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HomeMy WebLinkAboutTC Min 1990-07-10 TOWN COUNCIL MINUTES CLOSED SESSION Mayor Logan called the closed session of the Town Council of the Town of Tiburon to order at 6:35 P.M. to discuss litigation and possible purchase of property. CALL TO ORDER Mayor Logan called the adjourned meeting of the Town Council of the Town of Tiburon to order at 7:05 P.M., Tuesday, July 10, 1990 in Room 5, Del Mar School, Tiburon, California. A. ROLL CALL PRESENT: COUNCILMEMBERS: Friedman, Coxhead, Thayer, Kuhn, Logan ABSENT: COUNCILMEMBERS: None EX OFFICIO: Town Manager Kleinert, Town Attorney Truxaw, Town Engineer Bala, Supt. of Public Works Brunini, Planning Director Lohman, Finance Director Stranzl, Town Clerk Hennessy B. APPOINTMENTS TO COMMISSIONS, BOARDS, COMMITTEES Motion: To appoint Richard Hill and Kare Anderson to the Parks & Open Space Commission. Moved: Logan, Seconded by Kuhn Vote: AYES: Unanimous Motion: To appoint Colleen Mahoney to the Board of Adjustments & Review and Hank Bruce to Design Review Board for one year terms from this date with the understanding that the terms can be modified or extended. Moved: Logan, Seconded by Thayer Vote: AYES: Unanimous TOWN COUNCIL MINUTES #885 7/10/90 1 The Mayor reiterated that in accordance with discussions at the Council level that in the event any professional with offices located in Tiburon, and who serves on one of the Town's Boards, has design matters before the Town, those matters are to be heard by the opposite Board and this policy is to be effective immediately. C. PUBLIC QUESTIONS AND COMMENTS There were none. D. CONSENT CALENDAR Item 2 SET PUBLIC HEARING - ABATEMENT OF PUBLIC NUISANCE (Illegal Signs, Mar West & Tiburon Blvd. Parking Lot - August 1, 1990) was removed from the agenda, and the Mayor requested the Town Manager contact Ed Zelinsky to resolve the problem. Motion: To approve the Consent Calendar consisting of the following items: 1. APPROVAL OF MINUTES #883, June 18, 1990; #884, June 20, 1990 3. NOTICE OF COMPLETION (Via Capistrano Realignment - Resolution) 4. RICHARDSON BAY REGIONAL AGENCY SERVICE AGREEMENT FY 1990-91 5. HANDICAPPED PARKING SPACES ON TIBURON BOULEVARD SOUTH SIDE ALONG RICHARDSON BAY LINEAL PARK - Resolution 6. AWARD OF CONTRACT (Juno Road Repairs) 7. PLANNING & BUILDING FEES REVISION (Amend Resolution No. 2717 - Resolution) Moved:Kuhn, Seconded by Friedman Vote: AYES: Unanimous E. UNFINISHED BUSINESS 8. POINT TIBURON DECK ENCLOSURE (Approve Final Inspection) The Planning Director reviewed the Staff report which stated the Town approved the design and granted a building permit for the deck enclosure consisting of approximately 66 square feet; construction is complete and awaiting a final inspection. The Town Staff were unaware of the maximum square footage limits of 273,600 sq.ft. imposed on Point Tiburon, however, Staff recommends that the Council deem the minor encroachment as insignificant and authorize a final inspection. TOWN COUNCIL MINUTES #885 7/10/90 2 The Council briefly discussed enforcement and directed that the three Point Tiburon Homeowner Associations and their manager, Gene Bicksler Associates, be notified that no additions, alterations or modifications which would increase square footage of the entire project would be permitted. Motion: To approve the encroachment and direct Staff to perform a final inspection, and write appropriate letter to the homeowner associations and their manager. Moved: Kuhn, Seconded by Thayer Vote: AYES: Unanimous 9. MARIN MUNICIPAL WATER DISTRICT MODEL WATER CONSERVATION ORDINANCE (Review and Make Recommendations) The Planning Director reviewed the Staff report and reported the Town Staff found the proposed MMWD ordinance generally acceptable overall, but would ask the water district to inspect the plumbing facilities and approve landscaping plans prior to the Town's inspections and review process. During discussion several points were raised i.e., would the basic policies be advisory or mandatory; does the Town want to adopt more restrictive requirements than the Uniform Building Code; the Town's design review process depends on landscaping to alleviate architectural problems; should water rationing be left to the individual; should interior plumbing standards be limited to new construction or also be included for renovations; more information was needed regarding technology available for low water flow fIXtures; should swimming pools and hot tubs be addressed; how will the District's enforcement procedures effect the Town's design review and inspection process. Council stated they wanted a representative from MMWD to attend the next meeting to explain the technology available for low flow shower heads and low flush toilets, and whether MMWD is willing to make inspections to enforce their proposed ordinance, or is the District expecting the Town to enforce these regulations. F. PUBLIC HEARINGS 10. APPEAL DESIGN REVIEW BOARD APPROVAL (A.P. #59-134-001; Applicant: Dolora DeGeer, 2101 Mar East; Appellant: Walt and Carol MacCarron; New Residence) The Planning Director reviewed the Staff report; stated the Appeal was based upon procedural aspects and not design and he would defer to the Town Attorney. The Town Attorney explained the purpose of the Brown Act; stated the application and appeal have been properly noticed and agendized; the Town Council is in full compliance and is not committing a misdemeanor by holding this hearing. He then TOWN COUNCIL MINUTES #885 7/10/90 3 reviewed the procedural history; cited the City Clerk's Handbook, page 5-8, Section 3. Voting.(b)(2) "Tie votes are 'lost' motions, and may be reconsidered later, but a lost motion does not imply the converse--thus a lost motion to grant is not tantamount to a denial"; cited from page 356 of the Manual of Legislative Procedures which states "...But if the body be equally divided ... the former law is not changed because no affirmative action can be taken except by a majority." The Town Attorney also quoted from the Variance Procedure; stated he advised the applicant to start over due to the fact that a new Council would be seated at the next meeting. The appellants argue that the Council has no jurisdiction; stated the provision is to disallow a person denied a project to reappeal; not intended to disallow an individual to return to the Board in circumstances of a 2-2 tie; purpose of a variance is to insure that the property can have some value and some use; they are entitled by State law to have a decision on a variance; no justification to ask them to wait a year; entitled to yes or no decision; merits of this variance are not my domain but not part of the appeal either. Phil Maher, attorney representing appellant, asked Council to follow the Brown Act; stated when there is a majority and a vote is taken then that's an action taken; stated the Brown Act specifically applies; asked Council to read page 5-9 of the City Clerk's Handbook; stated on April 4 there was a tie vote and it was moved to reschedule and reconsider; read Section 4. "Reconsideration. Any member who voted with the majority may move a reconsideration of any action at the same meeting (or "have entered on the minutes" for vote at the next succeeding meeting), providing no legal rights have intervened to create an estoppel. After a motion for reconsideration has once been acted on, no other motion for a reconsideration thereof shall be made without unanimous consent". Mr. Maher stated he didn't think the Manual of Legislative Procedure is relevant; situation is DeGeer applied for a variance; design review Board approved it; clients appealed it; Council had a tie vote; moved for reconsideration; to get around this they moved to start application all over again; quoted Zoning Ordinance Section 18 (H), Use Permits, "no application shall be reconsidered and no new application shall be considered by the Board for a permit previously acted upon by the Board within one year after the date of such action..." Stated that section is to the benefit of all the citizens of Tiburon. Mr. Maher noted that because they didn't get a positive vote, the Town Attorney is saying it's a change of circumstance; stated Brown Act says if you have a quorum and there is a vote, it has been acted upon; stated if the Council approves this application, it is a clear violation of the Tiburon Zoning Ordinance and when you read Section 8 you are violating the Brown Act. Dan Cahill, attorney representing DeGeer, reviewed the history of the application and stated it was incumbent upon the Council to make a decision; pointed out no one could have foreseen a two-two vote; stated common law indicates when you have a tie vote the decision of the lower level body that made the previous decision shall be upheld; stated they had received unanimous votes at the design review level for approval; quoted from Government Code Section 54950 of the Brown Act which was to insure public meetings are open; didn't believe it applied to this application; asked the appeal be denied. TOWN COUNCIL MINUTES #885 7/10/90 4 Councilmember Friedman questioned whether it was sufficient to deny the appeal or should the Council grant the variance. Mr. Cahill asked that first the Council deny the appeal and then reaffirm the decision of the Design Review Board which was a unanimous vote to grant the variance; requested the Council do both. Mr. Cahill also requested his letter of May 18, 1990 be made part of the file. The Mayor opened the public hearing. In response to Council member Friedman, Mark Ginalski, member of the Design Review Board, stated the Board specifically incorporated language of June 14 memo from the Town Attorney in making findings in Section 18-H and found circumstantial change in circumstances to warrant review by the Board; then the Board reviewed the application and made the findings to grant a variance. The Mayor closed the public hearing and then reopened it to read letter of May 1990 into the record. The Mayor closed the public hearing. Phil Maher disagreed with Council's definition of change of circumstances and compared it to the state legislative body which changes with elections; stated there is no definition in the Zoning Ordinance defining "significant change"; without the Council finding there was a circumstantial change, he didn't think the Council could approve the application; stated there had been no changes in the application; the two applications were identical. Vice-Mayor Thayer asked Mr. Maher whether it was his basic position because of the 2-2 tie vote and the failure to take the reconsideration at the next meeting, it means it should not be heard for another year; that he would consider the change in the Council irrelevant, and thought it was improper to refile the application. Mr. Maher responded yes. There was further discussion regarding the basis of the appeal which was a procedural issue, and whether the Council should rehear the design issues. Mayor Logan stated that if the issue is not framed the court is not required to consider it. Councilmember Friedman stated he was willing to deny the appeal but not act on the variance. The Town Attorney advised Council to also sustain the decision of the Design Review Board if the appeal is denied; the Council would be upholding the decision of the Design Review Board. Councilmember Friedman stated he didn't want to get into specifics of granting the variance without discussing the design issues. The Planning Director stated the appeal should list specifics of the appeal and the Staff responds to the particular issues specified. TOWN COUNCIL MINUTES #885 7/10/90 5 The Town Attorney stated whatever action the Council takes is the final and conclusive action of the Town. Councilmember Coxhead stated the "Addendum" to the appeal refers to "granting the variance would violate every citizen of the Town of Tiburon..."; thought the question of the variance has been raised; felt it was appropriate to reaffirm findings of the variance. Vice-Mayor Thayer noted that two former Councilmembers who voted in favor of granting the denial are no longer part of the Council and therefore thought there has been significant change of circumstances and the application should be refiled; will vote to affirm and uphold the DRB findings and ruling and vote in favor of denying appeal. Councilmember Kuhn stated he felt the intent and spirit of the Brown Act was directed to public hearings and not to be addressed to procedural issues. Mayor Logan agreed and stated he didn't think the Brown Act was applicable to this application. Motion: To deny appeal and affirm the decision of the Design Review Board including the variance and the findings made to grant the variance. Moved: Kuhn, Seconded by Logan Amended Motion: To amend motion to include a request to the Town Attorney to review record and bring a Resolution of Denial of the appeal with appropriate findings and reasons for the findings at the next Council meeting. Moved: Coxhead, Seconded Logan Amended Motion agreed to by Kuhn. Vice-Mayor Thayer asked that the findings included material change in circumstances due to make up of the Council. Vote: AYES: Coxhead, Thayer, Kuhn, Logan NOES: Friedman 11. UNIFORM BUILDING CODE UPDATE (Ordinance, 2nd Reading - Continued to JULY 18, 1990 for noticing purposes. G. NEW BUSINESS There was none. TOWN COUNCIL MINUTES #885 7/10/90 6 H. COUNCIL, COMMISSION OR COMMITTEE REPORTS Parks & Open Space Commission Councilmember Kuhn stated his recent memo on Blackie's Pasture undergrounding project had a paragraph missing which stated "Until the four poles in Blackie's Pasture are removed, the grading work cannot be completed and nothing else can be undertaken. The failure to remove the poles will cause a delay of several years while the Town accumulates more Rule 20 funds." The Mayor asked that this matter be agendized at the Parks & Open Space workshop on July 18. Councilmember Kuhn stated his concerns regarding responses of POSC and wondered whether they were taking direction from Council. Housin2 Committee Councilmember Kuhn stated he understood the Town's Housing Committee has submitted a report on the Housing Element and that the Planning Commission has modified it considerably; asked to see the Housing Committee report and the Planning Commission's reasons for their modifications. I. COMMUNICATIONS 12. LCOTPOA Minutes, dt'd. 6/4/90 13. Ltr. from HomeBase, dt'd. 6/20/90, Requesting Appointment of Council member to Assist in Implementing the Blue Ribbon Homeless Working Committee Report Mayor Logan to contact Belvedere Councilmember Valentine and express Council's concerns about spearheading a report that hasn't been issued. J. STAFF AND TOWN MANAGER REPORTS 14. CLOSURE OF STAIRCASE ON CORINTHIAN ISLAND (Supt. of Public Works) The Town Manager stated that during the budget hearings the Superintendent of Public Works brought to the Council's attention the state of disrepair of the stairs on Corinthian Island; felt they were a liability threat to the Town and have now been barricaded closed; decision was made to remove them rather than repair them; some of the homeowners are objecting to their removal; suggested the Town Engineer and Superintendent take another look and estimate the costs to bring them up to code so there isn't a liability problem. Dick Brewer, 87 East View, stated everyone he has talked to was opposed to eliminating the stairs. TOWN COUNCIL MINUTES #885 7/10/90 7 The Mayor directed the Public Services Committee of the Council to make a site visit. Councilmember Friedman read letter he received from Sylvia Vigno opposing removal of the stairs. Mayor directed this item return the first meeting in August. 15. SIGN ORDINANCE (Status Report on Real Estate Signs - Planning Director) The Planning Director recommended the language be amended to allow signs but not on public right-of-way; concerned about liability of the Town with people tripping over the signs on Town walkways. Virginia Brunini, real estate broker representing Bob Holmes of the Marin County Board of Realtors who was delayed at another meeting, expressed concern regarding Staff's recommendation; stated the Marin County Board of Realtors is trying to make some common sense of the sign ordinances where they are being actively enforced; stated it is their goal to help the constituents of the communities sell their property; if the Council takes away the ability to place signs at street corners, they are taking away the advantage; working to make a uniform ordinance throughout the County; language presented by the Board is what is desired; recognize the Planning Director's concern, but other communities are not enforcing it; would like Council to consider language presented by Marin County Board of Realtors; would like response from the Town Attorney. Mayor Logan noted if the Town allows someone to place an obstruction in the Town right-of-way it makes the Town libel. Council member Friedman suggested realtors who place sign could enter into a binding insurance contract to protect the Town. The Planning Director suggested a permit process with a hold harmless agreement similar to when the Town issues an Encroachment Permit. The Town Attorney stated much of right-of-ways are unimproved and the Town could allow the signs to be placed outside of travel lanes without incurring liability; media strips would obstruct site lines. Bob Holmes arrived and responded that a permit process would be a tremendous administrative problem; didn't think insurance polices to indemnify the Town would be acceptable; stated they based the proposed ordinance on the Town of Fairfax's ordinance which they adopted last November; Fairfax hasn't had any problems; in all their discussions and research there have been no problems. Councilmember Coxhead noted newsracks are on the public right-of-way all the time; he would be in favor of the proposed sign ordinance and with some language that the signs wouldn't obstruct public right-of-way; in favor of four signs instead of five. Mayor directed an ordinance be drafted and a public hearing set for next meeting. Bob Holmes agreed to four signs. TOWN COUNCIL MINUTES #885 7/10/90 8 K. CLOSED SESSION Mayor Logan adjourned the meeting at 9:30 P.M. to Closed Session. L. ADJOURNMENT There being no further business before the Town Council of the Town of Tiburon, Mayor Logan adjourned the meeting at 10:10 P.M. sine die. 'i . . J {. cT\ / ~):J.{,>, /----- PETER B. wr:f. MAYOR ATTEST: ()&deti~ THERESE M. HENNESSY, CLERK TOWN COUNCIL MINUTES #885 7/10/90 9