F=OUndation.) During this time I have served on the Ad Hoc Program
Committee. the Financial Strategy Committee, the By-Laws Comminee and the
Emergency Preparedness Committee of the Board. I have also served as a Director of
the Peninsula Library Foundation and the Bookmarks Group, bolt1 of which support the
LIbrary through a variety of lund-raising activities
1 am eager to continue my volunteer service to the Ubrary as we enter tl'le new
millennium The next decade will be an Important decade as this Ubrary tries to find new
r8II8r1U8 sources to work in combination wtth our tax revenues in providing enhanced library
seNices to this community. The role of technology will also change the shape of our Ubrary
S8IVices as the growth of the Internet continues. We will be worklr19 hard to ~rade the
collection of the Bellledere- Tiburon Ubrary and the community services it proVIdes.
I am proud of this Ubrary and this community. I would consider it an honor to be
appointed again to the Board.
I would be glad to come to a Town Meeting if you would like to interview me
personally.
Sincerely yours,
/'7 (/ /, / ,1,~ (R.
.. . ~K c.{.,zC'l#<.a.>( ~/V(
Elizabeth Lynn Wellman Barr
., (f. t&
;)~A.J If /(lC
REED UNION SCHOOL DISTRIc;11
lOS-A Avenida Miraflores Tiburon, CA 94920 (415) 435-7848 Fax (415) 435-7843
;
RECEiVED
MI\'f 2 1 1999
May 19, 1999
TOWN MAi'lASE:=1S Ci-riCE
TOWII Of TiEURON
Town of Tiburon
1505 Tiburon Boulevard
Tiburon, CA 94920
Re: ADDointment of School District Library Liaison
To Whom It May Concern:
The Reed Union School Board of Trustees highly recommends that Bonnie
Ross be appointed for another year (1999-2000), as the parent liaison between the
Reed School District and the Tiburon Town Library. Ms. Ross has done an
excellent job this year serving as the Library Liaison helping to promote better
communication between the District and the Town Library.
I hope you will give serious consideration to this request.
Sincerely,
&z-:;{1z~
Christine M Carter
Superintendent
CMC/sn
cc: Bonnie Ross
Superintendent
Christine M. Carter
Schools
Board of Trustees
Merrill Boyce
Susan Hileman
Grace Livingston
Harry Smith
Robert Weisberg
Reed K-2
Bel Aire )-$
Del Mar 6-8
/
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.
7~
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(
BYLAWS
OF
THE BOARD OF TRUSTEES
BEL VEDERE- TIBURON LIBRARY AGENCY
ARTICLE I
PURPOSE
PURPOSE. The Board of Trustees ("Board") of the Belvedere -Tiburon
Library Agency ("Agency") shall construct, own, operate and maintain a new
public library. .
ARTICLE II
OFFICES
PRINCIPAL OFFICE. The Board shall fix the location of the principal
office of the Board at any place within the city or town limits of Belvedere or
Tiburon.
ARTICLE ill
TRUSTEES
SECTION 1 - NUMBER OF TRUSTEES
The Board shall consist of seven (7) Trustees, three of whom shall be
appointed by the Town of Tiburon, three of whom shall be appointed by the
City of Belvedere, and a seventh Trustee shall be desi nated an "at lar e"
member and shal recomm n edb the Reed Union S 00 District Board
of Trustees. The a pointment of the at-lar e member shall be approve y
the governing 0 les 0 e ve ere an Tiburon. '*-
.
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. tl.J
_ Date Application Received: {g - (- r 1 Inte."View Date: t~/~ - 1 'j
L.j a.hf cJ\)}- () /
(Commission. Board or Committee) 7(;1.11 V'-
_ Appointed to:
(Date)
_ Date Term Expires:
Length ofTenn:
Jm [2/95
2
TOWN OF TIBURON
1155 TIBURON BOULEVARD. TIBURON . CALIFORNIA 94920 . (415) .t35.7]73
FAX (41.5) 435-2438
COMj\;IISSION. BOARD & COMMITTEE
APPLICATION
The Town Council considers appointmen~ to its various Town commissions,
. boards and committee throughout the year due to term expirations and unforeseen
vacancies. In its effort to broaden participation by local residents in Tiburon's local
governmental process and activities, the Council needs to know your interest in
serving the Town in some capacity.
Please indicate your specific areas of interest and special skills or experience
which would be beneficial to the Town, by completing both sides of this form and
returning it to Town Hall. Copies will be forwarded to the Town Council and
informal applicant/Council interviews are scheduled periodically during the year.
Your application will also remain on file at Town Hall for a period of one (1) year.
Thank you for your willingness to serve the Tiburon community.
/$&
Robert . Kleinert
Town Manaaer
o
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Arc.ll(s) of Interest in Numerical Oruer
_ (#1 Bcing the Greate~t Interest)
PLANNING PARh:S & OPEN SPACE
DESIGN REVIEW RECREATION
"../ HERITAGE & ARTS DISASTER PREPAREDNESS
BUDGET & FINANCE L1BR-\RY
RECYCLING & WASTE MANAGE:\<IENT
1
TOWN OF TIBURON
l505 TIBURON BOULEVARD' TIBURON . CALIFORNIA 94920 . (415) 435-7373
FAX (415) 435-2438
May 18, 1999
Mr. Jim Rice
P.O. Box 113
Tiburon, CA 94920
SUBJECT:
MARIN COUNTY COMMISSION ON AGING
Dear Jim:
I have enclosed a copy of a letter from the Marin County Department of Health
and Human Services concerning the expiration of your term as Tiburon's representative
to the County Commission on Aging. The Town Council appreciates your continuing
service to the community in this regard, and I have been directed to ask you if you are
interested in being considered for reappointment to another term.
According to Resolution No. 3263, the Town ofTiburon is required to post a
Notice of Pending Vacancy and seek applications for expiring terms on its appointed
boards and commissions. The attached notice concerning your term, which expires June
30, 1999, was posted at Town Hall and the Belvedere- Tiburon Library today.
The Town Council will most likely schedule this matter for discussion at its June
16, 1999 regular meeting. The Council is not required to interview incumbents but must
interview any interested new applicants for the position before making the final
appointment.
Please contact the undersigned at your earliest convenience regarding your
decision. Once again, thank you for your interest in serving the Tiburon Community.
lJl&~
Diane L. Crane
Town Clerk
Enclosure
cc: Town Council
Town Manager
...........:::~.~~~
DEPARTMENT 0 F HEALTH AND HUMAN SERVICES
N.ncy Rubin, Director
Robert Kleinert
Town Manager
TOWN OF TIBURON
1905 Tiburon Blvd.
Tiburon, CA 94920
RECEIVED
MAY 1 8 \999
DIVISION OF AGING
10 N. SAN PEDRO RD., STE. 1012
SAN RAFAEL, CA 94903
PHONE: (415) 499-7396
FAX: (415) 499-5055
May 14,1999
TOWN MANAGtRS OFFICE
TOWN Of ilBURON
Dear Me. Kleinert:
As you know, each of the eleven incorporated cities in Marin has an appointment to the County
Commission on Aging, which also has ten seats appointed by the Board of Supervisors.
The term of your appointee, Jim Rice, is up as of June 30,1999. We would appreciate your Town
Council reappointing or selecting another resident to sit on the Commission.
In making appointments for this seat, the Council should be aware of State and Federal laws and
regulations that require the following membership composition for advisory councils to Area
Agencies on Aging:
. A majority of persons 60 years of age or older;
. Service providers and consumers;
. Members who reflect the geographic, racial, economic, and social complexion of the
planning and service area they represent.
The current composition of the Commission on Aging (23 members) includes 16 members over
the age of 60, seven members under 60, and service providers and consumers.
Enclosed is a Responsibility Statement which describes the roles and responsibilities of our
Commissioners.
We would appreciate confirmation of your Town's appointment at the earliest possible date. If
you have any questions, please do not hesitate to call me.
J.1T~
Li, Rott~
Director
LR:gm
Revised 5/91
RESPONSIBILI1Y STATEMENT
MEMBER, COMMISSION ON AGING
DEFINITION:
Appointed position, by Board of Supervisors or local City Council, to serve as one of
21 voluntary advisors to the Board of Supervisors on issues affecting the elderly of Marin
County. the Commission on Aging is a federally mandated advisory council to the Board
of Supervisors, which serves as the policy-making board of the Area Agency on Aging
within County government.
The Commission on Aging is also designated by the State as the local long term care
lead agency and project review body, and as the local Adult Day Health Care Planning
Council.
SKILL LEVEL AND FUNCTION:
Appointed Commissioners are expected to have an active interest in and a willingness
to become knowledgeable about the needs and concerns of Marin's elderly residents,
whether living in their own homes or in institutions, and those caring for them in the
community in which they live.
According to the statement of purpose in the by-laws, the Commission shall:
1. Provide information about attitudes, needs, and opinions of the elderly to
the Board of Supervisors and the Area Agency on Aging staff.
2. Advise on the development and implementation of the Annual Area Plan
in conformity with State and Federal regulations.
3. Serve as a forum and a strong advocate; provide leadership for the elderly.
4. Hold public meetings on the Area Plan, on the needs and priorities of the
elderly, and recommend programs to the Board (Board of Supervisors) for
funding.
5. Advise the Area Agency on Aging Board on allocations of funds, and on
legislation affecting policies pertinent to the elderly.
6. Serve as a source of community education pertaining to the needs and
programs for the aging.
7. Consult and maintain contact with special groups which have responsibilities
related to the older American.
REQUIREMENTS OF MEMBERSffiP:
1. Serve a three-year term.
2. Attend monthly meetings of the Commission which are held on weekdays,
during daytime hours. No member may be absent without a valid reason
for more than three consecutive meetings.
3. Be willing to abide by Roberts' Rules of Order.
4. Members who receive compensation from or have a fiduciary interest in
any program funded by the Area Agency on Aging must abstain from voting
on funding of that particular program.
5. Serve on at least one standing committee or task force which may meet
monthly or more often, depending on need.
6. Be willing to participate with staff in annual contract review and monitoring
of projects to assure efficient services to Marin's elderly.
7. If an appointee is a City representative, a commitment must be made to
report to the appointee's City Council on an annual basis regarding the
activities of the Commission.
wp:COA-RESP.STT
06, If! gg I.') 06
"/:i'U5 98~6~
BOMAR LA"
~OOl,'OOl
June 10, 1999
Ann Danforth, Town Attomey
Members of the Town Council
Town of Tiburon
1505 Tiburon Blvd.
Tibw-on, Ca. 94920
LAW OFFICES OF
mOMAS H. BOMAR
425 California Street, Suite 200
San Francisco, Ca. 94104
(415) 296-7200
Fax (415) 981-3601
--:/Fo- - LA1Cl'~
\6)~~~~~~\m
lffi JUN 1 0 1999 ~
TOWN ATTORNEY'S OFFICE
TOWN OF TIBURON
ORIGINAL
By Fu 435-2438
Re:
AppDcatlon of Fred Grange/Francisco Properties
Meeting Date: Continued to JUDe 16, 19!19
Ms. Danforth, Ladies and Gentlemen:
I tes)lOlld to Mr. Grange's attorney's letters as follows:
The Freeman case cited by the Applicant is very much on point. It C(lncemed an abandoned railrood
easement and held that the owners of the abutting properties owned to the center of the easement and,
upon abandonment thereof, owned the easement property free of the railroad's successors inte=rs.
Under CC 831 and 1112, the C(lnveyance is presumed to be to the center of the easement. While this is
a rebuttable presumption, I know of no facts in the Reed property C(lnveyance to rebut it, as Mr.
Sorensen requests.
This returns the analysis to the Manhattan RP~~h case. The Applicant's second letter addresses some of
the points made in my letter, I agree that a grant deed does not create a presumption of an easement. I
was merely following the Supreme Coun's analysis and noting the different facts in the Reed deed.
The Court used the Manhattan RP:.ch quitclaim deed as evidence of a fee, counterbalancing the
easement indicators. In the Reed deed there is no such evidence, leaving open the stronger possibility
of easement. Again following the Court's logic, the $1 C(lnsideration, even including giving Mr.
Reed's family free rides, indicates an intent to grant an easement.
Concluding the easement argument, I reiterate the factors the Court considered as most indicative of
intent: the right-of-way limitation; placement thereof in the granting clause; the "and for no other
purpose" language which was not present in Manhattan Beach: and the absence of a right of reverter to
enforce the use restriction.
Many tall sales are voided long after the fact. The one year statute of limitations is only as to
procedural matters, not jurisdictional matters. If a property owner can show that the tax has been paid
due 10 a duplicate assessment, there is no limitations period. Indeed, the leading case of ShPJ""r v.
Ufw:, 113 C. A. 2d 729, holds that it would be unconstitutional to SO apply R & T Code section 3725,
quoted by Mr. Sorensen. That case also holds that a statute of limitations can not ron against a party
in possession of the property.
Finally, the use of a title insurance policy for $300 should not be relied on by the Town to establish
ownership. Condition 12 of the Conditional Certificate requires the Applicant lD establish his
ownership and, in this case, he has not done so. He is free to comply at a later date if he can.
y&Y ~~Yours,
V.W~-
Thomas . Bomar
cc: Neil Sorensen By fax 499-0140
-
TOWN OF TIBURON
STAFF REpORT
ITEM NO.
?
To: TOWN COUNCIL
From: DANIEL M. WATROUS, SENIOR PLANNER
Subiect: END OF WARREN'S WAY:
REZONING #R98-02, PRECISE PLAN AND MASTER PLAN AMENDMENT
# 39806, AND LOT LINE ADJUSTMENT #69802
APPEAL OF PLANNING COMMISSION DENIAL OF REQUEST TO
REZONE PROPERTY, ADJUST LOT LINES FOR THREE LOTS, AND
INCORPORATE TWO SEPARATE EXISTING PARCELS INTO THE
TIBURON HIGHLANDS PRECISE PLAN AND MASTER PLAN;
FRED GRANGE, OWNER
(CONTINUED FROM MAY 19, 1999)
Date:
JUNE 16, 1999
SUMMARY:
This item was continued from the Town Council meetings of February 3, March 3, and May 19,
1999. Please refer to the Town Council packets of February 3, March 3 and May 19 for
background information.
At the May 19, 1999 meeting, the Council heard testimony from several neighboring property
owners regarding this project. Me Thomas Bomar, the owner of71 Reed Ranch Road, presented
information to the Council purporting to show that Me Grange does not have clear title to the
former railroad parcels and is unable to develop these parcels in the future if the requested
application is denied. The Town Council voted to continue the item to the June 16, 1999 meeting
in order for the Town Attorney to further research these contentions. These issues are discussed
within a separate report from the Town Attorney.
TIBUR01\' TOWN COL'NCIL
STAFF REPORT
JUNE 16, 1999
1
APPLICANT REQUEST FQR FENCEABLE AREAS
Since the May 19 meeting, the applicant has submitted a request to designate areas on each of the
two proposed Lots 15 A and 15B around which fences could be constructed in the future. A
fenceable areas drawing has been submitted, and is attached as Exhibit 1. This drawing proposes
to establish areas outside the building envelopes that could be fenced for use as private yard areas
for the future homeowners. Fences, landscaping, and landscape features would be allowed within
the proposed "fenceable areas", but no other improvements. No portion of the former railroad
parcels would be included within the fenceable area of either lot. A substantial portion of original
Lot IS would remain outside the fenceable areas.
One of the applicant's reasons for requesting the establishment offenceable areas arose from the
recommended reduced building envelope for Lot 15B. The applicant is concerned that this
reduced envelope would not allow adequate area for siting of a home and adequate outdoor living
area.
The proposed fenceable area for Lot 15A would include almost all of the area of this parcel that is
currently contained within Lot IS, excluding the area currently contained within the former
railroad parcel and the driveway easement which would lead to Lot 15B. A fence currently
extends along the southern side property line and a eucalyptus grove runs along the current
border between Lot 15 and the railroad parcel. These established barriers generally follow the
proposed fenceable area lines, and make reasonable boundaries for private yard area for Lot 15A.
The proposed fenceable area for Lot 15B follows the existing eastern and western boundaries of
Lot IS, and extends north to the line of the requested building envelope. Staff had previously
recommended (and the applicant has not to date objected) that the building envelope for Lot 15B
be reduced in size to avoid impacts on the large eucalyptus tree located within the originally
proposed envelope and the nearby drainage area. The large eucalyptus tree would be within the
fenceable area of Lot 158, but sensitive vegetation (oak woodland and riparian plant species in
the drainage area) would remain outside the fenceable area.
The concept of creating fenceable areas on these lots is useful to designate specific areas that can
be utilized for outdoor living space for the two proposed parcels, and to further protect more
sensitive areas from development. The fenceable areas proposed by the applicant appear to be
acceptable and probably form more logical yard areas than the building envelope lines.
Should the Town Council decide to approve the fenceable areas as proposed, it should direct staff
to revise the Precise Plan Amendment Resolution (Exhibit 5) as follows:
TIBURON TOWN COL'NCIJ.
STAFF REPORT
JUNE 16, 1999
2
-
1. Condition No. I should be modified to read as follows:
I. "This amendment to the Tiburon Highlands Precise Plan incorporates two
former railroad parcels (Assessor Parcel Nos. 38-182-20 and 38-322-11) into the
area governed by the Tiburon Highlands Precise Plan and establishes a new
building envelope within the boundaries of original Lot 15 of the Tiburon
Highlands Subdivision, thus creating Lots 15A and 15B as depicted on the
drawing entitled "Warren Court Estates (Lands of Grange)" dated December 3,
1996 and revised June II, 1998, prepared by Lawrence P Doyle (I sheet)"; and
jitrther establishes fenceable areas for new Lots 15 A and 15B as shown on the
drawing dated June 8, 1999 labeled "Fenceable Areas---Lots 15A and 15B of
Tiburon Highlands Precise Plan".
2. Condition NO.8 should be amended to read as follows:
8. "No improvements of any type including play equipment shall be permitted
outside the approved building envelopes, except driveways and retaining walls
associated with driveways; with the exception that fences, landscaping, and
landscape features may be placed within the fenceable areas of Lots 15A and
158 as shown on the drawing dated June 8, 1999 labeled "Fenceable Areas---
Lots 15A and 15B ofTiburon Highlands Precise Plan".
RECOMMENDA nON:
1. That the Town Council holds continued public hearing on the proposed project.
2. Following closure of the public hearing, the Town Council should vote to grant the appeal
of the Planning Commission's denial and:
a. Adopt the Resolution adopting the Mitigated Negative Declaration
(Exhibit 2),
b. Read by title only and hold first reading of the ordinance rezoning the
property from RO-2 to RPD (Exhibit 3),
c. Read by title only and hold first reading of the ordinance amending the
Tiburon Highlands Master Plan (Exhibit 4), and
d. Adopt the Resolution approving the Precise Plan Amendment, lot line
adjustment and Mitigation Monitoring Program (Exhibit 5), specifYing
whether or not to incorporate the "fenceable areas" drawing into the
approval.
TIBURON TOWN COUNCIL
STAFF REPORT
JUNE 16, 1999
3
-
Should the Town Council elect to uphold the Planning Commission's decision to deny the
applications, a draft resolution (Exhibit 6) has been prepared to that end.
EXHIBITS:
1. Proposed "fenceable areas" drawing
2. Draft Resolution adopting the Negative Declaration
3. Draft ordinance rezoning the property from RO-2 to RPD
4. Draft ordinance amending the Tiburon Highlands Master Plan
5. Draft Resolution approving the Precise Plan Amendment, lot line adjustment and
Mitigation Monitoring Program
6. Draft Resolution denying the appeal
TIBURON TOWN COUNCIL
STAFF REPORT
JUNE 16, 1999
4
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EXHIBIT NO. j
-
RESOLunON NQ.
A RESOLUTION OF THE TOWN COUNCIL OF THE
TQWN OF TIBURQN ADOPTING A MITIGATED NEGATIVE DECLARA TIQN
FQR THE REZONING QF CERTAIN PRQPERTY FROM RO-2 (RESIDENTIAL
QPEN) TO RPD (RESIDENTIAL PLANNED DEVELQPMENT AND QPEN
SPACE); FQR APPROVAL QF AMENDMENTS TO THE TIBURON
HIGHLANDS MASTER PLAN AND TIBURQN HIGHLANDS PRECISE PLAN;
AND FOR APPROVAL QF A LQT LINE ADJUSTMENT
(ASSESSOR PARCEL NOS. 34-360-11. 34-182-20 & 38-322-11)
WHEREAS. the Town Council of the Town of Tiburon does resolve as follows:
Section I. Findings.
A. On June 12, 1998, the Town of Tiburon received an application for a zone change,
precise plan amendment, a master plan amendment, and a lot line adjustment to
adjust lot lines for three lots, and incorporate two separate existing parcels totaling
approximately 3.23 acres into the Tiburon Highlands Master Plan and Precise Plan,
create an additional building site within the Tiburon Highlands Planned
Development area (Applications #R98-02, #39806 and #69802).
B. The Tiburon Planning Department prepared an initial study for this project, along
with a draft Mitigation Monitoring Program, which determined that there was no
potentially significant environmental effects related to the project that could not
be mitigated to less than significant levels through modification of the project
and through mitigation measures adopted as conditions of approval for the
project
C. The Tiburon Planning Department determined that based upon the Initial Study, a
Mitigated Negative Declaration was required for the project pursuant to the
requirements of the California Environmental Quality Act (CEQA).
D. On October 30, 1998, a Draft Mitigated Negative Declaration was completed.
Notices of such were posted, mailed, and advertised in the Ark newspaper to
announce a 21-day public review period from October 30, 1998 to November 20,
1998, for review and comment on the Initial Study/Draft Negative Declaration, in
conformance with CEQA requirements.
E. A notice of the public hearing on the Draft Mitigated Negative Declaration and
the project applications was also posted, mailed, and published in the Ark
newspaper.
Tiburon Town Council Resolution No
Page
1
EXHIBIT NO.
P. t"Df=3
J.
F. Following closure of the 21-day public review period on November 20, 1998, the
Planning Commission conducted a public hearing on November 24, 1998 to
receive public testimony on the Draft Mitigated Negative Declaration and
project applications
G. The Planning Commission denied the applications and on December 9, 1998,
adopted Resolution No 98-24 memorializing its action.
H. The applicant subsequently filed a timely appeal of this decision to the Town
Council on December 17,1998.
1. The Town Council held duly noticed public hearings on March 3, 1999 and May
19, 1999, to receive public testimony on the Draft Mitigated Negative Declaration
and the appeal of the project applications.
I The Town Council reviewed and considered the information contained in the Initial
Study and the Draft Mitigated Negative Declaration, and any and all comments
and responses thereto.
Section 2. Approval
NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of
Tiburon does hereby make the following findings
1. Notice of the public review period and hearing on the Mitigated
Negative Declaration was given as required by law and said hearing
was conducted pursuant to Sections 15073 and 15074 of the State
CEQA Guidelines and pursuant to provisions of the Town's Local
CEQA Guidelines
2 All individuals and groups desiring to comment on the Mitigated
Negative Declaration were given the opportunity to address the
Town Council.
3. The Mitigated Negative Declaration for the project consists of the
Initial Study document dated October 30, 1998, the Negative
Declaration form and Mitigation Monitoring Program, and any
supporting information which may be referenced therein.
4. The Mitigated Negative Declaration was completed in compliance
with the intent and requirements ofCEQA, the State CEQA
Guidelines, and the Town's Local CEQA Guidelines
Tiburon Town Council Resolution No.
Page
2
EXHIBIT NO. 2-
f. Z OF 3
5. The Town Council has found that there is no substantial evidence in the
record sufficient to support a fair argument that the project will have a
significant unmitigated impact on the environment.
NOW, THEREFORE, BE IT FURTHER RESOL VED that the Town Council
hereby adopts the Mitigated Negative Declaration for the above-described project as
complete and adequate for the purposes of approving the project.
BE IT FURTHER RESOLVED that the Planning Director is directed to file the
Notice of Determination with the Marin County Clerk within five (5) working days of the
project approval.
PASSED AND ADOPTED at a meeting of the Town Council held on
, 1999, by the following vote:
AYES
COUNCILMEMBERS.
NOES
COUNCILMEMBERS
ABSENT:
COUNCILMEMBERS
MOGENSBACH,MAYOR
TOWN OF TIBURON
ATTEST
DIANE L CRANE, TOWN CLERK
Tiburon Town Council Resolution No.
Page
3
EXHIBIT NO. Z
f. 3 DF=3
-
ORDINANCE NO.
AN QRDINANCE OF THE TQWN CQUNCIL QF THE
TQWN QF TIBURON REZONING CERTAIN PRQPERTY FROM
RO-2 (RESIDENTIAL OPEN) DISTRICT TO RPD (RESIDENTIAL PLANNED
DEVELOPMENT AND OPEN SPACE) DISTRICT
(ASSESSQR PARCEL NOS. 34-182-20 & 38-322-11)
The Town Council of the Town ofTiburon does ordain as follows:
SECTION 1.
RECITALS.
1. The Town of Tiburon is in receipt of an application (File #R98-02) filed by
Fred Grange, owner of the subject property, to rezone approximately 3.23
acres of land located on a former railroad right-of-way near the end of
Warren's Way.
2. The Tiburon Planning Commission held a duly noticed public hearing on
November 24, 1998 and heard testimony from interested persons. At its
meeting on December 9, 1998, the Commission voted to deny the
requested rezoning for reasons set forth in Planning Commission
Resolution No. 98-24.
3. The applicant filed a timely appeal of this denial on December 17,1999.
4. The Town Council held one or more duly noticed public hearings at which
testimony was received and considered from interested persons. The Town
Council also received and considered the report and recommendations of
the Planning Commission.
5. An Initial Study and a Draft Mitigated Negative Declaration for this project
were prepared and circulated for review from October 30, 1998 to
November 20, 1998, in conformance with requirements of the California
Environmental Quality Act. The Draft Mitigated Negative Declaration and
accompanying Mitigation Monitoring and Reporting Program for the
project have been prepared in accordance with the provisions of the
California Environmental Quality Act. These documents adequately assess
the environmental impacts of the rezoning and the project. In addition,
these documents conclude that the rezoning would not result in any
potentially significant environmental impacts that cannot be mitigated. The
Initial Study concluded that all potential project impacts could be reduced
to insignificant levels through implementation of the mitigation measures
incorporated into the project. The Town Council through adoption of
Resolution No. _ has previously adopted the Mitigated Negative
Declaration
Ordinance No._, Adopted
1
EXHIBIT NO. j
f. 1 OC::: '-f
SEcnON 2:
FINDINGS.
I. Pursuant to Section 4.09.05 of the Tiburon Zoning Ordinance, the Town
Council finds that the proposed change of zone is consistent with the
objectives of the Zoning Ordinance.
2. The Town Council further finds that the proposed change of zone is consistent
with the General Plan.
SEcnON 3.
APPRQVAL QF REZQNING.
The approximately 3.23-acres ofland (Assessor Parcel Nos. 38-182-20 and 38-
322-11), as shown on attached Exhibit "A", is hereby rezoned from RO-2 (Residential
Open) zone to RPD (Residential Planned Development & Open Space) zone and is hereby
incorporated into the Tiburon Highlands Residential Planned Development (PD#15) for
zOOlng purposes
SEcnON 4.
SEVERABILITY.
If any section, subsection, sentence, clause or phrase of this Ordinance is for any
reason held to be invalid or unconstitutional by a decision of the court of competent
jurisdiction, such section, subsection, sentence, clause or phrase shall be deemed severable
and shall not affect the validity of the remaining portions of the Ordinance. The Town
Council of the Town of Tiburon hereby declares that it would have passed this Ordinance,
any section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any
one or more sections, subsections, sentences, clauses or phrases may be declared invalid
or unconstitutional.
SEcnON 5.
EFFEcnVE 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 its passage 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 ofTiburon.
This Ordinance was introduced at a meeting of the Town Council held on
1999, and was adopted at a regular meeting of the Town Council of the Town of Tiburon
on , 1999, by the following vote
AYES
COUNCILMEMBERS
NOES
COUNCILlVlEMBERS
Ordinance No,_, Adopted
2
"7
EXHIBIT NO. -:J
f.z... OF4
ABSENT:
COUNCILMEMBERS:
MOGENSBACH,MAYOR
TOWN OF TffiURON
ATTEST
DIANE L CRANE, TOWN CLERK
Grange rezone ord.doc
Ordinance No._, Adopted
3
EXHIBIT NO. 3
f "3 or:: t.f
EXHIBIT "A"
DESCRIPTION
All that certain real property situate in the City of Tiburon, County of
Marin, State of California, described as follows:
'BEGI)1N:~G at t.he Southwest: CCr:le:::' of Let 2~, as shewn upon "Map of Reec.land Woods Ur:i.t
One", filed. for record July 27, 1965 in Volume 13 of Maps at page 23, Ma~i:l Count.y
Recor=s, running thence North 850 04' West to a point. which bears Nort~ SO 30' East.
from the Northeast COr:ler of Lot 76, as sho'NIl upon "Map of Bel Aire Est.a::'es", filed. for
record April 8, 1953 i~ BOCK 7 of Maps at page 82, Mar:":! Count.y Records, thence Souch
SO 30' West to the Nor~heast. co~er of said Lot 76, ~~~~i:lg thence Easterly aloeg the
Ncr~he=ly bcucdar/ line of said Map of Bel Aire E5~at.e5 tc_a poi:lc which bears South SO
09' West from the point of begiI4~ing, thence North:So 09' East to t.he poine of
beg:.:::.....'"':.:...:lg.
Being Marin County Assessor Parcel 38-322-11.
TOGETHER WITH
All that certain real p:cq:.erty situatE in tTe C1 ty of Ti1::=a1
Calnty of M3rin, State of Califarnia, de9:::dbed as foJ.lows:
BEGINNDC at tTe Sc.ut::tw=st =ner of IDt 21 ~ of Ree:dland \<b:ds filed July 27, 1965
in Eb:k 13 of Map> at Pa<;e 23, runnin] tia c.e Scuth 50 10' West to a. p:lint = tTe
Sc::ut:tEr'ly l.in;! of tTe ~ Pacific Railroad O:J. right of way (n:w ebard:::ned)
said p:lint als:J t.e1r.g = tTeN...u. Uerly l.in;! of IDt 62 ~ of Bel Aire Estates filed
~ 21, 1950 :in P.':''-k 7 Of ~ at Page' 82, runnirq i::re:nc8 Easterly el~ said R.R.
right of way l.in;! to a p:lint = tTe N::rtheasterly l.in;! of lot T7 Map of Reedlarrls Unit
3 filed for :r:""-U1.J Septa1t:er 4, 1958 in Eb:k 10 of Maps at Page 4, said p:lint tearing
Scuth 530 33" East 75.57 feet and Scuth 470 47' East 10 feet, fran tTe nost r-brth=rly
=rex- of said lot, th=Ic.e r-brth=rly in a direct l.in;! to a p:lint = tTe Scutherly lire
of IDt 3 M2:- of Reedlarrl N::xx!s (13 FM 23) said p:::i.~t be.:!.r.g \:'.~~L=ly 10 foot, f=n tie
Westerly = of said Lot, ~ ttec.e Westerly el~ tTe &::utTerly b:::urxlary of
said Ree:dland W:::cds s>,rrlivisicn to tTe p:lint of I::eginnirq.
Being Marin County Assessor Parcel 38-182-11.
EXHIBIT NO. 2>
p, t.f OP<-!
QRDINANCE NO. N. S.
AN ORDINANCE QF THE TOWN COUNCIL OF THE
TOWN QF TIBURQN AMENDING THE HIGHLANDS MASTER PLAN BY
AMENDING ORDINANCE NO. 330 N. S. WHICH APPROVED A MASTER
PLAN FOR THE TIBURQN HIGHLANDS PLANNED DEVELOPMENT (PD #15)
The Town Council of the Town of Tiburon does ordain as follows:
SECTION 1.
RECITALS.
1. The Town of Tiburon is in receipt of an application filed by Fred Grange
for an amendment to the Tiburon Highlands Master Plan to incorporate
approximately 3.23 acres of adjoining land located on a former railroad
right-of-way near the end of Warren' s Way into the Tiburon Highlands
Master Plan and to create an additional building site on original Lot 15 of
the Tiburon Highlands Subdivision. The application requests amendments
to the Tiburon Highlands Master Plan as originally adopted in Ordinance
No. 330 N. S on March 31, 1988 and subsequently modified in Ordinance
No. 353 N. S on January 17, 1990.
2. The Tiburon Planning Commission held a duly noticed public hearing on
November 24, 1998 and heard testimony from interested persons. At its
meeting on December 9, 1998, the Commission voted to deny the
requested Master Plan amendment for reasons set forth in Planning
Commission Resolution No. 98-24.
3. The applicant filed a timely appeal of this denial on December 17,1999.
4. The Town Council held one or more duly noticed public hearings at which
testimony was received and considered from interested persons The Town
Council also received and considered the report and recommendations of
the Planning Commission.
5. An Initial Study and a Draft Mitigated Negative Declaration for this project
were prepared and circulated for review from October 30, 1998 to
November 20, 1998, in conformance with requirements of the California
Environmental Quality Act. The Draft Mitigated Negative Declaration and
accompanying Mitigation Monitoring and Reporting Program for the
project have been prepared in accordance with the provisions of the
California Environmental Quality Act. These documents adequately assess
the environmental impacts of the project. In addition, these documents
conclude that the project would not result in any potentially significant
environmental impacts that cannot be mitigated. The Initial Study
concluded that all potential project impacts could be reduced to
insignificant levels through implementation of the mitigation measures
Ordinance No. _, Adopted
1
EXHIBIT NO. +
y JO~ ':(
incorporated into the project. The Town Council through adoption of
Resolution No _ has previously adopted the Mitigated Negative
Declaration.
SECnQN 2.
FINDINGS.
1. The Town Council finds that the proposed master plan amendment is
consistent with the goals and policies of the Tiburon General Plan and is in
conformance with provisions of the Tiburon Zoning Ordinance.
2. The Town Council further finds that the proposed master plan amendment will
not be contrary to the public health, safety or general welfare.
SECTION 3.
MASTER PLAN AMENDMENT.
Condition No. I of Section 2 of Ordinance No. 330 N. S. is hereby amended to
read as follows
"The Master Plan is approved for forty two (12)forty-three (43) residential units
as shown on the map referred to in Section I.A3(a) above as Exhibit #1 and entitled
"Site Development Plan" prepared by CSW Consultants and dated February I, 1988 and
revised on March 23, 1988.; as modified to include the two former railroad parcels and
an additional building site on former Lot15 (now Lots 15A and 15B) as depicted on
the drawing entitled "Warren Court Estates (Lands of Grange)" dated December 3,
1996 and revised June 11, 1998, prepared by Lawrence P. Doyle (1 sheet), a copy of
which is on file with the Tiburon Planning Department. "
SEcnON 4.
SEVERABILITY.
If any section, subsection, sentence, clause or phrase of this Ordinance is for any
reason held to be invalid or unconstitutional by a decision of the court of competent
jurisdiction, such section, subsection, sentence, clause or phrase shall be deemed severable
and shall not affect the validity of the remaining portions of the Ordinance. The Town
Council of the Town of Tiburon hereby declares that it would have passed this Ordinance,
any section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any
one or more sections, subsections, sentences, clauses or phrases may be declared invalid
or unconstitutional.
SECTION 5.
EFFEcnVE 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 its passage 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.
Ordinance No. _' Adopted ___.__.._~
2
EXHIBIT NO.~
p. '2.. OF 3
This Ordinance was introduced at a meeting of the Town Council held on
1999, and was adopted at a regular meeting of the Town Council of the Town ofTiburon
on , 1999, by the following vote:
AYES:
COUNCILMEMBERS:
NOES
COUNCILMEMBERS:
ABSENT:
COUNCILMEMBERS:
MOGENSBACH,MAYOR
TOWN OF TffiURON
ATTEST:
DIANE L. CRANE, TOWN CLERK
Gt-ange mpamend ord.doc
Ordinance No._, Adopted
3
EXHIBIT NO.~
p, 5 of 3
RESQLUTION NQ.
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON GRANTING
AN APPEAL OF THE PLANNING COMMISSION'S DENIAL OF APPLICATIONS AND
APPROVING AN AMENDMENT TO THE TIBURON HIGHLANDS (PD #15) PRECISE
PLAN, APPROVING A LOT LINE ADJUSTMENT, AND ADOPTING A MITIGATION
MONITORING PROGRAM FOR THE PROJECT
ASSESSOR PARCEL NOS. 34-360-11. 38-182-20 & 38-322-11
WHEREAS, the Town Council of the Town of Tiburon does resolve as follows:
Section I. Findings
A. The Town ofTiburon is in receipt of an application filed by Fred Grange for an
amendment to the Tiburon Highlands Precise Plan to incorporate approximately 3.23 acres
of adjoining land located on a former railroad right-of-way near the end of Warren's Way
into the Tiburon Highlands Precise Plan area and to create an additional building site on
original Lot 15 of the Tiburon Highlands Subdivision. The Precise Plan amendment
application requests amendment of the Tiburon Highlands Precise Plan adopted by
Resolution No. 2535 on July 20, 1988 and subsequently amended by Resolution No 2669
on January 17, 1990, Resolution No. 3156 on April 3, 1996, and Resolution No. 3280 on
May 20, 1998. The Lot line adjustment application seeks to combine the two separate
former railroad parcels adjoining the Tiburon Highlands Planned Development into
existing Lot 15 of the Tiburon Highlands Subdivision, resulting in a total of two parcels
instead of three
B. The Tiburon Planning Commission held a duly noticed public hearing on November 24,
1998 and heard testimony from interested persons. At its meeting on December 9, 1998,
the Commission voted to deny the requested Master Plan amendment for reasons set forth
in Planning Commission Resolution No 98-24.
C. The applicant filed a timely appeal of this denial on December 17, 1999.
D. The Town Council held one or more duly noticed public hearings at which testimony was
received and considered from interested persons. The Town Council also received and
considered the report and recommendations of the Planning Commission.
E. An Initial Study and a Draft Mitigated Negative Declaration for this project were prepared
and circulated for review from October 30, 1998 to November 20, 1998, in conformance
with requirements of the California Environmental Quality Act. The Draft Mitigated
Negative Declaration and accompanying Mitigation Monitoring and Reporting Program
for the project have been prepared in accordance with the provisions of the California
Environmental Quality Act. These documents adequately assess the environmental
impacts of the project. In addition, these documents conclude that the project would not
Tiburon Town Council
Resolution No.
,-/--/99
1
EXHIBIT NO. S
____'f_ _I or:: <,.:,~_
result in any potentially significant environmental impacts that cannot be mitigated. The
Initial Study concluded that all potential project impacts could be reduced to insignificant
levels through implementation of the mitigation measures incorporated into the project.
The Town Council through adoption of Resolution No. _ has previously adopted the
Mitigated Negative Declaration.
F. The Town Council finds that the Precise Plan Amendment, as conditioned, is consistent
with the Tiburon General Plan as follows:
I) Policy No. LU-3 of the Land Use Element of the Tiburon General Plan
states that the Town shall closely consider the environmental constraints of
land through the development review process in determining the location,
type, and density of development. The environmental studies analyzed for
this project indicate a variety of potential biological, drainage, geological
and pedestrian impacts which would occur as a result of the proposed
project. However, each of the identified impacts can be reduced to a less
than significant level by the mitigation measures described in the Mitigated
Negative Declaration.
2) Land Use Policy No. LU-12 states that in Planned Residential Districts,
new development should be located on the least environmentally sensitive
and least hazardous portions of vacant lands wherever feasible to promote
sound land development and planning practices. The wetlands areas of the
former railroad parcels are the most environmentally sensitive portions of
the subject property. The proposed development on Lots 15A & 15B
would avoid these sensitive areas and therefore is consistent with this
policy.
G. The Town Council finds that the proposed Precise Plan Amendment is consistent with
applicable provisions of the Tiburon Zoning Ordinance in that Section 4.08.04 of the
Tiburon Zoning Ordinance lists principles that must be applied in order to approve an
amendment to a Precise Development. The proposed project is found to be consistent
with the following principles of this Section:
A) Principle (b) states that "preservation of the natural features of the land
shall be achieved to the maximum extent feasible through minimization of
grading and sensitive site design." The project would not alter any
distinguishing natural land features on the site, and the additional grading
beyond that originally considered for Lot 15 will only involve that relatively
minor amount necessary to construct the two proposed houses.
B) Principle (d) states that "every reasonable effort should be made to
Tiburon Town Council
Resolution No
--1--/99
2
EXHIBIT NO. '7
p, "1-01'" 10
preserve... mature trees [and] access corridors." Reduction of the size of
the envelope for Lot 15B would preserve several mature trees that would
be removed during the construction of a house within the originally
proposed building envelope. Efforts could be made to recognize the
pedestrian corridor along the former railroad parcels, if so desired.
C) Principle (f) states that "prominence of development and construction
should be minimized by appropriate location of grading and placing of
buildings so that they are screened by wooded areas, rock outcroppings
and depressions in topography or other features" The homes to be built
on the proposed Lots 15A & 15B would be situated toward the base of the
slope, helping to minimize their visibility from neighboring residences.
D) Principle (p) states that "consistency with other goals and policies of the
General Plan elements shall be demonstrated." As described above, the
proposed project is consistent with policies of the Tiburon General Plan.
H. The Town Council finds that the Lot Line Adjustment conforms with Town regulations in
Section 14-11.2 (d) of the Tiburon Municipal Code in that the resulting lots would be in
conformance with the zoning and building ordinances of the Town. The proposed lot line
adjustment meets the required height, setback, floor area, and all other zoning standards
set forth in the Tiburon Zoning Ordinance, and all development on the subject property
shall conform to Uniform Building Code and other building regulations adopted by the
Town of Tiburon.
SECTlQN 2.
PRECISE PLAN AMENDMENT APPROVAL.
NOW, THEREFORE BE IT RESOLVED that the Town Council of the Town ofTiburon
does hereby grant the appeal and approves the proposed amendment to the Tiburon Highlands
Precise Plan subject to the following conditions:
I. This amendment to the Tiburon Highlands Precise Plan incorporates two former
railroad parcels (Assessor Parcel Nos. 38-182-20 and 38-322-11) into the area
governed by the Tiburon Highlands Precise Plan and establishes a new building
envelope within the boundaries of original Lot IS of the Tiburon Highlands
Subdivision, thus creating Lots 15A and 15B, as depicted on the drawing entitled
"Warren Court Estates (Lands of Grange)" dated December 3, 1996 and revised June
II, 1998, prepared by Lawrence P Doyle (I sheet)."
2. This project shall be modified to incorporate all of the mitigation measures set
forth in the attached Mitigation Monitoring Program (Exhibit" A"); said mitigation
measures are hereby incorporated as conditions of approval on the project.
Tiburon Town Council
Resolution No.
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3. Materials and colors used for structures shall blend into the natural environment.
Colors shall be restricted to earth tone colors and materials which blend with the
natural environment.
4. Landscaping shall emphasize low maintenance, drought resistant, native species
around the future homes
5. The exact size and location of the building envelopes for each parcel shall reflect
the submitted plans with the exception that the western edge of the building
envelope for Lot 15B shall be moved to the east to a point 10 feet beyond the drip-
line for the large eucalyptus tree currently within the envelope, at a line parallel to
the eastern building envelope line. This eucalyptus tree shall be preserved.
6. Maximum gross floor area for Lots 15A and 15B will each be 5,000 square feet,
with 600 square feet of additional space for garage purposes. Maximum allowable
height from grade shall be 30 feet.
7, In conjunction with recordation of the lot line adjustment parcel map, open space
and conservation easements over the two existing former railroad parcels
(Assessor Parcels 38-182-20 and 38-322-11) shall be offered to the Town of
Tiburon for acceptance. Said open space easement language shall be reviewed and
approved by the Town Attorney. Said language shall, among other things, require
preservation of all mature trees on the two parcels. The parcel map shall also
include the offer of dedication of the proposed 15' wide emergency vehicle access
easement over the former railroad parcels, and an offer of a public pedestrian
access easement across the former railroad parcels as specified in Mitigation
Measure 6.f 1. The Town of Tiburon reserves the right to reject the offer of public
pedestrian easement. All offers of easement shall be irrevocable. The parcel map
shall also include a note specifYing that no further subdivision of the lots will be
permitted.
8. No improvements of any type including fences and play equipment shall be
permitted outside the approved building envelopes, except driveways and retaining
walls associated with driveways
9. All building materials for project construction shall also be stored on-site, in
locations approved in advance by the Tiburon Planning and Building Department.
10. All construction on, and landscaping of, the property shall comply with the
provisions of Tiburon Municipal Code Chapter 13E concerning water
conservation Compliance with these regulations shall be ensured during the Site
Plan and Architectural Review and Building Permit processes.
Tiburon Town Council
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11. Prior to issuance of building permits, the applicant shall provide written
confirmation to the Town ofTiburon Planning Department which demonstrates
that the project sponsor has satisfied all conditions of the Town Engineer, Alto-
Richardson Fire Protection District, Richardson Bay Sanitation District, and the
Marin Municipal Water District.
12. All grading on the site shall be limited to the dry season from May 1 through
October 15, unless specifically authorized by the Town Engineer after installation
of appropriate precautionary measures.
13. An erosion control plan and dust control plan satisfactory to the Town Engineer
shall be required prior to grading or construction on the site.
14. Graded areas shall be re-vegetated as soon as possible following completion of
grading activity. The project shall comply with the requirements of the Urban
Runoff Pollution Prevention Chapter 20A of the Tiburon Municipal Code.
15. All contractors and subcontractors performing work at the site shall be required by
contract to halt all work within 30 yards of any archaeologically significant
resource that may be uncovered during construction, until a qualified archeologist
has investigated and made recommendations. Representatives of the Native
American community shall be contacted in the event of such a find.
16. All previous terms and conditions of the Tiburon Highlands Precise Plan remain in
effect, except as modified herein.
17. This approval shall be valid for 36 months following its effective date, and shall
expire unless subsequent zoning and/or building permits have been issued pursuant
to this approval A time extension may be granted if such request is filed prior to
the expiration date.
SEcnON 3. LOT LINE ADJUSTMENT APPROVAL.
BE IT FURTHER RESOL VED that the Town Council of the Town of Tiburon
hereby grants the appeal of the Planning Commission's denial of the lot line adjustment
application and approves the lot line adjustment as depicted on the drawing entitled
"Tentative Map for Proposed Lot Line Adjustment, Warren Court Estates (Lands of
Grange)" dated December 3, 1996 and revised June 11, 1998, prepared by Lawrence P.
Doyle (I sheet), subject to the following conditions
1. Recordation of the lot line adjustment shall be via a parcel map approved by the
Town ofTiburon.
Tiburon Town Council
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2. This lot line adjustment approval shall be valid for one year and shall expire and
become null and void unless a parcel map is recorded or an extension granted.
SECnQN 4. ADOPTIQN QF MInGA TlON MONITORING PRQGRAM.
BE IT FURTHER RESOLVED that the Town Council of the Town ofTiburon
hereby adopts the Mitigation Monitoring Program dated 11/98, attached as Exhibit "A"
hereto.
SEcnON 5.
EFFECTIVE DATE.
BE IT FURTHER RESOLVED that this Resolution shall not become effective
until such time as the ordinances authorizing the rezoning and master plan amendment
become effective.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of'
Tiburon on , 1999, by the following vote:
AYES
NOES.
ABSENT
COUNCILMEMBERS
COUNCILMEMBERS
COUNCILMEMBERS
MOGENSBACH,MAYOR
TffiURON TOWN COUNCIL
ATTEST
DIANE L. CRANE, TOWN CLERK
Grange.apv.res.doc
Tiburon Town Council
Resolution No.
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EXHIBIT NO. S-
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MITIGATION MONITORING PROGRAM
FRED C. GRA1~GE REZONING, MASTER PLAN AND PRECISE PLAN
A.c\1ENDMENT
FILE # R98-02, 39806 & 69802
END QF WARREN'S WAY
Geolo~ic Problems
Mitillation Mea~ure:
3.b.I. All improvements, including structures, fills, utilities and roads should be designed
to resist earthquake groundshaking. The latest seismic safety building and
engineering techniques should be employed in the design of the houses.
Implementation Procedure:
Construction drawings submitted by applicant for building permit must show proposed
structural integrity reinforcements acceptable to the Town Engineer and other
mechanical and architectural reinforcements acceptable to the Building OfficiaL
Responsibil ity of Building Official to ensure plans contain this information and that
structural integrity reinforcements have been approved by the Town Engineer, Actual
installation of approved structural integrity measures and other mechanical and
architectural improvements shall be confirmed by the Building Official prior to final
inspection and sign off on the building and/or grading permit.
Non-compliance Sanction:
No issuance of building permit if structural integrity measures and mechanical and
architectural reinforcements are not shown on plans; no final sign off if these measures
and reinforcements not installed; halt construction; fines.
Mitil1ation Measure:
3.b.2. Structures should be designed to accommodate settlement. When this is not
unacceptable, it will be necessary to support improvements (structures, utilities,
roads, etc.) on piers extending into fIrm materials below fill.
Implementation Procedure:
Construction drawings submitted by applicant for building permits must show proposed
structural integrity reinforcements acceptable to the Town Engineer. Responsibility of
Building Official to ensure plans contain this information and that reinforcements have
TOWN OF TIBURON MmGATION MONITORING PROGRAM 11198
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been approved by the Town Engineer. Actual installation of approved structural
integrity measures shall be confirmed by the Building Official prior to final inspection
and sign off on the building and/or grading permit.
Non-compliance Sanction:
No issuance of building permit if structural integrity measures are not shown on plans;
no final sign off if structural integrity measures are not installed; halt construction;
fines.
Mitijl:ation Measure:
3.e.I. The site shall be examined during construction for evidence of any remaining
landslide areas. Pilings or other reinforcements to the structural integrity of the
proposed houses shall be constructed beyond the depth of any remaining
underlying landslide or debris flow deposits.
Implementation Procedure'
Required structural integrity improvements shall be submitted to the Town Engineer for
review prior to submittal for building permits. Responsibility of Building Official to
ensure improvements have been included in required plans, Building Inspector shall
inspect construction to insure improvements have been installed.
Non-compliance Sanction'
No issuance of building permits if geotechnical investigations not completed; halt
construction; fines.
Mitijl:ation Measure:
3.e.2. Bedrock conditions should be observed by a geologist during grading to evaluate
the potential for deep-seated sliding within graded areas.
Implementation Procedure:
Building Inspector shall coordinate with hired geologist to insure bedrock conditions are .
observed during grading. Town Engineer shall review findings of geologist to
determine if additional repair work is necessary. Building Official shall confirm
observations with geologist and Town Engineer prior to authorizing construction of
building.
Non-compliance Sanction:
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No authorization of building construction if findings of geologist and Town Engineer
have not been evaluated; halt construction; fines.
Mitiiiation Measure:
3.f.3. Artificial fill on the site should be removed. Colluvium and shallow landslide
materials should be removed and recompacted. Fills should be keyed into fIrm,
competent bedrock. Retaining walls, buttresses and drainage facilities should be
installed if needed.
Implementation Procedure:
Building Inspector shall inspect site during grading to assure removal of artificial fill,
removal and recompaction of colluvium and landslide materials, keying of fill into
bedrock, and installation of required retaining walls, buttresses and drainage facilities.
Remedies for necessary improvements to be determined by Town Engineer.
Responsibility of Building Official to ensure necessary removal, recompaction and
installation of prescribed improvements completed prior to issuance of building permits,
Non-compliance Sanction:
No issuance of building permits if necessary removal, recompaction and installation of
prescribed improvements not completed; halt construction; fines.
Water Ouality
Miti~ation Measure'
4.e.1. Project design and construction activities will utilize Best Management Practices as
described in the California Stonn Water Best Management Practice Handbook for
Construction Activity, March, 1993.
Implementation Procedure:
BMP program to be approved by Town Engineer prior to issuance of building or
grading permits. Implementation of BMP program shall be by the contractor, under
review of the Town Engineer,
Non-compl iance Sanction:
Failure to comply with the approved construction BMP's will result in the issuance of
correction notices, citations, a project stop-work order, or other available enforcement
TOWN OF TtBURON MmGATION MONITORING PROGRAM 11/98
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methods,
Air Ouality
Mitill'ation Measure'
5.a.1. The site shall be watered during construction to reduce the impacts of such dust to
acceptable levels.
Implementation Procedure.
The Building Inspector shall observe the site during all inspections for evidence of
watering or fugitive dust.
Non-compliance Sanction:
Failure to comply with site watering requirements or observation of fugitive dust will
result in the issuance of correction notices, citations, a project stop-work order, or other
available enforcement methods.
Transportation/ c: ircu I ation
Mitiiation Measure:
6.f.1. A public pedestrian access easement shall be established across the former railroad
parcels to continue to allow pedestrian connections to the surrounding
neighborhoods.
Implementation Procedure:
Applicant shall hire an engineer to prepare necessary materials to establish pedestrian
easement. Town Engineer shall review application prior to recordation. Planning
Division shall record easement.
Non-compliance Sanction:
No final sign off of building permit if pedestrian easement not recorded; halt
construction; fines,
B ioloiical Resources
Mitiiation Measure:
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7.b.1. Unless approved as part of another pennit, a separate Tree Pennit shall be
obtained from the Town of Tiburon prior to removal of any Protected Trees on the
site. Any removed trees shall be replaced on a 3 to 1 basis.
Implementation Procedure'
Applicant shall hire an arborist to prepare a report listing Protected Trees on the site,
Protected Trees to be removed shall be identified, and types and locations of
replacement trees to be specified. Applicant to submit Tree Permit application prior to
removal of any Protected Trees. Planning Division to process Tree Permit applications
for any trees to be removed. Planning Division to inspect property to insure planting of
replacement trees.
Non-compliance Sanction:
No issuance of building permit until arborist's report is completed and reviewed by
Planning Division; halt construction if Protected Trees are endangered by construction;
no final sign off until all replacement trees planted; fines.
Mitil1ation Measure:
7.b.2. An arborist's report shall be prepared assessing the health of the oak tree
identified in the biological report. Efforts shall be made to avoid damage to this
tree based upon recommendations within this arborist's report.
Implementation Procedure'
Applicant shall hire an arborist to prepare a report assessing health of oak tree,
Planning Division shall review report and building plans to determine if proposed
construction will result in damage to tree. Building Inspector shall inspect efforts in the
field to avoid construction conflicts with tree,
Non-compliance Sanction:
No issuance of building permit until arborist's report is completed and reviewed by
Planning Division; halt construction if plans or construction work indicate potential
damage to oak tree; fines.
Mitil:ation Measure:
7.d.1. The riparian vegetation and the stream bank adjacent to proposed Lot 15B shall
be avoided by any development or construction activity.
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Implementation Procedure:
Planning Division shall review building plans to determine if proposed construction will
result in damage to riparian vegetation and stream banle Building Inspector shall
inspect efforts in the field to avoid construction conflicts with these areas.
Non-compliance Sanction.
No issuance of building permit until building plans are reviewed by Planning Division;
halt construction if plans or construction work indicate potential damage to riparian
vegetation and stream bank; fines.
Mitiiation Measure:
7.d.2. Any encroachment into the outer dripline of the willow riparian community will
only be permitted after obtaining a streambed alteration permit from the State
Department of Fish and Game.
Implementation Procedure:
Applicant shall hire an arborist to prepare a report determining the outer dripline of the
willow riparian community. Planning Division shall review report and building plans to
determine if proposed construction will result in damage to community, Building
Inspector shall inspect efforts in the field to avoid construction conflicts with drip lines.
If driplines are encroached upon, applicant shall obtain a streambed alteration permit
from the State Department of Fish and Game. Building Official shall not authorize
construction in the are of the willow community until streambed alteration permit has
been issued.
Non-compliance Sanction:
No issuance of building permit until arborist's report is completed and reviewed by
Planning Division; halt construction if plans or construction work indicate potential
damage to willow community or if streambed alteration permit has not been issued;
fines.
Mitii:ation Measure'
7.d.3. The proposed underground storm drain system shall be routed into the existing
railroad bed culvert at the bottom of the slope of Lot 15B so as to avoid working in
and possibly adversely affecting the natural streambed.
Implementation Procedure:
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Plans for underground storm drain system shall be reviewed by Town Engineer prior to
issuance of building permits. Responsibility of Building Official to ensure plans
contain this information and that storm drain system has been approved by the Town
Engineer. Actual installation of approved storm drain system shall be confirmed by the
Building Official prior to final inspection and sign off on the building and/or grading
permit.
Non-compliance Sanction:
No issuance of building permit if storm drain system routed to railroad bed culvert is
not shown on plans; no final sign off if approved storm drain system is not installed;
halt construction; fines.
~
Miti~ation Measure:
8.a.!. All construction activity shall comply with the Town's limitations on construction
hours as set forth in Section 13-6 of the Tiburon Uniform Building Code.
Implementation Procedure:
Ensure contractor and any sub-contractors are aware of the Town's limited construction
hours, including those for use of heavy equipment. Building Inspector shall ensure that
these appear on the job card. Building Inspector and Police Department to enforce this
measure.
Non-compliance Sanction:
Police Department and/or Building Inspector to issue citations and/or halt construction,
Hazards
Miti~ation Measure:
Access roadways to each lot shall be not less than 12 feet of unobstructed width with
a maximum grade not to exceed 18% unless otherwise approved by the Fire District,
and in no event to exceed 250/.,; roadways shall be constructed with an all-weather
driving surface, capable of supporting the imposed loads of fire apparatus and
having a minimum of 13 feet, 6 inches of vertical clearance.
lO.b.!.
Implementation Procedure:
Construction drawings submitted by applicant for building permit must show proposed
TOWN OF TIBURON MmGA nON MONITORING PROGRAM 11/98
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construction details of all access roads, including grade, width, paving materials and
vertical clearance. Responsibility of Building Official to ensure plans contain this
information. Actual construction of approved access roads shall be confirmed by the
Building Official prior to final inspection and sign off on the building and/or grading
permit.
Non-compliance Sanction-
No issuance of building permit if detailed access road plans are not shown on plans; no
final sign off if access road not properly constructed; halt construction; fines.
Miti~ation Measure'
10.b.2.
Access roads in excess of 150 feet shall be provided with an approved
turnaround.
Implementation Procedure:
Construction drawings submitted by applicant for building permit must show proposed
access road turnaround acceptable to the Tiburon Fire Protection District.
Responsibility of Building Official to ensure plans contain this information and that it
has been approved by the Fire District. Actual construction of approved turnaround
shall be confirmed by the Building Official prior to final inspection and sign off on the
building and/or grading permit.
Non-compliance Sanction:
No issuance of building permit if adequate access road turnaround is not shown on
plans; no final sign off if turnaround not constructed; halt construction; fines,
Miti~ation Measure:
IO.b.3
Any gates shall be equipped with emergency fIre access for fIre apparatus.
Implementation Procedure:
Construction drawings submitted by applicant for building permit must show any
proposed gates, All such gates must show emergency fire access equipment acceptable
to the Tiburon Fire Protection District. Responsibility of Building Official to ensure
plans contain this information and that it has been approved by the Fire District. Actual
installation of emergency fire access equipment on gates shall be confirmed by the
Building Official prior to final inspection and sign off on the building and/or grading
permit.
TOWN OF TIBURON MmGATION MONITORING PROGRAM 11I98
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Non-compliance Sanction.
No issuance of building permit if any gates shown on plans do not include appropriate
emergency fire access equipment; no final sign off if such equipment not installed on
gates; halt construction; fines.
Mitiiation Measure:
lO.b.4.
An approved water supply, including water main and new hydrant, shall be
installed at the base of the driveway serving the lots accessed from
Warren's Way.
Implementation Procedure:
Construction drawings submitted by applicant for building permit must show proposed
water main and hydrant acceptable to the Tiburon Fire Protection District.
Responsibility of Building Official to ensure plans contain this information and that it
has been approved by the Fire District. Actual installation of approved water main and
hydrant shall be confirmed by the Building Official prior to final inspection and sign off
on the building and/or grading permit,
Non-compliance Sanction:
No issuance of building permit if new water main and hydrant are not shown on plans;
no final sign off if water main and hydrant not installed; halt construction; fines,
Miti~ation Measure:
IO.e.1.Grass vegetation within fonner railroad right-of-way shall be properly maintained
for fIre protection as determined by the Alto-Richardson Fire Protection District.
Implementation Procedure:
Property owner for former railroad parcels shall be responsible for maintenance of
vegetation in this area. Alto-Richardson Fire Protection District shall conduct annual
inspections for evaluation of vegetation maintenance,
Non-compliance Sanction-
Alto-Richardson Fire Protection District shall issue notice of violation and/or fines if
vegetation is not properly maintained; emergency abatement shall be completed by Fire
District if necessary.
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Aesthetics
Miti~ation Measure'
13.b.I.
Prior to the issuance of grading or building permits for each of the two
proposed single-family homes, the building design and landscaping of each
house shall receive Site Plan and Architectural Review approval pursuant
to Section 4.02.00 of the Tiburon Zoning Qrdinance. The building and
landscaping shall be designed so as to minimi7e and effectively mitigate
visual impacts to the surrounding neighborhood.
Implementation Procedure'
The Tiburon Design Review Board shall review the submitted building and landscaping
plans to insure that visual impacts on surrounding residences are minimized and
effectively mitigated. The Building official shall not accept plans for building plan
check nor issue building permits without verification that the proposed building has
received Site Plan and Architectural Review approval by the Design Review Board.
Non-compliance Sanction'
Building permits shall not be issued without proof of Site Plan and Architectural
Review approval; no final sign off if landscaping and building is not completed in
compliance with said approval; halt construction; fines.
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EXHIBIT NO. "A"
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RESOLUnQN NO.
A RESOLUTION QF THE TOWN COUNCIL QF THE TQWN QF TIBURQN
DENYING AN APPEAL OF THE PLANNING COMMISSION'S DENIAL OF
APPLICATIONS FOR REZONING, PRECISE DEVELOPMENT PLAN AMENDMENT,
MASTER PLAN AMENDMENT, AND LQT LINE ADJUSTMENT FOR PROPERTIES
LOCATED NEAR THE END OF WARREN'S WAY
ASSESSOR PARCEL NOS. 34-360-11. 38-182-20 & 38-322-11
WHEREAS, the Town Council of the Town of Tiburon does resolve as follows:
Section I. Findings
A. On June 12, 1998, the Town ofTiburon received applications for a zone change, a
precise plan amendment, a master plan amendment and a lot line adjustment to
adjust lot lines for three lots, and incorporate two separate existing parcels into the
Tiburon Highlands Master Plan and Tiburon Highlands Precise Plan (Applications
#R98-02, #39806 and #69802).
B. The Planning Commission held a duly noticed public hearing on November 24,
1998, and heard and considered testimony from interested persons.
C The Planning Commission, based upon application materials and analysis presented
in the November 24, 1998 Staff Report as well as visits to the site and public
testimony, found that the proposal was inconsistent with the required findings
necessary to approve each of the aspects of the subject application. On December
9, 1998, the Planning Commission adopted Resolution No 98-24 denying this
request.
D. The applicant subsequently filed a timely appeal of this decision to the Town
Council on December 17, 1998.
E. The Town Council held duly noticed public hearings on March 3, 1999 and May
19, 1999, and heard and considered testimony from interested persons. The Town
Council finds that the proposal, as conditioned, is inconsistent with the Tiburon
Zoning Ordinance and the Tiburon General Plan based on the following facts:
. Zone Change
Section 4.0905 of the Tiburon Zoning Ordinance states that unless the proposed
zone change is consistent with the General Plan, then the application shall be
denied The Town Council finds that the proposed project is inconsistent with the
following policies of the Tiburon General Plan and does not, on balance, further
the goals and objectives of the General Plan:
Tiburon Town Council
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I) Policy No. LU-3 of the Land Use Element states that "the Town shall
closely consider the environmental constraints ofIand through the
development review process in determining the location, type, and density
of development." There is no basis for increasing density in the area. Due
to the lack ofIegally demonstrated access and the narrow physical
configurations of the former railroad parcels, there is no conclusive
evidence that these parcels could be developed with single-family
dwellings. Therefore the request to forestall construction of two dwelling
units on these parcels, by allowing the construction of two dwelling units
on the area currently occupied by Lot 15, is premature at this time.
2) Land Use Policy No. LU-12 states that "in Planned Residential Districts,
new development should be located on the least environmentally sensitive
and least hazardous portions of vacant lands wherever feasible to promote
sound land development and planning practices." The original decision to
allow one dwelling unit on the area currently occupied by Lot 15 was made
after extensive scrutiny and public input as part of the adoption of the
Tiburon Highlands Master Plan and Precise Plan. The request to add the
area contained on two former railroad parcels to Lot 15 does not present a
compelling reason to change a previous decision which was accomplished
using sound land development and planning practices.
. Precise Plan and Master Plan Amendments
Section 4.08.04 of the Tiburon Zoning Ordinance lists principles that must be
applied in order to approve an amendment to a Precise Plan. The proposed project
is found to be inconsistent with the following principles of this Section
(A) Principle G) states that the "proposed arrangement of residential units and
design of circulation system shall provide harmonious transition from, and
be compatible with, neighboring development and open space" The
proposed project would arrange a total off our dwelling units at the end of
a driveway off Warren's Way that was originally designed for three homes
(one each on Lots 14, 15 and 16). The increased density caused by the
placement of two homes on the area currently contained within Lot 15 is
not compatible with the more open design of Lots 14, 15 and 16 as
originally approved within the Tiburon Highlands Precise Plan.
(B) Principle (p) states that "consistency with other goals and policies of the
General Plan elements shall be demonstrated." As described in Section D.I
above, the proposed project is inconsistent with several policies of the
Tiburon General Plan.
Tiburon Town Council
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These same principles would also discourage the approval of the proposed
amendment to the Tiburon Highlands Master Plan.
III. Lot Line Adiustment
Section 14-11.2 (d) of the Tiburon Subdivision Ordinance requires that approval
of the application for a lot line adjustment is granted only if "the application
approval will result in conformance with the zoning and building ordinances of the
Town." The proposed lot line adjustment should therefore be denied, as the
proposed project would be inconsistent with the requirements of the Tiburon
Zoning Ordinance for approvals of a zone change and amendment to a precise
plan, as stated above.
E. The Town Council finds that the project would not promote the public health, safety, or
welfare, nor on balance further the goals and policies of the General Plan with respect to
the proposed zone change, amendment to the Tiburon Highlands Master Plan and Precise
Plan, and lot line adjustment.
Section 2. Denial.
NOW, THEREFORE BE IT RESOLVED that the Town Council of the Town of Tiburon
does hereby deny the appeal and upholds the Planning Commission's denial of the proposed
applications for the reasons set forth above.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of
Tiburon on , 1999, by the following vote:
AYES
NOES:
ABSENT
COUNCILMEMBERS
COUNCILMEMBERS
COUNCILMEMBERS
MOGENSBACH,MAYOR
TffiURON TOWN COUNCIL
ATTEST
DIANE L. CRANE, TOWN CLERK
Grange.dny.res.doc
Tiburon Town Council
Resolution No.
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TOWN OF TIBURON
STAFF REpORT
ITEM NO.
?
To: MA YOR AND TQWN COUNCIL
From: ANN R. DANFQRTH, TQWN ATTORNEY
Subject: AMENDMENT TQ nBURQN HIGHLANDS PLANS
APPEAL BY FRED GRANGE
DEVELOPMENT RIGHTS TO RAILROAD LQTS
Date: June 16, 1999
BACKGRQUND
Town staff has recommended to the Council that it grant the appeal ofMr. Fred Grange and amend
the Tiburon Highlands Precise Plan and Master Plan. The rationale for staff's recommendation is that
the requested amendments would preclude development of two parcels formally used for railroad
purposes (the "Railroad Lots"), which would have far worse impacts than the current project. At the
Council's meeting of May 19, 1999, Mr. ThomaS Bomar, a resident in the area who opposes the
project, argued that Mr. Grange could not develop the Railroad Lots because a lack of sufficient title.
The Council continued the item until its meeting of June 16, 1999, referring the issues raised by Mr.
Bomar to the Town Attorney
To ensure impartiality in this inquiry, I contacted both Mr. Bomar and representatives for Mr. Grange
and requested that they set forth in writing their respective positions regarding Mr. Grange's title to
the Railroad Lots. I have received responses from both parties, which are attached to this report. I
have supplied each party with a copy of the other's response.
ANALYSTS
I. Summary of Issues
Mr. Bomar has advanced two theories in contesting Mr. Grange's right to develop the Railroad Lots.
The first theory is that in 1886, John Reed granted to the railroad company (Mr. Grange's
predecessor in interest) a mere easement to install and operate a railroad rather than fee title. This
would have two implications First, Mr. Grange can have no greater title than his predecessor in
interest. An easement for railroad purposes would not give Mr. Grange the right to develop the Lots
with residential structures. Second, if Mr. Reed conveyed only an easement, he retained fee title.
Once the railroad abandoned the permitted use of the property, Mr. Reed's other successors would
retain full rights to the property.
The second theory advanced by Mr. Bomar is that the public's historic use of the property has created
public prescriptive rights to continue using it. Such rights would preclude any development of the
property that would interfere with the public's prescriptive rights. Potentially, although not certainly,
this would bar residential development of the Railroad Lots.
Where there is a controversy regarding title to real property, the legal procedure for resolving the
issue is a quiet title action. Accordingly, the essential question before me is whether, ifMr. Grange
were currently pursuing development of the Railroad Lots, the project opponents would be able to
prevent him by a successful quiet title action. I have evaluated Mr. Bomar's theories based on the
facts and legal authorities presented by the parties. For the reasons set forth below, I have concluded
that Mr. Grange would probably prevail in such an action. Therefore, I recommend that the Council
presume that Mr. Grange has adequate title to the Railroad lots to develop them if the Council denies
the current appeal.
2. The Easement Theory.
The suggestion that Mr. Reed might have only granted an easement to the railroad is not implausible
on its face. In fact, many such grants were made to railroads. Further, as noted in the case cited by
Mr. Bomar, City of Man hall an Beach v. Superior Court, 13 Ca1.41h 232 (1996), it is often difficult
to determine from the grant language whether the grantor intended to convey a fee or an easement.
In determining the extent of the interest now held by Mr. Grange, a court would have to determine
the nature of property interest that Mr. Reed intended to convey to the railroad in executing the 1886
grant deed (hereafter, the "Reed Grant").
City of Manhallan Beach v. Superior Court contains a excellent discussion of the factors a court must
examine in interpreting an ambiguous deed. Mr. Bomar correctly points out that the Reed Grant
contains a number of critical factors that support his easement interpretation. Nevertheless, although
the City of Manhallan Beach case is instructive, it does not govern our analysis here because of
significant differences between the deed in that case and the Reed Grant.
The City of Mallhat/all Beach deed was ambiguous in large part because of the granting language,
which "remise(d], release(d] and quitclaim(edJ" to a railroad "the right of way for the construction,
maintenance and operation of a "Steam Railroad." The use of the term "quitclaim" suggests that a
fee was to be conveyed; however, the statement that the interest conveyed was a "right of way"
suggests that only an easement was intended.
The Reed Grant is not similarly ambiguous. The critical difference is that the Reed Grant states that
Mr. Reed thereby "grant, bargain, sell and convey" that "lot, piece and parcel of land" described by
a lengthy and detailed metes and bounds description in the deed. As noted by Justice Mosk in his
concurring and dissenting opinion in City of Manhallan Beach, in 1886, the term "right of way"
generally meant an easement, whereas the phrase "parcel of land" indicated that a conveyance of fee
2
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title was intended. In my reading, the language of the Reed Grant clearly indicates an intention to
convey fee title In the absence of ambiguity in the granting language, the interpretative factors
discussed in City of Mallhallan Beach do not apply.
In addressing the Easement Theory, Mr. Grange's attorney, Neil Sorensen, raises two points that bear
mention here. The first is that in any grant of real property, it is presumed that fee titled is conveyed.
This is correct, unless the grant indicates that a lesser estate is intended. Civil Code sIlOS. Second,
Mr. Sorensen points out that several title companies have reported that Mr. Grange holds fee title to
the Railroad Lots. Title reports are highly authoritative and the Town normally accepts them as
adequate evidence of fee title. However, the Council has asked me to look behind the title report.
For that reason I have closely examined the language of the Reed Grant.
3. Dedication Theory.
Mr. Bomar argues that the public's historic use of the Railroad Lots for recreational purposes and
as a pedestrian path to the local school and shopping center have created prescriptive rights for
continued use. 1 There are several problems with this theory.
At the outset, a person claiming prescriptive rights faces a heavy burden of proof The claimant must
establish that for a period of five years, there has been open, notorious and continuous use that is
adverse to the record owner. The use cannot be permissive in character. Meeting the burden of
proof is generally quite difficult.
In the present case, there are two specific provisions in California that are likely to defeat any claim
of prescriptive rights. The first is Civil Code S 1007. This section provides that no use can ever
create prescriptive rights in land that is dedicated to a public use by a public utility or any public
entity The courts have ruled that this exclusion applies to railroad property. Accordingly, the
Railroad Lots were protected from the acquisition of prescriptive rights until at least 1968, when
railroad operations on the property ceased. Any such rights would have to arise from subsequent
usage.
In 1971, the legislature enacted Civil Code S 1009. Under this section, recreational use of private
property cannot give rise to prescriptive rights. It is known that the railroad was in continuous
operation until the last train departed Downtown Tiburon on September 25, 1967. Clearly, it is
impossible that the public had used the Railroad Lots for recreational purposes for five years after that
date but before 1971. Thus, reading SS 1007 and 1009 together, there could only be such
prescriptive rights if, subsequent to September 25, 1967, the public had used the property for some
non-recreational purpose for a period of five years in a manner that could be considered open,
notorious and continuous, under color of right.
Mr. Bomar states that many people currently use the path on the Railroad Lots as a safe
transportation corridor to the school and the Cove Shopping Center. This may be true, but it is very
1 Mr. Bomar uses the term "public dedication," as do some authorities However, California statute refers to title by
prescription The difference in nomenclature is not significant
3
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far from meeting the burden of proof that would be necessary in a quiet title action to establish public
prescriptive rights. Even if Mr. Bomar could establish public prescriptive rights, Mr. Grange would
still be able to develop the Railroad Lots by if he could provide a pedestrian pathway through the
property. According to Planning Director Scott Anderson, Mr. Grange could readily provide such
a pathway and still be able to develop residential structures on both lots. Drawings presented at the
appeal hearing indicate that providing such a pathway while developing the Railroad Lots for
residential purposes is feasible
RECOMMENDA nON
In considering the appeal of Mr. Grange, the Council should assume that if the requested amendments
to the Highlands Master Plan and Highlands Precise Plan are not granted, Mr. Grange possesses
adequate title to the Railroad Lots to develop them for residential purposes.
EXHIBITS
Letters from Thomas Bomar dated May 20, 1999 and June 4, 1999
Letters from Neil Sorensen dated June 4, 1999 and June 9, 1999
4
05;20,.99 18:35
'O'p5~ 3601
BOIIAR L,\\'
~ 001.' 011
LAW OFFICES OF
moMAS H. BOMAR
425 California Street, Suite 200
San Francisco, Ca. 94104
(415) 296-7200
Fax (415) 981-3601
RECEIVED
MAY 2 1 1999
May 20, 1999
PLANNI~IG OEPARfMENT
TOWN OF TIBURON
Honorable Mo~cns Bach, Mayor
Members of the Town Council
Scott Anderson, Planning Director
AM Danforth, Town Attorney
Town of Tiburon
1505 Tiburon Blvd,
Tiburon, Ca, 94920
By Fax 435-2438
Rc: Application of Fred G1'llDgc/F1'llDcisco Properties
Meeting Dale: Continued to June 16, 1999
Ladies and Gentlemen:
At the meeting on May 19, I offered a legal reason why thc development of the Railroad lots could
be dcfeated. There are actually two theories (public dedication and abandonment of
easement/reversion) that I think are viable, depending on the evidence that is eventually produced.
Enclosed is a copy of a draft complaint that my neighbors and I co\lld file that will explain the
concepts involved. Also enclosed arc some research materials on the issues, I have mIlch more but I
wanted to get this to you quickly.
While no one can guanmty the outcome of litigation, ] hope YO\l will see that the public and the
abutting neighbors have a very strong case on their respective theories, There are several witnesses
who can testify to unfettered public use of the railroad lots, Also, I think it is clear that the NW
Pacific Railroad has abandoned the railroad use, The ab\ltting landoWl'ler5 have a legitimate claim
that they succeed to title under CC 1112 or as successors to the reversion interest. (I apologize that
I quoted the Council the wrong code section. It is 1112, not 1211.)
I am available to discuss these issues further at 4:45 P.M. on a day you suggest. Please do not
hesitate to call me if you have any questions.
v~ ~IY Yours,
'ft/ k'J2 CP'-
Thomas e:~ar
M: fJ::~
OS/20/99 18:36
'6'415 981 3601
BOMAR LAW
[ill 0021 011
Thomas H, Bomar
Attorney At Law
425 California St., Suite 200
San Francisco, Ca. 94104
(415) 296-7200
SBN 60302
SUPERIOR COURT OF CALIFORNIA
COUNTY OF MARIN
Christopher Wand and Thomas H. Bomar, on
behalf of themselves and all others similarly
situated, and as representatives of the public,
Plaintiffs,
vs.
NO.
COMPLAINT TO QUIET
TITLE
[Code Civ. Froc. ~~ 760,020(a),
761.020]
Francisco Properties, and all persons unknown,
claiming any legal or equitable right, title,
estate, lien, or interest in the property described
in the complaint (the "Property") adverse to I
Plaintiffs' titles, or any cloud on Plaintiffs' I
titles thereto, and DOES 1- X, inclusive,
Defendant(s).1
Plaintiff{s) allege:
FIRST CAUSE OF ACTION
1. Each Plaintiff (including the representative Plaintiffs) is an individual residing
near or adjacent to the Property in the county of Marin,
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05'20/99 18:37
'O'HS 981 3601
BOMAR LAW
~ 003/ 011
2, On information and belief, Defendant Francisco Properties is a corporation and is
shown as the owner of the Property on the records of the Marin County Recorder's
office.
3. The Defendants herein named as "all persons unknown, claiming any legal or
equitable right, title, estate, lien, or interest in the Property described in the complaint
adverse to Plaintiff's title, or any cloud on Plaintiff's title thereto" (hercinafter
sometimes referred to as "the Unknown Defendants") are unknown to Pt.rintiffs.
These Unknown Defendants, and each of them, claim some right, title, estate, lien or
interest in the Property adverse to Piaintiffs' title; and their claims, and each oftnem.,
constitute a cloud on Plaintiffs' title to the Property.
4, Plaintiffs are ignorant of the true names and capacities of Defendants sued herein
as DOES I through X. and therefore sue these Defendants by such fictitious names,
Plaintiffs will amend this complaint to allege their true names and capacities when
ascertained. Plaintiffs are informed and believe, and thereon allege, that each of
these fictitiously named Defendants claim some right, title, estate, lien, or interest in
the Property adverse to Plaintiffs' title and their claims, and each of them, constitute
a cloud on Plaintiffs' title to the Property.
5, Plaintiffs are the owners concurrently of the fee simple title to the Property.
Plaintiffs were possessed of the Property within one year of the commencement of
this action. Plaintiffs seek to quiet title as of the date of this complaint. The Property
is known as: Asscssors parcels No 38-182-20, and 34-360-11, and is located
between Warrens Way and Karen Way in Tiburon, Ca.
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05,20'99 18:38
'5'H5 981 3801
BOMAR LA\\'
~00~'01l
6. Plaintiffs are informed and believe, and on such information and belief allege,
that Defendant Francisco Properties claims an interest adverse to Plaintiffs in the
Property as purchaser, or successor to a purchaser, at a tax default sale and as
purchaser from a private party who was not seiied of title. Some of the Unknown
Defendants (specifically those additionally designated as DOES I through V) claim
interests in the Property adverse to Plaintiffs as assignees and successors of
Defendant Francisco Properties.
7. Plaintiffs are seeking to quiet title against: the claims of Defendants derived from
deeds to Defcndants or their predecessors from Marin County and other persons
purporting to grant the Prcperty to Defendants or their predecessors; the claims of
the successor Defendants described in Paragraph 6; and the claims of all lJ nknown
Defendants described in Paragraph 3, whcther or not the claim or cloud is kno"'TI to
Plaintiffs. The claims of Defendants are without any right whatever and such
Defendants have no right, title, estate, lien, or interest whatever in the Property or
any part thereof.
8. Plaintiffs claim title to the Property as representatives of the public under the
doctrine of public dedication. For a period greater than five (5) years prior to 1971,
members of the public used the Property for recreational purposes (hiking, ar.d
bicycling) without the consent or any objection of the owner. For a period greater
than five (5) years prior to the date of this complaint, members of the public used the
Property for general transportation, ingress and egress purposes without the consent
or any objection of the owner. For a period of time exceeding five (5) years prior to
the date of this complaint, the Alto-Richardson Bay Fire Protection District fenced
-3.
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OS/20/99 18:39
-zrH5 981 3601
BOMAR L~\V
~005/011
off the Property to motor vehicles (except emergency vehicles), erected
improvements in the form of a locked gate, and utilized and maintained the Property
(including cutting weeds and removing rocks to keep the right of way open) as a fire
road, with public funds. For a period of time exceeding five (5) years prior to the
date of this complaint, the Reed School District fenced off a portion of the Property
and utilized it for a playground, with the implied agreement of the prior owner that
the fence should serve as the agreed boundary of their respective properties. Such
uses continue to this day On or about J 986, the owner abandoned the Property 'or a
portion thereof. conceding the public uses and conceding public ownership of the
Property
SECOND CAUSE OF ACTION
9. Plaintiffs repeat the allegations contained in paragraphs 1-7, inclusive.
10. Plaintiffs claim title to the Property, on behalf of themselves and other adjacent
owners, under the doctrine of abandonment of a public utility easement. CC 1112.
II. The original conveyance creating the Property granted qualified title which
amounted to an easement only, or created a right of reversion. i,e" "for use as a
railroad and for no other or further purpose," Upon the termination of that use (if a
public utility) or upon the termination of that use for more than twenty (20) years (if
the railroad use was a private use), the ownership of the Property reverted to the
abutting property owners. Property taxes on the abutting parcels included the taxes
due on the Property and were paid in full when due, Therefore, no tax sale of any
interest in the Property is valid as against Plaintiffs.
-4-
05'20'99 18:~0
'6"415 981 ,)601
BOMAR UW
~006'01l
WHEREFORE, Plaintiffs pray as follows:
1) For a judgment that Plaintiffs. as representatives of the public, are the owners in
fee simple of the Property and that Defendants have no interest in the Property
adverse to the Plaintiffs;
2) For a judgment that Plaintiffs, and all other owners owning property adjacent to
the Property, are the owners in fee simple of the Property and that Defendants have
no interest in the Property adverse to the Plaintiffs;
3) That Defendants be enjoined from building on the Property or making any use of
the Property in the development of its/their adjoining properties
4) For costs of suit herein incurred; and
5) For such other and further relief as the court may deem proper.
Dated: May --' 1999
Thomas H. Bomar
Attorney for Plaintiffs
VERIFICATION
I,
, am one of the Plaintiffs in the above-entitled action. I have read
the foregoing complaint and know the contents thereof. The same is true of my own
knowledge, except as to those matters which are therein stated on information and
belief, and as to those matters, I believe it to be true.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
May 1999
-5-
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~=rAT.I';LAW2d
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In the leading case on this point, a road and bridge were used
by the public for twelve years and were maintained and repaired
by someone other than the property owner, The court concludt!d
that there was an ojfer to dedicate the property for public
pUl'p('8l!ll, implied in fact by the public use of the easement and
its maintenance and repair with the knowledge and acqui_
rence of the owner. In addition, the court found that there WllS
an offer and scceptance of dedication implied in law by the
public's "sdvene possession" of the easement for more than five
years, which established s presumption of dedication."
In o:ither event, whether the public use raises an inference or
a preSumption, the property owner can defeat the conclusion of
8.Il implied intent to dedicate his property to public use by
showing that the public's use of the property W!Ill with permis-
sion, or was a mere license;" he can establish that he has given
permission by the recordation of the appropriate notice,"
I.
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9 21:15. Adverse Po88e88ion and Prescription Compared
When "x.lD~idering the public use of private property, the
courts often speak of the public's acquisition of the title or
easement by advenlc possession or prescription, However, the
more appropriate theory is dedication, with the open, notorioUs,
continuous, and adverne use of the public being the evidence by
which the court can imply the requisite offer by the property
owner to dedicate his property, and the acceptance of the offer
by the public." An adverne post',*,sor is s~king a property right
j
co
Beacb . Da"lrl:ecty (1977) 75 CA3d
971, 978, 142 CR 593; Walter G,
Sm, Inc. v Brown (1956) 145 CA2d
177, 179. ;J02 P2d 74 (411 Year&~
Smith y Kmiatz (1962) 201 CA2d
-, 700, 20 CR 471 (oi>: to &even
YI!llIS~ Arnnld v s.." J);eg~ (1963)
120 CAZrl 353, 355. 356, 26J P2d 33
(28 yean),
In fact, one court has indicated
that II is necessary to have at least
five y,,"", of uninterrupted use by
the public in order t.o haVp. an im.-
pli<d dedication, Aproo Sesscape
CArp, v Cow>1y of s..,,<a Cruz (1982)
138 CA3d 484. 500, SOl, 188 CR
191,
County (1954) 42 C2d 235, 241, 242,
267 P2d 10.
22. F,A, Hibn Co, v s.."ta Cruz (1915)
170 C 436. 447, 448, J50 P 62; Niles
. Lo6 Ang.Jes (1899) 125 C 512, 57N,
58 P 190; De Marlini y &n Enm.
cisoo (1895) 107 C 402, 4074Q9, 40 P
496; Cooper . Monte~y eolmly
(1894) 104 C 437, 438, 3B P 106,
See Dedication of footway by per-
mi.ssi.~ use, 7 ALR 125,
23, See ~~ 15.35, 16:12, 2J:17.
24, St & 1I C f 940; Venice y Short
Line Bea.:h Lwd Co, (1919) IllO C
447, 452, 181 P 658; Smjth v
Kraintz (1962) :Illl CA2d 696, 700,
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2L Union Transp. Co. .,.- Sacramento
482
DEDICA TlON
in himBelf; therefore, the test is whether he has actuall:
a legal right in the property. -.The test for dedication
peraonaJ; it must be ehown that the use was by per.
believed that the public had ,~,:right to sucl1 use,- .H
continues foi more thaD. live years without objection or
Wlce by the owneI', it ill not necessary to find "adversit
public use,"
A private individual seeking to acquire an interes
property by either adverse poe~sion or prescription n:
- that he b:as paid all taxes which have been separately
against the property being used. - However, tlJe pa)
nonpayment of taxes is not a requirement .tor con
dedication,- although it is relevant in determining the
of the owner, For example; the fact that the propert)
bet>n asc~~ed is evidence of a continuing in ten tion to
the property to public O8e,. whereas the fact that it
assessed is evidence that it has not been dedicated."
The A - --ent or nonAO"~ment of the property fOI
relevant, but it is not conclusive on the issue of de<li
person can claim succesafully that there has not been a
701. 20 CR 471; P~p!e .. Sayig
[1951) 101 CA2d B90, 896, 897, 226
P2d 702-
See 7 Gal LR SO (1916-1919), Pre-
ac:riptiao: CoDf>.lllion Between Ad,
verse POl!l8E~. Prescription and
DedicatiOI!..
26.. See M 15;34, 16;12-16;15,
26. In County at La. ~I... . Betic
(l980) 26 C3d 201, 216, 161 CR 142,
605 P'M 381. \he court ol:ated that.
one of the requirementa ror an im-
pli<d dediJ:atiOll tor public uae is
thaI \he public beli....... that it bas
. right to use the property even it
it is ."are that \he property is
privately ....ned. The court d""" Dal
explain how a member ot \he public
can reasonably have INch a betief
when he knoWs of the private OWD.-
enhip,
n. G;OlJ .. Slmta Cruz [1970) 2 C3d
29, 39, 84 CR 162, .ss P2d 50
[coo.stal property); Long Bead. v
~ 21:10
f claimed
is not so
~DS who
. this uae
. interfer-
'1" in the
t in real
lust show
. assessed
n:cent or
,mon.law
intention
, has not
dedicate
has been
rtaxesis
catioo, A
complete
Daugherty (1977) 75 CAJ Id 972, 979,
9&), 142 CR 593.
2:8. See "15;38, 16;21-16:~ I,
29. Smith v San Luis ObisJ: " (1892> 95
C 463, 4Oll, 30 P 591;.La, runs Besch
v Consolidated Marl&'. Q I, [1945) 68
CA2d 38, 41, 155 P2d 844
30, Y ube City .. CollBOlids,
leWD SyzJdicate [1929) :
589, Z/9 P 427, 66 AU
cbauser r Newport Be
225 CA2d 138, 14-1, 145,
G""", . San Drego (193
238, 241, 13 P2d lI2O.
31. ~ Be&cb v
[1938) 10 C?AI 653, 670, 7
Nil... v Los Angeleo (l!
572, 579; 58 P 100; &.rei<
& 0:>, [1899l 123 C 6!!6.
439; La. ~"" .. Wbi~
CA2d 192, 194, 156 P2d 5
Rio Njdo Q,. (l938l 29
492494, 85 P2d 461.
ted Mauso-
m C 537,
~ 316; Tis-
ach (1964)
37 CR 141;
2) 12.; CA
Cortelyou
'6 P2d 4Il:l;
199) 125 C
a v McKay
670, 56 P
e [1945) 68
4; People v
CA2d 486,
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oolJveraely, the court may conclude that the property has been
dedicated even though taxes ba~-e been 8Sllessed and paid by the
record owner of the property,"
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! 21:16. -UIIe by a Public Agency
A public utility or railroad may use private property and, in
some Cll5eS, the owner,may be prevented from interfering with
the use, However, dedication involves the transfer of private
property to the public, and the rights acquired by a public utility
or railroad are not obtained, in the strict sense, by dedication;
the owner is prevented from interfering with 8uch use on
grounds of public policy designed to protect the continuance of
the service for the public benefit. Since the use by the public
utility does not constitute a dedication of the property, the
owner is entitled to recover his damages for the loss in the
property's value resulting from the use,"
~ 21:17. Procedures to Prevent an Implied DedicatiOD by
Public Use
In many instances, the doctrine of implied dedication from
public use has created hardship to absentee owners when the
circumstance; are such that it is difiicult to prohibit the use.
However, the implication can be precluded if the owner records
a notice describing his land which states: "The right of the
public or any person to make any use whatsoever of the above
described land or any portion thereof (other than any IIlle
expressly allowed. by a written or recorded map. agreement, deed
or dedication) is by permission, and subject to control of owner;
Section 813, Civil COOe," When the notice is recorded it is
conclusive against any claim of implied dedication from public
use,"
3:&. Bur!c v Santa Cruz (1912) 163 C
1lO7. 811. 1ZI P 154; Schmitt v San
Fnu>cisoo (l89a) 100 C 302, 305-J07,
34 P 961; Santa Clara v [vBDrorich
(19.1lJ 47 CA2d 502. 5()9.{j 11. 118
P'ld 303,
33. Lanf% v Los Angeles (19211 185 C
262. 270, 271. 196 P 481; SchwerdtJe
v CoWlt,r of Pla<er (la95) 108 C 589,
5!l6. 41 P 448; Laguna Beach y
4&l
Glnsolidated Mortg, Co, (1945) 68
CA2d 38, 46. 47. 155 P'ld 844; C""",
y San Di_ (193Zl125 CA 238.247,
13 P2d 821); WDeeIer y OaklllDd
(1917) 35 CA 671. 675, 676, 170 P
864.
34. People v Ocean Shore R, Ine,
(1948) 32 CZd 4Q6, 417, 4ZI>4ZZ. 196
P2d 510. 6 ALR2d 1179,
35. GC ~ 813,
After the notice is recOrded. the OW11er mUllt not pre'
public w;e appropriate to the property by physical 000
notice, or otherwise. He can, however, impcee reasonablt
tions as to the time, place, and. manner of public U8l
notice,- The owner also can prevent an implied dedicati
public use by posting, annually, a notice that states: ":
p8lIlI is by permission and subject to control of owner:
. 1008, Civil Code. ''''
However, even'if the first notice ill not recorded, the
of implied dedication bas been severely limited by the
ture (when the !1roperty is not on the coast). No public
establish a permanent public right of use of property f(
ational purposes by prescription or implied dedication un
owner makes a specific written. irrevocable offer of dediCl
unless a government entity baa made visible improvem
the land, or has cleaned and maintained it in such a
that the owner should know of the public 1.1.."",. ....'ben n
been an open and visible public use of the area, and pub!:
have been Ul!ed for improvement 'and maintenance of the
8UCh a manner that the owner knows oc should know
activity, such use, without the owner's permission or witl:
owner's efforlB to restrict the UBe and maintenance, for 2
of five yean. or more, results in a dedication of the pro}
the public as a matter onaw.-
On the other hand, if the property is coastal property
1,000 yarde of the mean high tide of the Pacific Ocean, in
any haroorn or bays, the principles of implied dedicatit
tinue to apply unless the owner posts the signs or ceca
notice as described above. or enters into a specific agr
with a public agency regarding the.p'ublic use of the,land:
. .- ,_. .. ,,' . '.- ,.....~
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36, CC ~ 813,
31. CC ~ 1008,
3l!, CC M 1009(1)), (d),
Although the statute is ambigu-
ous, it is clear that the legislature
intended the provisions of that """-
tion to apply coaly to recreational
use of private property by the pub-
lic, While the body of CC ! 1009
oommew:ing with ouboection (b)
only uses the terma "use" and "pub-
,
lie u.~e:' the recitations. ill:
tien [a) make it clear that t
laluIe intended the :lectin
duoe private ownere to ma
lana" a...wahle to the p"
'.recreational ....... ond to
private owner.l from. the
righta arilIing &om the pub!
the property for ouch plUpOl
39, CC ~ lOO9(d).
40, CC ~ l009(e)
lent any
truction,
~ restric-
~ in the
ion from
Right to
Section
doctrine
legiala-
w;e can
IT recre-
iles9 the
1 tion, or
lents on
manner
lere baa
ic funds
area in
. of the
.out the
I period
Jerty to
within
eluding
)n con-
rds the
cement
.
I liubsec.
:hel~
D. to i&
ke their
Iblic for
prctect
lOllS of
ic use of
....
485
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&.WiL LUt: at:;UU;H.UOn ooer nao oeen acceptea even mougn many 01
th_ acts occurred years after the map W8S reeonled. .
f 21:21. -Acceptance by Public Vile
A dedication offer aI.eo can be accepted by the public use of the
property without any formal action by the governing authori-
ties.'" In this respect, the type of tL~e necessary to prove an
acceptance can be less than the u.<;e necessary to show an
implied offer of the property owner to dedicate the property.
As noted earlier, if the offer to dedicate property is implied
from the use of the property by the public, the use must be
adVl!l"8e, open, notorious, continuous, and with knowledge of the
owner. When thE! use is sufficiE!nt to show the owner's intent to
offer the property for dcdication, the same use also shows the
public's scceptance of the olfE!r."
HowE!ver. when the OWUE!r's intent to offer the property for
dedication is based on facts other than thE! public use of the
property," such as the conduct of the owner, an acceptance of
the offer can be shown by a more casual use which is not
adverse and which is for a shorter period of time." For example.
if the property is devoted to r!!Creational purposes, seasonal use
of thE! property by the public is sufficient to constitute an
acceptance." The casual or occasional use of the property is even
more pernuasive evidence of the public's acceptance of tbe offer
118. n..:hauser v Newport 1leaJ;b
(1964) 225 CA2d 138. 143, 37 CR
141-
70. DUunoad Matcb Co. v Saven:ooI
(1933) 218 C 665, 670, 24 P2d 783;
People v MyriDg (1904) L44 C 351.
3S4, 77 P 975; Sanger v Soutl..""rlb
(1948) 117 CA2d 16, 19. 195 P2d 482,
There may be an informal accep-
tance of the offer ~ven though an
action in eminent domain has beeD
Iiled to take the aame property,
Lantz v Los Ansel.. (1921) 186 C
262, 270, 196 P 481; Ve";",, v Sborl
UllC Besch Laad Co, (l9l!1) 1&l C
447. 450. 1111 P 658 (coDdemnation
action ~if:Tf1i~).
But Bee Los Anlf"l.. " Willte
492
(1945) 66 CA2d 192, 194-196, 166
P2d 54, ..here the fad that a con-
demnation action had lieOii . JilOO
aad dismissed .... refened to by
the court as evidence that. the oiler
of dedication hod not been """"pled.
7), See ~~ 21010, 21:11,
72. See ~~ 21;5-21 :9,
73. Venice v Sbarl; Line Bea"" Land
Co. (1919) 180 C 447. 450, 451. 181
P 658; Smith v Saa Lw.. Obispo
(1892) 95 C 463, 466-466. 00 P 591;
McKimJey v RudenntUJ, (1962) 203
CA2rl 109. 115, U6, 21 CR 263;
Gun.o V FOll~ (1957) 148 CA2d
351, ~7, 306 P2d 928.
74. Phillipg v Lsgua& Bescb Co. (1922)
190 C 180, L82-184. 211 P 22.~,
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nance of the property by'the public aut.borities.'"
For example, in one case a road bad. been used b,
occasionally 88 acce8II to the Colorado River for I
plll'pOl!E8, It was paved to a twenty-foot width. The
maintained the road for over twenty years and, aPl
fifteen Yean! before this action waa filed, the road WI
in the county road recorda 88 a forty-foot county roa,
held thet the road ...88 a forty-foot public road b
implied-in-Ia... dedication., The continuous public \
objection or interruption .by tbe owner showed a ~uf
and the main ten.ance of the road, and the description
in the COUllty road reaJr~, indicated 0 mUlicient lU
the offer by the public.". .
Whether the use is sUfficient to show' an accept
offer is a question of fact in each CBBe," The burdef
an informal acceptance is on the peIllOn claimiI
property has been dedicated."
When there is an acceptance by the public's
property, the public use of the part of the propert)
dedicatioD uaually is considered su1Ii.cient evidence
73. Yuba CIty .. Canaolidated M8UM>-
leum SpldiaJt.e (1929) 2J17 C li87,
589, 690, 279 P 4Z1, 66 AlJ{ 318
(UBe fer only feur yeen, 10 mcnthB);
PJilllipo .. Legwul Bescb. Co. (19"..2)
190 C 180, 18&-184. %ll P 225; ~
pIe .. Myring (1904) 144 C 351, 353-
355, 71 P 91li; PeopIe .. County of
M.ar:iD (1B94) 103 C 223, 226, 227, 37
P ID3' Smitb v KraiDtz (1962) 201
CA2d '696, 701, 20 CR 471; Ball ..
Sl:l!pbe!1!l (1946> 68 CA2d 843, 846,
847, 158 P2d 2ffI.
76. Brumbaugh .. County of Iwperial
(1982) 134 CASd 556, 562, 184 CR
11.
17. McKinney .. Rudermaa (1962) 203
CA2d 109, 116, 21 CB 263; Ball ..
Stepben.> (1945) 68 CA2d 843, !Wi,
847, 158 P2d 207: Santa Clara ..
lvancorich (1941) 47 CA2d 502, 5ll9,
610, 118 P2d 303; Fi~d ..
Smitb (1928) 84 CA ,
roT,
Note that there i!
between the acts ne-
uptance in order
public ..........111, Of>
8<a!Jl-.:e m;nin!d
ob.tion 011 tbe pul
naw:e, or the liabiJit
for defective conditio
mel1ta. See ~ 21:32,
'18. Robes v Allison (l
716, 720, 304 P2d 16
Newport Beach. (19
138, 145, 37 CR 141
a six-foot sidewalk. w
acceptaD.ce of an off't
4G-foot strip): &.tIta
vich(194l) 47 CA2d
118 P2d 303; J/ic:ba;
=baa (1927) 83 CA
2li6 P 1103; Loudon
Oek1aD.d (IS9/!, CA9
71)1, 702..
, the public
:ecreational
oounty bad
!JTOximately
IS de5Cribed
L The court
ased on an
_ without
licient offer,
of the road
~ptance of
ance of the
I of proving
19 that the
use of the
r offered for
of an acce~
180, 484, 271 P
, a distinction
c:e55lIlY for ac-
to ..tabliah a.
d that type of
to create an
)1ic. for mainte-
J ef the !>Ul>lic
IDS on the ease--
956) 146 CA2d
3; Tiscbauser ..
64) 225 CA2d
(inslaIIatWn of
i evidence of an
" to dedicate .
Clara v IV4Dco..
I 602, 509, 510,
n2m: v 01fan.
415, 4Z2, 423,
4- S.F. Bank ..
Call 90 F 691,
493
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Jt~, CQuntyhighway. may be abandOiled when it has been
:~l~ for. vehicular traffic for live years and ~.~u~lic
fun . aye been. expended for maintenance during this period."
The city also can enter into an agreement with the state to close
a city street incident to the construction of a state freeway
through the city limits, and enact. a resolution of closure pursu-
ant {ollie "grecment"' after a public hearing,"
- The abandonment ofa public road by the public agency, that
has jurisdiction over the road is a legislative act" which requires
a finding by the public body that the abandonment is in the
public interest,. and this finding is conclusive in t."e absenc~ of
I14,St&HC~954
In Moskin v SteveJ&>d, Ine.
(19771 68 CAJd 4!1O, 497, 499. 500,
137 CR 359. the city sold the use Q(
the adjaceot city street to an office
building develQper so that he c:<>uld
increase the si%e of his develop-.
ment. The court beld Lhat under
the circumstances a public bidding
procedure, .. specified J>y the, city
ol'dinance~ was: not required because
the developer. as the adjacent prop-
trty owner, was the only person
who could possibly use the stTeet.
However, the city had to comply
with the ordinance that required
the property to be sold. lor at least
90 perceDt of its market value, ad
the court rejected the city':s ap-
pr~al. tec~niques.
85, St I< H C ~ 10112; Armas v Oak-
JaDd (1960) 183 CA2d 137, 139. 6 CR
750.
~. St & H C ~ 101l22,
1l7. Beals " La; Ml1"les (1943) 23 C2d
381, 385, 386, 1-14 P2d :39; Symons v
San Francisco (l897) lI5 C 555, 560.
47 P 45.1; Quinchard v Boazd of
Trustees (1896) 113 C 664, 669, 45 P
856: Heist v County of CoIUS3 (1984)
163 CA3d 841, 845. 846. 213 CR
278; Bowles v Mwnetti (1966) Z41
CA2d 283, 286. 5O,cR,J70; Cramer
,. . County of La; Angeles (1950) 96
CA2d 255, 256, 257, 215 P2d 497;
602
,
People r Pomona (1948) 88 CA2d
400. 462, 188 P22d 959; People v
Oakland (1929) 96 CA 488, 492, 493,
274 P 438; People v San RaIsel
1l928) 95 CA 733. '139, 273 P 3ll;
'People v L<>s Ml1"les (1923) 62 CA
781, 786, 218 P 63; Gtuin v Pe1lon
(1922) 58 CA 672, 673. 209 P :117,
Tbe contr:a.ry conclusion in Rancho
Palos Verdes r City Council of Holl-
ing Hills Estates (1976) 59 CAJd
869, 889, 129 CR 173 Wa5 rejected
in Heist v Colusa. at 846, 847),
88, St & H C ~~ 8300 et seq,; Rancho
PalDs Vani.. ,. City Council of Hon-
ing Hills Esmtes (1976) 59 CAJd
869. l!91. 129 CR 173; Slockton v
Mil"" & Sons, bJc. (1953, ND CaD
165'F Supp 554, 560.561.
A city has jurisdiction to close a
street to lhrough traffic when it
determines, upon satisfACtory evi-
dence. that it is in the best interests
of the public b.,a1th, safety, welfare
aDd morals, In S)'Dder r South Pas-
aUeDlJ (1975) 53 CAJd 1051, 105&-
1058: 126 CR 320. the city 01 Lai
Anl1"les improved a street that
caU>ed heavy traffic to be dire<u.d
onto a residential street in South
PasadenOL After unsuccessfuJ effhrts
at traffic contro~ the city of South
Pasadena dt:Cided to close the street
Mthin its boundaries because of the
noise and hazards to the' inbaliit:
ants of th~ residential a..'""e&. The
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fraud or collusion." The mere fact that certai
who requested the abandonment are specilical
abandonment does not by itself establish fra~
is not necessary that the administrative bod)
fact that the abandoned public road is no
When a city or county finds that a road is "no
it is concluding that there is. no present or fu
the road.'"
-JUdicuJ review of a resOlution of'abaildonn
mandamus"' to determine merely whether the
~ capricious, or entirely lacking in evidentiary s
I the a.1m;ni~trative body has failed to give
follow the procedures required by' law," 01
when the party opposing the abandonment hz
interest in the abandoned road as an abuttin
reviews the entire fact-finding process to det
sion.to abandon is supported by substantial e\
naie~:':e~6f~1~~~f~~
_they are -creab;d,-
... :....<.~~.._..-
.~ 15:80. -Effect on the Rights of Abutting
Absent a different intent, the conveyance (
. court held that the dosing or the
street was withiD the discretion and
jurisdictiOD or the city of Soutb Pas-
a~a..
89. Heist v County of CDlusa (1984)
163 CA3cl 841, 849, 213 CR 278;
People v La; Angeles (1923) 62 CA
781, 186, 218 P 63,
90. Beals v Las Angeles (1943) 23 C2d
381, 386, 144 P2d 839; Heist v
County of Cn/usa (1984) 163 CA3d
SIl. 849, 213 CR 278.
91. Heist v CDunty of Cn/usa (1984)
163 CA3d 841, 848, 213 CR ?'l8,
911. He;st v CouiJty of CD/usa (1984)
163 CJ\3d 841, 848, 213 CR 278,
93, ccr ; 1080,
-- - ---
94,:., StrumU:y" v_. San" Di"/ID County
Employees J/ctirement As,m, 11974l
11 C3cl 28. :>
P2d 29: Pit
C2d 824. 83~
He~t v Com
CA3d 841, 8
v Camarillo
798. 161 CR
95. Ratchford
(1972) 22 CJ
CR 831,
96..'"""='ll!"""
~)'."""'~
(1948l'32.C2
6 ALR2d'
~
Ocean. Sbi>J
CA:!.H4t;'4
v FallS U9<
301 P'2d 971
,Oil CD, (19
550. 103 P2
n property owners
ly benefited by the
Ki or collusion." It
r make findings of
longer necessary,"
longer necessary,"
ture public use for
lent is by ordinary
--act. was arbitrary)
upport, or whether'
th e notices or" to
~ the other hand,
15 a direct property
,g owner, the court
ermine if the deci-
.;dence,"
blie'P~teiini-
:;regardless of how
Property Owners
)f land bordered by
4. fn Z, 112 CR llO5. 520
ts . PerJusS (1962) 58
I, 'l:I CR 19, 311 1"'...1 83;
.ty of Colusa (19841163
46, 213 l'R 278; Karlson
. l19~0) 10() CA3d 189.
260,
v Qmnty of SOnoma
t3d 1056. 1061, 1068, 99
~~i~s~
1119 (~~.._J.ake
.If& ,CD,,!,Uy Club .
re R.K 0>'UJl621"2116
-.. ~..........._.;-_....-~,.. .~
i21, 23 CR 851: GleJJiWra
57) 148 CA2d 920, 925,
; ldictum): Slater v Shell ~
"'0) 39 CA2d 535,. 549.
d 1()43 (pipeliJJe),
603
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~ 15:80
RE,\L ESTA.TE LAW 2d
I
I
I,
a public street or highway transfers title to the center of the
adjacent street or highway subject to the public easement!'
When an easement is acquired by the public there are two rights
created in the street, The first is the right in the public to travel
over the street, The second is the private, righwf-way acquired
by abutting owners to use the street as access to their property.
which is separate from the easement to the public."
Often there are also public utility easements in. the public
right-of-way, When a public easement is abandoned, the city or
county has the jurisdiction to reserve or to terminate existing
public utility easements in the street, Unless expressly reserved, '.
the public utility easement is terminated;-an(f ih absence of an
express obligation by the public body to pay for the removal and
relocation of the public utilities' improvements. the utility must
pay for the costs of relocation, since the utility merely has a
. revocable franchise to use the public street,"
The vacation or abandonment of a public street or highway
terminates the public easement and the rights of the general
public to use the right-ilf-way and the surface rights of use
YT.'ce'fUJZ, s..; ~ 6:52,
98, See ~ 15:68.
99, St &: H C ~ 8330, wt Bay MUll.
Utility Dist. . Richmond RedenJo!>,
_nt Agency (1979) 93 CA3d 3<16,
350. 155 CR 636,
A unique exception e:x.ists in the
c.ase of a public utility that has.
wrongfully COD6trocLt:d improve-
ments OD private property. In Ks--
chadoorian v Calwa County Water
Dist. (1979) 96 CAJd 741, 745. 146,
-158 CR 223. the defendant public
utility bad a rranchise 00 maintain
a water pipe- in an alley that sepa-
rated two parcels of pro~rty owned
by the plaintilL The franchise ex,
pired and then the county aban-
doned the :illey fsee ~ 15064), 50 that
the titl~ to the alley reverted to the
plaintilr. The county did not ex-
pre;sly re:;erve illlY easement to the
defendaDt.," . nOT did the deCe:odant
request a. preservation of any ease-
ment. The plainti4'" then brought
604
this &ctiOD to Quiet its title to the
ease-ment" claims by the defendant.
The court aclmowledged that the
righls of the defendant had !emU'
nated and thal it was a mere tres-
passer, but it concluded that the
plaintiJf could noL quiet its title but
could only recover da mages for in-
verse condemnation. Whenever- a
public utility subjects property to a
public use.. even if done without a
legal right, and there is a reason-
able oecessit)' of mainlaining that.
use. tbe property owner cannot
quiet his tiUe nor Gbtain ;m injunc-
tion. hut may only recover dam-
ages. The necessity required to in-
voke this rule is not an absolute
one_ The public utility can invoke
this rule if the lIse is "reasonably
suitable" and useful, even if_ it has
other alt:emativn Lv St:"cve the s.ame
purpcse:J- 10 other words. the sam~
test is applied as that applied when
a utility determines tn condemn an
easement.
~
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I
"~:4:',;~
EASEMENTS
revert to the owner of the underlying fee.' Howe~
rights of an abutting owner are not terminated.. ,
private rights of use that may have been acquire
rigbt-of-way by express grant,' implication.,' ne
prescription.' survive the abandonment of the pub
Upon abandonment of a public street or highw
street reverts to the owners of the. underlying ref
ally,.resu!tsin a reversion to the abutting proper
Jilill:,toJ;he owner on each side; subject to any pri
u{aCmay, h3ve"-surnVedUie1.etJi",n"tio:;'- or tl
'mei1ts:F' . ,-., - I
1, St'" H C ~~ 8309. 8315. 8351-<3353,
County of Inyo y Given (1920) 183 C
415,421,191 P 688; Kachadoorian y
QU"", Coanty Water Dist (1919) 96
CA3cl 741. 746, 747. 158 CR 223;
Sefwenberg v Ma"luez (1975) SO
CA3d 301, 308. 123 CR 405; Pillcing'
too v Fa_ (19701 11 CAJd 349.
351, 90 CR 38: Palo Alto Iny, Co, y
County of Placer (1969) 269 CA2d
363. 369.74 CR 831: People v ValJe-
jos (19671 251. CA2d 414. 419, 59 CR
450: Loma Vista Invest.. Inc. v Ba-
~ Catholic An:bbishop (19581158
CA2d 58, 63, IH, 322 P2d 35; Ferri-
en v Ware (19049) 90 CA2d 759,762-
200 P"'<d 197: Svritl; v Board of Su-
pervisors (1911) 16 CA 72. 76. 77,
116 P 31.7.
2. St'" H C ~! 8351(a), 8352(a). [hI..
1. Ne1f v Ern...t (1957) 48 C2d 628, 636,
311 P2d 849; Swill v Board of Su'
pervisors (1911) 16 CA 72, 77. 116 P
317. See Private easement in way
vacated,. abandoned. or closed by
public, 150 ALR 644, 6:;2,
4_ St '" II G ~ 8352: Anderson v Cili,
ZJenS Sav, I< TnJSt Co, (1921) 185 C
386, 397. 197 P 113; RalclJford v
County of Sonoma (1972) 22 CA3d
1056, 1069, 1070. 99 CR 887: NOT'
cross v Adam:. (1968) 263 CAU 362,
. 365, 69 CR;::-429;.; .'W'eu.gec yo Bose.
(1960) 183 CA2d13. 17, 6 CR 337;
Severo v Pacbero (194<3) 75 CA2d
30,34. 170 P2d 40,
Wheo an esser
quired by implic.a
ft purchase of a ic
mlp, the ea:sem.'
upon the vacatic
cept for Lhe pri
ingress OT egress
_tSt&:H(
tbe owner of thE
a verified notice (
ment within tw
~t is vae."lt
! 83530>).
The .9tatute m
decision of ADdt!J
& Trust Co. (19l
197 P 113; s...e,
75 CA2d 30, 34. ]
St"'HCfl
f 812) cannot b
lively to depriv
easement create
reference to 11 U
actment in 1949.
48 C2,i'628, 637,
See Private el
cated, abandone4
lie, 150 AJ..R 644
.
5_St&HC~8:J52
6,St&HC~835:
(19461 75 CA2d
Svritl; v Board "
16 CA 72, 77,11
7. ~~dov nu,
~ 15,80
-er, the private
'\lso. any other
d in the public
cessity,' or by
lie easemen t_
ay, title to the
~, 'i'hi.ch:~gener-,
ty owners; one-
vare easements
ie....p'ublic- ease-.
nent b&s been at-
llion as a" result of
It by reJereDce to a
eot i.s terminatcG
ID o( a street,. ex-
[vale easement of
to the lot from the
; Ij 8353(a)). unless
: easement records
l~ribing the ease-
o years afl:r. the
ed,5t&HC
,odifies the earlier
"SOD v CifizeDs Sav.
!I) 185 C 386, 391,
v v Pacheco (1946)
170 P2d 40.
~5:; (formerly CC
e applied retroac-
e a pe!"SClO of an
I by p=:basing by
lap prior to its en-
Neff v Ernst (1957)
311 P2d 849,
l.Seme!ll in way va-
l, or closM by pul>-
,6S2,
2. Severo v Pacheco
30. 34. 170 P2d 40;
( SUperv;1;ors (1911)
G P 317. '
, GUBra" ty & T, Co,
605
06/04/99 ~4,~!:.,_~415 981 3601
BOllAR L-\W
IgJ 0011004
June 4, 1999
Ann Danforth, Town Attorney
Members of the Town Council
Town of Tiburon
1505 Tiburon Blvd.
Tiburon, Ca. 94920
LAW OFFlCES OF
mOMAS H. BOMAR
425 California Street, Suite 200
San Francisco, Ca. 94104
(415) 296-7200
FIlX (415) 981.3601
RECEIVED
JUN - 4 1999
~
)~O
~
TOWNMA~,QlI;FIt1!'
liaIMlJlF :!J1!UJlWOj
By Fax 435-2438
Re:
AppUcatioD oC F'l'ed GtlUIlJeJFrancisco Properties
Meetiug Date: Continued to June 16, 1999
Ms. Danforth, Ladies and Gentlemen:
At your request, I submit an analysis of the two legal issues I have raised regarding the railroad lots. I
request a copy of any analysis submitu!d by the Applicant.
The current ownership of the railroad parcels depends on whether the ori~al deed from John J. Reed
granted an easement or a fee. If it was merely an casement, the subsequent deeds to the abutting
Owners conveyed the underlying fee pursuant to Cal. CC 1112. See Baker v. Ramirez 190 Cal. AW,
3d 1123. The abandonment of the easement terminated all ri~hts of the railroad and its successors. The
subsequent tax default sale was a sale of the easement interest only. See Slate Board Tax Rule 21
which authorizes separate assessment of Possessory Interests (lIlcluding easements; subsection (a) (I)).
The question of easement vs, fee is an often-litigated issue. An exhaustive collection of cases is found
at 6 ALR 3d 973, However, the California Supreme Court has ~ntly clarified the law in California.
City of Manhattan Beach v. Suncrior Court. 13 Cat. 4" 232. That case established the foUowing
criteria to determine the intention of the parties to transfer a fee, which I will apply to t.'1e Reed deed in
the order they appear in the opinion.
I, Use of a quitclaim deed (i.e.. all interest owned by the grantor) shows intention to transfer a fee,
Not used in Reed deed. Inference: easement possible,
2. No qualification as to use tends to show a fee was intended. The Reed deed says "for the use and
purpose of a way and right-of-way." Cal. CC 80 I defines a right-<Jf-way as an easement. Inference:
easement. (See the Court's prior opinion in Highland Realty v, San Rafael, cited in the opinion,
wherein the Court previously enunciated a &eneral rule that, in deeds to railroads, such language was
determinative of the intent to grant an easement only. The Court backed off this black letter rule but it
remains a strong indicator.)
3, Placement of the use limitation language in the habendum (language follo'W'ing the granting clause)
lessens its importance, indicating a fee. The Reed deed limitation language is in the granting clause
(albeit following the legal description). Inference: easement.
4, Absence of any restriction on other or additional uses tends to show a fee was intended, The Reed
deed says "and for no other or further purpose.' Inference: easement. (This is probably the strongest
indicator since such restriction is clearly inconsistent with a grant of a fee simple.)
5, Reference to "land." The Reed deed uses the word land. Inference: fee,
6. Right of reverter retained by grantor shows a fee intended. (In order for the grantor to retain some
control to enforce the use limitation, if a fee is intended, the I,\rantor must retain a right of reverter if
the limiting condition is breached, If an easement is intended. no such right of reverter is necessary as
06'04/99 14: 28
'Zr415 981 3601
BOMAR LAW
~ 0021004
the easement will expire automatically.) The Reed deed contains no right of reverter despite the strong
limitation language. Inference: easement.
7, Substantial consideration usually is paid if a fee transfer is intended, Nominal consideration is
usually considered indicative of an easement. The Reed deed cites considemtion of $1. Inference:
easement.
In conclusion, six of the seven criteria indicate an easement was intended, including the strong
indicatOrs of "right-of-way," "for no other or funher purpose," and the absence of a right of reverter,
In ManhatraJ1 Beach, the Court narrowly (4-3 decision) found a fee was intended by resorting to
analysis of post-grant actions of the parties, which are to be undel'1aken if the foregoing analysis of the
deed is inconclusive, which r believe it is not. (Nevertheless, for the sake of analysis. the Reed deed
iI'3l1tee (railroad) later executed three conveyances (an easement indenture, and two quitclaim deeds).
all of which perhaps indicated its understanding that it owned something less than a fee.) The three
dissenting justices would have found an easement even under the facts of the Manhattan Beach case,
which did not contain the more favorable facts present in the Reed deed. such as: no quitclaim. no
reverter, strong qualifying use-limitation language ("and for no other or further purpose"). In addition,
Manhatt:an Beach involved "heir hunters" who instigated the litigation trying to be paid a fee by the
heirs for condemnation of a city park and jogging path, A more compelling plaintiff might have
produced a contrary result even under the same less-favorable facts as the Reed deed, Some (prior
California) cases even say there is a public policy supporting an easement finding in order to avoid just
the problem we have,
On the issue of public dedication, there are two fact patterns that qualify as a dedication, The first is
that the railroad parcels were used by the public for five years before 1971 (even while the railroad
still existed). A Ms. Barbara Fanning (daughter of Bran Fanning, a prior Tiburon mayor) recalls all
the neighborhood children using the path next to the tracks for walking to the Bel Air School and for
recreational play during the years 1960 to 1971. Although her mother advised her not to walk on the
lIllcks, she and the other neighborhood children sometimes did.
The second fact pattern is that the parcels were used for five y= after 1971 for purposes other than
recreation. Although I have not done the legislative history research, Miller and Starr (Sec. 21:17,
pASS, footnote 38) states that CC 1009, enacted in 1971 and limiting public dedication clalms, does
not apply to limit the effectiveness of post-1971 uses other than recreational uses in creating a pu~lic
dedication of private property. Many people currently use the well-worn path as a safe transportation
corridor to the school and the Cove Sho~ng Center.
Since no CC 813 or 1008 notice was ever filed, after five years, the public acquires its prescriptive
rii:hts. No property taxes need be paid to effect a public dedication of property. Citations in Miller and
Stu:r Sec. 21: 15. (It seems unclear whether public dedication creates a fee interest or merely an
easement. However. if only an easement is created. it cannot be blocked by houses or yards and the
public health and safety caMot be jeopardized by structures or construction within the easement. area.)
Public dedication is a contract theory, requiring offer and acceptance. Acceptance may be shown by
use or by improvements or expenditures of public funds. Clearly, the use is present. Whether the fire
department's locked gate and brush-clearing constitute improvements is only additional evidence of
acceptance, The important issue is that the abandonment by all claimants to ownership (as shown by
the non-payment of property taxes) constitutes an clear offer to the public to dedicate the property to
the orJy use which was made of it for thirty years.
I hope the forei:oing has clarified our position. Please do not hesitate to ca11 me if you have any
questions.
W!~~
Thomas H, Bomar
i'
uis of a person
'cordance with ..
ever, such prop ..
months so that.
lpter is at the pI'
, it shall be val'
ision(d).
in the hands 0
,of producer, -'
or consumer, .:;
II be determinsd<
isitioD source, .
perating at tw
N materials, s ,.
,re acquired ."
I component
,nd the proper '
y Or (2) for pr'
similar produ
purchased like
:oods at the 8 '"
nponent parts h
'r, shall not be
it which they
ured by a busin'
:orporaCion by
replacement p
lding tangible
'ade level, prop
m internal so
,perty, in its con .
'e coat had it ,
,n outside suppli'
, property could
ide customer IHf'
consumer level",' .
App.B
ofiuelf. does not alter the trade leveL The trade level of such
will be determined in accordance with subdivision (fl.
. Adopted J""e 21, 1967, effective July 23, 1967. Amended February 18,
1970, effe.tive Marth 2S, 1870, Am.nded Janu.ry 8, 1871. eife.l;v.
February 18, 187\. Amended Aprit 19. 197\, .rr..lIVe May 22,1871.
21. Po_cry Interest Definitions
The following detlnitiona govern tha construction of the
in the rules pertaining to possessory interests,
(.) "Possessory interest" means an interest in real property
.h exists IlS a result of possession. exclusive use, or a right to
ion or exclusiVe use of land andlor improvements unac,
anied by the ownership of a fee simple or life estate in the
'. Such an interest may elCilt as the result of:
. (1) A grant of a leasehold estate, an easement, a profit
a prendre, or any other l~ or equitable interest ofless than
. ~ehold, regardless of how the interest is identified in the
document by which it was created, provided the grant confers
a right of possession or exclusive use which is independent.
durable, and exdusive of rights held by others in the
property;
(2) Actuai p"ssessiOtl by One intendini to use the prop-
erty to the elCclllsi,m of any other interfering '.158, irrespective
of any semblance "factual title or right,
(bi "Taxable possessory inter....t" means a possessory inter-
in nontaxable publicly owned real property, as such property
II dsfined in seetio" 104 of the n.venue and 'taxation Code, and
in taxable publicly owned mal property subject to the provisions
IIl'sectillns 3(a), (b) and 11, Article X1!I of the Constitution,
, Exduded from the meaning of "taxable possessory interest"
innyposseasory illterest in relll property located within an area
"which the United States has exclusive jurisdiction concernIng
tuation, Such area; are commonly referred to as federal
~laves.
(e) IIPoStiessionu means:
(1) Actual possession, constituting the occupation of
land or improvements with the intent of excluding any occu-
pation by others that interferes with the possessor's rights,
or
(2) Constructive possession, which occurs when a per,
'."
1;;1
Appendix B - Page 17
.a.. Clark B3al'drnan CaU..IHln 'Put 4J~.
properly has not been lI'~! 91led;"
... lDelude that the properly has been
'" hnve been llllBeseed and paid by the
'"
" ..
...
'"
~
i'jjl g.'ncy
! nny UBe private property and, in
>e prevented from interfering with
1 Involves the trllDBfer of private
! rir,hta acquired by B public utility
in the strict Bell8e, by dedication;
21 interfering with such use on
lll'cl to protect the continUance of
i 1P",1. Since the UBe by the public
dedication of the property, the
I,', damages for the loss in the
~ nil! use,Sf
en'. an Implied Dedication by
'"
.:s tri ,. ~ of implied dedication from
~ ip '0 absentee OWDel'll when the
~ '; ;, diJilcult to prohibit the UBe.
'" wecluded if the owner records
..I';ch states: "The right of the
my UBe whatsoever of the above
I thereof (other than any UBe
r recorded map, agreement, deed
c: 8"" Bubject to control of owner:
;!; 'n;he notice is recorded it is
.... 'i 'n plied dedication from public
:;g ~ ~,. -' "'-,
'"
....
... r:~nsolidRled Motta. Co. (l94S) 68
@J ':.<\2<1 38, 46, 47, 165 P2d 844; G__
,. 5.00 Diego (1932) 1211 CA 238, 247,
! 'l P2d, 820; Wheel.r y OalcJand
.... (917) 35 CA 67[, 675, 676, 170 P
'" PIi4,
...
.... 3.1. PropJe v Ckean Sbore R, me.
.: 948) 32 C?.d 406, 417, 420422, 196
'" Lid 570, 6 ALR2d 1179.
'"
-;. J,~. cc ~8J3,
'"
<0
'"
-
-
'ffl
i..
r
IJ
I
.
485
f 21:17
After the notic:e ill reOOrded, the owner must not prevent any
public use appropriate to the property by phyaicaI obstruction,
notice. or otherwise, He can. however, impose reasonable restric-
tiOIl8.. 88 to. the time, piRce, and ,manner of public use in the
notice.- The'owner IlIBo can pnmmt an implied dedication from
puhlic use by posting. annually. a notice that states: "Right to
. Jl888 is by permission and subject t.o oon trol of owner: Section
. 1008, Civil Code,....
However, even'if the fil'Bt notice is not recorded, the doctrine
of implied dediCation has been severely limi~ by the legisla-
ture (when the !>ropert,y is not on the cOOllt), No public use can
establlllh 8 Jl9I'IDllnent public right of WIe of property for recra-
,ationa! pllrpo!M!a by Prescription or implied dedication Unless the
owner makes a R~ific written, irrevocable offer of dedication, or
unless a government entity baa made visible improvements on
the land, or has cleaned and maintained it in such a manner
that.the owner should know of the public lIlle," When there has
been an open and visible public use of the area, and public funds
have been used for improvement and maintenancc of the area in
such a manner that the owner knOWl! or should know of the
activity, RUch W1e. without the owner'R permiSsion or Without the
owner'R efforta to restrict the use and maintenance, for a period
of five yeam or more. results in B dedication of the property to
the public as a matter of law," '....
OIl the'other hand, if the property is coll8tal property within
1.000 yards of the mean high tide of the Pacific Ocean, including
any harbors or baya, the principles of implied dedication con-
tinue to apply unlesa the owner JlO8f.8 the Rigna or reconiB the
notice as deecribed above, or enters into B specific agreement
wi!~:S~~~':~CY.~~~~*~;~liC ~~~l)f~~f~:',
3Il. CC ~ 813. lie use," th. redlallOllll in subsec,
37 CC, 1008 lion (al make it clear that tho leg;,..
.. lature mte-Ilded the section to iD-
38. CC " 1000(b), (d), du"", printe mone", to make lbeir
Alll10qh the statute ;. amlriRu- Innda .?ailable to the public for
0.... it ia clear that lbe legialature "~tiooa.l Wle," and to protect
inle.nded the p., of lb. at...,. pnVAIe ovmers from., ",.lbe 1_ of
~fo~a~ ~~tional' . rights a.riJIiJ;&fTomthe. ~u~lic :- of
.. ...... ,~> '" -~ the propem.!lirii1ch',pll~
,....'98"'. . _ ~1 \.ll'8I:-PUO; "f-';"'-"'"'''' ...-",: :~:' . ~~
gt:Whil~ the hod,. of ~ 11009 311. OC UOO9(d). '.'
eommellCIll<< wilb BDhsection (h) '."
onq _lbe term. "use" and "pub- 40" OC ~ JOO9(e),
DEDICATION
-
6-~9-1999 2 .11PM
FkO~~ SORENSE~I HYMACJ F ARLE 415 499 01 40
:::>_2
9
LAVi (]FF:Ct':!'; Cf
..:):j :;;.v.IT", ".... N (>1 ":QAO ~UITE ~C>{c
NEIL SORENSEN
nUF-HONl! 415 499-3600
S,.:.~ RA;<,1,r_. CJ.LiFc.~r-.i:A '>~'l(l:Jo
I'ACjIMIL~ 41~ 499-014v
June 9, 1999
Bv Fax and V,S. Mail
AIUI R. Danforth, Town Attorney
Town of Tiburon
1505 Tiburon Boulevard
Tiburon, CA 94920
Re: Application of Fred Grange
Assessor's Parcel ;'Iiumher 38-182-20 and 38-322-11
Dear Ms. Danforth:
This letter is in response to Mr. Bomar's letter of June 4, 1999 and his
inlerpretation of the recent Supreme Court case of City of Manhatten Reach v Superior
Wlw:l (1996) 13 Ca1.4th 232. For the following reasons, I believe Mr, Bomar has
improperly interpreted Ihis case to furlher his contention that the original deed from
John J, Reed to the railroad company ("Reed Deed") granted an easement, For the
following reasons as well as those in my letter of June 7, 1999, the Reed Deed clearly
transferred a fee interest [0 the Railroad,
I. Contrary to Mr. Bomar's claim, the City of Manhatten Beach case does
nor stand tor Ihe proposition that the failure to use a quitclaim deed means Ihat an
easement and not a fee was transferred in the Reed Deed, The discussion in City of
Manhatten Reach, at page 239. indicates that a Quitclaim Deed can be used to pass fee
title. This does not mean that a Grant Deed, which was used in the Reed to Railroad
transaction, created an easement. Grant deeds are used to transfer fee title as well as
easements.
2. Next, Mr, Bomar claims that the Reed Deed, in using the phrase "for
the use and purpose of a way and right-ot~way", at page 3 of the Deed, indicates an
intent to grant merely an easement. Again, this is inconsistent with Citv of Manhalten
Jkactl. As noted in that case, the law presumes that a fee simp Ie title is intended to
pass when a Grant Deed is used. .Q..ty of Manhatten Beach at 242, See also Civll Code
section 1l 05. There can be no question that Ihe Reed Deed presumed the sale of a fee
interest At page 1, the Deed uses the following language;
6-09-199" 2 41 P'1
FPCJ~) SOPE,ISa.1 M'd 1A'.1 F APLE d 1 5 499 31 40
P.3
Ann R. Danforth, Town Attorney
June 9, 1999
Page 2
"!:ian.!, bar~ain. sell and convey unto lhe said party of the
second part and to its assigns and successors all that 101,
niece and parcel of land lying and being situated in the
State of California, COWlty of Marin, which is bounded
and described as follows to wit: that tract or strip of land
sixty feet in width ...."
This is the exact language that the railroad u'eal1ses advised pracrilloners to use when
writing a deed conveying a fee simple inleresl. See Citv of Manhatten Beach at 254.
Moreover, deeds that specify "lot. piece or parcel of land ... bounded and described as
follows" transfer a fee interest and not an easement. The dissent in City of Manhatten
~, at 2~~-256 cites numerous railroad cases where California Courts held that a fee
i:l!erest was transferred under circumstances similar to the Reed Deed.
Machado v Southern Pacific Transportation Co., supra,
233 CaLApp.3d 347, 351, 361 [deed granted a .'certain
strip or parcel of land for a right of way for a standard
gauge railroad' and habendum clause referred to "
'premises'" fee title conveyed]; Concord & Bay Point
Land Co. v City of ConcoJ:d (1991) 229 CaLApp.3d 289,
293, 295 [280 CaLRptr. 623] [deed conveyed .. 'certain
property' " " , more particularly described as' " " ,
parcel three[,)'" a "'strip of land sixty (60) feel in
width'''; "the deed clearly grants an estate in (land"];
Faus v Pacific Electric Rv Cn, (1956) 146 Cal.App.2d
370. 380 [303 P,2d 814], disapproved on another point in
Parsons v Bristol Development Co. (1965) 62 Ca1.2d
861, 866, fn, 2[44 Cal.Rptr. 767, 402 P.2d 839] [deeds
"not of a right of way 'upon, over, and along a strip of
land[]' ,... were grants of the entire land for the purpose
of use as a way for an electric railroad" (italics added)];
Moakley v BIOi (1928) 90 CaLApp,96, 99 [265 P,548]
[deed conveying to railroad"a11 that certain lot, piece or
parcel of land ... bounded and particularly described as
follows"'; fee title conveyed].
Moreover, the Supreme Court states in City of Manharten Beach, that if several
parts of a grant are irreconcilable, the former part prevails, Civil Code section 1070,
Tb.us, since the former part of the Reed Deed clearly indicates an intent to grant a fee
by the use of the "grant" language referenced aboye, the inconsistent references to a
right-of-way on page 3 of the Deed do nor diminish the transfer of a fee interest. ll!. at
242
8-09- i 9se "- 42P'1
FRCJ~' SORENSEN ~1'f HA" F ARLE 41 5 499 01 40
~...:t
Ann R, Danforth, Town Attorney
June 9, 1999
Page 3
3. Mr. Bomar claims that the consideration of one dollar recited in the
Deed infers that an easement was transferred, Again, Mr. Bomar misconstrues the
facts and the law. First, in addition to the one dollar consideration. the Deed clearly
indicates that the grantee was required to transport Mr. Reed and his family fre~ of
charge during their lifetimes - a considerable consideration, Second. City of Manbatlen
~ case makes it clear that in deeds involving railroad property. the grantor may
well of had more interest in the relative benefits he expected to derive from the railroad
presence, then from the nominal consideration specified in the deed. 111, at 245.
4. Finally, even if Mr. Bomar was correct that only a fee interest was
passed in the Reed Deed, this alone would not be dispositive of the issue claimed by
Mr. Bomar. Mr. Bomar has not provided the Town with any facts to ~how that Civil
Code section 1112 would be applicable (see my letter of June 7. 1999).
If you have any questions or need further information. please feel free to contact
me.
s;~~
NEIL SORENSEN
NS/nas
cc; Fred Grange
GRANGE 3
~
~ ~JU~ ~8~1~ ~ ~
TOWN ATIORNEY'S OffiCE
TOWN OF TIBURON
LAW OfFICES OF
100 SNIITH RANCH ReA::::, SLITE 306
SAN RAFAEL. CALifCRl';iA 94903
NEIL SORENSEN
TELEPHONE 415 499-B60a
FACSIMILE 415499-0140
June 7, 1999
By Fax and U.S. Mail
Ann R. Danforth, Town Attorney
Town of Tiburon
1505 Tiburon Boulevard
Tiburon, CA 94920
Re: Application of Fred Grange
Assessor's Parcel Number 38-182-20 and 38-322-Il
Dear Ms, Danforth:
This office represents Fred Grange, the owner of the above-referenced parcels,
together with the adjacent lot 15 in the Tiburon Highlands Subdivision, In response to
your request, I am providing you with a preliminary analysis of the issues raised by
Mr. Bomar in his letter of May 20, 1999,
For the following reasons, it is clear that the legal issues raised by Mr. Bomar
are without merit, and that his attempt to derail this application at this date is nothing
more than a last ditch effort to stop all development on the property .
1. Civil Code section lIl2 is inapplicable because the railroad held fee
title to the property.
Mr. Bomar claims that unspecified "abutting landowners" have a claim to the
railroad right-of-way under Civil Code section 1112 as "successors to title" or as
successors to an unspecified reversionary interest. As a matter of law, his claim is
incorrect.
California law is quite clear that in order for Civil Code section 1112 to apply,
the railroad's interest in the right-of-way must have been in the form of an easement
and not the fee title to the property, Miller & Starr, the authority cited by Mr. Bomar,
make it clear that when an easement is abandoned, the title to the land underlying the
easement may revert to abutting property owners, Miller & Starr, California Real
Estate, 2d, section 15,80, The same rule does not apply where fee ownership is
involved,
Ann R, Danforth, Town Attorney
June 7, 1999
Page 2
In Freeman v. Affiliated Pro.perty Craftsman (1968) 266 Cal.App.2d 723, at
730 the California appellate court ruled as follows:
"Where an owner conveys a tract abutting on a railroad
right-of-way in which he owns the servient estate, the
trend of authority seem to hold that the conveyance passes
the servient estate unless a contrary intention is
indicated." (Emphasis added.)
None of the requirements specified in Freeman exist in the present situation. It
is undisputed that the railroad company owned a fee interest in the property and not an
easement. The deed from John J. Reed, dated October 2, 1886 and recorded October
7, 1886, clearly granted a fee interest to the San Francisco and San Rafael railroad
company. Specifically, the deed states that John J. Reed" ,.. grants, bargains, sells
and conveys" ... to the railroad company the railroad lots in question, California law
is quite clear that whenever a parcel of real property is conveyed by "grant" it is
presumed that the fee simple title passes to the grantee. Civil Code section 1105, See
also Miller & Starr, California Real Estate, 2d, section 6:52. Thus, since the railroad
owned the fee, any transfer of adjacent land could not have included the railroad
property,
Every title company that has looked at this issue has agreed that the railroad
company owned a fee interest in the property and it was that fee interest that ultimately
was sold for taxes and purchased by Mr. Grange in 1988 (AP# 38-182-20) and in 1992
(AP# 38-322-11). I am enclosing a copy of the most recent title report for the
property, dated November 26, 1996, issued by Pacific Coast Title Company, that once
again indicates that Mr. Grange owns a fee interest in the railroad property,
Even if the railroad company had received only an easement, Mr. Bomar has
not made a factual showing that Civil Code section 1112 is applicable, Specifically, he
has not shown that the railroad right-of-way was owned by a common grantor with the
unnamed "abutting landowners" mentioned in his letter, as required by Freeman, In
fact, since the unnamed "abutting landowners" are not even identified, it cannot be
determined whether they even "abut" the railroad property,
2. There has been no implied dedication of the railroad property,
Again, Mr, Bomar has made a vague claim, unsupported by any factual
evidence or legal authority that the railroad property has been impliedly dedicated to
public use, This claim is contrary to established law,
California Civil Code section 1007 provides that no use of any land, easement,
or other property, which is dedicated to a public use by a public utility, ..' "shall ever
ripen into any title, interest or right against the owner thereof." As stated in numerous
appellate court decisions, a railroad right-of-way is considered a public use under Civil
Ann R, Danforth, Town Attorney
June 7, 1999
Page 3
Code section 1007, such that any use of the railroad right-of-way by the public is
deemed permissive and no rights accrue to the public or any other person, See Breidert
v, Southern Pacific Company (1969) 272 CaLApp,2d 398, 407.
Even if a railroad right-of-way is subject to implied dedication, pursuant to
Civil Code section 1009, any such implied dedication must have occurred prior to
1971, when section 1009 took effect.
" . , , no use of such property by the public after the
effected date of this section shall ever ripen to confer
upon the public or any governmental body or unit a vested
right to continue to make such use permanently, in the
absence of an express written irrevocable offer of
dedication of such property to such use, made by the
owner thereof in the manner prescribed in subdivision (c)
of this section...,"
In this case, there has been no written irrevocable offer of dedication of the railroad
property and therefore no use of the property by the public after 1971 is relevant, As
to use prior to 1971, the railroad was using the property until the late 1960's, making it
impossible for anyone to have used the property for 5 years or more as required by
law,
Even if Mr. Bomar could show 5 years of use prior to 1971 (and after the
railroad ceased operations), he has failed to meet the statute of limitations for making
such a claim. In this case, Mr. Grange's title to the property derives from the grantee
of a tax deed. Pursuant to Revenue and Taxation Code section 3725, any challenge to
a tax sale of property must be made within one year after the sale. Since the tax sales
at issue in this matter occurred in 1986, Mr. Bomar is 12 years too late,
3. Whatever dispute may exist regarding title to the railroad property is
a private civil dispute.
Notwithstanding the above analysis, should Mr. Bomar develop some
cognizable claim to the property, which seems highly unlikely, any such claim would
be part of a private dispute between Mr. Grange and Mr. Bomar. Given the fact that
every title report issued relating to the property, including the most current report
which is included with this letter, clearly indicates that Mr. Grange is the owner of a
fee interest in the property free and clear of any interest claimed by Mr, Bomar, there
is sufficient basis for the Town to proceed with this application, Should Mr. Bomar
attempt to assert any further claim through litigation or otherwise, that is a private civil
dispute and not an issue in which the Town should insert itself. The Town may and
should rely on the title reports issued to date in determining the issues pertinent to the
present application. For the Town to do otherwise would inevitably require the Town
to take the responsibility to look behind and independently investigate every assertion
Ann R, Danforth, Town Attorney
June 7, 1999
Page 4
of every type of title involved in all permit applications and, in some cases, to become
a party in private civil disputes, Mr. Bomar's assertion of a claim to the property at
this late date is nothing more than an attempt to prevent development of the property.
The Town should see these claims for what they are and proceed with consideration of
these applications,
If you need further information, please feel free to contact me.
NS/nas
Enclosure
cc: Fred Grange
GRANGE.7
?!-65J
0'); ~
1CCOAS1'\'''\
PACIFIC COAST TITLE COMPANY OF MARIN
PRELIMINARY REPORT
AMENDED
Property Address:
Order No.
107938a-J
Julie Croker
Certified Senior Escrow Officer
Mill Valley office
In response to the above referenced application for a policy of title insurance. STEWART TITLE GUARANTY COMPANY hereby reports that
it is prepared to issue, or cause to be issued, as of the date hereof, a California Land Title Association Standard Coverage form Policy of Title
Insurance describing the land and the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by reason
of any defect, lien or encumbrance not shown or referred to as an Exception below or not excluded from coverage pursuant to the printed
Schedules. Conditions and Stipulations of said policy forms.
The printed Exceptions and Exclusions from the coverage of said Policy or Policies are set forth in Exhibit A attached. Copies of the Policy
forms should be read. They are available from the office which issued this report.
Please read the exceptions shown or referred to below and the exceptions and exclusions set forth in Exhibit A of this report carefully. The
exceptions and exclusions are meant to provide you with notice of matters which are not covered under the terms of the title insurance policy
and should be carefully considered.
It is important to note that this preliminary report is not a written representation as to the condition of title and may nat list all liens. defects.
and encumbrances affecting title to the land.
This report (and any supplements or amendments thereto) is issued solely for the purpose of facilitating the issuance of a policy of title
insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance of a policy of title insurance, a Binder
or Commitment should be requested.
Dated as of
November 26, 1996
, at 7,30 A.M. Be:/~" ~
~~,....-\
c:::;/' Vice President
The form of Policy Title Insurance contemplated by this report is: ALTA Lenders
The estate or interest in the land hereinafter described or referred to covered by this Report is: A fee
Title to said estate or interest at the date hereof is vested in:
Fred C. Grange, described as an unmarried man by Deeds to him dated March 8, 198B,
October 17, 1989, and October 12, 1992
At the date hereof exceptions to cOllerage in addition to the printed exceptions and exclusions contained in said policy form would be as
follows:
Continued on next page
MEMBER, AMERICAN LAND TITLE ASSOCIATION. CALIFORNIA LAND TITLE ASSOCIATION
OFFICES TO SERVE YOU:
110 Tiburon Boulevard
895 Mission Avenue .
1500 Gran/ Avenue
Mill Valley, California 94941
San Rafael, California 94901
Nova/a, California 94945
(415) 388,8740
(415) 454,6070
(415) 892,8744
Preliminary Report
Page Two
107938a-J
SUBJECT TO:
1. TAXES for the fiscal year 1996-97 now a lien, due and payable,
1st Installment $207.93 open
2nd Installment $207..93 open
Assessor's Parcel No. 38-182-20 Code Area 11-046
TAXES for the fiscal year 1996-97 now a lien, due and payable,
1st Installment $53.56 open
2nd Installment $53,56 open
Assessor's Parcel No. 38-322-~1 Code Area 11-046
TAXES for the fiscal year 1996-97 now a lien, due and payable,
lst Installment $l,971.l0 open
2nd Installment $1,971.10 open
Assessor's Parcel No, 34-360-11 Code Area 11-049
2. THE LIEN of Supplemental Taxes, if any assessed pursuant to the provisions of
Chapter 3.5 (commencing with Section 75) of the Revenue and Taxation Code of the
State of California.
3. EASEMENT for single line of poles and wires together with appurtenances and
rights incidental thereto as conveyed, by Thomas B. Defenbach, Sr. as guardian
of the person and Estate of Thomas B. Defenbach to Pacific Gas and Electric
Company, a California Corporation by instrument recorded June 18, 1936 in Book
319 of Official Records at Page 201 Marin County Records,
Exact width and location not disclosed of record,
Portions of said easement were quitclaimed by Pacific Gas and Electric Company
October 29,1953 and April 14, 1954 in Book 833 of Official Records at Page 524
and Book 861 of Official Records at Page 12, Marin County Records,
respectively.
Affects Parcel One.
4. EASEMENT 10 feet in width for sanitary sewer purposes, together with
appurtenances and rights incidental thereto as conveyed by Clarence Luck et al
to Richardson Bay Sanitary District, a public corporation, by instrument
recorded May 27, 1965 in Book 1944 of Official Records at Page 473, Marin County
Records.
Resolution accepting said easement recorded May 27, 1965 in Book 1944 of
Official Records at Page 474, Marin County Records,
Affects Parcel One,
5. EASEMENT 8 inch in width for pipeline and 2 manholes, together with
appurtenances and rights incidental thereto as conveyed by Northwestern Pacific
Railroad Company, a Corporation to Richardson Bay Sanitary District, a body
politic and corporate of the State of California, by instrument recorded August
11, 1965 in Book 1969 of Official Records at Page 139, Marin County Records.
Resolution accepting said easement recorded August 11, 1965 in Book 1969 of
Official Records at Page 145, Marin County Records.
-Continued-
Page 2 of 6
Pr~lirninary Report
2sge Three
107938a-J
Conditions contained therein.
Affects Parcel Two.
6. TERMS and Conditions as contained in the llDevelopment Agreement (Tiburon
Highlands)" by and between R.C. Holdings, Inc. and the Town of Tiburon, recorded
May 3, 1988 under Recorder's Serial No. 88-22935, Marin County Records,
Refer to recorded document for particulars.
Affects Parcel One,
7. EASEMENTS as shown upon the filed map referred to herein.
Affects Parcel One.
8. BUILDING envelope as shown upon the filed map referred to herein.
Affects Parcel One.
9, DECLARATION OF RESTRICTIONS executed by Highlands Venture et al, recorded
February 24, 1989 under Recorder's Serial No. 89-11211 Marin County Records.
but deleting restrictions if any, based on race, color, religion or national
origin, the provisions of which contain no express words of forfeiture.
Reference is hereby made to the record for full particulars.
Affects Parcel One.
10. "JOINT Driveway Maintenance Declaration for Lots 14, 15 and 16 of Tiburon
Highlands" executed by Robert E. Thompson et al recorded February 24, 1989 under
Recorder's Serial No, 89-11212, Marin County Records,
Refer to recorded document for particulars.
Affects Parcel One.
11. EASEMENT for drainage purposes together with appurtenances and rights incidental
thereto as conveyed, by Highlands Venture, a Joint Venture et al to Tiburon
Highlands Homeowners Association, Inc., a California non-profit mutual benefit
corporation by instrument recorded March 24, 1989 under Recorder's Serial No.
89-16805 Marin County Records.
Affects Parcel One,
-Continued-
Page 3 of 6
-
Preliminary Report
.
P~ge Four
107938a-J
~2. CONDITIONAL Certificate of Compliance issued pursuant to the provisions of
California Government Code Section 66499-35, recorded August 15, 1989 under
Recorder's Serial No. 89-47096, Marin County Records.
Refer to recorded document for particulars.
Affects Parcel Two.
13, RIGHT OF WAY for pipeline or pipelines together with appurtenances and rights
incidental thereto, as conveyed by Robert E. Thompson et al to Marin Municipal
Water District, a public corporation by instrument recorded November 3, 1989
under Recorder's Serial No. 89-64457 Marin County Records.
Affects Parcel One,
14. LACK of record access from the herein described property to a public road or
highway.
Affects Parcels Two and Three.
~5. EASEMENTS for any utility that may have been installed in or under the herein
described property.
Affects Parcels Two and Three.
16. ANY FACTS, Rights, Interest or Claims which a Survey of the herein described
property would disclose,
Affects Parcels Two and Three.
17. EASEMENT for underground conduits, pipes, manholes, service boxes,wires, cables,
and electrical conductors, aboveground marker posts, risers,and service
pedestals; underground and aboveground switches, fuses, terminals, and
transformers with associated concrete pads and fixtures together with
appurtenances and rights incidental thereto as conveyed, by Fred Grange to
Pacific Gas and Electric Company, a California Corporation by instrument
recorded December 16, 1991 under Recorder's Serial No. 91-78726 Marin County
Records.
Affects Lot 15 described in Parcel One,
18, CONDITIONAL Certificate of Compliance recorded May 5, 1995 under Recorder's
Serial No. 95-20913, Marin County Records.
Refer to recorded document for particulars.
Affects Parcel Three,
-Continued-
Page 4 of 6
Preliminary Report
Pags Five
107938a-J
19. DEED OF TRUST to secure an indebtedness of the amount stated herein and any
other amounts payable under the terms thereof:
Dated March 21, 1996
Amount $750,000,00
Trustor Fred C. Grange, an unmarried man
Trustee Pacific Coast Title Company of Marin
Beneficiary Metro Commerce Bank, N.A.
Recorded March 29, 1996 under Recorder's Serial No. 96-015817
Marin County Records
Loan No. Not shown
Address of Beneficiary 1248 Fifth Avenue, San Rafael, CA 94901
20, EASEMENT 20 feet in width for sanitary sewer purposes, together with
appurtenances and rights incidental thereto as conveyed by Fred C. Grange to The
Weiss Co., Inc., by instrument recorded May la, 1996 under Recorder's Serial No.
96-24748 Marin County Records.
Affects Parcel One.
21. A DEED from (or the joinder of) the spouse of any married vestee named herein
will be required when insuring any conveyance, encumbrance or lease to be
executed by said vestee.
Title of the Vestees herein was acquired 24 months or more preceding the date
hereof.
NOTES TO PRELIMINARY REPORT:
1. This report is subject to a cancellation charge as required by Sect. 12404 of the
Insurance Code & Rule 2 of Department of Insurance Bulletin No. NS-35 E&F.
2. As a purchaser in a transaction the State of California requires that the buyer
withhold from the seller's proceeds a sum equal to 3 1/3 percent of the sale
price of the subject property and pay that amount to the Franchise Tax Board upon
close of escrow. Withholding is required, when applicable, on any title
transfers occurring on or after January I, 1991. Failure to comply may subject
the 'buyer to penalties. Sellers who are California residents and certain other
sellers may be exampt. Please contact your Escrow Officer concerning this
matter.
3, In compliance with California Assembly Bill 512, all funds submitted to close an
escrow must be submitted in one of the following forms:
1. Cashier's, certified or teller's check
2. By wire to:
-Continued-
Page 5 of 6
----L__
Preliminary Report
Page Six
107938a-J
Westamerica Bank, 1108 Fifth Avenue, San Rafael, CA 94901
for the account of PACIFIC COAST TITLE COMPANY OF MARIN
Escrow No, 107938a-J
Federal Wire Routing No, 121 140 218
ACCOUNT # 0501-005144 (Mill Valley branch)
Page 6 of 6
107938a-J
DESCRIPTION
All that certain real property situate in the City of Tiburon
County of Marin, State of California, described as follows:
PARCEL ONE:
LOT 15, as shown upon that certain Map entitled, "Map of Tiburon Highlands, Town of
Tiburon, Marin Co., California", filed for record November 1, 1988 in Volume 20 of
Maps, at Page 50, Marin County Records.
PARCEL TWO:
BEGINNING at the Southwest corner of Lot 21 Map of Reedland Woods filed July 27, 1965
in Book 13 of Maps at Page 23, running thence South 50 10' West to a point on the
Southerly line of the Northwestern Pacific Railroad Co. right of way (now abandoned)
said point also being on the Northerly line of Lot 62 Map of Bel Aire Estates filed
November 21, 1950 in Book 7 of Maps at Page 82, running thence Easterly along said R.R,
right of way line to a point on the Northeasterly line of Lot 77 Map of Reedlands Unit
3 filed for record September 4, 1958 in Book 10 of Maps at Page 4, said point bearing
South 53' 33' East 75.57 feet and South 47' 47' East 10 feet, from the most Northerly
corner of said loti thence Northerly in a direct line to a point on the Southerly line
of Lot 3 Map of Reedland Woods (13 RM 23) said point being Easterly 10 feet, from the
Westerly corner of said Lot, running thence Westerly along the Southerly boundary of
said Reedland Woods Subdivision to the point of beginning.
PARCEL THREE:
BEGINNING at the Southwest corner of Lot 21, as shown upon nMap of Reedland Woods Unic
One", filed for record July 27, 1965 in Volume 13 of Maps at page 23, Marin County
Records, running thence North 850 04' West to a point which bears North 50 30' East
from the Northeast corner of Lot 76, as shown upon "Map of Bel Aire Estates", filed for
record April 8, 1953 in Book 7 of Maps at page 82, Marin County Records, thence South
50 30' West to the Northeast corner of said Lot 76, running thence Easterly along the
Northerly boundary line of said Map of Bel Aire Estates to a point which bears South 50
09' West from the point of beginning, thence North 50 09' East to the point of
beginning,
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TOWN OF TIBURON
STAFF REpORT
ITEM NO,
9
To:
From:
Subject:
MAYOR AND TOWN COUNCa
ANN R. DANFQRTH, TQWN ATTORNEY
Settlement of Connally v. Main Street Business et al.
Agreement to Facilitate Wheelchair Access to Properties on Main Street
June 16, 1999
Date:
~~~~
BACKGRQUND
This report supplements the previously submitted staff reports dated January 6, 1999, and
February 17, 1999. Those reports included a draft settlement agreement that had been submitted to
all parties.
The attached revised agreement reflects the parties' demands as previously authorized by the Council.
Please note the following:
1, The Agreement provides for the Guaymas and Tutto Mare properties to be omitted from the
District if all other District owners consent. Gary Gavello, counsel for Mr, Zelinsky and
Ms, Abrams, has advised me that all other owners have consented with the exception of Fred
Potts, owner of the bank building, Mr, Gavello has asked that we modifY Paragraph 2 of the
Agreement to provide that Tutto Mare and Guaymas can be omitted with the consent of800/o
of the District property owners, which would allow these properties to be omitted without
Mr. Potts' consent.
The bank building is at the end of the Street and does not require the project to become
accessible, For these reasons, there was some hesitation about including it in the District.
Accordingly, Council does not wish to make the modification requested by Mr. Gavello, I
recommend that the Council consider omitting the Potts property from the district.
2. The Plaintiffs have agreed to the modified plague language developed by staffwith imput from
Counci(member Thompson,
adasell/emt4,/it
Settlement of Connally v. Main Street Business
Page 2 of2
June 16, 1999
3. The Town had previously offered to contribute $60,000 towards the cost of the project, Our
co-defendants' acceptance of the agreement is conditional on the Town's increasing its
contribution to $70,000.
4, Under the Settlement Agreement, the property-owner defendants, Edward Zelinsky, Barbara
Abrams and Edwin and Nancy Purdy, will pay the plaintiffs $15,000 in compensatory
damages and $90,000 for attorneys fees, The Town will advance its cash contribution to
those defendants in paying these costs. As a result, the assessment district will have to raise
an additional $70,000 to pay the costs of project construction, The properties owned by said
defendants will bear the additional assessments require to raise this sum,
RECQMMENDATIQN
That the Council:
1. Consider the draft Settlement Agreement in public session, and the request for a $10,000
increase of the Town's contribution to the Project, for a total contribution of $70,000; and
2. Adopt the attached resolution approving the Settlement Agreement, authorizing the Town
attorney to make further modifications that do not substantially affect the Town's obligations
and authorizing the Mayor to execute the finalized agreement
EXHIBITS
daffReports dated January 6, 1999, llIld Fcb,..."" 11, 1933
Proposed Resolution Approving the Draft Settlement Agreement
Draft Settlement Agreement
adaselllemt4, lit. wpd
RESQLUTION NQ.
D~
IfLjr)-
A RESOLUTION OF THE TQWN COUNCIL OF THE
TOWN QF TIBURQN AUTHORIZING THE MAYOR TQ
EXECUTE A SETTLEMENT AGREEMENT ON BEHALF
OF THE TOWN PRQVDING FOR IMPROVEMENTS TO
LOWER MAIN STREET TQ FACILITATE PROVDING
WHEELCHAIR ACCESS TQ DQWNTQWN BUSINESSES
WHEREAS, several businesses located on Main Street in the downtown area ofTiburon have
been sued for failure to provide accessible public facilities to persons using wheelchairs as required
by law, in an action entitled Connally v. Main Street Tiburon Business et al.; and
WHEREAS, said downtown businesses are located in relatively small premises and
accordingly would find it difficult to locate a ramp inside their premises for persons using wheelchairs;
and
WHEREAS, said downtown businesses have requested that the Town consider modifications
to the Main Street Public right of way that would facilitate the installation of wheelchair ramps; and
WHEREAS, although the Town's own public facilities are fully compliant with all applicable
accessibility requirements, the Council recognizes that increased accessibility of private businesses
in the downtown would benefit the general public; and
WHEREAS, the Town has developed a preferred means of modifying the Main Street public
right of way so as to facilitate the creation of access of the businesses to persons using wheelchairs
and has further offered to contribute $60,000 to the project; and
WHEREAS, the Town of Tiburon was recently added as a defendant to the Connally
litigation and finds that it is in the public interest to settle this suit promptly by moving forward with
the above-described Main Street project; and
WHEREAS, on June 16, 1999, the Town Council considered the draft Settlement Agreement,
which is attached to this Resolution, and after hearing all the evidence, determined to approve the
Agreement.
NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town ofTiburon that
the Settlement Agreement is approved and the Mayor is authorized to execute said Agreement on
behalf of the Town, Prior to execution of the Agreement, the Town Attorney shall have the authority
adaSettlemtAg2,AUT
I
to approve any minor modifications to the Agreement that do not substantially affect the Town's
obligations,
PASSED AND ADQPTED at a regular meeting of the Town Council of the Town ofTiburon
on June 16, 1999 by the following vote:
AYES:
CQUNCILMEMBERS:
NOES:
COUNCILMEMBERS:
ABSENT:
COUNCILMEMBERS:
MOGENS BACH, MAYQR
Town ofTiburon
ATTEST:
DIANE CRANE, TOWN CLERK
adaSettlemtAg2,AUT
2
SETTLEMENT AGREEMENT AND
MUTUAL GENERAL RELEASE
This Settlement Agreement and Mutual General Release ("Agreement") is entered into
as of . 1999, between PATRICK CONNALLY and DONALD STICKEL
("Plaintiffs"); EDWARD ZELINSKY; BARBARA ABRAMS; EDWIN PURDY AND NANCY
PURDY as trustees for the Purdy Family Trust; JON WON; TffiURQN TQMMIES, a California
Corporation; JOHN ROONEY; and BEVERLY CHARTON (collectively, "Owner-Defendants"); and
the Town of Tiburon, a municipal corporation ("Town").
RECITALS
I, Owner-Defendants are owners of property and/or businesses located on Main Street
in Tiburon, California, in the downtown area, as set forth in Exhibit A ("Subject Properties"). The
block on which all of these properties are located is approximately 350 - 390 feet long, The right
of way on this block is 40 feet wide, The sidewalks fronting the Owner-Defendants' properties are
owned by the Town and are five feet wide. The lanes of travel within the right of way are 30 feet
wide, Main Street was constructed in the late 1880's, Most of the properties fronting Main Street
were also developed in the 1880's, However, many of the original structures were damaged or
destroyed in a 1921 fire. Accordingly, the structures currently fronting Main Street primarily date
from either the 1880's or the 1920's. In addition to being the primary thoroughfare for the Town's
historic downtown area, Main Street is a primary means of access for citizens of the Town and of the
City of Belvedere ("City") living in the Corinthian Island area,
2. The Town is the owner of the right of way fronting the properties of Owner-
Defendants and must approve any encroachment therein. In addition, any external modification of
the improvements on Owner-Defendants' properties requires Site Plan and Architectural Review by
the Town,
3. Plaintiffs are each "physically handicapped persons" or "individuals with disabilities"
requiring the use of a wheelchair to travel in public places, Plaintiffs cannot use stairs,
4, Qn March 15, 1995, Plaintiffs filed Connally et al v. Main Street Tiburon Businesses
et al., Case No, C-95-00875 SBA, in the United States District Court for the Northern District of
California charging that Qwner-Defendants and various other property and business owners had failed
to provide wheelchair access to their establishments as required by state and federal law,
5. As a result of the filing the Connally litigation, the Owner-Defendants and several
other defendants filed encroachment applications with the Town, requesting permission to construct
wheelchair ramps on the Town's sidewalks. On March 6, 1996, the Town granted one of the
applications, However, the remaining applications were denied as infeasible,
MAINSTADA3.sET
1
6. The Owner-Defendants have contended that it would create an economic hardship to
construct the necessary accessibility improvements on their own properties, Accordingly, after their
applications to place ramps on the Town's sidewalks were denied, the Qwner-Defendants asked the
Town to consider what improvements to the street and/or sidewalk that the Town would allow to
facilitate access to the subject properties for persons in wheelchairs. Plaintiffs and Owner-Defendants
have argued that the Americans with Disabilities Act, 42 U.S,CA 12101 et seq" requires the Town
to permit modifications to its right of way for the purpose of providing wheelchair access to their
properties,
7. In response to the Qwner-Defendants' request, the Town held a series of workshops
and meetings beginning in 1996, after the Town denied the ramp applications by the Owner-
Defendants and concluding in September of 1998, Because of Main Street's importance to residents
of both the Town and the City, the Town Council formed ajoint task force with the City to consider
modifications to the Town's right of way that would allow the Owner-Defendants to provide
wheelchair access to the Subject Properties,
8, The joint task force submitted to the Council a final report dated August 27, 1998,
a copy of which is attached hereto as Exhibit B, Qn September 16, 1998, the Council held a public
hearing on the report and determined that its preferred option was Alternative B, Accordingly, the
improvements referred by this Agreement as the Project intended to facilitate creating wheelchair
access to the Subject Properties are those improvements described in concept as Alternative B,
9, Qn November 16, 1998, Plaintiffs filed a First Amended Complaint ("Complaint")
naming the Town as a defendant, alleging that in denying the ramp applications of the Qwner-
Defendants, the Town had failed to make reasonable modifications to its policies, practices and
procedures to provide access to public accommodations, The Complaint also named Harry Matthews
in his official capacity as Mayor of the Town and Mogens Bach, Tom Gram, Terry Hennessy and
Andrew Thompson, in their official capacities as members of the Town Council of the Town,
Accordingly, hereafter in this Agreement, "Town" shall include the aforesaid named Mayor and
Councilmembers,
10, In the interest of avoiding unnecessary litigation and to achieve the benefits of
increased accessibility to persons with disabilities, the Plaintiffs, Owner-Defendants and Town desire
to settle the aforementioned litigation on the terms set forth in this agreement, On June --' 1999, the
Town Council considered the proposed settlement adopted Resolution No, . which is set
forth in Exhibit C and which approved this Agreement and authorized the Mayor to execute this
Agreement on behalf of the Town,
AGREEMENT
The Plaintiffs, Owner-Defendants and the Town in consideration of the mutual
covenants of the Agreement, hereby agree to the following terms and conditions:
MAINSTADA3.SET
2
1. The Town shall process and approve the implementation of Alternative B ("Project") as set
forth in this Agreement.
2, The total Project cost is estimated to be $310,000. This is a preliminary estimate only. The
Town will contribute $60,000 to the cost of the Project and will take such action as is
necessary to formally appropriate such funds. The City has agreed to pay an additional
$60,000, by resolution included in Exhibit C. The Owner-Defendants will cooperate with the
Town in the formation of a benefit assessment district to fund the balance of the actual Project
cost, as provided by law and this Agreement ("District"),
A The District's boundaries shall be as descnbed in Exlnbit D, However, the boundaries
of the District shall be modified to exclude the property commonly known as the site
of the Guaymas restaurant provided that Owner-Defendants Zelinsky and Abrams can
obtain the consent thereto of eighty percent of all other members of the District. The
boundaries of the District shall be modified to exclude the property commonly known
as the site of the Tutto Mare restaurant provided that Owner-Defendants Zelinsky and
Abrams can obtain the consent thereto of all other members of the District. The
parties to this Agreement hereby consent to the exclusion of both properties.
B. Notwithstanding the provisions of Subparagraph A, the properties known as the sites
of the Guaymas and Tutto Mare restaurants shall be included in the District as
provided below:
1, In the event that the cost of the Project exceeds $350,000 both properties shall
be included in the District so as to bear their share of the increased cost,
2, In the event that either of the properties is found to have caused or
contributed to unforeseen conditions that arise during the Project, which
conditions must be corrected or repaired at the District's expense, said
property or property shall be added to the District so as to bear the increased
cost to the extent caused or contributed by said property or properties,
3. The Town will take the steps necessary to form the District, subject to reimbursement as set
forth in this Agreement. The Owner-Defendants will not object to the formation of the
District.
A The Town will retain a District Engineer, The District Engineer will be responsible
for Project Design and Engineering; and will develop a total Project cost estimate
("Engineer's Estimate"), The District Engineer will also determine the amount of
economic benefit that each property in the District will realize from the Project. The
District Engineer will allocate assessments among the properties in the District
according to the benefit that each property will receive. The properties owned by the
MAINSTADA3.SET
3
Owner-Defendants listed in Paragraph 9 A shall bear certain additional assessments as
set forth in this Agreement.
B, The Town will proceed with environmental review and final approval of the Project,
These actions will involve the use of both outside environmental consultants and
Town staff,
C, All funds necessary to design, process, construct and complete the Project will be
provided by the District except for the Contributions provided by the Town and the
City of Belvedere, To the extent that formation of the District requires expenditures
before the District is formed and able to sell bonds, the Town shall advance the
necessary funds, but such payments shall be chargeable to the Project, The Project
will not be charged for the time of Town staffbut will be charged for the costs of such
outside consultants as the Town in its sole discretion finds appropriate to retain to
assist in the review and processing of the Project, Prior to the start of Project
Construction, the District will reimburse the Town for the funds advanced under this
paragraph.
D, The Total Estimated Project Cost shall be the sum of the Engineer's Estimate, a ten
percent construction contingency, Project Monitoring Cost (as defined in Paragraph B
ofthis Agreement), the costs associated with the District's formation, project design
and environmental review and supervision of Project construction by the Town
Engineer. The District will sell bonds sufficient to fund the Total Estimated Project
Cost, less the City of Belvedere's Contribution of$60,000,
E, Within 30 days of the date of this Agreement, the Town will advance its Contribution
of $60,000 as a loan to be used for partial payment of the compensatory damages and
attorneys' fees and costs specified in Paragraph 9.A and 9,B. This will raise the
amount of Project costs that must be funded by the District under Paragraph 3 by
$60,000. In consideration for the advance of the Town's contributions, the Owner-
Defendants agree that the assessments required to finance this increase will be borne
solely by the properties in the District belonging to the Owner-Defendants listed in
Paragraph 9,A and 9.B.
F, The Project Monitoring Cost, to be paid as set forth in Paragraph 9, is a cost of the
Project and shall be paid by the District. Within 30 days of the sale of the District
bonds, the District shall reimburse the Owner- Defendants listed in Paragraph 9,B for
their payment of the Project Monitoring Cost, Said Owner-Defendants acknowledge
that this element of the Project is for the benefit of their properties and will increase
the amount that must be raised by the District by $35,000, Accordingly, said Owner-
Defendants agree that the assessments needed to finance this increase will be borne
solely by the properties in the District belonging to said Qwner-Defendants,
MAINSTADA3.SET
4
4, After the Project receives final approval pursuant to Paragraph 2 of this Agreement and the
District funds are available for use, the construction of the Project shall proceed as set forth
herein,
A The Town shall advertise for bids to construct the Project. The Town sbal1 award the
contract to the lowest responsive and responsible bidder as required by state law and
local ordinance. Bid opening shall be timed so as to allow construction of the Project
to begin at the earliest practical date, In light of the heavy traffic experienced in the
Project area during the summer, the earliest practical date would be either the early
spring or late summer, In any event, Project construction shall be timed so as to allow
completion before the traffic levels increase in Mayor in the late summer/early fall,
after the heavy summer traffic but before the rainy period begins.
B. In the event that as awarded, the contract price exceeds that the Engineer's Estimate,
the Town and the District shall raise further funds for the Project sufficient to create
a Construction Fund equal to the contract price plus a ten percent contingency
reserve. The Town's contribution to the shortfall sbal1 be in the same proportion to
the shortfall as is $60,000 to the Total Estimated Project Cost,
C. The Town shall promptly award the Project contract after the District has raised any
funds required under subparagraph B, Having awarded the contract, the Town will
take all reasonable measures to ensure that the Project is completed as designed in a
timely fashion,
5, In the event that the Owner-Defendants fail to cooperate in the formation of the District as
required by this Agreement, the Town will take no further action until the Owner-Defendants
have deposited the funds necessary to complete the Project with the Town, If the Owner-
Defendants have failed to provide said funds for a period of more than 90 days, this
Agreement shall terminate.
6, The Town will implement the Project as a public works project, in the interests of efficiency
and public health and safety, The Owner-Defendants will cooperate fully with the
implementation of the Project as a work done primarily for their benefit, Without limiting the
foregoing, it may be necessary to modifY the property of the Qwner-Defendants to protect
it from construction, The Qwner-Defendants shall have ten days to review any such
modifications before they are implemented, If the Owner-Defendants fail to object to the
modifications within that time, they shall be deemed to have consented thereto and to have
waived any claims arising from said modifications,
7. The Proj ect is limited to those improvements described in Alternative B, It does not include
additional improvements to the properties of the Owner-Defendants, if any, that may be
required to render them accessible in accordance with applicable law. Any such additional
requirements shall be subject to the normally applicable permit requirements,
MAINSTADA3.SET
5
8. In the event that the Project is not completed by November 1, 2001, or in the event of any
substantive breach of this Agreement, the parties hereby waive any statute of limitations
defense that may arise after the date of this Agreement and will allow Plaintiffs to refile an
action for equitable relief to make the public accommodations located on the Subject
Properties accessible. Notwithstanding the foregoing, nothing in this Agreement shall
constitute a waiver of any affirmative defenses, including any statute of limitations defense,
that may have existed on the date of this Agreement.
9. In addition to formation of the District and implementation ofthe Project as set forth in this
Agreement, the Defendants shall have the following responsibilities to Plaintiffs:
A. Owner-Defendants EDWARD ZELINSKY, BARBARA ABRAMS, EDWIN PURDY
AND NANCY PURDY as trustees for the Purdy Family Trust; and JQN WQN, as
the Qwner-Qperator of TffiURON TQMMIES shall pay $15,000 in compensatory
damages, to be divided between the two Plaintiffs,
B, Plaintiffs have claimed $203,000 for attorneys' fees, costs and litigation expenses. In
settlement of this claim, Owner-Defendants EDWARD ZELINSKY, BARBARA
ABRAMS, EDWIN PURDY AND NANCY PURDY as trustees for the Purdy
Family Trust; and JON WON, as the Owner-Operator ofTIBURON TOMMIES shall
pay $90,000 and shall further assign certain rights as set forth in Paragraph 9C of this
Agreement, Of the $90,000 cash payment, $35,000 shall be for the cost of
monitoring the formation of the District and Project implementation ("Project
Monitoring Cost"),
C, Qwner-Defendants, EDWIN PURDY AND NANCY PURDY as trustees for the
Purdy Family Trust; JOHN RQONEY; and BEVERLY CHARTON will assign their
rights against their insurance carriers relating to this litigation to Plaintiffs' counsel.
Owner-Defendants EDWARD ZELINSKY and BARBARA ABRAMS will assign to
Plaintiffs' counsel any such rights that they may have in their tenants' insurance
policies as added insured.
D, Town shall install a plaque in the Main Street sidewalk measuring 12 inches by 12
inches, inscribed as set forth in Exhibit E.
E, All payments required under this Paragraph 9 shall be made to Plaintiffs' counsel, as
identified on the signature page of this Agreement, within thirty days of the mailing
or delivery of this executed Agreement by Plaintiffs.
10. The Plaintiffs, the Owner-Defendants and the Town accept this Agreement in full settlement
and compromise of their litigation against each other and of any related claims of any kind,
including, without limitation, all demands, damages, bodily injury, emotional distress, actions
and causes of action of every kind and nature, including attorneys fees, costs, and litigation
expenses in any way related to the Complaint, known or unknown, existing, claimed to exist
MAINSTADAJ.SET
6
or which can ever hereafter arise out of or result from or in connection with any and all acts
and omissions of the parties herein released from the beginning of time to and including the
date of this Agreement, including but not limited to the matters and things described in the
Complaint. Without limiting the foregoing, the Plaintiffs and the Owner-Defendants further
agree that this Agreement shall fully and forever discharge and release any and all claims and
causes of action, whether now known or now unknown, which the Plaintiffs have against the
Owner-Defendants, or which the Plaintiffs and the Owner-Defendants may have against the
Town arising out of the events, incidents or circumstances referred to in the Complaint,
including any claims for attorneys fees and costs.
To the extent that the Complaint contained any claim for bodily injuries and damages resulting
therefrom, Plaintiffs acknowledge that each has been fully advised and understands that said
injuries are of such character that the full extent and type of injuries are not known at the date
hereof and that each and every injury might not now be known and further understands that
said injuries, whether known or unknown at the date hereof might possibly become
progressively worse and that as a result thereof further damages may be sustained by
Plaintiffs; nevertheless, Plaintiffs desire by these presents to forever and fully release and
discharge the other parties to this Agreement and understands that by the execution of this
instrument no further claims may ever be asserted by Plaintiffs.
11. This Agreement includes an express waiver by all parties of Civil Code Section
1542, which states: "A general release does not extend to claims that the creditor
does not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his settlement
with the debtor."
Edwin Purdy (init,)
Nancy Purdy (init.)
Plaintiffs (init.)
Edwin Zelinsky (init.)
Jon Won (init,)
Beverly Charton
Barbara Abrams (init,)
Tiburon Tommies (init.)
Town ofTiburon (init,)
Mayor, Town of Tiburon
John Rooney
MAINSTADA3.SET
7
12, The Plaintiffs, Town and the Owner-Defendants will execute and file a Stipulation for
Judgment incorporating this Agreement and agree to an entry of judgment ordering the
Plaintiffs to dismiss all causes of action in the Complaint with prejudice according to the terms
of this Agreement. The court may enter judgment upon submission of the documents by the
Plaintiffs, The Plaintiffs shall submit said documents to the court within 30 days of the date
of this Agreement.
13. Plaintiffs represent and warrant that there are no liens that will in any way affect any party to
the Agreement arising out of or relating to the Complaint save and except those held by a
party hereto, Plaintiffs will defend and hold the other parties hereto free and harmless from
any cost, including attorneys fees, loss, damage or liability incurred by or imposed upon the
other parties or their insurance carriers by reason of any lien not herein disclosed,
14. The court will retain jurisdiction over the subject matter of this action, the parties thereto and
the settlement of this action for the purpose of issuing such further orders or directions as may
be necessary or appropriate to construe, implement, modifY, enforce, terminate or reinstate
the terms of this Agreement until November 1, 2001, unless a party to this Agreement
requests the court to extend the court's jurisdiction for good cause. In addition, the parties
stipulate to the jurisdiction of a magistrate judge,
15, In the event that any party should default in their responsibilities under this Agreement, the
court shall retain jurisdiction to determine the amount of compensatory damages, attorneys
fees and litigation expenses, if any, to be awarded to the non-defaulting parties as a result of
such default.
16. The Owner-Defendants shall defend, indemni1y, and hold the Town harmless from and against
any and all claims and other challenges that may be asserted by any person against or arising
out of the formation and operation of the District as provided by this Agreement. This
obligation shall include, without limitation, the payment of any awards of costs or attorneys
fees against the Town as a result of defending this Agreement. In addition, without limiting
the forgoing, in the event that this Agreement is challenged by litigation, the Town shall have
the option of tendering the defense of such action to the Qwner-Defendants,
17. This is a compromise settlement agreement of disputed claims, and the execution of this
Agreement shall not constitute or be deemed or construed as an admission ofliability on the
part of any of the parties,
1 g. The parties acknowledge that they have been represented in the preparation of this Agreement
by the below-listed counsel. The parties further acknowledge that they have read this
Agreement and that they are fully aware of its intent and its legal effect and they have not
been influenced to any extent whatever by any representations made to them by each other.
The parties further represent that they participated in the negotiation of this Agreement and
that it will not be interpreted against any of them as the draftsperson in the event of a dispute
about this Agreement.
MAlNSTREET.LIT
8
19. This Agreement represents the sole and entire agreement between the parties hereto and
supersedes all prior agreements, negotiations and discussions among them with respect to the
subject matter covered hereby, Any amendment to this Agreement must be in writing and
signed by the authorized representatives of the parties hereto.
20, This Agreement may be executed in counterparts, each of which when so executed shall be
deemed an original, and this Agreement and all signed counterparts shall constitute one and
the same instrument.
21, This Agreement is deemed executed on the date first written above.
22, This Agreement, consisting of_pages, shall be construed and enforced in accordance with
law of the State ofCalifomia.
23, This Agreement includes the following Exhibits, which are attached hereto and
incorporated herein by reference:
Exhibit A
Exhibit B
Exhibit C
Qwner-Defendants and Subject Properties
Joint Task Force Report
Town Council Resolution No,
City Council Resolution No,
District Boundaries
Sidewalk Plaque
Exhibit D
Exhibit E
IN WITNESS WHEREOF, THE PARTIES HERETO SET THEIR HAND THIS _ DAY OF
.1999,
PLAINTIFFS
PATRICK CONNALLY
DQNALD STICKEL
SIGNATURES CQNTINUED ON NEXT PAGE
MAINSTREET.LIT
9
SIGNATURES CQNTINUED FRQM PREVIOUS PAGE
OWNER-DEFENDANTS
EDWARD ZELINSKY
EDWIN PURDY
Trustee, the Purdy Family Trust
NANCY PURDY
Trustee, the Purdy Family Trust
JON WON
THE TQWN OF TIBURON
By:
Mayor, Town Manager, Town of Tiburon
APPROVED AS TO FORM:
Thomas E, Frankovich
Attorney for Plaintiffs Connally and Stickel
Gary A. Gavello
Attorney for Defendants Edward Zelinsky and
Barbara Abrams
MAINSTREET.LIT
BARBARA ABRAMS
TffiURQN TOMMIES, a California
Corporation
By:
Its:
BEVERLY CHART ON
JOHN ROQNEY
Willis C, Silverthorne,
Attorney for Defendants John Rooney and
Beverly Charton
Emmett Stanton
Attorney for Defendants Edwin and Nancy
Purdy, Co-trustees, Purdy Family Trust
10
SIGNATURES CONTINUED FROM NEXT PAGE
David Lotholm, Graham & James
Attorney for Jon Won and
Tiburon Tommies
Ann R. Danforth
Town Attorney, Town of Tiburon
MAINSTREET.LJT
11
EXHIBIT A
QWNER-DEFENDANTS AND SUBJECT PRQPERTIES
PrODertv Address Ownerls) Tenant
38 Main Street Edward Zelinsky John R. Rooney
Barbara Abrams
32 Main Street Edward Zelinsky Not Applicable
Barbara Abrams
35 Main Street Edward Zelinsky Not Applicable
Barbara Abrams
13 Main Street Edward Zelinsky Not Applicable
Barbara Abrams
46 Main Street Edward Zelinsky Beans's Inc., dba Westerley
Barbara Abrams
44 Main Street Edward Zelinsky Not Applicable
Barbara Abrams
28 Main Street Edward Zelinsky Not Applicable
Barbara Abrams
15 Main Street Edwin Purdy, Trustee Not Applicable
Nancy Purdy, Trustee
17 Main Street Edwin Purdy, Trustee Marjorie Tenner
Nancy Purdy, Trustee
41 Main Street Tiburon Tommie's, Inc, Jon Won
MainSt ADA Settlement Exh A
-
TIBURON MAIN STREET TASK FORCE
Summary of Task Force Findings
August 27,1998
The Task Force was formed at the request of the new Tiburon Town Council in
December of 1997, to take a renewed look at the consequences of transforming lower
Main Street into a one way street.
The Task Force was comprised of Ann Otter, Mayor of Belvedere; Justin Faggioli, Vice
Mayor of Belvedere; Bob Branz, Belvedere Town Engineer; Tom Gram, Council
Member of Tiburon; Mogens Bach (Task Force Chairman), Vice Mayor of Tiburon; Sia
Barmand, Tiburon Town Engineer; George Gnoss representing a group of residents
from Corinthian Island; and Steve Sears, Downtown merchant and President of the
Chamber of Commerce, Also attending meetings were Charlie Abrams, Abrams
Associates; Ed San Diego, Belvedere City Manager; John Lundquist, Belvedere Chief
of Police; and Peter Herley, Tiburon Chief of Police.
In the early fall of 1997, the previous Town Council approved in concept a plan
developed by OKS Associates to transform lower Main Street into a west bound one-
way street and ordered the Town Engineer and Planning Director to proceed with a
partial CEQA study as needed, This action was taken in order to help solve the access
problem to several Main Street stores not conforming to the Americans with Disability
Act's guidelines. A law suit, filed against the non-conforming property owners to make
them correct those deficiencies, the Tiburon Police Chief Herley's often expressed
concerns about the safety of the narrow sidewalks and the delivery trucks double
parking during unloading of supplies and merchandise, gave further cause for the Town
to act on the matter.
However, since strong objections were voiced to the new Council from nearby residents
of Corinthian Island, the Belvedere City Council and some Main Street merchants the
new Town Council agreed that although not opposed to the previous Council's
decision, more information and data should be reviewed before making a final decision,
The charter of the Task Force was therefore to evaluate the objections from the
Corinthian Island residents, Belvedere officials and merchants, and to give them an
opportunity to add new data to substantiate their claim, The Task Force was to review
and re-evaluate the traffic study and proposal developed by OKS Associates,
commissioned jointly by Belvedere and Tiburon, as well as a new traffic study
. ""'"9TBIT NO.~
1
developed by Abrams Associates, This new study was commissioned by the Corinthian
Island residents objecting to the one-way plan. The task force was to consider the
issue of ADA compliance, safety, the interest of the street merchants, nearby residents,
parking, and general and long-term impact on the Downtown area. The Task Force
was also to look into and consider other plans that may not have been considered at
first. The Task Force would summarize its findings and submit them to the Tiburon
Council.
The remainder of the Task Force's Summary includes the following:
Overview of Options
Traffic Consultants (OKS and Abrams) comments concerning the two
plans
Issues upon which the Task Force reached agreement
Other issues in support of and in opposition to the one way plan
OVERVIEW OF THE OPTIONS:
The Task Force studied drawings with plans of various traffic layouts. The plans were
labeled Option 1 R, 2, 3R, or A, B, C and 0 (see enclosed). Plan A is a OKS Associates
One Way plan originally adopted by the prior Tiburon Town Council, but modified by
the Tiburon Town Engineer with some improvements, Plan B is developed by OKS
Associates for two way traffic, Plan 0 is developed by Abrams Associates for two-way
traffic. It was agreed that Plan 0 was essentially the same plan as Plan B. Plan C is
more of a concept plan developed by Sia Barmand depicting the traffic flow if Main
Street were turned into a no traffic pedestrian Promenade.
The Promenade concept was discussed as an alternative to any traffic plans and there
was some support for the idea. One aspect of the Promenade concept was considered
workable for any of the plans. A Promenade would have the sidewalks and street
surfaces at the same level (except for drainage swales), No curbs. A Promenade
would have to have a street area in the middle delineated and kept clear for emergency
vehicles and general passage. That area would have to be delineated with pavers or
concrete lines in the street surface, It was agreed that this concept would have several
benefits. If the structure of Main Street were to be changed in the future, changing it
would be easier and less costly. The Paver type surface would help slow traffic. And,
the overall street and sidewalk surface could be raised so that ramping of the sidewalks
would be less noticeable and hazardous to tripping. Finally, this approach would lend
itself better to beautification of Main Street.
2
...
It was generally agreed, though, that the many unknowns of a Promenade plan with a
greater impact on the surrounding areas, combined with a negative response from a
majority of the merchants, made this proposal difficult to consider at this time. In
addition, reports from other cities which have Promenades were not favorable. (Santa
Monica and recent articles on Chicago's experience were mentioned,)
The Task Force therefore concentrated on discussing the pros and cons of plans A)
One-Way and B) Two-Way as well as the objective and subjective differences of the
OKS and Abrams traffic reports, The two reports do not agree with each other. OKS,
who conducted a more thorough study is clearly in favor of the one way plan, but
concedes that two-way traffic would work. The Abrams report recommends two way
traffic and is highly critical of anyone-way plan and of the OKS study. Both Traffic
Engineers are supporting their reports with a lot of general traffic data Le" one way
traffic always moves faster, one way traffic only works if there is a parallel street for
traffic going in the opposite direction, etc.
Even though the Task Force members are perceiving the problems differently, it was
generally agreed that much of the traffic data from both reports used to back up
recommendations do not necessarily apply to Main Street since Lower Main Street is
only a block long, In fact, the block is shorter than the length of a football field, It was
also agreed that both plans provided for sidewalks wide enough to accommodate ADA
approved access to the stores, although the wider the sidewalks the less pronounced
and safer the ramps, Further, on busy weekends, the street did in fact become more of
a Mall than a street, with people walking on, and crossing everywhere on the street. It
is expected that this trend will continue no matter which traffic configuration is selected.
PLAN A: ONE-WAY ON LOWER MAIN STREET:
The DKS Report:
Again this proposal is recommended by OKS Associates in their report of August 20,
1997, and backed up with the follow-up letters dated September 11, 1997, October 30,
1997 and April 6, 1998, responding to the criticism of the Abrams Study. OKS's main
reason for supporting the one-way plan is better and less congested traffic flow and
especially that they consider it a safer plan.
Among the favorable traffic and safety aspects highlighted by DKS are:
Less traffic on lower Main Street. Corinthian Island and Yacht Club will exit via Ark
Row as will the parking lot traffic. (Parking lot traffic is not supposed to exit via
lower Main Street, there is a No Left Turn sign at the exit, which is widely
ignored).
3
-
Less traffic predicted from Beach Road on to upper Main Street.
Wider north side sidewalks (one-way 8 feet vs, Two-way 6 feet which is 33% wider) for
pedestrians. The wider sidewalks also mean a less undulated walking surface
around the wheel chair ramps to the stores. (The south side sidewalk is 8 feet in
both Plan A and B). The total increase in the north side sidewalk area with the
increased width is about 100 square feet.
A wider traffic lane which then creates a wider buffer zone between cars and
pedestrians, (One way 11,5 feet vs, two-way which is 9 feet for both lanes).
Safer passage for bicyclists due to the wider traffic lane (but only for Westbound traffic
because bicyclists cannot legally travel Eastbound on the one-way street),
Safer conditions for unloading during morning truck delivery.
Among the negative aspects highlighted by OKS are:
Inconvenience for Corinthian Island residents exiting from Alcatraz who must make a U
turn at the roundabout, facing congestion at times and use upper Main Street to
get to Tiburon Blvd,
Parallel parking on the wrong side (south side) of the street. Parking with the existing
two-way traffic is on the north side.
Potential for higher vehicle speed, but can be mitigated with speed calming devices.
Increased northbound traffic on upper Main Street.
OKS believes that the lesser traffic along with the pedestrian enhancement and safety
outweighs the inconvenience to the Corinthian Island residents having to detour
to get to Tiburon Blvd. It is pointed out by OKS that during their study, many
Corinthian Island residents did in fact make a U turn to get to Tiburon Blvd., Post
Office or The Boardwalk, via upper Main Street. This observation was made by
Task Force members as well.
The Abrams Report:
The Abrams report dated February 23, 1998, is critical of the OKS report and one-way
recommendation. It concludes that the OKS study is only a partial report and that the
one-way plan has serious problems that have not been adequately addressed, It states
4
..
the inconvenience to the Corinthian Island residents and safety problems for
pedestrians and bicyclists, The Task Force noted that the Abrams Report was
prepared without the OKS Supplemental letters of September 11 and October 20, 1997,
which contained crucial traffic counts.
Among Abrams major points of critique are:
The wider sidewalk on the one-way plan is not an issue since the two-way plan will
provide almost the same width of sidewalk. (Note: Plan B two-way has an 8 and
a 6 foot wide sidewalk, Plan 0, by Abrams has an 8 and a 7,5 foot wide
sidewalk. However, the Abram drawing shows the street to be 41 feet wide
instead of 40 feet. The actual Abrams width of sidewalks would likely be 7 and 7
feet wide of 6 and 8.)
Pedestrian Safety, although subjective, the one-way plan is no safer than the two-way
plan, The two-way plan, with its slower traffic, will be safer for pedestrians and
bicyclists.
There are no provisions for bicyclists to travel east. However, they may travel
eastbound in the designated (westbound) bike lane, against the flow of vehicular
traffic,
The one-way plan creates hardship for the Corinthian Island residents having to make
a U turn at the roundabout. This results in misdirection, longer travel distance
and added time.
Greater potential for delays of emergency vehicles heading towards Corinthian Island.
It will be more difficult to exit the parking lot.
There will be added traffic on upper Main Street.
There will be added traffic and congestion on Beach Road and by the Beach
RoadfTiburon Blvd. Intersection,
The report further mentions that issues such as additional energy use and extra air
pollution have not been addressed by the OKS report,
On issues such as street parking, truck loading, solving the ADA requirements and
cost, the Abrams report states that there is not much of a difference in either
plan.
5
-
The Abrams report does not have anything favorable to say about one-way traffic on
Main Street.
Issues brouoht UP by opponents of the One-Way plan not in the OKS or Abrams
reports:
The one-way plan does not allow enough space for passage of cars when trucks are
double parked for unloading. This will also block emergency vehicles.
The rNo-way plan offers more flexibility for the future.
The rNo-way plan will have less impact on the business district.
The rNo-way plan will require less of a CEQA study since it is not deviating much from
the current traffic pattern,
A petition has been circulated by a lower Main Street business owner and signed by
most downtown merchants. The result is as follows:
Nine business owners from lower Main Street, representing 18 stores, and 28
business owners from upper Main Street are against the one-way plan,
Three business owners on lower Main Street are in favor of the one-way plan,
Four business owners on lower Main Street, and one business owner on upper
Main Street have expressed no opinion as to which plan they favor.
Issues brouoht UP by the proponents of the one-way plan and not in the OKS or
Abrams Report:
The wider sidewalks create better opportunities for street beautification and store
advertising.
The wider sidewalks make for a better and safer pedestrian environment benefiting the
store owners.
Street parking can easily be accommodated on either side of the street.
Other Issues:
6
In either plan, the problems with the unloading trucks double parking can be mitigated
by making the street parking areas timed loading zones only,
The issues of the general impact of changing the traffic on Main Street was not
discussed much beyond what has been summarized above.
The issue of the long-term impact to the community was not discussed since it was
agreed that the Task Force members were not in a position to foresee this with the data
available.
Issues upon which the Committee reached aQreement:
After reviewing both plans and the traffic reports, the Committee members felt that the
Report should summarize the issues that the Committee agreed upon,
ADA not an issue with either plan,
If the hotel/inn goes in as recently proposed next to Sams (the old Dock
Restaurant), the Committee agreed that to accommodate loading and unloading under
either plan, two spaces directly across Main Street should be marked as loading zones
(white curbs).
The cost of each Plan will not be materially different.
Emergency access: the two-way plan is better because it gives emergency crews more
options and provides better access to Corinthian island.
Bicycle Safety: Although there were some concerns that the narrower lanes in the two-
way plan might create safety problems, the two-way plan is preferable.
Bicyclists will be able to ride legally on both sides of the street. It is illegal in
California for bicyclists to ride against traffic, The one-way plan would prohibit
bicyclists from legally riding east on Main Street. This prohibition would create
an enforcement problem and could lead to safety problems. It should be noted
that there will not be bike lines in the two-way plan. Bikes will travel in the traffic
lanes.
Flexibility: The two-way plan is more flexible, The Town Engineer has suggested
constructing the two-way plan curbless with 18 feet of roadway and striping. If
the Council determines at a later date that the two-way plan is not working, it will
be easier to convert to the one-way plan than vice versa, The Committee
agreed that both the two-way and one-way plans should remain curbless.
7
Implementation: The two-way plan will be easier to implement because minimal CEQA
delays will be encountered since the two-way plan is very similar to the current plan,
Downtown Merchants: The downtown merchants have overwhelmingly endorsed the
two-way plan (the numbers are summarized on the next page), The Committee
believes that they are an important part of our community and will be the group
most directly affected by any changes.
Truck Deliveries: The one-way plan will not allow cars to maneuver around a double-
parked truck. The two-way plan allows cars to maneuver around double-parked
trucks but forces them into oncoming traffic, something close to the existing
situation, A solution is to ban non-commercial parking until 10:30 a,m.
weekdays and Saturday and then ban trucks from making deliveries the rest of
the day. The Committee felt that a solution to the early morning double parking
problem might be to explore with Main Street properties allowing free parking in
the Main Street lot until 10:30 a.m.
Sidewalks: The one-way plan is preferable. The north sidewalk will be 2 feet wider in
most areas; south sidewalk will be the same under both plans,
Parking on Main Street; Although some committee members felt parking should be
liminated to allow for wider sidewalks and traffic lanes, the merchants are
adamantly in favor of retaining the parking on Main Street. It was agreed that
parking could, and should, remain on the north side of the street in both plans.
Attachments: Plans A, 8, C, & D; Alternative Comparison dated 3/9/98 and sketches X
&Y.
8
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DOWNTOWN TIDURON TRAFFIC AL TERNA TIVES: COMPARISON OF VARIOUS CRITERIA
(March 9, 1998)
OPTION
Current Tiburon Engineer Tiburon Engineer
CRITERIA Situation One Way Two Way Mall
ADA Compliant No Yes Yes Yes
Street Parking Side North South North None
Number of Parking Spaces 12 to 13 9 10 None
Parking Space Width 8 feet 8 feet 8 feet None
Minimum North Sidewalk Width 5 feet 8 feet 6 feet Entire area
North Sidewalk Pedestrian Area 1200 sq. ft. +/- 2500 sq, ft. 2400 sq. ft. Entire area
South Sidewalk Minimum Width 5 feet 8 feet 8 feet Entire area
South Sidewalk Pedestrian Area 1200 sq, ft. +/- 3100 sq, ft. 2900 sq, ft Entire area
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Impacts on Corinthian Island Residents None Yes None 00 "l
Yes 0
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Impacts on City of Belvedere None Yes No Uncertain ~
EIR Requirements None Yes None Yes ~
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RESOLUTION NO.
A RESOLUTION OF THE TOWN COUNCIL OF THE
TOWN OF TIBURON AUTHORIZING THE MAYOR TO
EXECUTE A SETI'LEMENT AGREEMENT ON BEHALF
OF THE TOWN PROVDING FOR IMPROVEMENTS TO
LOWER MAIN STREET TO FACILITATE PROVDING
WHEELCHAIR ACCESS TO DOWNTOWN BUSINESSES
WHEREAS, several businesses located on Main Street in the downtown area of Tiburon have
been sued for failure to provide accessible public facilities to persons using wheelchairs as required
by law, in an action entitled Connally v, Main Street Tiburon Business et al,; and
WHEREAS. said downtown businesses are located in relatively small premises and
accordingly would find it difficult to locate a ramp inside their premises for persons using wheelchairs;
and
WHEREAS, said downtown businesses have requested that the Town consider modifications
to the Main Street Public right of way that would facilitate the installation of wheelchair ramps; and
WHEREAS, although the Town's own public facilities are fully compliant with all applicable
accessibility requirements, the Council recognizes that increased accessibility of private businesses
in the downtown would benefit the general public; and
WHEREAS. the Town has developed a preferred means of modifying the Main Street public
right of way so as to facilitate the creation of access of the businesses to persons using wheelchairs
and has further offered to contribute $60,000 to the project; and
WHEREAS, the Town of Tiburon was recently added as a defendant to the Connally
litigation and finds that it is in the public interest to settle this suit promptly by moving forward with
the above-described Main Street project; and
WHEREAS, on June 16, 1999, the Town Council considered the draft Settlement Agreement,
which is attached to this Resolution. and after hearing all the evidence, determined to approve the
Agreement,
NOW, TIIEREFORE, BE IT RESOLVED by the Town Council of the Town ofTiburon that
the Settlement Agreement is approved and the Mayor is authorized to execute said Agreement on
behalf of the Town. Prior to execution of the Agreement, the Town Attorney shall have the authority
adaSettlemtAg2,AUT
I
EXHIBIT NO. G
to approve any minor modifications to the Agreement that do not substantially affect the Town's
obligations,
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town ofTiburon
on June 16, 1999 by the following vote:
AYES:
COUNCILMEMBERS:
NOES:
COUNCILMEMBERS:
ABSENT:
COUNCILMEMBERS:
MOGENS BACH, MAYOR
Town ofTiburon
ATTEST:
DIANE CRANE, TOWN CLERK
adaSettlemtAg2,AlJT
2
03/18/ 1 '~yg
03:18/99
;i):0R
THl'lO:J8
4154352438
FAX 415 436 0430
- "V""'"
RECEIVED
MAR 1 J 1999
TOWN OF TIBIJRON
Cln'-BEll'EDERE
... TIBl'RO'
PAGE 07
IlJOO~
lj
MIni/liS of/he Regular ell)! of Belvedere City Council Meellng
S,p/,mber 8, 1998
Page 7
OTHERSCHEDULEDIT~
10, Rnlew fbt<<l Mill" Stre" T .s4 F "ree ,,"or/
I OWN MANA[;,H~ Of'lCf
City Manager San Diego summarized the stalT report, TOWN OF T1BURON
George GnoS!, SO Alcatraz Avenue, said that the preferred solution is two.way This solution
would causc less eonllestion, Where&! one'WlY would be I problem for bicycle traffic that would
be diverted to Beach and Tiburon Boulevards and the only advantage of one-way was so that ('nc
sidewalk could be two feet wider. he recommended that the City contribute funding for a two'
way plan,
Tom Gram, Tlburon Councilmember. requested that the COllncil make I decision tonight and
give specific rensons for their decision,
Cam Baker. 38 Alcatraz Avenue, agreed with Mr. Gram that the decision be made tonight and
.uBiested thlt th~ City make a sillnil'icant financial contribution for ~ pennanent :wo.v..y
~olution,
Mayor Faggioll said thaI ADA compliance cnn be achieved with the two-way proposol ,nd
plrking is not an issue governing Ihe 'rafflc flow and gave the following reasons for maintamin~
two-way traffic on Main Street:
. Alternate B provides rhe greatest ingress and egress to Belvedere and does not creolr snfet)'
concerns Illhe inteneclion of Beach Road and Main Street
. The solutions to the ADA and parking issues are independent of the two alternatives
. Altemare A creales a dangerous condilion for bicyclists on Lower Main Street
. Alternate B allow can 10 go around double parked vehicles whi Ie Alternate A does nOI
· Altenwe B allows greater flexibility in the future
o Altemale B allow.! for bener acc... for emergency vehicles to Main Slreet and Corinthian
1.land,
Councilmember Johnson said he was in favor of mainlaining two-way traffic for the following
relSOllS:
Bieyole Ind pedestrian ,afety
Traffic speed. up when its goil'8 one-way
n,e turnaround problem,
Acces, and eireD 10 COrlndlinn !!Iand
Emergency vehicle access 10 Corinthian Island
Main Street serves two cili., but one community and this Council would not negot:vely
impact Ti buron 10 solve a Belvedere problem
We all wlnt a permanentlwo-wa)' sol\nion nnd with an acreement from Tiburon, as slIch,
would recommend coftlribut;ng to Ihe project
CounciJrnember I-Ielfrich agreed that thi$ isslle \s of creat COncern to the enljre community and
would 8renfly impact the intersection of Beach Road ,nd upper Main Stree!.
Councilmember Sam. and Vice MayO\' Wiley agreed Ihntthey bo.h slrong!y suppaned the two-
woy JOlution nnd sUllsested Ihat the Cily condense its commenls in the form of a friendly leller 10
Tiburon,
.
.
.
.
.
o
.
PAGE BB
' '--g '0'''8 4154352438 TOWN OF TIBURON
03118/,"" ,U,U h k' I' I '/ T'b
- ..... __.......u..." \,f'.h.1J;)3CU uUlerem approac es to [8 e In reac 'llog a mutua agreement Wit 1 I. uron
for the two-way traffic sollltton and decided that the less reSlflcttVe Belvedere's offer, the more
llCceplable it would be to Tiburon
Tiburon Councllmember Oram said he estimated the project cost would be approximately
$250.000 with funding sources from Tiburon, Belvedere ami downtown budding owners,
03/..::1. ~3g9 :0: 17 4154352'-138
UJ. la/DB l~l 10:39 FAX 415 435 0430
TlJWf, OF T I BURON
CITY,BELVEOcRE
)" TlBlRO\
PAGE Bl
Gf\Oll:j
MI"u'~s of'he R~gulQr City ofBulvuderc Clry COllncll Meeling
S.p'rmb,r 8, J 998
Page 8
City Mlnlger Sin Diego said the City's proposal was to put up funds matching Tiburon's witi, .
$60,000 limit.
Meyor Faggioli .ummarized the Council's thoughts on leaving Mam Street open to two-way
traffic:
. r-or rhe ,wo-way .olution, Belvedere would malch Tiburon's contributions, up to $60.000,
"illl Ilnc.h.llf "pon commencement and one-halfllpon completion of the project.
. rho CllY anliClpates lhalthis is a permanent solution and that any change in the future would
involve Belveder~'. participation in it. reSOll1lion,
. If the Town of TiblD'On chooles to consider reversing its decision for compelling public
.afety, heellh and welf""" or lella! ~on. within the five-year period aller subslantial
completion of the project, the City and Town will meet and confer, And if the City of
Belvedere still doe. not aglCC to these reasons rhen there will be a complete return of capita'
to Belvedere if the Town ofTiburon ehoose.to overturn its deci.ion,
. Meet and confer (gou forever)
. Any chanlles oller S years are only subject In meet
requested.
MOTJO: Belvedere will contribute up to $60,000 low~rd the roadway
improvements if the followinll condition. are met:
. Alternate B IS selected as the approech to traffic flow On Main Street
. Tho City's contribution would bo a doller-for.dollar malel, to Wll.tthe Town contributes to
the project up to a maximum of $60,000,
. The City Will pny $30,000 at ,he commencement of Ih. prnject and the remainder upon
pruietl complelion
. Durinllthe first five years after completion of lhe project, the Town agrees that it will only
abandon Alternate B for compelling public safety, health & welfore or lellal reasons, If Ihe
Town chooles to abandon Altemate B withlO the initial five-year period, the Cily and lhe
Town will meet and confer regarding the r.ason for the change, Following lhe meet nod
confer procoss. if the City still doe. nOI agree with the need for change, the Town sh.1l
I'eimbllrse the City for the full amount of whetever contribution is made, After lh. ;1111.al
five-year period haa elap.ed. the Town agrees 10 meet and confer with the City prior to any
decision to obandon the two'way traffic flow associaled with Ahern"te R. however, no
reimburaement of the City'. conlribution sholl be required
MOVED: By Sam.. .econded by Johnson, Unanimous approval
AD.JOURN
MOTION:
MOV1l:D:
To adjourn,
By John.on. seconded by Sems, Unanimous approval.
Till!: FORI!:GOING were a regulnr meeting of the Belvedere Cily
(\llIlleil held 1111 OClober S, 1998, hy Ihe fonowi"~ vote:
AYES,
NOES:
ABSENT:
Johnson, Wiley, Meyor fallgioli
None
Helfrich, Sams
APPROVED;
~^. ~ ,
_. ";4 '~,. ...j .1.':1
OJ 'J"/99 THl 10:41 FU 416 436 0430
1;_,.Ij ,_il- I. Hi ;k'UI j
ern ,BELV!;D!;Re
", TIBURO~
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CITY of BELVEDERE
450 San Rafael Avenu. . S..lv.der., CA 94920
Tel: 415/435-3838 . fa,,: 415/435-0430
September 10, 1998
Honorable Harry Matthews, Mayor
Town of TlburOll
1 50S Tiburon Boulevanl
Tiburol1 CA 94920
Dear Harry:
At our City Council mcctinl on Tuesday, Seplllmber 8, we considered the issue of the Main
Street traffic: c:~ullllion report prepared by the Main Strec1 T83k Force, As a result of our review
of the report, particularly the eleven points that all parties agreed Oll, the City Council of
Belvedere believes that the best solution to resolving the various ISSueS that have been raised
relllding Main Street traffic: is to implement the two-way traffic: flow consistent with the
report'. Alternate B,
We b8IC our conclu.sion on many factom in<:Iudinl
. The solutions to the ADA and puking issues ue independent of the two alternatives
. Alternat" A create. a dangerous condition for bicyclist, on Lower Main SUCCI
. Alternate B allow can to go aroWld double parked Vl:hicles while Allernate A does not
. A1tomate 8 allows greater flexibility in the fu1Ul'e
. Altomate B allows for better KCCSS for cmcracncy vehicles to Main Street and Corinthian
Island.
Consequently. we request that the ToVon reaffinn it.s previous selection of Altemate B as the
preferred a1tcmath'e for downtown Tiburon's future,
Toward that end. Belvedere is prepared to conbibute up to $60.000 toward the roadway and
.idewalk improvements, The contribution would be made within the following structure
. AltemaIC B Is selected lIS the approach to traffic flow on Main Street
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OJ/ldll'-3':J'3 ~r): 17 4154352<.138
03/18/99 THt, 10, 4Z HI 416 436 0430
TOW" OF TI BURDI,
C 1l"Y - BELVEDERE
'" T16tRO\
Mayor Harry Matthews
SClptembe1 9, 1998
Pile 2
· The City's contribution would be a dollar-for-dollar match to what the Town contribute, 10
the project
. The City will pay $30,000 at the commencement of Ihe project and the remainder upon
proJ.~1 ~omplelion
. The Town alTees that it will only reverse its decision for compelling public safety, heallh &
welfare or legal reUOIll and If the Town chooses 10 reverse its deci,ion within the five-year
period after completion of the project, the City and the Town will meet and confer regarding
the reuon for the reversal, Following the meet and confer process, if the City still does not
qne with the need for revetsal, the Town shall reimburse the City for the full amount of
whatever ~ontribution is mede, After the five-year period hu elapsed. the Town agrees 10
meet and coaler with the City prior to any decision to abandon the TWo.way traffic now
aasociabod with Allernate B; however. no reimbursement of the City's contribution shall be
requlml,
In developing this!tnICtUrC, we WBnt to make sure that the Town understands that if a truly
compellin. reason exis" wt would l1e~essilate an abandonment of Alternate B, Belvedere will
coaler with the Town in an open manner in assessing whether or not it agrees with the To....n.s
propo5ed coume of action.
I will al1eDd your upcoming Council melOling and will be available to answer any questions you,
the Town Council or Town staf'fmay have.
Harry. we sincerely eppret:il1e the opportunity Ihe Town ha5 provided us 10 be a pllrt)< 10 the
evaluation of the Main S~et alternatives and continue to stand read)" to work logrthrr with Ihe
Town in Iddressing problems that confront us, regardless of the jurisdictional boundaries,
YoWll tnIIy,
~ A {v--'
Justin FI8IPoli
MJlyor
cc: City COUlll:!!
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MAIN STREET
TIBUI{ON
TJ liS ACCLSSII3LE STREET IS A
rLSTAMENT TO TilE JOINT EFFORTS OF TilE FOLLOWING
TOWN OF TIBURON
CITY OF BELVEDERE
MAIN STREET PROPERTY OWNERS
AND IN MEMORY OF
ED ROBERTS
FATIIER OF TilE INDEPENDENT LIVING MOVEMENT
FOR HIS VISION OF FULL AND EQUAL
OPPORTUNITY FOR ALL PEOPLE WITH DISABILITIES
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TOWN OF TIBURON
STAFF REpORT
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To: MAYOR AND TOWN COUNCIL
From: ANN R. DANFORTH, TOWN ATTORNEY
Subject: Settlement of ConnaIly v, Main Street Business et aJ.
Agreement to Facilitate Wheelchair Access to Properties on Main Street
Date: January 6,1999
ITEM NO, / i
BACKGROUND
The history of this matter is lengthy and well known to the Council, To summarize, in 1995, the
subject litigation was instituted against several business and property owners in the downtown area,
charging that they had failed to make their properties accessible to persons in wheelchairs as required
by the federal Americans with Disabilities Act ("ADA"). In response, the defendants applied to the
Town for pennission to construct ramps on the Town-owned sidewalk: fronting their properties, The
Council granted one such application, but found the others to be infeasible because of the narrow
width of the sidewalk:, The Council did agree to consider alternate means of modifying the Town's
right of way so as to facilitate the creation of exterior wheelchair access to the defendants' properties,
rather than the defendants being required to make the necessary modifications on their own property,
The Town ultimately formed a joint task force with the neighboring City of Belvedere,
On September 16, 1998, after multiple hearings and workshops, and extensive participation from
downtown merchants, local residents and the City of Belvedere, the Town Council considered the
a report of the joint task force that describe several alternate means of modifying Main Street so as
to create the desired access, After a public hearing, the Council selected Alternate B as its preferred
alternative, which would raise the street and sidewalk, maintain Main Street as a two-way street and,
subject to environmental review for safety, keep parking on one side of the street.
Unfortunately, the defendants were unable to reach a prompt agreement with the Town for the
financing of the project, The Town has continued processing the project towards final approval. '
However, the Judge in the Connally case had imposed a deadline of November 19, 1998 for the
plaintiffs to add all indispensable parties to the case, Because there was no agreement for the
implementation of the Main Street project, the plaintiffs added the Town to the case as a defendant
on November 16, 1998, The sole claim raised against the Town was that the denial of the ramp
applications in 1996 somehow violated the ADA.
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~....SettIement of Connally v. Main Street Business
'6 Page 2 of 4
December 30, 1998
To keep the settlement process moving forward, I have prepared and circulated the attached
proposed Settlement Agreement. I have received comments on the Agreement from attorneys for
the plaintiffs and defendants Ed Zelinsky and Barbara Abrams, and have incorporated most of those
comments into the current draft, However, at the time of this writing, we have not heard from the
other defendants, Further, to the best of our knowledge, the plaintiffs and the defendant property
owners have not reached agreement as to the amount of compensatory damages and attorneys fees
to be paid, If we do not have sufficient agreement between the parties such that the plaintiffs are
ready to agree to dismiss their claims against the Town by the time of the Council' s January 6, 1999
meeting, staff will recommend that the Council continue this item,
ANALYSIS
The various parties to the litigation first threatened to add the Town as a defendant in 1995, before
the Town had taken final action on the applications to construct ramps on its sidewalks, Then as
now, staffhas believed that the Council was well within its discretion to deny the applications, It
follows that the charges leveled against the Town in the Connally complaint are without merit,
In contrast, the accessibility problems facing the downtown businesses and property owners named
in the suit are quite real, Acknowledging the difficulty of creating access to many of the downtown
properties, and in light of the importance to the Town of downtown businesses, the Town Council
decided in 1996 that, as a matter of public policy, the Town would assist the defendant businesses
and property owners, More particularly, the Council decided that it would consider various
alternative means of modifying Main Street to facilitate access to the defendants' properties and,
assuming that such a means could be selected, would make some financial contribution to the cost
of the project,
Although three new members have joined the Council since 1996, the Council's policy in this matter
has remained unchanged, The proposed Settlement Agreement reflects the Council's intentions with
respect to this case, as stated in public hearings over the past two years, as follows:
· The Town would modifY the lower block of Main Street, by raising the street and sidewalk,
The sidewalks would be widened and configured so as to rise to the level of each doorway'
on Main Street so as to allow entry by persons in wheelchairs,
· The project would be administered as a public works project. Except for monies contributed
by the Town and the City of Belvedere, all funds necessary for the implementation of the
project, including design, environmental and staff review and construction, would come from
a benefit assessment district,
Settlement of Connally v, Main Street Business
Page 3 of 4
December 30, 1998
· The defendant property owners would agree to cooperate in the formation of the district, The
Town would advance the money necessary for the steps that must be taken to implement the
project before district funds are available, including retention of a District Engineer. The
District would reimburse the Town for funds,
· The Town would contribute $60,000 to the cost of the project, The City of Belvedere has
agreed to match this contribution provided that lower Main Street remains a two-way
thoroughfare,
The Defendants have requested the following changes to the Agreement, which we have incorporated
into the Agreement,
1. The Defendants have asked that, in the event that the Project cost exceeds our estimate, that
the Town share in paying for the overage, In past public meetings, the Council has indicated
a willingness to share in costs that exceed the Engineer's Estimate, Under Paragraph 4,B, the
Town's share of the overage would bear the same proportion to the overage that our $60,000
bears to the total estimated project costs (including, without limitation, design, engineering,
environmental review and processing costs),
2, The Defendants would like the option of applying the Town's contribution towards payment
of the plaintiffs' compensatory damages, Paragraph 3,E allows a majority of the defendant
business and property owners to make this election, If exercised, the District would
reimburse the Town for all funds advanced prior to the District's formation, The Town
would then tender its contribution to the Owner-Defendants for payment to the plaintiffs,
This effectively would allow the defendants to finance their expenditure for compensatory
damages, attorney's fees and costs of suit over time at a favorable interest rate, The cost of
this would be an increase in funds that would have to be raised by the District and
commensurate increase in assessments against the Owner-Defendants' properties,
The Defendants have also asked either that the Town contribute its internal staff time or place a cap
on the amount of staff costs that would be charged to the project, The Council should consider this
request. Staffhas estimated our likely internal costs for the project to be approximately $15,000,
Lastly, the Defendants have requested that Paragraph 7 be modified such that the only improvements
required are those needed to provide wheelchair access from the exterior to the interior of the
properties, They have promised to provide us with proposed alternate language, which we have not
yet received, In any event, this is an issue that must be resolved between the defendants and the
plaintiffs,
Settlement of Connally v, Main Street Business
Page 4 of 4
December 30, 1998
.
RECOMMENDATION
That the Council hold a public hearing on the draft Settlement Agreement and if the Council decides
to approve the settlement as set forth therein, approve the attached resolution authorizing the Mayor
to execute the Agreement on behalf of the Town, In considering this matter, the Council should
determine whether it wishes to provide, the internal staff time for this project as an additional
contribution from the Town, or if not, whether it wishes to impose a cap on the amount that the
Project would be charged for internal staff time,
EXHIBITS
Proposed Resolution Approving the Draft Settlement Agreement
Draft Settlement Agreement
adasett/emt,/it, wpd
RESOLUTION NO.
A RESOLUTION OF THE TOWN COUNCIL OF THE
TOWN OF TIBURON AUTHORIZING THE TO EXECUTE
A SETILEMENT AGREEMENT ON BEHALF OF THE
TOWN PROVDING FOR IMPROVEMENTS TO LOWER
MAIN STREET TO FACILITATE THE ACCESSmILITY
OF DOWNTOWN BUSINESSES TO IMPROVE
WHEREAS, several businesses located on Main Street in the downtown area of Tiburon have
been sued for failure to provide accessible public facilities to persons using wheelchairs as required
by law, in an action entitled Connally v. Main Street Tiburon Business et al.; and
WHEREAS, said downtown businesses are located in relatively small premises and
accordingly would find it difficult to locate a ramp inside their premises for persons using wheelchairs;
and
WHEREAS, said downtown businesses have requested that the Town consider modifications
to the Main Street Public right of way that would facilitate the installation of wheelchair ramps; and
WHEREAS, although the Town's own public facilities are fully compliant with all applicable
accessibility requirements, the Council recognizes that increased accessibility of private businesses
in the downtown would benefit the general public; and
WHEREAS, the Town has developed a preferred means of modifying the Main Street public
right of way so as to facilitate the creation of access of the businesses to persons using wheelchairs
and has further offered to contribute $60,000 to the project; and
WHEREAS, the Town of Tiburon was recently added as a defendant to the Connally
litigation and finds that it is in the public interest to settle this suit promptly by moving forward with
the above-described Main Street project; and
WHEREAS, on January 6, 1999, the Town Council held a public hearing on the draft
Settlement Agreement, which is attached to this Resolution, and after hearing all the evidence,
determined to approve the Agreement,
NOW, THEREFORE, BE IT RESOL \lED by the Town Council of the Town ofTiburon that
the Settlement Agreement is approved and the Mayor is authorized to execute said Agreement on
behalf of the Town.
adaSettlemtAg,AUT ,doc
I
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town ofTiburon
on December 6, 1999 by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT:
COUNCILMEMBERS:
MOGENS BACH, MAYOR
Town of Tiburon
ATTEST:
DIANE CRANE, TOWN CLERK
adaSettlemtAg,AUT,doc
2
SETTLEMENT AGREEMENT AND
MUTUAL GENERAL RELEASE
.
This Settlement Agreement and Mutual General Release ("Agreement") is entered into
as of , 1998 between PATRICK CONNALLY and DONALD STICKEL
("Plaintiffs"); EDWARD ZELINSKY, BARBARA ABRAMS, ED\V1N PURDY AND NANCY
PURDY as trustees for the Purdy Family Trust; JON WON, and TIBURON TOMMIES, a California
Corporation (collectively, "Owner-Defendants"); and the Town ofTiburon, a municipal corporation
("Town").
RECITALS
1, Owner-Defendants are owners of property and/or businesses located on Main Street
in Tiburon, California, in the downtown area, as set forth in Exhibit A ("Subject Properties"), The
block on which all of these properties are located is approximately _ feet long, The right of way
on this block is _ feet wide, The sidewalks fronting the Owner-Defendants' properties are owned
by the Town and are five feet wide, The lanes of travel are _ feet wide, Main Street was
constructed in the late 1880's, Most of the properties fronting Main Street were also developed in
the 1880's, However, many of the original structures were damaged or destroyed in a 1921 fire,
Accordingly, the structures currently fronting Main Street primarily date from either the 1880's or the
1920's, In addition to being the primary thoroughfare for the Town's historic downtown area, Main
Street is a primary means of access for citizens of the Town and of the City of Belvedere ("City")
living in the Corinthian Island area,
2, The Town is the owner of the right of way fronting the properties of Owner-
Defendants and must approve any encroachment therein, In addition, any external modification of
the improvements on Owner-Defendants' properties requires Site Plan and Architectural Review by
the Town,
3, Plaintiffs are each "physically handicapped persons" or "individuals with disabilities
requiring the use of a wheelchair to travel in public places, Plaintiffs cannot use stairs,
4, On March 15, 1995, Plaintiffs filed Connally et aJ v. Main Street Tiburon Businesses
et aJ,. Case No, C-95-00875 SBA., in the United States District Court for the Northern District of
California charging that Owner-Defendants and various other property and business owners had failed
to provide wheelchair access to their establishments as required by state and federal law,
5, As a result of the filing the Connally litigation, the Owner-Defendants and several
other defendants filed encroachment applications with the Town, requesting permission to construct
wheelchair ramps on the Town's sidewalks, On , 1996, the Town granted one of the
applications, However, the remaining applications were denied as infeasible,
MAINSTADA2,SET, WPD
1
6, The Owner-Defendants have contended that it would create an economic hardship to
construct the necessary accessibility improvements on their own properties, Accordingly, after their
applications to place ramps on the Town's sidewalks were denied, the Owner-Defendants asked the
Town to consider what improvements to the street and/or sidewalk that the Town would allow to
facilitate access to the subject properties for persons in wheelchairs, Plaintiffs and Owner-Defendants
have argued that the Americans with Disabilities Act, 42 U.S,CA 12101 et seq" requires the Town
to permit modifications to its right of way for the purpose of providing wheelchair access to their
properties,
7, In response to the Owner-Defendants' request, the Town held a series of workshops
and meetings beginning in 1996, after the Town denied the ramp applications by the Owner-
Defendants and concluding in September of 1998, Because of Main Street's importance to residents
of both the Town and the City, the Town Council formed ajoint task force with the City to consider
modifications to the Town's right of way that would allow the Owner-Defendants to provide
wheelchair access to the Subject Properties,
8, The joint task force submitted to the Council a final report dated August 27, 1998,
a copy of which is attached hereto as Exhibit B, On September 16, 1998, the Council held a public
hearing on the report and determined that its preferred option was Alternative B, Accordingly, the
improvements referred by this Agreement as the Project intended to facilitate creating wheelchair
access to the Subject Properties are those improvements described in concept as Alternative B.
9, On November --' 1998, Plaintiffs filed a First Amended Complaint ("Complaint")
naming the Town as a defendant, alleging that in denying the ramp applications of the Owner-
Defendants, the Town had failed to make reasonable modifications to its policies, practices and
procedures to provide access to public accommodations, The Complaint also named Harry Matthews
in his official capacity as Mayor of the Town and Mogens Bach, Tom Gram, Terry Hennessy and
Andrew Thompson, in their official capacities as members of the Town Council of the Town,
Accordingly, hereafter in this Agreement, "Town" shall include the aforesaid named Mayor and
Councilmembers,
10, In the interest of avoiding unnecessary litigation and to achieve the benefits of
increased accessibility to persons with disabilities, the Plaintiffs, Owner-Defendants and Town desire
to settle the aforementioned litigation on the terms set forth in this agreement, On January --' 1998,
the Town Council considered the proposed settlement adopted Resolution No, , which is
set forth in Exhibit C and which approved this Agreement and authorized the Mayor to execute this
Agreement on behalf of the Town,
AGREEMENT
The Plaintiffs, Owner-Defendants and the Town in consideration of the mutual
covenants of the Agreement, hereby agree to the following terms and conditions:
MAINSTADA2,SET,WPD
2
3
MAINSTADA2,SET.WPD
D, The Total Estimated Project Cost shall be the sum of the Engineer's Estimate, a ten
percent construction contingency, and the costs associated with the District's
formation, project design and environmental review and supervision of Project
construction by the Town Engineer, The District will sell bonds sufficient to fund the
Total Estimated Project Cost, less the Town's contribution of $60,000 and the City
of Belvedere's contribution of $60,000,
C, All funds necessary to design, process, construct and complete the Project will be
provided by the District except for such monies as are provided by the Town and the
City of Belvedere, To the extent that formation of the District requires expenditures
before the District is formed and able to sell bonds, the Town shall advance the
necessary funds, but such payments shall be chargeable to the Project, In addition,
the Project will be charged for the time of Town staffin accordance with usual Town
rates for similar projects, If the payments chargeable to the Project exceed the
Town's contnbution of $60,000, the District will reimbursed the Town for the surplus
amounts before the start of construction of the Project, Notwithstanding the
foregoing, the entire amount advanced by the Town may be reimbursed by the District
at the election of the Owner-Defendants, as set forth in Paragraph 3,E of this
Agreement,
B, The Town will proceed with environmental review and final approval of the Project,
These actions will involve the use of both outside environmental consultants and
Town staff
A The Town will retain a District Engineer, The District Engineer will be responsible
for Project Design and Engineering; and will develop a total Project cost estimate
("Engineer's Estimate"), The District Engineer will also determine the amount of
economic benefit that each property in the District will realize from the Project. The
District Engineer will allocate assessments among the properties in the District
according to the benefit each property will receive,
3, The Town will take the steps necessary to form the District, subject to reimbursement as set
forth in this Agreement, The Owner-Defendants will not object to the formation of the
District.
2, The total Project cost is estimated to be $310,000, This is a preliminary estimate only, The
Town will contribute $60,000 to the cost of the Project, The City has agreed to pay an
additional $60,000, The Owner-Defendants will cooperate with the Town in the formation
of a benefit assessment district to fund the balance of the actual Project cost, as provided by
law and this Agreement ("District"), The District's boundaries shal1 be as described in Exhibit
D,
1. The Town shal1 process and approve the implementation of Alternative B ("Project") as set
forth in this Agreement,
4
MAINSTADA2,SET,WPD
5, In the event that the Owner-Defendants fail to cooperate in the formation of the District as
required by this Agreement, the Town will take no fiuther action until the Owner-Defendants
have deposited the funds necessary to complete the Project with the Town, If the Owner-
C, The Town shall promptly award the Project contract after the District has raised any
funds required under subparagraph B, Having awarded the contract, the Town will '
take all reasonable measures to ensure that the Project is completed as designed in a
timely fashion,
B, In the event that as awarded, the contract price exceeds that the Engineer's Estimate,
the Town and the District shall raise further funds for the Project sufficient to create
a Construction Fund equal to the contract price plus a ten percent contingency
reserve, The Town's contribution to the shortfall shall be in the same proportion to
the shortfall as is $60,000 to the Total Estimated Project Cost.
A The Town shall advertise for bids to construct the Project, The Town shall award the
contract to the lowest responsive and responsible bidder as required by state law and
local ordinance, Bid opening shall be timed so as to allow construction of the Project
to begin at the earliest practical date, In light of the heavy traffic experienced in the
Project area during the summer, the earliest practical date would be either early
enough in the year, In any event, Project construction shall begin either so as to allow
completion before the traffic levels increase in Mayor in the late summer/early fall,
after the heavy summer traffic but before the rainy period begins,
4, After the Project receives final approval pursuant to Paragraph 2 of this Agreement and the
District funds are available for use, the construction of the Project shall proceed as set forth
herein,
F, In the event that sums advanced by the Town pursuant to Paragraph 3,C are less than
$60,000, and the Owner-Defendants do not exercise their option under Paragraph3 ,E,
the Town shall deposit the unexpended portion of the Town Contribution with the
District within 15 days after the District's bonds have been sold and the proceeds are
available for use,
E. At the election of a majority of the Owner-Defendants, the District shall reimburse the
Town for the entire amount of funds advanced pursuant to Paragraph 3,C of this
Agreement, The purpose of such total reimbursement shall be to allow the Owner-
Defendants to apply the Town's Contribution of $60,000 towards the payment of the
Owner-Defendant's obligations under Paragraph 9 of this Agreement, The amount
to be raised by the District under Paragraph 3,D would accordingly be raised by
$60,000, The assessments required to finance this increase would be borne solely by
the properties in the District belonging to the Owner-Defendants, The Town would
tender the $60,000 Town Contribution to the Owner-Defendants within 15 days of
receiving full reimbursement,
Defendants have failed to provide said funds for a period of more than 90 days, this
Agreement shall terminate, Notwithstanding such termination, all releases of claims against
the Town set forth in this Agreement Cother than a claim that the Town has breached this
Agreement) shall remain in full force and effect,
6, The Town will implement the Project as a public works project, in the interests of efficiency
and public health and safety, The Owner-Defendants will cooperate fully with the
implementation of the Project as a work done primarily for their benefit, Without limiting the
foregoing, it may be necessary to modify the property of the Owner-Defendants to protect
it from construction, The Owner-Defendants shall have ten days to review any such
modifications before they are implemented, If the Owner-Defendants fail to object to the
modifications within that time, they shall be deemed to have consented thereto and to have
waived any claims arising from said modifications,
7, In the event that any improvements beyond implementation of Alternative B are required to
render the Owner-Defendants' properties accessible as required by law, such improvements
shall be the responsibility of the Owner-Defendants and shall be done on their property at
their own expense, subject to any applicable permit requirements, Without limiting the
foregoing, the Owner-Defendants' shall each cause their respective properties to be modified
so as to comply with the more restrictive requirements of either Title 24 of the California
Administrative Code or the Americans with Disabilities Act Access Guidelines C" ADAAG")
of the Americans with Disabilities Act of 1990, 42 U.S,C, !l!l12101 et seq., to provide
wheelchair access to the public accommodations located on said properties,
8, In the event that the Project and the remedial improvements set forth in Paragraph 7 of this
Agreement are not completed by November I, 2001, or in the event of any substantive breach
of this Agreement, the parties hereby waive any statute of limitations defense that may arise
after the date of this Agreement and will allow Plaintiffs to refile an action for equitable relief
to make the public accommodations located on the Subject Properties accessible,
Notwithstanding the foregoing, nothing in this Agreement shall constitute a waiver of any
affirmative defenses, including any statute of limitations defense, that may have existed on the
date of this Agreement,
9, The Owner-Defendants shall pay to Plaintiffs for compensatory
damages, attorneys fees and costs of suit, Said payment shall be made to Plaintiffs' counsel,
as identified on the signature page of this Agreement, within days of the mailing
or delivery of this executed Agreement by Plaintiffs,
10, The Plaintiffs, the Owner-Defendants and the Town accept this Agreement in full settlement
and compromise of their litigation against each other and of any related claims of any kind,
including, without limitation, all demands, damages, bodily injury, emotional distress, actions
and causes of action of every kind and nature, including attorneys fees, costs, and litigation
expenses in any way related to the Complaint, known or unknown, existing, claimed to exist
or which can ever hereafter arise out of or result from or in connection with any and all acts
MAINSTADA2,SETWPD
5
and omissions of the parties herein released from the beginning of time to and including the
date of this Agreement, including but not limited to the matters and things described in the
Complaint, Without limiting the foregoing, the Plaintiffs and the Owner-Defendants further
agree that this Agreement shall fully and forever discharge and release any and all claims and
causes of action, whether now known or now unknown, which the Plaintiffs have against the
Owner-Defendants, or which the Plaintiffs and the Owner-Defendants may have against the
Town arising out of the events, incidents or circumstances referred to in the Complaint,
including any claims for attorneys fees and costs,
To the extent that the Complaint contained any claim for bodily injuries and damages resulting
therefrom, Plaintiffs acknowledge that each has been fully advised and understands that said
injuries are of such character that the full extent and type of injuries are not known at the date
hereof and that each and every injury might not now be known and further understands that
said injuries, whether known or unknown at the date hereof might possibly become
progressively worse and that as a result thereof further damages may be sustained by
Plaintiffs; nevertheless, Plaintiffs desire by these presents to forever and fully release and
discharge the other parties to this Agreement and understands that by the execution of this
instrument no further claims may ever be asserted by Plaintiffs,
11. This Agreement includes an express waiver by all parties of Civil Code Section
1542, which states: "A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his settlement
with the debtor."
Plaintiffs (init,)
Edwin Purdy (init.)
Nancy Purdy (init.)
Edwin Zelinsky (init,)
Jon Won (init.)
Town of Tiburon (init.)
Mayor, Town of Tiburon
Barbara Abrams (init,)
Tiburon Tommies (init,)
12, The Plaintiffs, Town and the Owner-Defendants will execute and file a Stipulation for
Judgment incorporating this Agreement and agree to an entry of judgment ordering the
Plaintiffs to dismiss all causes of action in the Complaint with prejudice according to the terms
of this Agreement. The court may enter judgment may be entered upon submission of the
documents by the Plaintiffs, The Plaintiffs shall submit said documents to the court within 30
days of the date of this Agreement.
MAlNSTADA2,SET.WPD
6
,
13 , plaintiffs represent and warrant that there are no liens that will in any way affect any party to
the Agreement arising out of or relating to the Complaint save and except those held by a
party hereto, Plaintiffs will defend and hold the other parties hereto free and hann1ess from
any cost, including attorneys fees, loss, damage or liability incurred by or imposed upon the
other parties or their insurance carriers by reason of any lien not herein disclosed,
14, The court will retain jurisdiction over the subject matter of this action, the parties thereto and
the settlement of this action for the purpose of issuing such further orders or directions as may
be necessary or appropriate to construe, implement, modify, enforce, terminate or reinstate
the terms of this Agreement until November 1, 2001, unless a party to this Agreement
requests the court to extend the court's jurisdiction for good cause, In addition, the parties
stipulate to the jurisdiction of a magistrate judge,
15, In the event that any party should default in their responsibilities under this Agreement, the
court shall retain jurisdiction to determine the amount of compensatory damages, attorneys
fees and litigation expenses, if any, to be awarded to the non-defaulting parties as a result of
such default,
16, The Owner-Defendants shall defend, indemnify, and hold the Town harmless from and against
any and all claims and other challenges that may be asserted by any person against or arising
out of this Agreement, This obligation shall include, without limitation, the payment of any
awards of costs or attorneys fees against the Town as a result of defending this Agreement.
In addition, without limiting the forgoing, in the event that this Agreement is challenged by
litigation, the Town shall have the option of tendering the defense of such action to the
Owner-Defendants,
17, This is a compromise settlement agreement of disputed claims, and the execution of this
Agreement shall not constitute or be deemed or construed as an admission of liability on the
part of any of the parties,
18, The parties acknowledge that they have been represented in the preparation of this Agreement
by the below-listed counsel. The parties further acknowledge that they have read this
Agreement and that they are fully aware of its intent and its legal effect and they have not
been influenced to any extent whatever by any representations made to them by each other,
The parties further represent that they participated in the negotiation of this Agreement and
that it will not be interpreted against any of them as the draftsperson in the event of a dispute
about this Agreement,
19, This Agreement represents the sole and entire agreement between the parties hereto and
supersedes all prior agreements, negotiations and discussions among them with respect to the
subject matter covered hereby, Any amendment to this Agreement must be in writing and
signed by the authorized representatives of the parties hereto,
MAlNSTREET.LIT
7
20, This Agreement may be executed in counterparts, each of which when so executed shall be
deemed an original, and this Agreement and all signed counterparts shall constitute one and
the same instrument.
21, This Agreement is deemed executed on the date first written above.
22, Any provisions of Evidence Code section 1152,5 notwithstanding, this Agreement may be
enforced by any party hereto by a motion under Code of Civil Procedure section 664.6 or by
any other procedure pennitted by law in the Superior Court of Marin County,
23, This Agreement, consisting of_pages, shall be construed and enforced in accordance with
law of the State ofCalifomia,
24. This Agreement includes the following Exhibits, which are attached hereto and incorporated
herein by reference:
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Owner-Defendants and Subject Properties
Joint Task Force Report
Resolution No,
District Boundaries
IN WITNESS WHEREOF, TIlE PARTIES HERETO SET THEIR HAND TIllS _DAY OF
,1999,
PLAINTIFFS
PATRICK CONNALLY
DONALD STICKEL
OWNER-DEFENDANTS
EDWARD ZELINSKY
EDWIN PURDY
Trustee, the Purdy Family Trust
BARBARA ABRAMS
NANCY PURDY
Trustee, the Purdy Family Trust
MAINSTREET,LIT
8
JON WON
THE TOWN OF TIBURON
By:
Mayor, Town Manager, Town of Tiburon
APPROVED AS TO FORM:
Thomas E, Frankovich
Attorney for Plaintiffs Connally and Stickel
Gary A. Gavello
Attorney for Defendants Edward Zelinsky and
Barbara Abrams
MAINSTREETUT
TIBURON TOMMIES, a California
Corporation
By:
Its:
Emmett Stanton
Attorney for Defendants Edwin and Nancy
Purdy, Co-trustees, Purdy Family Trust
Ann R Danforth
Town Attorney, Town ofTiburon
9
TOWN OF TIBURON
STAFF REpORT
ITEM NO,
10
To: MAYOR AND TOWN COUNCIL
From: ANN R. DANFORTH, TOWN ATIORNEY
Subject: ADMINISTRATIVE AMENDMENTS
MUNICIPAL CODE CHAPTERS
Date: JUNE 16, 1999
BACKGROUND AND ANALYSIS
On June 2, 1999, the Town Council unanimously passed first reading of the proposed new ordinance,
A copy of the staff report for that meeting, which explains the purpose of the ordinance, is attached
for the Council's convenience,
RECOMMENDATION
Staff recommends that the Council:
1, Conduct a public hearing on the proposed new ordinance;
2. By motion, read the ordinance by title only; and
3, Pass second reading and adopt the ordinance by roll call vote,
EXHIBITS
Staff Report dated June 2, 1999
Draft Ordinance
ORDINANCE NO, N,S,
AN ORDINANCE OF THE TOWN COUNCIL
OF THE TOWN OF TIBURON AMENDING
CHAPTERS 2,3 AND 16 OF THE TIBURON
MUNICIPAL CODE, PERTAINING TO TOWN
ADMINISTRATION
The Town Council of the Town ofTiburon does ordain as follows:
SECTION 1. Section 2-2 is hereby amended to read as follows:
Section 2-2.
Bond of Town Officiats and Emntovees.
The Town shall insure all elected and appointed Town officials in the form of a public
employee's insurance blanket bond, This includes all Town officials associated with the Town
ofTiburon, the Tiburon Redevelopment Agency and the Tiburon Public Facilities Authority,
The policy limit shall be one million dollars ($1,000,000) per occurrence, with a deductible
of five thousand dollars ($5000) per occurrence,
SECTION 2, Section 2-3 of the Tiburon Municipal Code is hereby deleted,
SECTION 3, Section 2-6 of the Tiburon Municipal Code is hereby deleted,
SECTION 4, Section 2-7 is hereby amended to read as follows:
Section 2-7.
Comnensation: Reimbursement of Exnenses.
The Town Manager shall receive such compensation and expense allowances as the Town
Council shall from time to time determine and fix by resolution and such compensation and
expenses shall be a proper charge against such funds of the Town as the Council shall
designate,
The Town Manager shall be reimbursed for all sums necessarily incurred or paid by him in the
performance of his duties or incurred when traveling on business pertaining to the Town
under direction of the Town Council. Notwithstanding the foregoing, the Town Manager
shall not receive reimbursement for any expenses covered by an automobile allowance
included in the Town Manager's compensation package, Prior to receiving reimbursement,
IWTSERV\sharediadanforthlMuniCodeAmsChapt2,99,docº
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the Town Manager shall submit a verified and itemized claim, setting forth the sums expended
for such business for which reimbursement is requested to the Town Finance Director with
signed and dated receipts,
SECTION 5, Subsection 2-8(m) of the TiburonMunicipal Code is hereby deleted,
SECTION 6, Subsection 2-8(n) of the Tiburon Municipal Code is hereby re-
designated as Subsection 2-8 (m) and revised to read as follows:
(m) To be responsible for the Town's finance and accounting procedures and
programs.
SECTION 7, Subsection 2-8(0) of the Tiburon Municipal Code is hereby re-
designated as Subsection 2-8 (n),
SECTION 8, Article ill of Chapter 2 of the Tiburon Municipal Code is hereby
amended to read as follows:
Article ill. Plannim! A!!:encv and ptannin!!: Commission.
Section 2-16. Established: utannin!!: a!!:encv desi!!:nated: duties
There is hereby established a planning agency and a Planning Commission for the Town,
The planning agency of the Town shall be the Planning Commission of the Town, Duties of
the Planning Commission shall be as set forth in Subchapter 3 of the Tiburon Zoning
Ordinance and as may be specified elsewhere in the Tiburon Municipal Code,
Section 2-17, Comuosition: aooointment and removal of members.
The Planning Commission shall consist of five (5) members, all of whom shall be residents of
the Town ofTiburon, Members shall be appointed by the affirmative vote of a majority of
the Town Council, and may be removed by the affirmative vote of a majority of the Town
Council.
Section 2-18. Term of office of members.
The term of office of Planning Commissioners shall be four (4) years, Terms shall be
staggered as to year of expiration, Appointment to fill a vacancy occurring prior to the
expiration of a term shall be for the balance of the term only,
IWTSERV\sharediadanforthIMuniCodeAmsChapt2,99,doc
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SECTION 9. Article IV of Chapter 2 of the Tiburon Municipal Code is hereby
adopted to read as follows:
Article IV. Desil!n Review Board
Section 2-19. Established: duties.
There is hereby established a Design Review Board of the Town, Duties of the Design
Review Board shall be as set forth in Subchapter 3 of the Tiburon Zoning Ordinance and as
may be specified elsewhere in the Tiburon Municipal Code,
Section 2-20. ComDosition: aDDointment and removat ofmemben.
The Design Review Board shall consist offive (5) members, at least one of whom should be
a professional architect, Members shall be appointed by the affirmative vote of a majority of
the Town Council, and may be removed by the affirmative vote of a majority of the Town
Council.
Section 2-21. Term of office of memben.
The term of office of Design Review Board members shall be four (4) years, Terms shall be
staggered as to year of expiration, Appointment to fill a vacancy occurring prior to the
expiration of the term shall be for the balance of the term only,
SECTION 10, Article V of Chapter 2 of the Tiburon Municipal Code is hereby
adopted to read as follows:
Article V. Parks and Ooen Soace Commission,
Section 2-22. Established: duties.
There is hereby established a Parks and Open Space Commission for the Town, Duties of the
Parks and Open Space Commission shall be as set forth in Subchapter 3 of the Tiburon
Zoning Ordinance and as may be specified elsewhere in the Tiburon Municipal Code,
Section 2-23. ComDosition: aooointment and removat of memben.
The Parks and Open Space Commission shall consist of seven (7) members, all of whom shall
be residents of the Town of Tiburon, Members shall be appointed by the affirmative vote of
a majority of the Town Council, and may be removed by the affirmative vote ofa majority of
the Town Council.
\ INTSER Vlsharedladanforth lMuniCodeAm.Chapt2,99, doc
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Section 2-24. Term of office of members.
The term of office of Parks and Open Space Commissioners shall be four (4) years, Terms
shall be staggered as to year of expiration, Appointment to fill a vacancy occurring prior to
the expiration ofthe term shall be for the balance of the term only,
SECTION 11, Article VI of Chapter 2 of the Tiburon Municipal Code is hereby
adopted to read as follows:
Article VL Miscellaneous Boards and Commissions.
Section 2-25. Established: duties,
The Town Council may establish other boards or commissions by resolution; said resolution
must set forth the duties and qualifications, procedures for appointment and removal of
members, terms of office, and other such information as is necessary for the proper
appointment and functioning of the board or commission, The duties and functions of any
such miscellaneous board or commission may supplement, but may not supersede, the duties
and functions of a board or commission established by ordinance,
SECTION 12, Section 3-1 of the Tiburon Municipal Code is hereby amended to read
as follows:
Section 3-1.
Personnel system - Established: purpose
The Town shall establish and maintain an effective personnel system for the Town that will
assure: recruitment, selection and retention of employees on the basis of merit; promotion
on the basis of demonstrated ability; and compensation and personnel practices that will
enable the Town to compete with similar organizations for highly qualified personnel.
SECTION 13, Section 3-4 of the Tiburon Municipal Code is hereby deleted.
SECTION 14, Section 16-3,02,03 of the Tiburon Municipal Code (Section 3,02,03
of the Tiburon Zoning Ordinance) is hereby amended to read as follows:
3.02.03
Membership and Terms.
The membership and terms of the Design Review Board shall be as set forth in Article IV of
Chapter 2 of the Tiburon Municipal Code.
\\NTSERV\.sharetliadanforlhlMuniCodeAmsChap'2,99,doc
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-
SECTION 15, Section 16-3,04,02 of the Tiburon Municipal Code (Section 3,04,02
of the Tiburon Zoning Ordinance) is hereby amended to read as follows:
3.04.02.
Membership and Terms.
The membership and terms of the Commission shall be as set forth in Article ill of Chapter 2
of the Tiburon Municipal Code,
SECTION 16, Section 16-3,07,02 of the Tiburon Municipal Code (Section 3,07,02
of the Tiburon Zoning Ordinance) is hereby amended to read as follows:
3.07,02.
Membership and Terms.
The membership and terms of the Parks and Open Space Commission shall be as set forth in
Article IV of Chapter 2 of the Tiburon Municipal Code,
SECTION 17, SEVERABILITY.
If any section, subsection, clause, sentence, or phrase of this Ordinance is for any reason held
to be invalid or unconstitutional by a decision of a Court of competent jurisdiction, such
decision shall not affect the validity of the remaining portions of the Ordinance, The Town
Council of the Town ofTiburon hereby declares that it would have passed this Ordinance, any
section, subsection, sentence, clause or phrase thereof, irrespective of the fact that anyone
or more sections, subsections, sentences, clauses, or phrases may be declared invalid or
unconstitutional,
SECTION 18, EFFECTIVE DATE,
This Ordinance shall take effect and be in force thirty days after the date of
passage, 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,
/
/
/
/
\ WTSER Vlshared\adanforth lMuniCodeAmsChapt2,99,doc
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This ordinance was introduced at a regular meeting of the Town Council of the Town of
Tiburon on , 1999, and was adopted at a regular meeting of the Town
Council of the Town of Tiburon on , 1999, which was noticed pursuant to
Government Code Section 50022.3, by the following vote:
AYES:
NOES:
ABSENT:
COUNCILMEMBERS:
COUNCILMEMBERS:
COUNCILMEMBERS:
MOGENS BACH, MAYOR
Town ofTiburon
DIANE L. CRANE, TOWN CLERK
\\NTSERV'.sharetil.adanforthlMuniCodeAm.Chap'2,99,doc
6
TOWN OF TIBURON
STAFF REpORT
ITEM NO,
II
To: MAYOR AND TOWN COUNCIL
From: ANN R. DANFORTH, TOWN ATTORNEY
Subject: AMENDMENTS TO ENFORCEMENT PROVISIONS
MUNICIPAL CODE CHAPTERS
Date: JUNE 16, 1999
BACKGROUND
Town Staffis updating and revising the Municipal Code in preparation for its republication, As part
of this process, the proposed ordinance would facilitate criminal enforcement of the Code in those
cases where the Town's administrative procedures fail to secure compliance,
ANALYSIS
The current trend in municipal code enforcement is to provide a streamlined process that allows local
governments to punish code violations without recourse to the criminal courts, To that end, in
August of 1998, the Council adopted Chapter 31 of the Municipal Code, which established an
administrative process for Code enforcement, However, in the most egregious circumstances,
criminal prosecution may still be necessary.
Under ~ 31-7,2, any violation of the Code is presumptively an infraction, absent any specification to
the contrary, The maximum statutory fine for a first infraction is $100, The penalty for a second
commission of the same infraction with within a year is $200 and $500 for a third, In contrast, the
maximum penalty for a misdemeanor is a fine of up to $1000 or incarceration for up to six months
or both, Enforcement by infraction is easier to prosecute because the defendant does not have the
right to a trial by jury, For this reason, it is generally preferable to have early offenses classified as
infractions, Note that under ~ 31.7,2(e), the Town Attorney has the discretion to charge with a
misdemeanor any person who has committed the same infraction three times previously within the
past year,
Planning staff has identified several Code sections that impose misdemeanor penalties that staff
believes should be infractions, These relate to residential resale report (~ 13A-12), historic landmarks
(~ 13B-lO), water well construction and use (~ 13F-12), removal and planting of trees (~ 15A-10),
encroachment pennits (~ 19-11), maintenance of horses (~20-39) and noise (~25-3), This ordinance
Amendments to Municipal Code
June 16, 1999
Page 2 of2
accordingly would amend the subject sections by deleting the stipulation that violations shall be
prosecuted as misdemeanors, In addition, the ordinance would clarifY that any violation of the subject
provisions may also be punished as a public nuisance or as otherwise provided in the Code or by state
law,
RECOMMENDATION
Staff recommends that the Council:
1, Conduct a public hearing on the proposed new ordinance;
2, By motion, read the ordinance by title only; and
3, Pass first reading of the ordinance by roll call vote,
EXHIBITS
Draft Ordinance
-
ORDINANCE NO, N,S,
AN ORDINANCE OF THE TOWN COUNCIL OF
THE TOWN OF TIBURON AMENDING
SECTIONS 13A-12, 13B-I0, 13F-12, 15A-I0, 19-11,
20-39 AND 25-3 OF THE TIBURON MUNICIPAL
CODE, PERTAINING TO ENFORCEMENT
The Town Council of the Town of Tiburon does ordain as follows:
SECTION 1. Sections 13A-12 of the Tiburon Municipal Code is hereby amended
to read as follows:
Section 13A-12,
Penalties and Enforcement.
( a) In addition to all other remedies available under this Code or state law, any
deficiency that remains uncorrected shall be subject to abatement as a public nuisance, All
costs relating to the enforcement of this Chapter shall be borne by and recoverable from the
person in violation thereof.
(b) No sale or exchange of a dwelling unit shall be invalidated solely because of
the failure of any person to comply with any provision of this chapter unless such failure is
an act or omission that would be a valid ground for rescission of such sale or exchange in the
absence of this chapter.
SECTION 2, Section 13B-IO of the Tiburon Municipal Code is amended to read as
follows:
Sec,13B-I0,
Enforcement of Chaoter.
In addition to all other remedies available under this Code or state law, any violation of this
Chapter shall be subject to abatement as a public nuisance, All costs relating to the
enforcement of this Chapter shall be borne by and recoverable from the person in violation
thereof.
SECTION 3, Section 13F-12 of the Tiburon Municipal Code is amended to read as
follows:
H: IORDSlMuniCodeEnforcmt, 99,doc
1
Sec. 13F-12.
Enforcement of Chanter.
In addition to all other remedies available under this Code or state law, any violation of this
Chapter shalI be subject to abatement as a public nuisance, All costs relating to the
enforcement of this Chapter shall be borne by and recoverable from the person in violation
thereof
SECTION 4, Section 15A-1O is hereby amended to read as follows:
Section 15A-I0.
Penaltv for Violations.
In addition to all other remedies available under this Code or state law, any violation of this
Chapter shall be subject to abatement as a public nuisance, All costs relating to the
enforcement of this Chapter shall be borne by and recoverable from the person in violation
thereof
SECTION 5, Section 19-11 is hereby amended to read as folIows:
Section 19-11.
Penattv for Viotations.
In addition to all other remedies available under this Code or state law, any violation of this
Chapter shall be subject to abatement as a public nuisance, All costs relating to the
enforcement of this Chapter shall be borne by and recoverable from the person in violation
thereof
SECTION 6. Section 20-39 of the Tiburon Municipal Code is hereby amended to
read as folIows:
Section 20-39.
Penattv for Viotations of Article.
In addition to all other remedies available under this Code or state law, any violation of this
Article shall be subject to abatement as a public nuisance, All costs relating to the
enforcement of this Chapter shall be borne by and recoverable from the person in violation
thereof
SECTION 7, Subsection 25-3(g) of the Tiburon Municipal Code is hereby amended
to read as follows:
(g) In addition to all other remedies available under this Code or state law, any
violation of this Article shall be subject to abatement as a public nuisance, All costs relating
H: IORDS1MuniCodeEnforcml,99,doc
2
to the enforcement of this Chapter shall be borne by and recoverable from the person in
violation thereof
SECTION 8, SEVERABILITY.
If any section, subsection, clause, sentence, or phrase of this Ordinance is for any reason held
to be invalid or unconstitutional by a decision of a Court of competent jurisdiction, such
decision shall not affect the validity of the remaining portions of the Ordinance, The Town
Council of the Town ofTiburon hereby declares that it would have passed this Ordinance, any
section, subsection, sentence, clause or phrase thereof, irrespective of the fact that anyone
or more sections, subsections, sentences, clauses, or phrases may be declared invalid or
unconstitutional,
SECTION 9, EFFECTIVE DATE,
This Ordinance shall take effect and be in force thirty days after the date of passage, and
before the expiration of fifteen (IS) 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 of the Town Council of the Town
of Tiburon on . 1999, and was adopted at a regular meeting of the Town
Council of the Town of Tiburon on , 1999, which was noticed pursuant to
Government Code Section 50022.3, by the following vote:
AYES:
NOES:
ABSENT:
COUNCILMEMBERS:
COUNCILMEMBERS:
COUNCILMEMBERS:
MOGENS BACH, MAYOR
Town of Tiburon
DIANE CRANE, TOWN CLERK
H:\ORDSlMuniCodeEnforcmt,99.doc
3
.
TOWN OF TIBURON
STAFF REPORT
ITEM NO,
MEETING DATE: 6/16/99
13
To: TOWN COUNCIL
From: SCOTT ANDERSON, PLANNING DIRECTOR ~
Subject: LA CREST A ROADWAY AND UTILITY EASEMENT CONSIDER REQUEST
BY SKY ROAD RESIDENTS TO ACCEPT OFFER OF DEDICATION
Date: JUNE II, 1999
BACKGROUND
At its meeting of June 2, 1999 the Town Council received a written request (Exhibit 1) from a
Sky Road resident requesting acceptance of a roadway and utility easement in the La Cresta
Subdivision, The Council directed that the item be placed on its next agenda,
Sky Road residents desire legal public pedestrian access to the ridge top via Sky Road and Via
Los Altos, Such access has historically been possible (and frequently used by local residents), but
only through trespass, In recent years, the owner of 91 Via Los Altos landscaped a small portion
of the public roadway easement, thus discouraging public passage, Such landscaping appears to
be quite legal so long as the roadway easement remains unaccepted for public use,
HISTORY
In 1982. the Town ofTiburon approved the final map for the La Cresta Unit I subdivision on Via
Los Altos, That subdivision essentially transformed a fire road into a paved public street that
provides public access to the ridge top,
At the time of the final subdivision map, the developer offered for dedication to the Town of
Tiburon a 40' wide public roadway and utility easement (Parcel "F") The Town rejected the
offer. At the time this rejection made perfect sense. since the roadway easement terminated at the
property line of an unincorporated and undeveloped 7-acre parcel owned by David Jampolsky, It
was not known at the time whether Sky Road would eventually extend across the Jampolsky
Property to Via Los Altos This and many other questions were unanswered. so the Town's
logical course was to make provisions for future connections without actually committing itself
There would have been no public purpose achieved by accepting the roadway easement at that
time, and the Town would have been immediately responsible for maintenance of the roadway
easement if accepted,
Tihuron Town Council
Staff Report
6//6/99
In 1993, the Jampolsky Property was subdivided into four single-family lots, Sky Road was
extended as a public street within 30 feet of the La Cresta Subdivision boundary. but was not
connected largely due to steep topography, It is also likely that there would have been local
neighborhood opposition to a vehicular roadway connection, had one been proposed
At the request of the Town of Tiburon. Marin County did require an offer of dedication ofa 15-
foot wide public pedestrian easement that would connect Sky Road to the previously-offered
public roadway easement extending from Via Los Altos, This action made possible public
pedestrian connection by the simple acceptance of offers of public dedication,
Marin County rejected the offer of the public pedestrian easement in 1993, It served no public
purpose to the County to accept a public pedestrian that did not connect to property over which
the public had no right to pass, Please refer to the drawing attached as Exhibit 2,
Additional background information is contained within the letter from the Town Engineer dated
June 3, 1999 (Exhibit 3)
DlSCUSSION
Relevant Policies
The Town ofTiburon supports and encourages local neighborhood access to public open spaces,
Specific polices that bear directly on this matter are as follows:
PR-8, The Town should require publicly accessible off-road connecting trails between
recreation areas (developed, developable, and open space) and neighborhood areas,
C-3.f, Multi-use paths for bicycles and pedestrians should be constructed along existing
streets and within open space areas in order to provide safe access to school,
playgrounds and other areas with scenic attractions, A bike lane may be constructed on
Trestle Glen Boulevard.
In recent years, the Town has secured local neighborhood public pedestrian connections to the
Tiburon Ridge Trail in numerous subdivisions, including Ring Mountain. Vista Tiburon.
Miraflores. and Del Madera to name a few, Completion of the Sky Road connection would
provide another local neighborhood access to the Tiburon Ridge TraiL
It must be emphasized that a public connection is possible only if both the Town and Marin
County accept the offers of public dedication Sky Road residents have sent a letter (Exhibit 4)
to Marin County requesting acceptance of the public pedestrian easement at the end of Sky Road,
It should also be noted that no other roadway easements were offered for public dedication in the
La Cresta Subdivision,
Tiburon Town Council
Staff Report
6/16/99
2
Pros & Cons
The primary public benefit of acceptance of the roadway easement would be provision of legal
pedestrian access connecting Sky Road to the Tiburon Ridge Trail.
The primary public cost would be any future maintenance costs that the Town would incur in
conjunction with the easement. The Town Attorney is exploring the possibility that the Town
could accept only a portion of the 40-foot wide roadway easement, thereby reducing any costs,
Staff has requested that the Public Works Department develop a cost estimate for maintenance of
the roadway easement if accepted by the Town, There would be some new liability exposure
created should injury occur on the roadway easement as a result of Town negligence, Given the
paved nature of the easement, such potential new exposure appears quite small,
Private property interests would be affected to the extent that nearby lot owners might sense a
loss of privacy or control over the roadway easement. At the very least, the Town would require
that the landscaping recently installed within the roadway easement be modified to create a
smooth walking pathway through the roadway easement, although this pathway need not be very
wide.
RECOMMENDA nON
I, Planning Department Staff favors the provision of public pedestrian access to the Tiburon
Ridge Trail wherever practical and feasible, and supports acceptance of the minimum amount
of the roadway easement dedication possible to secure reasonable public pedestrian access.
This recommendation for acceptance of the roadway easement is contingent upon acceptance
by Marin County of the Sky Road public pedestrian easement. If the Town Council chooses
to pursue acceptance, a formal request to Marin County to do likewise would be in order.
2, The Town Council should consider the maintenance cost estimate provided by Public Works
Department and the opinion of the Town Attorney as to whether only a portion of the
roadway easement may be accepted.
3. The Town Council should consider testimony from interested persons
EXHIBITS
I. Letter from Sky Road resident dated May 2 I. 1999,
2. Drawing depicting a possible La Cresta and Sky Road pedestrian connection,
3. Letter from Town Engineer dated June 3, 1999.
4. Letter from Sky Road resident to Marin County dated May 2 I. 1999,
La crcsta ppe rcport.dol;
Tiburon Town CmU1ct!
Staff Report
6/16/99
3
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REceIVED
MAY 1 9 1999
TOWN MANAGERS OFFIC.
TOWN OF TlBURON
Tiburon Town Council
1505 Tiburon Blvd,
Tiburon, CA 94920
Dear Council Members:
I am writing to you regarding the pedestrian easement that joins Sky
Road and Via Los Altos, This is parcel F of the La Cresta unit #1 map,
I urge the town to accept this easement. Do you need a certain
number of signatures requesting your acceptance') Do you need a daily
count of people who currently use it') I believe that this is a part of the
"Ridge Trail System."
Looking forward to your reply,
~~~
Nicki Evatz
16 Sky Road
Mill Valley, CA 94941
383-6172 home
380-2131 office
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EXHIBIT NO. :l
TOWN OF TIBURON
.",,~~ o. ".c'o
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1505 TIBURON BOULEVARD. TIBURON . CALIFORNIA 94920 . (415) 883.9200
FAX (41~) 883,2763
MEMO
OFFICE OF THE TOWN ENGINEER
Irving L. Schwartz
June 3, 1999
FROM:
Scott Anderson, Planning Director
Irv Schwartz, Town Engineer y /'-
Pedestrian Access Rights over La Cresta, Lot 18
Our File No, 6940-CR
,R:: :::,~ .~'i/;:.O
TO:
JUN ~ 1999
SUBJECT:
PU.rHI',' !r;~:,.-:;:J'.." " +tj I
TQ'\VU OF '~:B:~,~C;'J
When the final Subdivision Map of La Cresta was recorded it included an Offer of Dedication of
Parcel F, which was described as a public roadway and utility easement. This easement is
partially within Lot 18 and partially in Lot 17, As the Offer of Dedication of this easement was
not accepted by the Town of Tiburon at the time ofrecordation of the map, and has not been
accepted by the Town of Tiburon to date, I believe that any rights the public may have over this
area, if any, are the rights they had prior to the subdivision of this property,
It should be noted that Parcel F generally aligns itself with the end of Sky Road, Sky Road has
been recently constructed, offered for dedication and accepted by the County of Marin; however.
the Sky Road easement does not extend all the way to the boundary of the La Cresta Subdivision,
The Parcel Map for the Sky Road Subdivision shows a pedestrian easement running from the end
of Sky Road to the boundary of the La Cresta Subdivision at the southerly terminus of Parcel F,
This pedestrian easement was olTered for dedication on the Sky Road Parcel Map, but not
accepted,
We prepared both the La Cresta Subdivision Map and the Sky Road Parcel Map, It was our
understanding that Parcel F was not accepted by the Town of Tiburon, as Tiburon did not want
the maintenance responsibility, Similarly, the County of Marin did not want the responsibility of
maintaining the pedestrian easement on the Sky Road Parcel Map. and therefore they did not
accept that easement. They did; however, accept the easement containing Sky Road itself.
It is my understanding that until and unless a public agency accepts an easement, the public has
no more and no less rights over it than it had prior to the subdivision of the property and
recordation of either the Parcel Map or the Subdivision Map, I am aware that one particular
property owner living below the Sky Road project, in the unincorporated area, had requested, as a
special favor, that she be granted rights by the fee owner of the lot on which the pedestrian
easement is located to use the 15 foot pedestriali easement between the end of Sky Road and the
end of Parcel F; however, I do not know if this right was ever granted,
I hope the information provided herein is helpful; however, if you have any questions or desire
additional information, please feel free to call on me.
cc: Bob Kleinert
Ann Danforth
EXHIBIT NO, 3
CORRESPOJOB
6940-LALMEMO.DOC
May 21, 1999
siL ji f
t f-i (oJ . ~tJ-
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Or! -f rf J ~lJJ
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lVar;n C~"-'"
1 1 11 VUlll)'
Board of Supervisors
350 I Civic Center Dr.
Administration Sldg, Room 329
San RafaeL CA 94903
RECEIVED
JUN - 9 1999
PL,uW:!~]G Ctf);\FTI,"Ei'lT
TOWN uf Tibl.;~(Jr'J
Dear Supervisors:
I 3m \vriting to you r~gilrding the pedestrian easement that joins Sky
Road in the county and Via Los Altos in Tiburon,
I urge the county to accept this easement. Do you need a certain
number of signatures requesting your acceptance') Do you need a daily
count of people who currently use it'.' [believe that this is a part of the
--Ridge Trail Svstem,"
~ ,
[ am also contacting the Tiburon Town CounciL
Looking forward to your reply.
Nicki Evatz
16 Sky Road
Mill Valley, CA 94941
383-6172 home
380-2131 office
EXHIBIT NO. 4
TOWN COUNCIL STAFF REPORT
FROM:
SCOTT ANDERSON, (IL--
PLANNING DIRECTOR~
MEETING DATE: 6/16/99
REPORT DATE: 6/8/99
ITEM NO,: /2-
TO:
TOWN COUNCIL
SUBJECT: REPEAL CHAPTER 13 OF THE TIBURON MUNICIPAL CODE
(BUILDING REGULATIONS)AND ADOPT A NEW CHAPTER 13
(BUILDING REGULATIONS) TO REFERENCE THE LATEST UNIFORM
CODES (ORDINANCE, FIRST READING)
BACKGROUND
Approximately every three years, the International Conference of
Building Officials (ICBO) updates its uniform construction codes,
including the Uniform Building code, Uniform Plumbing Code,
National Electrical Code, and so forth. Local governments are
expected to adopt these revised codes, and Tiburon has always
done so, The 1997 editions of the uniform codes (just released
in February 1999) are now available and should be adopted by the
Town,
ANALYSIS
There are no substantive changes being made to the provisions of
Chapter 13 of the Town Code, except with respect to enforcement
provisions. These changes are necessary to reflect the Town's
recently adopted Administrative citation process, codified as
Chapter 31 of the Municipal Code.
In adopting the uniform codes, the Town of Tiburon adopts the
Uniform Fire Code as amended by the two fire protection districts
serving properties in the Town corporate limits,
ENVIRONMENTAL STATUS
This project is ministerially exempt from the requirements of
CEQA,
RECOMMENDATION
Following a public hearing, the Town Council should:
1, Move to read by title only.
2, Hold a roll call vote on first reading of the ordinance.
EXHIBITS
1.
Draft Ordinance.
\municode\chap13-99rev.doc
T1BURON TOWN COUNCIL
STAFF REPORT
1S/16/99
1
ORDINANCE NO, N,S,
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TlBURON
AMENDING IN ITS ENTIRETY CHAPTER 13 OF THE MUNICIPAL CODE
(BUILDING REGULATIONS)
The T awn Council of the T awn of Tiburon does hereby ordain as follows:
Section I,
Findinf!S,
A.
The Tawn Council has held public hearings on
has received public testimony on this matter,
, 1999 and
, J 999, and
B, The T awn Council (inds that all notices and pfOcedures required by law attendant to the
adoption of this Ordinance have been follawed,
C. The T awn Council (inds that the changes and modifications made by this Ordinance are
necessary for the protection of the public health, safety, and welfare,
0, The Tawn Council has found that the changes and modifications made by this Ordinance are
consistent with the goals and policies of the Tiburon General Plan and other ordinances and
regulations,
E. The Tawn Council (inds that these amendments are categorically exempt from the
requirements of the California Environmental Quality Act,
Section 2,
Chapter 13 of the Tiburon Municipal Code Amended,
Chapter 13 of the Tiburon Municipal Code pertaining to building regulations is hereby amended in its
entirety to read as follows:
Town of Tiburon
Ordinance No.
NS
Effective .I ~99
1
EXHIBIT NO,--1-
CHAPTER 13
BUILDING REGULATIONS
Article I. In General.
sec. 13-1.
Building Inspection Division Established.
There is hereby established a Building Inspection Division of the
T~, pursuant to section 104 of the Uniform Building Code
adopted by this Chapter.
Sec. 13-2.
Permits Required.
A. Building permits. No person shall erect, construct,
enlarge, alter, repair, move, improve, remove, correct, or
demolish any building or structure in the Town, or cause the
same to be done, without first obtaining a separate building
permit for each such building or structure, as required by
the Uniform Codes adopted by this Chapter, from the Building
Inspection Division, Only one permit is required to
construct a dwelling and structures accessory thereto which
are to be built in conjunction with each other and at the
same time; provided that the plans submitted include
construction details of all such structures and the permit
valuation is based on the valuation of all such structures,
B. Plumbing permits. No person shall do or cause or permit to
be done any plumbing or sanitary drainage work without first
obtaining a permit for such work, as required by the Uniform
Codes adopted by this Chapter, from the Building Inspection
Division,
C, Heating and comfort cooling permits. No person shall
install, alter, construct, or repair any heating,
ventilating, comfort cooling, or refrigeration equipment
without first obtaining a permit for such work, as required
by the Uniform Codes adopted by this Chapter, from the
Building Inspection Division,
D. Electrical permits, No person shall do any wiring or
install any fixed electrical equipment without first
obtaining a permit for such work, as required by the Uniform
Codes adopted by this Chapter, from the Building Inspection
Division.
E. Excavation and grading permits, Except as exempted in
section 3306,2 of the Uniform Building code, no person shall
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Ordinance j'y'o.
NS
Effective .! ~99
2
do any excavating or grading without first obtaining a
grading permit from the Building Inspection Division.
F. Swimming pools and similar. No person shall install, alter,
or repair any swimming pool, hot tub, or spa without first
obtaining a permit for such work, as required by the Uniform
Codes adopted by this Chapter, from the Building Inspection
Division,
Sec. 13-3.
Fees.
A. Before any permit required by this Chapter is issued, the
applicant shall pay to the Building Inspection Division the
prescribed fee as established by resolution of the Council.
If any work, which requires a permit, is commenced without
a permit having first been obtained, the fee for the
required permit shall be four times the usual fee. For such
permit said fee shall be in addition to such criminal
penalties as may be imposed for violations of this Chapter.
B. Where it is found that work is being done under this Chapter
without a permit and that such work would, under the terms
of this Chapter, require a permit, there shall be charged an
investigation fee in the amount established by resolution of
the Council, The investigation fee shall be in addition to
all other fees and penalties as elsewhere set forth in this
Chapter and shall be paid before any application for permit
shall be considered.
C. Where more than one reinspection of any item requiring
inspection has to be made because work has not been ready or
defects have not been corrected, a fee, as established by
resolution of the Council, will be charged for each
additional reinspection, and shall be paid before final
approval of the work.
Article II. Technical Codes.
Sec. 13-4.
Adoption by Reference of Technical Codes.
For the purpose of establishing proper regulations for
building construction, for the installation of plumbing, gas
appliances and electrical systems, and for the storage and
handling of flammable liquids, the codes or portions thereof set
forth in this Article are hereby adopted and are made a part of
this Chapter by reference without further publication or posting
thereof, and three certified copies, along with the deletions and
exceptions therefrom and additions and amendments thereto, shall
be kept on file for use and examination by the public in the
Town of TihllrGn
Ordinance No.
N. S
lc]JeClive .I ~99
3
office of the Town Clerk,
Sec. 13-4.1.
Building Code.
The Building Code of the Town shall be the Uniform Building
Code, 1997 edition, the appendices thereof (except as otherwise
provided herein), and the Uniform Building Code Standards, 1997
edition, published by the International Conference of Building
Officials, on file in the office of the Town Clerk of the Town,
which said documents are hereby referred to, adopted and made a
part hereof as if fully set forth herein, subject, however, to
the following exceptions:
A. section 105 (Board of Appeals) is amended such that the
function of the Board of Appeals is vested with an
Administrative Hearing Officer or Hearing Officer
appointed by the Town Manager pursuant to Articles IV
and VI, Chapter 31 of the Tiburon Municipal Code, Any
appeal of orders pursuant to this Chapter shall be
conducted in accordance with the administrative hearing
process as described in Articles IV and V of Chapter 31
of the Tiburon Municipal Code,
B. Section 106.2, subsections 2, 3, 5, 6, 7, 9, 10, and 11
are deleted.
(The Town finds that these amendments are necessitated
by local geologic, climatic, and privacy considerations
existing in the Town of Tiburon),
C, Section 107,5,2 is amended to read as follows:
"The investigation fee shall be established by
resolution of the Town Council,"
D. Section 502 is amended to read as follows:
"1. THE FOLLOWING STANDARDS FOR ADDRESS MARKINGS SHALL
APPLY TO RESIDENTIAL BUILDINGS:
a, All residential structures shall display a
street number in a prominent position so that
it shall be easily visible from the street.
The numerals in these numbers shall be no less
than four inches in height, and one-half inch
in width, of a color contrasting to the
background and located so they may be clearly
seen and read. If a building is not easily
TOU'fl o/Tiburon
Ordinance No.
N.S.
Effective ~ ...../99
4
visible from the street, then the numbers are
to be mounted at the access drive leading to
the building,
b. At each vehicular access to a multiple family
dwelling complex having four or more buildings,
there shall be an illuminated diagrammatic
representation (plot plan) of the complex, which
shows the location of the viewer and the building
units within the complex,
c. In multiple family dwelling complexes, any
building having a separate identifying factor
other than the street number shall be clearly
identified in the manner described in
subsection a. Each individual unit of residence
shall have a unit identifying number, letter, or
combination thereof displayed upon the door.
d, Maps of the multiple family complex will be
furnished to the police and fire departments upon
completion of construction, The maps shall
include building identification and unit
identification.
e. Buildings shall be numbered in such a manner
and sequence as to meet with the approval of the
enforcing authority,
f, This section shall not prevent supplementary
numbering such as reflective numbers on street
curbs or decorative numbering, but this shall be
considered supplemental only and shall not satisfy
the requirements of this section,
2. THE FOLLOWING STANDARDS FOR ADDRESS MARKINGS SHALL
APPLY TO COMMERCIAL BUILDINGS:
The address number of every commercial building
shall be located and displayed so that it shall be
easily visible from the street. The numerals in
these numbers shall be no less than six inches in
,height, one-half inch in width, and of a color
contrasting to the background. In addition, any
business which affords vehicular access to the
rear through any driveway, alleyway, or parking
lot shall also display the same numbers on the
rear of the building."
Town ofTiburon
Ordinance No.
,I\,/. S.
Effeclive .1--"99
5
The Town's reasoning for these amendments is to ensure
quick response time to homes and businesses in case of
emergency, and to better facilitate delivery of the
mail.
E. section 1503 is amended to read as follows:
"The roof covering on any structure regulated by this
code shall be as specified in Table 15-A and as
classified in section 1504. The roof-covering assembly
includes the roofdeck, underlayment, interlayment,
insulation, and covering which is assigned a roof-
covering classification.
1. All new buildings and new additions shall
have at least a Class A-listed or
noncombustible roof covering.
2, Where alterations or repairs to existing
roofs involve more than 50% of the total area
of an existing building within a one year
time period, the entire roof shall be
retrofitted with at least a Class A-listed or
noncombustible roof."
The Town finds that these amendments are necessitated
by local climatic conditions or other fire hazard
conditions which exist in Tiburon,
F, section 106,4,4 is amended to read as follows:
"1. Every permit issued by the Building Official under
the provisions of this code after April 15, 1994, shall
expire by limitation and become null and void eighteen
(18) months from the date the permit is issued. The
Building Official shall have the discretionary
authority to extend the permit in the following
circumstances:
(a) where the project is unusually large or complex
additional time may be granted at the time of
application, or
(b) where the permittee has proceeded with due
diligence and made substantial progress but is
unable to complete the project because of
unforeseen circumstances beyond the control of the
permittee, one extension of up to six (6) months
may be granted, In determining whether due
Town ofTibllron
Ordinance No.
NS
Effective .1....,/99
6
.
diligence has been exercised, the Building
Official shall consider how soon work began after
issuance of the permit, whether work was conducted
on a regular basis and any other relevant facts.
Decisions of the Building Official made pursuant
to this section may be appealed to the Board of
Appeals pursuant to Chapter 31 of the Tiburon
Municipal Code.
Once a permit has expired pursuant to this
section, the work shall not recommence until a new
permit is issued. The new permit shall be issued
only if there have been no changes in the original
plans and specifications and a new fee equal to
the full original fee is paid,
2, All permits issued by the Building Official prior
to April 15, 1994, and which have not expired by
limitation shall remain subject to the provisions
of section 303(d) of the Uniform Building Code
(1991 edition) as drafted by the International
Conference of Building Officials, For purposes of
such permits, failure to exercise due diligence
and make substantial progress on the work
authorized shall be deemed suspension or
abandonment of the permit."
The Town finds that these amendments are needed in
order to reduce the number of permit extensions allowed
and to establish a firm date for completion of work.
Sec. 13-4.2.
Plumbing Code.
The Plumbing Code of the Town shall be the Uniform Plumbing
Code, 1997 edition, including appendices, as published by the
International Association of Plumbing and Mechanical Officials,
which said documents are hereby referred to, adopted, and made a
part hereof as if fully set forth herein, subject, however, to
the following exceptions:
A. Table 1-1 (Schedule of Fees) is deleted,
B, section 701,1.2 shall be amended to read as follows:
"ABS and PVC DWV piping installations shall be limited
to residential construction not more than two stories
in height,"
The Town's reasons for this amendment are that the
State Plumbing Code does not allow plastics in other
Town ofTiburon
Ordinance No.
NS
EjJeCllve _/---"99
7
uses, environmental review on this topic has not been
performed, and because of the types and frequency of
required fire assemblies in other types of buildings,
the use of plastics may be a fire hazard.
Sec. 13-4.3.
Electrical Code.
The Electrical Code of the Town shall be the National
Electrical Code, 1996 edition, as published by the National Fire
Prevention Association, which Code is hereby referred to, adopted
and made a part hereof as if fully set forth herein.
Sec. 13-4.4.
Fire Prevention Code.
The Fire Prevention Code of the Town shall be the Uniform
Fire Code, 1997 edition, as published by the International
Conference of Building Officials and the Western Fire Chiefs
Association, as modified by the most recently adopted Tiburon
Fire Protection District and Alto-Richardson Fire District (or
any successor agency thereto) ordinances, which Code and
ordinances are hereby referred to, adopted, and made a part
hereof as if fully set forth herein. copies of said ordinances
are available for review in the office of the Town Clerk,
Sec. 13-4.5.
Housing Code.
The Housing Code of the Town shall be the Uniform Housing
Code, 1997 edition, as published by the International Conference
of Building Officials, which Code is hereby referred to, adopted
and made a part hereof as if fully set forth herein.
Sec. 13-4.6.
Mechanical Code.
The Mechanical Code of the Town shall be the Uniform
Mechanical Code, 1997 edition, as published by the International
Conference of Building Officials, which Code is hereby referred
to, adopted and made a part hereof as if fully set forth herein,
except that Table No, 1-1 (Mechanical Permit Fees) is deleted.
Sec. 13-4.7.
Dangerous Building Code.
The Dangerous Building Code of the Town shall be the Uniform
Housing Code, 1997 edition, as published by the International
Conference of Building Officials, which Code is hereby referred
to, adopted and made a part hereof as if fully set forth herein.
Sec. 13-4.8.
swimming Pool Code.
The Swimming Pool Code of the Town shall be the Uniform
Town of TibuJ'OfI
Ordinance /\;'0.
N,S
Effecrive _ -.---i99
8
swimming Pool, Spa, and Hot Tub Code, 1997 edition, as published
by the International Association of Plumbing and Mechanical
Officials, which Code is hereby referred to, adopted and made a
part hereof as if fully set forth herein, except that:
A. section 1.11 is deleted,
B. The first paragraph of section 1.7 is deleted,
Sec. 13-4.9.
Solar Energy Code.
The Solar Energy Code of the Town shall be the Uniform Solar
Energy Code, 1997 edition, and the appendices thereof, as
published by the International Association of Plumbing and
Mechanical Officials, which Code and appendices are hereby
r~ferred to, adopted and made a part hereof as if fully set forth
herein, except that the first paragraph of section 20.3 is
deleted.
Article III. Development Standards.
Sec. 13-5.
Construction in Flood Hazard Zones.
Refer to Chapter 13A of the Tiburon Town Code for
regulations concerning construction in flood hazard zones,
Sec. 13-6.
Hours of Construction.
A. Generally, all work covered by a permit issued under this
Chapter shall be performed only between the hours of
7:00 a.m, to 5:00 p,m., Monday through Friday, and 9:30 a.m.
to 4:00 p.m. on Saturday. Work shall not be performed on
Sunday or on holidays recognized by the Town of Tiburon.
These holidays are New Year's Day, President's Day, Memorial
Day, Independence Day, Labor Day, Thanksgiving Day, and
Christmas Day.
B. The arrival or departure of heavy equipment (such as graders
and backhoes) and the delivery of heavy construction
material (such as lumber and concrete) to a work site shall
occur only between the hours stated in section 13-6A. Hours
of operation, maintenance, and servicing of heavy equipment
shall be limited to 8:00 a.m. to 5:00 p.m" Monday through
Friday, If already located on-site, heavy equipment may
begin "warming up" at 7:30 a.m,
Town ojTiburoJl
Ordinance No.
NS
l'jJeClive /_/99
9
C, Exceptions. The following exceptions shall apply:
1. The limitations in section 13-6A shall not apply when
work covered by a permit issued under this Chapter does
not result in unreasonable noise or other impacts on
surrounding properties. Unreasonable noise produced
outside of the days and hours stated in section 13-6A
may be considered a disturbance of the peace subject to
police enforcement.
2, The limitations in sections 13-6A and 13-6B shall not
apply in the following instances:
a. When prior to the commencement of any work covered
by a permit issued under this Chapter, the Town
Manager grants written permission to perform work
outside of the prescribed hours.
b, When work is necessary in an emergency situation
to remedy or prevent damage to persons or
property.
Sec. 13-7,
site Development Requirements.
In order to assure that structures will be accessible, and
that grading and draining will not imperil any structures,
adjoining properties or public roads, site development shall
conform to the following requirements:
A, Slope stabilization, Whenever, in the judgment of the
Building Official, construction operations will result in slopes
so steep that their stability may be in question, he may require
retaining walls or other slope stabilization measures. These
shall be made adequate to the satisfaction of the Building
Official. Design by a registered professional engineer may be
required.
B. Drainage. The collection, diversion, interception and
disposition of surface and subsurface waters shall be
provided for in a manner which, in the judgment of the
Building Official, will prevent any hazard to
structures, slopes, and adjoining properties,
C. Driveways, No portion of a driveway shall have a
slope, measured along the center line, steeper than
twenty-five (25) percent, measured in ratio of rise to
run, except with special approval by the Building
Official, The vertical alignment of a driveway shall
TOWII oj Tihuron
Ordinance ..Vo.
NS
Effective J~99
10
-
be such as to provide adequate stopping sight distance
for vehicles using the driveway, and for on-coming
vehicles at intersections. Driveways shall be paved
with six inches of concrete, or two inches of asphaltic
concrete over six inches of rock base, or of other
equivalent and permanent material approved by the
Building Official.
Sec. 13-8.
Improvements Required.
A. No structure shall be erected or enlarged, and no building
permit shall be issued for any lot fronting on an unimproved
street unless the one-half of such street adjacent to the
lot frontage and curb and gutter are improved to the
standards determined by the Town Engineer. Any applicant
for a building permit affected by this section shall be
notified by the Town of all requirements prior to issuance
of a building permit,
B. Any improvements required by this section shall be completed
to the satisfaction of the Town Engineer prior to the final
inspection for the building permit.
Article IV. Enforcement and Penalties.
Sec. 13-9.
Enforcement by stop Work Orders.
Whenever any work regulated by this Chapter is being done
contrary to the provisions of this Chapter or contrary to any
other part of this Code or rules and regulations of other public
agencies that are applicable to the work being done, the Building
Official or his designee may order the work stopped by notice in
writing served on any persons engaged in doing or causing such
work to be done, and such persons shall forthwith stop such work
until authorized by the Building Official or his designee to
proceed with the work, An order to stop work due to a violation
of ordinances or rules and regulations of other public agencies
shall be issued only upon written request from the official of
such agency charged with the enforcement of such ordinances or
rules and regulations.
Sec. 13-10.
violations and Penalties.
A, Any person, firm, or corporation violating any of the
provisions of this Chapter shall be deemed guilty of an
infraction, provided that upon violation of any provision of
this Chapter more than three times during any 12-month
,
Town ofTiburon
Ordinance No.
NS.
Ejfeclive .I ~99
11
period, such person, firm, or corporation shall be deemed
guilty of a misdemeanor,
B. Each person, firm, or corporation shall be deemed guilty of
a separate offense for each and every day or portion thereof
during which any violation of any of the provisions of this
Chapter is committed, continued, or permitted.
C. Upon conviction of any violation of this Chapter, each
person, firm, or corporation shall be subject to a fine
and/or imprisonment in the county jail not to exceed the
limits established in Government Code sections 36900 and
36901.
D, In addition to all other remedies available under this Code
or state law, any violation of this Chapter shall be subject
to abatement as a public nuisance. All costs relating to
enforcement of this Chapter shall be borne by and
recoverable from the person in violation thereof
Spr.t";nn 1.
Finning~ of Fnr.r.. in Sllpport" of Ampnnmpnrs "to
TTnifnrm ~nrlps
To the extent that any of the provisions of this ordinance
constitute changes or modifications in the requirements contained
on Health and Safety Code section 17922, the Town Council of the
Town of Tiburon does hereby find that such changes or
modifications are reasonable necessary because of local
conditions prevailing within the Town of Tiburon. A description
of said local conditions is hereinafter set forth. The
peninsular nature of the Town of Tiburon, along with its inherent
geographical features, presents unique problems to the Town of
Tiburon, whose primary concern in adoption of building-related
codes is promotion of the public health, safety, and welfare
within the community,
The Tiburon peninsula extends in a generally southeastern
direction from the northern shore of the San Francisco Bay. It is
approximately one to one and one-half mile in width and
approximately four miles long, surrounded by salt water on three
sides,
The Town of Tiburon encompasses an area of roughly four
square miles with resident population of approximately 8,900. Due
to the significant visitor population to the Town of Tiburon and
to local state and county parks, the actual population can be
considerably higher depending on the time of year.
The placement of the residential and commercial development
Town oJTihurofJ
Ordinance No.
NS
Effective c' _/99
12
within the Town has generally adapted itself to areas of least
resistance within the confines of steep ridges, downs lopes and
wooded hillsides, The other unique environmental characteristic
of the Town is the shoreline of San Francisco Bay, which creates
the boundary of attraction to the visitor population.
with the given profile of the Town of Tiburon, the Town has
established certain requirements which were developed to reduce
the level of exposure to the citizens and guests of the Town, as
well as the property (investments) within the jurisdiction. The
following points were established as factors which cause concern
regarding building-related regulations in the Town and are herein
established and submitted as the Findings of Fact.
CLIMATIC: The weather patterns within the Town of Tiburon
area are considered to be moderately affected by the Pacific
Ocean and the San Francisco Bay which extend the year round
growing season of vegetation. The normal year's rainfall is
approximately 28 inches, while the summer condition, with its
prevalent Pacific High Cell creates the morning and late
afternoon fog normally associated with San Francisco Bay.
While normal temperatures usually do not exceed 75-80
degrees during the summer months, little or no rain falls during
the period between April and November. This combination often
creates hazardous fuel conditions in the area. Drying winds in
the summer and fall months reduce fuel moisture and relative
humidity to the minimum levels, thereby creating ideal fire
weather conditions. The normal afternoon wind that precedes the
fog can move a fire quickly in the hillside and open space areas
of the Town,
Because of climatic conditions, the County of Marin has
experienced water rationing in recent years, Water shortages can
be expected in future years due to limited storage capacities in
Marin, increased domestic consumption and weather patterns which
reduce the already minimal annual rainfall. While sound
management of the water resources is possible, actual demands on
an already stressed water supply can most assuredly be predicted.
GEOGRAPHIC: The Tiburon peninsula is geographically mixed
with three classifications of rock: igneous, metamorphic, and
sedimentary. The outstanding material is volcanic in origin with
a ridge of serpentine reaching in excess of 700 feet in
elevation. Much of the Town is characterized by steep terrain.
Seismic activity within the Town occurs yearly with little
or no damage, although a real potential does exist with the
peninsula situated between two active faults: San Andreas and
Town ofTiburon
Ordinance lv'o.
N. S
Effective .I ~99
13
Hayward faults.
Landslides have also been experienced on the Tiburon
peninsula in recent years, While stabilization of hillsides can
sometimes be achieved, heavy rainfalls have caused failures.
These slides have closed roadways, making accessibility to many
locations in the Town impossible until properly cleared.
TOPOGRAPHIC: The Town is accessible from the outside by only
two primary thoroughfares and only one of those permits speed in
excess of 25 miles per hour by virtue of the narrow and twisting
configuration of Paradise Drive. This feature limits mutual aid
companies responding from neighboring communities for a large
scale emergency to approach by only one realistic route, and from
only one side of the Town, as opposed to a non-peninsular area
which would be approachable from many directions and roadways,
steep, hilly terrain and many secondary ridgelines affect
vehicular access within the Town. Many streets are narrow and
winding, restricting the speed at which emergency vehicles may
safely respond and also increasing response times. Of the
approximately 189 streets in the Town, 143 are dead-end streets,
restricting the ease of emergency vehicles moving from one
location to another, even though actual separating distance
between the two places may be minimal, In addition to restricting
access routes for emergency vehicles, the dead-end streets also
limit egress opportunities for residents.
The natural rocky shoreline of San Francisco Bay creates a
situation (particularly along Main street and Paradise Drive) by
which access to buildings can only be made via one street. The
fronts of the buildings are essentially the only accessibility
point for responding. Buildings constructed along the waterfront
and some actually on piers over the Bay, create a situation where
the presence of bay waters limits escape opportunities from both
residential and commercial occupancies alike, Many of the
nonconforming existing structures on Main street are built
property line to property line with no provisions for required
fire separations between the buildings, Approximately 3,900
dwelling units and commercial buildings have been erected within
the Town over the past century with additional new construction
occurring each year.
The location of the Town at one of the ends of the Marin
Municipal Water District's gravity system, the lack of cross
connected, gridded water mains (due to Tiburon's existing street
configurations), and generalized water shortage in Marin County
results in occasional inadequate water volume and pressure for
fire fighting purposes in certain areas of the peninsula.
Town ofTihllron
Ordinance A'o.
NS
Effective .I ~99
14
-
VEGETATION: Tiburon's semiarid Mediterranean-type climate
produces vegetation similar to that of most of Marin County, with
specific growth locale a result of topography and prevailing
wind. The western ridge exposure is primarily rye grasses with
occasional clumps of bay and oak trees in the more sheltered
pockets, The eastern slopes are heavily wooded from shore to
ridge with oak and bay trees and minor shrubs of the general
chaparral class.
Expansion of the residential community into areas of heavier
vegetation has resulted in homes now existing in close proximity
to dense natural foliage. Often such dwellings are completely
surrounded by highly combustible vegetation compounding the fire
problem from a conflagration point of view,
Approximately half of all the structures in the Town have
costly shingle or shake roofs. This very flammable material is
highly susceptible to ignition by embers from a wildland fire,
furthering the spread of fire to adjacent buildings.
As a result of the Findings of Fact which have identified
the various Climatic, Geographical and Topographical elements,
the requirements established by the Town of Tiburon within this
Ordinance are considered REASONABLE AND NECESSARY MODIFICATIONS
to the requirements established pursuant to Health and Safety
Code section 17922 based on local conditions,
While it is clearly understood that the adoption of such
regulations may not prevent the incidence of loss or damage, it
is further noted that with the implementation of these various
regulations and/or requirements, the severity and potential for
loss of life and loss of property within the Town may be reduced.
Spr.t:ion 4
.Severi'lbi 1 ity.
Should any part or provision of this Ordinance be declared
by a court of competent jurisdiction to be invalid or
unconstitutional, such decision shall not affect the validity of
this Ordinance as a whole, or any part thereof except that part
or provision so declared invalid or unconstitutional.
Spr.t:.inn ~.
Effective Di'lte,
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, or its legally required equivalent, shall be published
with the names of the members voting for and against it, at least
Town ofTihllron
Ordinance No.
N.S
Effective.! _/99
15
-
once in a newspaper of general circulation published in the Town
of Tiburon.
This ordinance was introduced at a regular meeting of the
Town Council of the Town of Tiburon on , 1999, and was
adopted at a regular meeting of the Town Council of the Town of
Tiburon on , 1999, which was noticed pursuant to
Government Code section 50022.3, by the following vote:
AYES:
NOES:
ABSENT:
COUNCILMEMBERS:
COUNCILMEMBERS:
COUNCILMEMBERS:
MOGENS BACH, MAYOR
TOWN OF TIBURON
ATTEST:
DIANE L. CRANE, TOWN CLERK
/municode/chap1399.rev,doc
TOWIl of Tibl/ron
Ordinance /'10.
NS
Eileel/ve .I..!99
16
TOWN OF TIBURON
STAFF REPORT
ITEM NO, / Lj
To:
From:
Subject:
Date:
TOWN COUNCIL
TOWN CLERK
NOVEMBER 2, 1999 MUNCIPAL ELECTION
June 16, 1999
BACKGROUND
The terms of two Councilmembers, Terry Hennessy and Andrew Thompson, will expire in
November of 1999, Council has on its agenda this evening a resolution calling for an election on
November 2 for the purpose of electing two Councilmembers, and for consolidating with the
County for provision of election services,
Interested residents can take out nomination papers beginning July 12, 1999, The deadline
for receipt of these papers in the office of the Town Clerk is August 6,1999, However, if one of
the incumbents does not file, that deadline is extended to 5:00 p,m, on Wednesday, August II,
1999, Currently, Councilmember Hennessy has stated that she will not seek re-election,
If not enough candidates apply to fill the two expiring terms, or if only two interested
candidates apply, Council has the option of canceling the election and making appointments to the
office, and/or going forward with the election, The cost of holding an election is roughly $1.00 -
$1,50 per registered voter, or between $5,500 - $8,250 for the Town ofTiburon, The
cancellation of the election and subsequent appointments can be made no later than Thursday,
August 19,1999,
ACTION REOUIRED
That Council adopt the attached Resolutions:
A) Ordering and Calling an Election for the purpose of electing Two Councilmembers
B) Consolidating the Election & Requesting Services of the County Clerk
C) Reaffirming Council Policy regarding Cost of Printing Candidate's Statement
D,L. Crane, Town Clerk
GENERAL LAW CITIES
GENERAL OR SPECIAL MUNICIPAL ELECTION
CONSOLIDATED
TUESDAV, NOVEMBER 2, 1999
COUNCIL TO ADOPT RESOLUTIONS
SUGGESTED LAST DAY TO FILE PETIT10NS REGARDING MEASURE
PUBLISH NOTICE OF ELECTION
LAST DAY TO ADOPT REGULATIONS FOR CANDIDATES STATEMENTS
FILING PERIOD FOR NOMINATION PAPERS
SUGGESTED LAST DAY TO CALL ELECTION FOR BALLOT MEASURES
LAST DAY TO FILE CAMPAIGN ExPENDITURE STATEMENT - MEASURES
PUBLISH NOTICE OF ELECTION - MEASURE, No CANDIDATES
POST NOTICE OF DEADLINE FOR FILING ARGUMENTS
SUGGESTED LAST DAY TO FILE ARGUMENTS
LAST DAY TO REQUEST CONSOLIDATION
LAST DAY TO CALL ELECTION FOR BALLOT MEASURES
SUGGESTED LAST DAY TO FILE REBUTTAL ARGUMENTS
LAST DAY TO FILE NOMINATION PAPERS
LAST DAY TO FILE NOMINATION PAPERS - EXTENSION
SECRETARY OF STATE TO DETERMINE ORDER OF NAMES ON BALLOT
LAST DAY TO FILE NAMES AND OCCUPATIONS OF CANDIDATES
CANCEL ELECTION -INSUFFICIENT CANDIDATES
ILING ERIOD FOR WRITE-IN CANDIOATE
LAST DAY TO FILE CAMPAIGN EXPENDITURE STATEMENTS
LAST DAY TO REGISTER TO VOTE
LAST DAY TO ApPOINT ELECTION OFFICERS & POLLING PLACES
VOTERS MAY REQUEST ABSENTEE BALLOTS
LAST DAY TO MAIL SAMPLE BALLOTS AND POLLING PLACE NOTICES
LAST DAY TO FILE CAMPAIGN EXPENDITURE STATEMENTS
LAST DAY FOR CLERK TO PUBLISH NOTICE OF NOMINEES
EMERGENCY ABSENT VOTING PERIOD
LAST DAY FOR COUNCIL TO ADOPT PROCEDURES TO RESOLVE TIE VOTE
ELECTION DAY
COUNTY TO CANVASS ELECTION RETURNS
COUNCIL TO DECLARE RESULTS
LAST DAY TO FILE STATEMENT OF ECONOMIC INTERESTS
LAST DAY TO FILE CAMPAIGN EXPENDITURE STATEMENTS
LAST DAY TO SUBMIT REPORT ON MEASURES TO SECRETARY OF STATE
June 28, 1999
May 26
June 28 - July 12
July 5
July 12 - August 6 5 PM
July 16
July 16
July 27
August 6
August 6
August 6
August 6
August 11 5 PM
August 12
August 13
*' August 19
ep em er
September 23
October 4
October 4
October 4 - October 26
October 12
October 21
October 26
October 27 - November 2
November 1
November 2
November 4 - November 30
January 31. 2000
April 1 , 2001
:!.. ~ 2--!fu:-t..Rd...
-
(E-127)
(E-160)
(E-127to 113)
(E-120)
(E - 113 to 88)
(E-109)
(E-109)
(E-98)
(E-88)
(E-88)
(E-88)
(E-88)
(E-83)
(E-82)
(E-81)
(E-75)
(E-57to 14)
(E-40)
(E-29)
(E-29)
(E-29t07)
(E-21)
(E-12)
(E-7)
(E-6toE)
(E-1)
(E + 2 to 28)
MAR'TlN & CH""MAN Co. -:> 1951 WRIGHT CIRCLE -:> ANAHEIM. CA 92806-6028 .:. 714/939-9866 -:> FAX 714/939-9870
(R10411'l00'''''' E:ICALaIDAR.MPIll1'.:HI.CAL)
-
CITY CLERKS CERTIFICATION THAT THERE ARE NOT MORE CANDIDATES
THAN OFFICES TO BE ELECTED
I, ~ City Clerk of the City of _, do hereby certify that pursuant to 9 10229, Elections Code of
the State of Califomia, to the following facts relating to the [General] [Special] [Primary] Municipal Election to be held
on Tuesday. _' 19_:
As of the close of the nomination period on
to be elected,
,19_, there are not more candidates than offices
The person(s) so nominated are:
Council:
That 9 10229 of the Elections Code allows one of the following courses of action to be taken by the City
~
1, Appoint to the office the person who has been nominated,
2, Appoint to the office any eligible voter if no one has been nominated,
3, Hold the election if either no one or only one person has been nominated,
'--
-
A notice of these facts will be published on in a newspaper of general circulation in the city
pursuant to 9 6061 of the Government Code, After the fifth day following the date of publication. the City Council
will meet again to either make the appointment(s) or direct an election to be held. The person(s) appointed. if any,
shall qualify and take office and serve exactly as if elect)d at a municipal election for the office,
(,f-~fI/1f /1, 11f1)
If, by the 75th day before the municipal electio;;r no person has been appointed to the office(s) pursuant
to (1) or (2) above. the election shall be held,
If the City Council makes an appointment pursuant to 9 10229, Elections Code, the City Clerk shall not
accept for filing any statement of write-in candidacy which is submitted after the appointment is made.
City Clerk
As of the close of the nomination period
(Consolidated Cities: notify the county election department)
(Charter Cities: check with your city attorney)
9910229, E,C.
(Rl0/94)
Certificate of Insufficient Nominees
Form 20
Martin & Chapman Co. * 1951 Wright Circle * Anaheim, CA 92806--6028 * 714/939-9866 * Fax 7141939-9870
(10112/98 \ E:\UANUAlS'I-lANOBOOK\19l1Wl.ESO.99}
R-20
RESOLUTION NO.
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON
ORDERING AND CALLING A MUNICIPAL ELECTION
IN THE TOWN OF TIBURON
ON NOVEMBER 2, 1999 FOR THE PURPOSE OF
ELECTING TWO COUNCILMEMBERS
BE IT RESOLVED by the Town Council of the Town ofTiburon, that it is
hereby ordered as follows:
Section 1. Date of Election - Offices to be Filled,
A general municipal election is hereby called and ordered to be held in the
Town of Tiburon, State of California, on Tuesday, November 2, 1999, for the
purpose of electing two Town Councilmembers, the terms of the incumbents of which
are about to expire,
Section 2, Registration to Close October 4, 1999,
Registration for said election shall close on October 4, 1999; no persons
registered after that date will be entitled to vote at said election,
Section 3, Procuring and Filing Nomination Papers,
Nomination papers may be procured from the Town Clerk and shall be filed
with the Town Clerk no later than 5:00 P,M, of the eighty-eighth day before the
election, Nomination papers may not be circulated prior to July 12, 1999 and must
be filed no later than 5:00 P,M, on August 6, 1999, I~~ 1ncumbents do not file for
re-election to office by August 6, 1999, 5:00 P,M" the filing period for such office is
extended until August 11, 1999,5:00 P,M" for non-incumbent candidates only,
Section 4, Time When Polls Are Kept Open,
At said election the polls shall be opened at 7: 00 A.M, of the day of said
election, and shall be kept open until 8:00 P,M, in the evening of the same day, when
the polls shall be closed, subject to the provisions of Section 10242 of the Elections
Code,
Resolution No, - Calling November 2, 1999 Election
1
Section 5, Certification of Vote by Council.
The Council shall meet at its usual meeting place on the first available date
following the canvass of the vote by the County Registrar of Voters to certifY the
election and install the newly elected officers,
Section 6, Publishing Notice of Election,
The Town Clerk shall cause to be published in a newspaper of general
circulation a Notice of Election which will include the date of election, hours the polls
open and close and the offices to be filled,
PASSED AND ADOPTED at a regular meeting of the Town Council of the
Town of Tiburon on June 16, 1999, by the following vote:
AYES:
NOES:
ABSENT:
COUNCILMEMBERS:
COUNCILMEMBERS:
COUNCILMEMBERS:
MOGENS BACH, MAYOR
TOWN OF TffiURON
ATTEST:
DIANE L. CRANE, TOWN CLERK
Resolution No, - Calling November 2, 1999 Election
2
RESOLUTION NO.
A RESOLUTION OF THE TOWN COUNCn..
OF THE TOWN OF TIBURON'REQUESTING
THE MARIN COUNTY BOARD OF SUPERVISORS
TO CONSOLIDATE THE ELECTION AND AUTHORIZE THE
COUNTY CLERK TO RENDER SERVICES REGARDING THE
MUNICIPAL ELECTION TO BE HELD ON NOVEMBER 2. 1999
WHEREAS, the Town Council of the Town of Tiburon has ordered an
election for November 2, 1999; and
WHEREAS, pursuant to Section 10403 of the California Elections Code, the
Town Council of the Town of Tiburon may request the Board of Supervisors of the
County of Marin to consolidate the General Municipal Election with any other
election conducted on the same date; and
WHEREAS, pursuant to Section 10002 of the California Elections Code, the
Town Council of the Town of Tiburon may request the Board of Supervisors to
permit the County Clerk to render specified services to said Body relating to the
conduct of the election on a reimbursable basis,
NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town
of Tiburon as follows:
1, That the Board of Supervisors of the County of Marin is hereby
requested to consolidate the election and authorize the County Clerk
to render the following specified services for said Body relating to the
conduct of the election to be held on November 2, 1999:
Voter Indexes
Voter Count by Precinct
Verification of Signatures
Drayage and Rental of Polling Places
Printing of Measures and Arguments
Printing of Sample and Official Ballots
Appointment and Notification of Election Officers
Mailing of Sample Ballots and Polling Place Notification
Precinct Supplies
Training of Precinct Workers
Processing of Absentee Ballots
Central Counting
Canvass of Votes Cast
Resolution No. - Consolidate November 2, 1999 Election
2, That the Clerk of said Body be and hereby is ordered and directed to
file a copy of this resolution with the Board of Supervisors of the
County of Marin,
PASSED AND ADOPTED at a regular meeting of the Town Council of the
Town of Tiburon on June 16, 1999, by the following vote:
AYES:
NOES:
ABSENT:
COUNCILMEMBERS:
COUNCILMEMBERS:
COUNCILMEMBERS:
MOGENS BACH, MAYOR
TOWN OF TffiURON
ATTEST:
DIANE L. CRANE, TOWN CLERK
Resolution No, - Consolidate November 2. 1999 Election
2
RESOLUTION NO.
A RESOLUTION OF THE TOWN COUNCll.. OF
THE TOWN OF TIBURON PROVIDING THAT THE COST
OF PRINTING AND HANDLING
THE CANDIDATE'S STATEMENT SHALL BE BORNE
BY THE CANDIDATE AND PAID FOR
AT THE TIME NOMINATION PAPERS ARE FILED
WHEREAS, Section 13307 of the California Election Code provides
that candidates for nonpartisan etective office in any local agency, including
any city, county, or district, may prepare a candidate's statement of
qualifications, which statement may include the name, age and occupation of
the candidate and a brief description of no more than 200 words of the
candidate's education and qualifications; and
WHEREAS, the amount for printing 200 words has been estimated by
the County of Marin to be $155 for each candidate's statement of
qualifications for the Town ofTiburon;
NOW, THEREFORE, BE IT RESOLVED, that in the event a
,candidate wishes to avail himself/herself of the right to prepare a candidate's
statement of qualifications, that the cost of printing will be borne by the
candidate and not by the Town of Tiburon;
BE IT FURTHER RESOLVED, that the estimated cost of$155 for
printing candidate's statements of qualifications shall be paid for in advance
by the candidate at the time Nomination Papers are filed with the Town
Clerk.
PASSED AND ADOPTED at a regular meeting of the Town Council
of the Town of Tiburon on June 16, 1999, by the following vote:
AYES:
NOES:
ABSENT:
COUNCll..MEMBERS:
COUNCll..MEMBERS:
COUNCll..MEMBERS:
MOGENSBACH,MAYOR
A TIEST:
DIANE L. CRANE, TOWN CLERK
1
-
TOWN OF TIBURON
STAFF REpORT
ITEM NO,
MEETING DATE: JUNE 8, 1999
15
To:
From:
Subject:
Date:
TOWN COUNCIL
SCOTT ANDERSON, PLANNING DIRECTOR K
BAY TRAIL PLAN----REQUEST BY ABAG FOR TOWN ENDORSEMENT
JUNE 3, 1999
BACKGROUND
At its meeting of June 2, 1999, the Town Council received a request by the Association of Bay
Area Governments (ABAG) to formally endorse the San Francisco Bay Trail Plan (see attached
Exhibit 1), The Town Council scheduled the item for discussion and possible action at its
meeting ofJune 16, 1999. The Council requested a recommendation from the Parks & Open
Space Commission on the matter.
The Parks & Open Space Commission discussed the matter at its meeting of June 8, 1999 and
voted 6-0 to recommend that the Town Council formally endorse the San Francisco Bay Trail as
requested by ABAG.
DISCUSSION
The Bay Trail Plan was adopted by ABAG in 1989 and has been endorsed by most Bay Area local
governments.
When the Bay Trail Plan was first put forth in 1989. the Town of Tiburon was updating its
General Plan and was extremely sensitive to any regional plan that would invite increased
congestion, safety hazards. or local inconvenience, At that time. the Town Council adopted a
very non-committal and cautious program regarding the Bay Trail, as follows:
OSC-i. The Town shall work cooperatively with ABAG and neighboring jurisdictions to
study the feasibility and acceptability of a Bay Trail.
In the intervening 10 years, the Bay Trail has flourished to the point where over 210 of the 400
miles of trail has been developed, Bay Trail maps (see Exhibits 3 and 4) are in wide circulation
and known to all Bay Area cycling and hiking groups
Tiburon Town Council
Staff Report
6/16/99
1
On the Bay Trail Map, the Tiburon Peninsula figures prominently, The spine (main) trail follows
the outline of the Strawberry Peninsula and connects with Tiburon Boulevard at E, Strawberry
Drive, It then proceeds along the Richardson Bay Multi-Use Path to Downtown Tiburon, then
backtracks to Trestle Glen Boulevard. to Paradise Drive, and then into Corte Madera and points
north, From Downtown Tiburon, spur (secondary) trails connect to Angel Island via the Angel
Island Ferry or loop around the Tiburon Peninsula to Corte Madera via Paradise Drive, The Bay
Trail Plan does not include any ridge trails or local access walking trails in Tiburon; only the
Richardson Bay Lineal Park Multi-Use Path and public streets are included,
RECOMMENDA nON
Adopt the Resolution (Exhibit 2) endorsing the San Francisco Bay Trail Plan,
EXHIBITS
1. Letter from Bay Trail (ABAG) dated May 21, 1999.
2. Draft Resolution,
3. Reduction of San Francisco Bay Trail Map dated 1986,
4, Reduction of Golden Gate North Bay Trail Map #9 dated 1994.
\scott\bay trail report,doc
Tiburon Town Council
Staff Report
6/16/99
2
May 21.1999
RECEIVED
MAY 2 6 1999
TOWN MANAGEilS OFFICE
TOWN OF TiBURON
Mogens Bach. Mayor
T own of Tiburon
1505 Tiburon Boulevard (Town Hall)
Tiburon. CA 94920-2530
Subject: Request for resolution of the Tiburon City Council in support of the Bay Trail Plan
Dear :Via yor Bach:
This July marks the tenth anniversary of the adoption of the San Francisco Bay Trail Plan by the
Association of Bay Area Governments (ABAG), I am writing today to request that you seek a
resolution of the Tiburon City Council in support of the Bay T rail Plan in order to help us mark this
milestone,
Senate BilllCO-authored by then-State Senator Bill Lockyer and passed into law in 198/ -directed
ABAG to develop a plan for a biking and hiking route tha, would circle San Francisco and San Pablo
bavs, 5B lCC required that the plan identify an alignment for the route; provide connections to
existing parks, open space and other recreation facilities; create links to existing and proposed
transportltlon facilities; and avoid adverse effects on environmentally sensitive areas. The Bay Trail
Plan was developed over a two-year process by an advisory committee to ABAG that included
representJtives from Federal, State, regionJ.l and locIl government agencies, private landowners and
large business interests, and environmental and recreational organizations. The plan was adopted by
ABAG in 1989,
According to the plan. the Bay T rail-when complete-will be a continuous ,!CO-mile hiking and
biking corridor that will link all nine Bay Area counties. pass through 47 cities (including Tiburon).
and cross the major toll bridges in the region, To date, just over half the ultimate length of the Bay
T rail has been developed, Many popular segments already exist, providing multiple benefits to
residents dnd visitors. The Bay Trail provides inexpensive recre::nion, exercise and sightseeing
opportunities; offers a transpon:ation alternative; serv.es JS J setting for environmental educnion Jnd
wildlife viewing; and lncreases access to the outdoors, the Bay, recreation facilities, points of historic
and cultural interest. and a broad range of neighborhoods,
AC:r."..;t"".,.~ ~', '-., ,;,' ,_'1 3.~,- \r;o,-. -.,'.~..r'"
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EXHIBIT NO,
p-l o.f -5
I
:~' .,..[~n ,;l 3c:r' '.1_";;\: ..,r'-" .' '::: ~".. c"","," " 1" ',~'
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Mayor .'fagens Bach
May 21,1999/ p. 2
The BdY Trail has enjoyed widespread support since its inception, For example, SB 100 was
cosponsored by the entire Bay area legislative delegation, and a majority of the jurisdictions along the
Bay Trail alignment adopted resolutions endorsing the Bay Trail Plan prior to its adoption by ABAG.
Now, to celebrate the plan's tenth anniversary, we would like to obtain resolutions from those cities
and counties that are not yet on record as officially supporting the Bay Trail Plan, A review of our
file indicates that the City of Tiburon is among those jurisdictions, (It is possible, given their age, that
our records are incomplete; if the Tiburon City Council has already passed a resolution endorsing the
Bay Trail Plan, then please simply send us a copy of that document,)
To assist you in preparing a resolution, I am enclosing a fact sheet with additional information about
the BdY Trail. the executive summary from the Bay Trail Plan. regional and county-level maps of the
BdY Trail alignment, and a sample resolution of support, Please have someone from your staff contact
Niko Letunic. regional planner for the Bay Trail Project, at (510) 464-7915 to discuss this request, If
Mr, Letunic does not hear from your office by mid-June, he will instead contact your staff,
I hope you will agree that the Bay Trail is a uniquely valuable regional resource that deserves your
support and that of the Tiburon City Council.
~~ ~Ar
Marv Kin~
. 0
ABAG President and Alameda County Supervisor
Enclosures
~IBIT NO, (
p.1J, S
-
A FEW FACTS ABOUT
THE SAN FRANCISCO SAY TRAIL
. When complete, the Bay Trail will be a continuous 400-mile recreational corridor that will encircle the
entire Bay Area, connecting communities to each other and to the Bay. It will link the shorelines of all
nine counties in the Bay Area and 47 of its cities, To date, 210 miles of the Bay Trail, or slightly more
than half its ultimate length, has been developed,
. The Bay Trail provides easily accessible recreational opportunities for outdoor enthusiasts, including
hikers, joggers, bicyclists and skaters, It also offers a setting for wildlife viewing and environmental
education, and it increases public respect and appreciation for the Bay,
. The Bay Trail also has important transportation benefits: it provides a commute alternative for cyclists,
and it connects to numerous public transportation facilities, including ferry terminals, light.rail lines,
bus stops and Caltrain, Amtrak, and BART stations, Also, the Bay Trail will eventually cross all the
major toll bridges in the Bay Area.
. The Bay Trail provides access to commercial, industrial and residential neighborhoods; points of
historic, natural and cultural interest; recreational areas like beaches, marinas and fishing piers; and
over 130 parks totaling 57,000 acres of open space, It passes through highly urbanized areas like
downtown San Francisco as well as remote natural areas like the San Francisco Bay National Wildlife
Refuge. Depending on the location of its segments, the Bay Trail consists of paved multi-use paths,
dirt trails, bike lanes, sidewalks or signed bike routes.
. State Senate Bill 100, authored by Senator Bill Lockyer and passed into law in 1987 with the
endorsement of the entire Bay Area legislative delegation, advanced the concept of a "Ring around the
Bay,. SB 100 directed the Association of Bay Area Governments (ABAGI to develop an alignment for
the Bay Trail as well as funding and implementation plans,
. Implementation of the Bay Trail is being coordinated by the San Francisco Bay Trail Project, a nonprofit
organization housed at ABAG, To carry out its mission, the Bay Trail Project provides technical
assistance to cities, counties and other jurisdictions, promotes consistency with the adopted Bay Trail
Plan, and publicizes the existence and value of the Bay Trail,
To learn more abollt the Bay Trail. contact Niko Letunic of the Bay Trail Project at 510/464.7915 or at
NikoL@abagca,gov. or visit http;//baytrail.abag,ca,gov(iHay 1999).
Aom,n,stereO:ly:neAssoc,atlono13ayMea::>o',ernmp-ntS
PO 80' 2050 ,Ca!<.'anO CJ.111orn'a 946C~-2C5U
Josecn P 80rt I.ll!trcC<o!n:e' . I Q' =:qntn 3treet . OaKI':H'r:: :J."~':::'~1.] :J.jfiC ~ J ;56
P"one 5':>..6';"~,}J5
""lA 5,->.;..;...~j7'J
EXHIBIT NO,
p,3o.fS
A FEW FACTS ABOUT
THE SAN FRANCISCO SAY TRAIL
............._.... . ............................. .._..........._...___..___......____..............._ ......___....._.__......_...._._m..........__....__.__...._.......__
. When complete, the Bay Trail will be a continuous 400-mile recreational corridor that will encircle the
entire Bay Area, connecting communities to each other and to the Bay. It will link the shorelines of all
nine counties in the Bay Area and 47 of its cities, To date, 210 miles of the Bay Trail, or slightly more
than half its ultimate length, has been developed,
. The Bay Trail provides easily accessible recreational opportunities for outdoor enthusiasts, including
hikers, joggers, bicyclists and skaters. It also offers a setting for wildlife viewing and environmental
education, and it increases public respect and appreciation for the Bay,
. The Bay Trail also has important transportation benefits: it provides a commute alternative for cyclists.
and it connects to numerous public transportation facilities, including ferry terminals, light-rail lines,
bus stops and Caltrain, Amtrak, and BART stations, Also, the Bay Trail will eventually cross all the
major toll bridges in the Bay Area,
. The Bay Trail provides access to commercial, industrial and residential neighborhoods; points of
historic, natural and cultural interest; recreational areas like beaches, marinas and fishing piers; and
over 130 parks totaling 57,000 acres of open space, It passes through highly urbanized areas like
downtown San Francisco as well as remote natural areas like the San Francisco Bay National Wildlife
Refuge. Depending on the location of its segments, the Bay Trail consists of paved multi-use paths,
dirt trails, bike lanes, sidewalks or signed bike routes,
. State Senate Bill 100, authored by Senator Bill Lockyer and passed into law in 1987 with the
endorsement of the entire Bay Area legislative delegation, advanced the concept of a "Ring around the
Bay,. SB 100 directed the Association of Bay Area Governments (ABAGI to develop an alignment for
the Bay Trail as well as funding and implementation plans.
. Implementation of the Bay Trail is being coordinated by the San Francisco Bay Trail Project. a nonprofit
organization housed at ABAG, To carry out its mission, the Bay Trail Project provides technical
assistance to cities, counties and other jurisdictions, promotes consistency with the adopted Bay Trail
Plan, and publicizes the existence and value of the Bay Trail.
To learn more abollt the Bay Trail, contact Niko [etunic of the Bay Trail Project at 510/464.7915 or at
NikoL@Xbag,ca,gov. or visit IJttp:/ /baytrail.abag,ca,gov (i~[ay 1999).
Aom:nISie'!!'!d by :"e .\S50(;I<1110n Jt 9<1y .\rea Go~e,nm<!nlS
i=l D 30.2050 ,Ca...la"d CJulermil 9<-l6G..-2S5J
~esec" P BOr! ~l!;!roCdnl!!'!'. to! :;:<:;1'1" Slre!!'!l' 0<1"1<11"'; ::dll!crnl--l ,}..fiG~ ..~S"
P"Qne 5 1 ::>..6... ~:;J5
::"1< S':-..fO.,;.7170
EXHIBIT NO,
p, 3 A~ S
Executive Summary
Overview of Issues
When completed, the Bay Trail will create connections between more than 90 parks and publicly-accessible
open space areas around San Francisco and San Pablo Bays. By providing access to a wide array of commercial
ferries and public boat launches, the trail will establish connections to "water trails" which will enable outdoor
enthusiasts to appreciate the Bay not only from the shoreline, but from the water as well.
Trail access across all seven of the Bay Area's toll bridges is proposed, defining a series of trail "loops" which
will provide a variety of excursions for hikers and bicyclists of varying abilities, To increase options for trail
access from homes and worksites, the proposed alignment provides connections to local and regional transit-
BART, Santa Oara County's light rail trolley system, and Caltrain-which can themselves become extensions of
the Bay Area's recreational network. Trail connections to existing and planned local bikeway systems will
encourage recreational as well as commute bicycling. as safer bicycle networks are established and expanded,
While the Trail will provide access to wetlands and other sensitive natural features along the Bay's shoreline,
Bay Trail policies were designed specifically to protect these areas, Existing bay fill (primarily in the form of
levees) provides shoreline trail access in many locations, and trail design policies require that trail design,
construction and use be appropriate to the surroundings,
Relationship to Other Plans and Policies
Bay Trail policies and design guidelines are intended to complement, rather than supplant the adopted
regulations and guidelines of local managing agencies, Implementation of the Bay Trail will rely on the
continued cooperation among shoreline property owners, the hundreds of local, regional, state and federal
agencies with jurisdiction over the trail alignment, the numerous trusts and foundations which operate in the
region, and the countless environmental and recreational interests whose members care deeply about the future
of the Bay Area,
This extraordinary regional cooperation has already begun with the work of the Bay Trail Advisory Committee,
which drafted the policies presented here, and the ABAG Regional Planning Committee and Executive Board,
which adopted the final plan,
The Bay Trail
Page v
EXHIBIT NO. (
f- SJ S-
RESOLUTION NO,
A RESOLUTION OF THE TOWN COUNCIL OF THE
TOWN OF TIBURON ENDORSING THE SAN FRANCISCO BAY TRAIL PLAN
WHEREAS, in 1989 the Association of Bay Area Governments (ABAG)
adopted a plan for a biking and hiking route that would circle San Francisco and
San Pablo bays, providing connections to existing parks, open space and other
recreation facilities and creating links to existing and proposed transportation
facilities while avoiding adverse effects on the environment of the bays; and
WHEREAS, the plan for this route, which became known as the Bay Trail,
was developed over a two-year process by an advisory committee to ABAG that
included representatives from a broad range of interests, including Federal, State,
regional and local government agencies, environmental and recreational
organizations, private landowners and business interests; and
WHEREAS, according to the plan, the Bay Trail when complete will be a
continuous 400-mile hiking and biking corridor that will ink all nine Bay Area
counties, pass through 47 cities, including the Town of Tiburon, and cross the major
toll bridges in the region; and
WHEREAS, to date, over half of the ultimate length of Bay Trail has been
developed, with many popular segments existing that provide inexpensive
recreation, exercise and sightseeing opportunities; offer a transportation
alternative; serve as a setting for environmental education and wildlife viewing; and
increase access to the outdoors, the Bay and numerous point of interest; and
WHEREAS, the Town ofTiburon acknowledges the feasibility and
workability of the Bay Trail as demonstrated by the completion of over half its
length in a short ten years, and has determined that the Bay Trail concept is
consistent with relevant policies of the Tiburon general Plan,
NOW, THEREFORE, BE IT RESOLVED that the Town Council of the
Town of Tiburon does hereby endorse the San Francisco Bay Trail Plan.
PASSED AND ADOPTED at a regular meeting of the Town Council of the
Town ofTiburon on ,1999, by the following vote:
V,YRIBIT NO. c::l
\(r L ~ 1
AYES:
NOES:
ABSENT:
ATTEST:
COUNCILMEMBERS:
COUNCILMEMBERS:
COUNCILMEMBERS:
MOGENS BACH, MAYOR
TOWN OF TIBURON
DIANE L. CRANE, TOWN CLERK
bay trail res.doc
EXHIBIT NO. c1
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MARIN COUNTY CIVIL GRAND JURY RECEIVED
JUN - 7 1999
TOWN MANAGERS OFFICE
TOWN OFTIBURON
p, 0, Box 4988
San Rafael, CA 94913-4988
Hall of Justice
Civic Center
June 4, 1999
Mayor, Town of Tiburon
1505 Tiburon Blvd,
Tiburon, CA 94920
Enclosed please find a copy of the Grand Jury's final report entitled "Emergency Response Training of
Marin Residents: Overcoming Apathy,"
The Grand Jury requests that you respond, in writing to the Presiding Judge, to Recommendation 1, on
Page 8, Please send a copy of your response to the Grand Jury Foreman, We do not require any response
to the Findings,
Also enclosed is a copy of the pertinent sections of the California Penal Code pertaining to deadlines
for responding to the Final Report. as well as the prescribed format for that response, In your case. the 60-
day deadline is applicable,
With regard to grand jury recommendations a respondent is required to indicate one of the following
four actions:
1, The recommendation has been implemented, with a summary of the implemented action; or
2, The recommendation has not been implemented. but will be implemented in the future. with a timeframe for
implementation: or
3, The recommendation requires further analysis, with an explanation of the analysis or study and a
timeframe not to exceed six months from publication of the grand jury final report; or
4, The recommendation will not be implemented, with an explanation thereof,
Penal Code Section 933,05(f) sDecifically Drohibits any disclosure of the contents of the reDort, by the
Dublic aaency or its officers or aovemina bodY, Drior to the Dublic release of the final reDort, Public release
does not occur until two days after transmittal of the reDort to resDondents,
Please send an electronic copy to the Grand Jury, using an IBM-compatible diskette, If you choose not
to submit an electronic copy of your response it may not be included on the Grand Jury's lntemet web site,
Thank you for your cooperation, Please contact me at 381-8753 if you have any questions,
Sincerely,
J~ (!, F~
Joseph C, Friedman
Foreman
RECOMMENDATIONS
1, Basic emergency survival training should be made available to all Marin residents,
The training should have the following characteristics:
. The focus is on basic survival skills for individuals and their families;
. Training should be brief, so that large numbers of citizens will be willing to
participate;
. The training material would have an identical framework across the County. but
would allow for variations to suit local needs;
. Training would be organized locally, in the neighborhoods;
. Residents who have received the more comprehensive ERT training could
conduct training,
This is not intended to displace the ERT training already available, nor is it intended
to displace the standardized County-wide ERT program being developed by DISCO,
It would be a much briefer version aimed at large numbers of residents. It should be
developed as a County-wide cooperative effort.
2. All Marin County Supervisors and Department Heads and their designated
successors or alternates should complete SEMS training by the end of 1999.
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May 21, 1999
RECEIVED
MAY 1 9 1999
TOWN MANAGERS OFF/C,
TOWN OF TlBURON
Tiburon Town Council
1505 Tiburon Blvd,
Tiburon, CA 94920
Dear Council Members:
I am writing to you regarding the pedestrian easement that joins Sky
Road and Via Los Altos, This is parcel F of the La Cresta unit #1 map,
I urge the town to accept this easement. Do you need a certain
number of signatures requesting your acceptance? Do you need a daily
count of people who currently use it? I believe that this is a part of the
"Ridge Trail System,"
Looking forward to your reply,
~~~
Nicki Evatz
16 Sky Road
Mill Valley, CA 94941
383-6172 home
380-2131 office
~#lf-
I
SFO - PUBLIC NOTICE
I
COMMUNITY MEETINGS
San Francisco International Airport
Runway Reconfiguration Program
San Francisco International Airport is proposing to reconfigure its current system of four
runways in order to achieve the following goals: I) reduce flight delays, 2) reduce noise
impacts and 3) accommodate the larger airplanes being planned by aircraft
manufacturers, The Airport is considering runway options that would be constructed on
Bay fill. Since the proposed Airport operations and runway reconfiguration will generate
concerns throughout the Bay Area Region, the Airport is planning meetings in five sites
around the Bay to facilitate public participation,
The Airport's Runway Reconfiguration Program is currently at the beginning of its
environmental review process, According to State and Federal laws that process requires,
at a minimun: I) public scoping meetings, 2) environmental studies to look at risks posed
by the project, 3) the preparation and distribution of a draft and final Environmental
Impact Statement (EIS) and State Environmental Impact Report (EIR), and 4) public
hearings on the Draft EIR and EIS, After the environmental review process the Airport
will have to prepare contract drawings and apply for various permits before proceeding
with any construction, The environmental review and permit process is scheduled to take
nearly two years,
The Federal Aviation Administration (FAA) is the "lead agency" for and will prepare the
Federal Environmental Impact Statement (EIS), The San Francisco City Planning
Department, Office of Environmental Review will be the lead agency for the City and
County of San Francisco and will prepare the State Environmental Impact Report (EIR,)
Given the magnitude of the proposed program, the San Francisco International Airport
(SFO) has committed itself to an extensive public information and public input process,
We anticipate members of the public from throughout the Bay Area may be interested in
this proposed program because of a variety of potential economic and environmental
impacts that could be experienced in our Region, We will be convening a series of
community meetings throughout the Bay Area Region,
(over)
The first series ofregional community meetings will take place beginning in late June of
1999, The schedule for the San Francisco International Airport community meetings is
as follows:
MEETING #1 MEETING #2 l
Tuesday, June 22, 1999 Thursday, June 24, 1999
7:00 -to- 9:00 PM 7:00 -to- 9:00 PM
Lucie Stem Commuity Center- Marin Civic Center - Room 330
Community Room 3501 Civic Center Drive I
1305 Middlefield Road San Rafael, 94903 I
Palo Alto, 94301
MEETING #3 MEETING #4 I
Monday. June 28, 1999 Tuesday, June 29,1999 ,
7:00 -to- 9:00 PM 7:00 -to- 9:00 PM I
Oakland City Hall- Hearing Room #2 San Francisco City Hall - Room 400 I
I Frank Ogawa Plaza I Dr. Carlton Goodlett Place
Oakland, 94612 San Francisco, 94102 ,-
MEETING # 5
Thursday. July 15, 1999
7:00 -to- 9:00 PM
San Mateo City Hall-Council Chambers
330 West 20th Avenue
San Mateo, 94403 - 1338 I
This series of five meetings will cover two subjects, The first subject will be a
presentation by the Airport of a current status report and schedule for the Runway
Reconfiguration Program, The Airport staff will also respond to questions, The second
subject will be community concerns about the runway reconfiguration and
recommendations from the publiG about what issues should be considered in the
environmental review process, The Airport is asking for public input on the scope of the
environmental studies that will be carried out prior to the Federal Aviation
Administration's (FAA) Public Scoping Meetings that will be held in August, Although
the public is also invited to the FAA scoping meeting, the Airport will keep a record of
the input from its community meetings as well as other meetings, and report that to the
FAA for their scoping process,