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HomeMy WebLinkAboutTC Agd Pkt 2011-07-20TOWN OF TIBURON Regular Meeting Tiburon Town Hall Tiburon Town Council 1505 Tiburon. Boulevard July 20, 2011 Tiburon., CA 94920 Meeting time - 7:30 p.m. Closed Session - 7:00 p.m. AGENDA TIBURON TOWN COUNCIL CLOSED SESSION - (7:00 p.m.) CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Subdivision (a) of Government Code Section 54956.9) Lowenbergv. Town of Tiburon CALL TO ORDER AND ROLL CALL Councilmember Collins, Councilmember Fredericks, Councilmember O'Donnell, Vice Mayor Fraser, Mayor Slavitz ANNOUNCEMENT OF ACTION TAKEN IN CLOSED SESSION IF ANY ORAL COMMUNICATIONS Persons wishing to address the Town Council on subjects not on the agenda may do so at this time. Please note however, that the Town Council is not able to undertake extended discussion or action on items not on the agenda. Matters requiring action will be referred to the appropriate Commission, Board, Committee or staff for consideration or placed on a future Town Council meeting agenda. Please limit your comments to three (3) minutes. PRESENTATIONS • Introduction of Tiburon Police Officer Justin Kurland • Presentation of Commendation to Police Office Rob Dehner • Presentation of Resolution honoring Capt. David Hutton on his 30`h anniversary of employment with the Town of Tiburon • Presentation by Jon Friedenberg, Chief Fund and Business Development Officer for Marin General Hospital CONSENT CALENDAR All items on the Consent Calendar may be approved by one motion of the Town Council unless a request is made by a member of the Town Council, public or staff to remove an item for separate discussion and consideration. If you wish to speak on a Consent Calendar item, please seek recognition by the Mayor and do so at this time: 1. Town Council Minutes - Adopt minutes of the July 6, 2011 regular meeting (Town Clerk Crane lacopi) 2. Anniversary of Employment - Adopt resolution commending and congratulating Police Captain David Hutton on the occasion of his 30th anniversary of employment with the Town of Tiburon (Police Chief Cronin) 3. Police Department Commendation - Adopt resolution commending Office Rob A. Dehner on for exemplary service (Police Chief Cronin) 4. Smoking Ordinance - Adopt ordinance repealing Title VI, Chapter 28 (Smoking & Tobacco Regulations) and adopting a new Title VI, Chapter 28 of the Tiburon Municipal Code (Director of Community Development Anderson) 5. GASB 54 - Approve Town Fund Balance Classification Policy pursuant to the Governmental Accounting Standards Board (GASB) Statement No. 54 (Director of Administrative Services Bigall) 6. Signature Authority -Adopt resolution authorizing signers on Bank of Marin Account (Director of Administrative Services Bigall) ACTION ITEMS 1. Recreation Needs Assessment - Consideration and acceptance of report, "Tiburon Peninsula Summary of Findings: Recreation Needs and Existing Conditions Assessment" (Director of Community Development Anderson) PUBLIC HEARING 1. 1895/1897 Mar West - Consideration of encroachment permit applications to construct private improvements on the Mar West public right-of-way adjacent to private properties located at 1895 and 1897 Mar West (Department of Public Works; Department of Community Development) Encroachment Permit Application Nos. 11-51 and 11-72 Owners/Applicants: Brian and Joanne McCullough; David Barley Assessor Parcel Nos. 059-121-10 and 11 TOWN COUNCIL REPORTS TOWN MANAGER'S REPORT WEEKLY DIGESTS • Town Council Weekly Digest -July 8, 2011 • Town Council Weekly Digest -July 15, 2011 ADJOURNMENT GENERAL PUBLIC INFORMATION ASSISTANCE FOR PEOPLE WITH DISABILITIES In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the Town Clerk at (415) 435- 7377. Notification 48 hours prior to the meeting will enable the Town to make reasonable arrangements to ensure accessibility to this meeting. AVAILABILITY OF INFORMATION Copies of all agenda reports and supporting data are available for viewing and inspection at Town Hall and at the Belvedere-Tiburon Library located adjacent to Town Hall. Agendas and minutes are posted on the Town's website, vA1w-,N7.ci.tiburon.ca.us. Upon request, the Town will provide written agenda materials in appropriate alternative formats, or disability-related modification or accommodation, including auxiliary aids or services, to enable individuals with disabilities to participate in public meetings. Please send a written request, including your name, mailing address, phone number and brief description of the requested materials and preferred alternative format or auxiliary aid or service at least 5 days before the meeting. Requests should be sent to the Office of the Town Clerk at the above address. PUBLIC HEARINGS Public Hearings provide the general public and interested parties an opportunity to provide testimony on these items. If you challenge any proposed action(s) in court, you may be limited to raising only those issues you or someone else raised at the Public Hearing(s) described later in this agenda, or in written correspondence delivered to the Town Council at, or prior to, the Public Hearing(s). TIMING OF ITEMS ON AGENDA While the Town Council attempts to hear all items in order as stated on the agenda, it reserves the right to take items out of order. No set times are assigned to items appearing on the Town Council agenda. Cc--/ TOWN COUNCIL MINUTES CALL TO ORDER Mayor Slavitz ed the reNlar m eting of the Tiburon Town Council to order at 7:30 p.m. on Wedne ay, July 6, 2011, in T n Council Chambers, 1505 Tiburon Boulevard, Tiburon, Californi . ROLL PRESENT: COUNCILMEMBERS: PRESENT: EX OFFICIO: Collins, Fraser, Fredericks, O'Donnell, Slavitz Town Manager Curran, Town Attorney Danforth, Director of Administrative Services Bigall, Director of Community Development Anderson, Planning Manager Dan Watrous CLOSED SESSION Prior to the regular meeting, the Council met in closed session, beginning at 7:00 p.m., to discuss the following: CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Subdivision (a) of Government Code Section 54956.9) Lowenberg v. Town of Tiburon CALL TO ORDER AND ROLL CALL Councilmember Collins, Councilmember Fredericks, Councilmember O'Donnell, Vice Mayor Fraser, Mayor Slavitz ANNOUNCEMENT OF ACTION TAKEN IN CLOSED SESSION, IF ANY Mayor Slavitz said the closed session had been cancelled, so there was no action to report. ORAL COMMUNICATIONS None PRESENTATIONS • Commendation for Carol Rayner - Flower Baskets on Tiburon Boulevard Town Council Minutes #xx -2011 Jule 6, 2011 Page 1 Mayor Slavitz introduced and thanked Mrs. Carol Rayner, and in memory her late husband, for their generous donation in funding the first five years of the flower basket program. He stated that the three `basketeers', Hazel Carter, Randi Brinkman, and Chuck Auerbach, launched the program and Mr. and Mrs. Rayner responded to the call for funding in a most generous fashion. He presented Mrs. Rayner with a Citizen Commendation. Mrs. Rayner thanked the Mayor and Town Council and described how she and her three friends came together around the civic project. Town Manager Curran then presented Ms. Rayner with a bouquet of flowers, thanking her and noting that she is the first recipient of the newly designed commendation by the Town's Artist Laureate. CONSENT CALENDAR Mayor Slavitz stated that minor changes have been made to the resolution for Item 5 A & B contains under Section 7, which was before the Council for consideration. MOTION: To approve Consent Calendar items, as amended. Moved: Collins, seconded Fredericks Vote: AYES: Unanimous Town Council Minutes - Adopt minutes of the June 7 special meeting (Town Clerk Crane Iacopi) 2. Town Council Minutes - Adopt minutes of the June 15 regular meeting (Town Clerk Crane Iacopi) 3. Town Investment Summary - Adopt report for month ending May 31, 2011 (Director of Administrative Services Bigall) 4. Annexation Agreement - Approve future annexation agreement for property located at 4970 Ranch Road, AP No. 038-041-39; Kenneth and Charlene Ip, Owners and Applicants (Director of Community Development Anderson) 5. FY 2011-12 Budget Resolutions/Employment Contracts - Approve and adopt the following: a) Management compensation program resolution, as amended; b) Mid- managetnent compensation program resolution, as amended; c) Service Employees International Union (SEIU) contract; d) Tiburon Police Association (TPA) contract (Director of Administrative Services Bigall) 6. Solid Waste Ordinance - Repeal and adoption of a new Chapter 26 of the Town Code, Ordinance Governing Solid Waste Storage, Collection and Disposal (Town Attorney Danforth) Town Council Minutes #xx -2011 July 6, 2011 Page 2 7. Creation of Building Code Appeals Board - a) Adopt ordinance amending Chapter 13 (Building Ordinance) of the Town Code to reference a Building Code Appeals Board; b) rescind Resolution No. 31-2011 and adopt revised resolution creating the Tiburon Building Code Appeals Board (Director of Community Development Anderson) 8. Claims Ordinance - Adopt new Chapter 3B of the Town Code, Ordinance Governing Claims against the Town (Town Attorney Danforth) 9. Sam Chapman Monument - Update on proposed monument for Sam Chapman at Point Tiburon Plaza (Director of Community Development Anderson) PUBLIC HEARINGS 1. Smoking Ordinance - Introduction and first reading of an ordinance repealing Title VI, Chapter 28 (Smoking & Tobacco Regulations) and adopting a new Title VI, Chapter 28 of the Tiburon Municipal Code (Director of Community Development Anderson) Director of Community Development Anderson gave the staff report, stating the Town adopted its smoking regulations 20 years ago and second generations of stronger smoking ordinances are now being adopted by local governments across the nation. He stated that in 2010 the Council appointed Vice Mayor Fraser and Councilmember Fredericks to a subcommittee to advise staff on the update and in October 2010, after preparing a complete re-write of the existing regulations, staff brought forward a draft ordinance which strengthened the existing ordinance in several ways. Following public testimony, the Council believed that the ordinance did not go far enough to regulate smoking primarily in apartment units and at certain public places or during open air events and directed staff to return with a stricter ordinance. Staff and the subcommittee then reviewed some of the more recent and stringent ordinances adopted and reached the conclusion that the approach most beneficial to public health would be to eventually ban smoking in all apartment units of 4 or more units rather than to try and work out a solution whereby non-smoking units would be clustered away from smoking units. There would be an option for landlords to establish an on-site smoking area with certain limitations and restrictions. Director Anderson noted the other primary change was that the prohibition has been extended to outdoor events. The prohibition on smoking in apartment units would be written such that as of the effective date of the ordinance, any new lease or extension of an existing lease would be required to have the non-smoking clause folded into the lease. He said also included is an exception for up to three (3) years for existing tenants, but any lease after July 1, 2014 will need to contain the new non-smoking provisions. Director Anderson described staff's substantial outreach efforts including mailed notices to those residing in apartment units and copies of the ordinance to landlords. In response, staff has received only two emails, both in support of the ordinance. In terms of fiscal impact, staff does Town Council Minutes #xx -2011 July 6, 2011 Page 3 not believe additional resources will be required except possibly an increase in enforcement time by police to respond to complaints. Staff recommended the Council hear from the subcommittee, hold the public hearing, consider testimony and following deliberation, introduce the ordinance's first reading and waive all future readings. Councilmember Fredericks gave a brief subcommittee report and described their findings of significant second-hand smoke exposure, serious health impacts and illness, and notably higher morbidity rates to affected residents in multi-family dwellings. She reported that a study was done in children living in non-smoking and smoking multi-family and single-family households. Children were tested for the amount of Cotinine, which is an alkaloid found in tobacco and is also a metabolite of nicotine. Cotinine is used as a biomarker for exposure to tobacco smoke, and while found in most people, results show that for children who live in multi-family dwelling units, levels were 25% to 35% higher than those living in detached single-family non-smoking homes. Vice Mayor Fraser echoed comments of Councilmember Fredericks and recognized Director Anderson for his work in assisting the subcommittee. He stated the subcommittee modeled the proposed draft ordinance from the City of Novato's ordinance, pointing that the grace period through 2014 is appropriate because it allows those affected to have some time to rid themselves of the smoking habit or allow time to find a new place to reside. Councilmember Fredericks requested an amendment to one of the findings that supports the ordinance; that Cotinine is actually a metabolite and not a 'metabolic'. Mayor Slavitz opened the public hearing and invited public comment. Robin Curley, 101 Esperanza, Apt. #6, said the construction of her building is such that smoke is infiltrated through the walls and attic spaces from residents below her and two doors down. She voiced displeasure with the 3-year grace period and asked for an amendment that requires the property owner to complete structural mitigation to address the second hand smoke. She also questioned whether or not the ordinance prohibited smoking in attached patios or decks and asked that the Council address smoke coming from them, as well. Mayor Slavitz clarified that the ordinance does not call for structural improvements and that smokers are required to be 25 feet from affected buildings. Barbara Warren, 101 Esperanza Way, described smoke coming from a deck 25 feet away from her that drifts in while her doors and windows are both open and shut. She said smoke also travels up from the floor below through her heater, into her apartment, and also from a nearby bus stop. While she realizes that nicotine is very addictive, she asked the Council to reduce the 3- year exception period because of health issues. Town Council Minutes #xx -2011 July 6, 2011 Page 4 Gary Richardson, 101 Esperanza, echoed comments of Ms. Curley relating to decks and patios which would also alleviate problems of someone trying to interpret the number of feet one could smoke from a building. Tenants below him chain smoke-daily from 10:00 p.m. through to 4:00 a.m. and the smoke travels into his unit. He also relayed the difficulty he experienced in getting the landlord to install a screen door to his unit and asked that such improvements also be contained in leases. Bob Crea, Smoke Free Marin.com, thanked the Council and staff for work into strengthening the Town's ordinance, reported on their organization's cessation programs and directed interested parties to www.smokefreemarin.com. He noted that the ordinance includes balconies and patios and offered their agency's assistance in anything the Town needs for the ordinance's educational outreach. Vicky Tuorto, Ned's Way, questioned and confirmed with Town Attorney Danforth that subsidized housing was not exempt from the ordinance's regulations, in the absence of federal regulations forbidding localities from regulating smoking. Ms. Tuorto referred to pages 9 through 11 of the ordinance applying to apartments and smoking in cars and said she lives above a parking lot where people smoke in their cars. Smoke travels up, over and into apartment units, which she said defeats the purpose of the ordinance. Director Anderson clarified that Section 28-8 does not prohibit smoking in private vehicles. He added that most parking lots within a multi-family complex are considered common area and landlords can designate common areas for smoking to be allowed. If not designated, smoking will not be allowed. Town Attorney Danforth suggested amending Section 28-8(2) to read, "private vehicles not in the common area of a multi-family building" to address this issue. Mayor Slavitz closed the public hearing. Councilmember Collins referred to Section 28-5(c) on page 7 of the ordinance: "Smoking is prohibited in all public events, and at the events or functions for which the Town Manager has issued a Special Event Permit." He asked it be amended to read, " ...events or functions for which a Special Event Permit has been issued by the Town," Councilmember Collins stated there are a few locations in the ordinance which refers to "lease renewal" but not "lease extension" which he said is different. He asked staff add the words "or extension" in all instances after the reference to "lease extension". Councilmember Collins questioned and confanned that public transit watercraft and/or ferries are outside of the Town's jurisdiction for smoking regulations. Town Council Minutes #xa -2011 July 6, 2011 Page 5 Councilmember O'Donnell commended the work of the subcommittee and staff. While he agreed with personal liberties, smoking is a scourge on our society and he is happy to be able to limit its health impacts on others. Councilmember Fredericks added that the ordinance is not intended to be punitive but rather to protect the health of non-smokers, especially children. One provision in the ordinance is a promise by the Town to provide educational materials, which will be easily accomplished through such groups as Smoke Free Marin. Mayor Slavitz agreed, thinks this is a momentous occasion, and said the ordinance relates directly to health. Mr. Richardson clarified that the ordinance covers anything that anyone burns to put into their lungs and is combustible, such as tobacco-like product, spice, other plant or burnable materials. Councilmember Collins commended the work of the subcommittee, staff and Attorney Danforth for their work on the ordinance. P MOTION: To read the ordinance by title only, as amended, as follows: ■ Section 28-8(2) to read, "private vehicles not in the common area of a multi- family building" ■ Section 28-5(c) on page 7 of the ordinance to read, "Smoking is prohibited in all public events, and at the events or functions for which-for which the Town has issued a Special Event Permit," ■ Add the words "or extension" in all instances after the reference to "lease extension". ■ Cotinine is actually a metabolite and not a metabolic. Moved: Fraser, seconded Fredericks Vote: AYES: Unanimous MOTION: To pass first reading of the Ordinance amending Title VI, Chapter 28 (Smoking and Tobacco Regulations) of the Tiburon Municipal Code. Moved: Fraser, seconded Fredericks Vote: AYES: Collins, Fraser, Fredericks, O'Donnell, Slavitz 2. 65 Reed Ranch Road Appeal - Consider appeal of Design Review Board approval of a site plan and architectural review for construction of additions to an existing single- family dwelling at 65 Reed Ranch Road (Planning Manager Watrous) • AP No. 038-301-35 • James Parsons and Andrea Hong, Owners • Jeffrey Wong, Applicant • Dan Mihalovich, Appellant Town Council Minutes #x -2011 July 6, 2011 Page 6 Planning Manager Watrous gave the staff report, stating the project involves request for construction of an addition to an existing single family dwelling at 65 Reed Ranch Road, demolition of an existing attached garage at the northeast corner of the lot, and construction of a new, two-story addition. The lower floor will include a new, 3-car garage and workshop space to the rear, and the upper floor will include a guest bedroom and a model train room. The application was first reviewed at the March 17, 2011 DRB meeting. At that time, the addition was located further to the west and closer to 67 Reed Ranch Road. The owners of that property, [appellants] raised objections to the project regarding the proximity and visual mass and bulk of the proposed addition, along with the potential noise and privacy impacts. The Board shared many of the concerns, particularly regarding the visual mass of the building and its proximity to the home at 67 Reed Ranch, suggested that the height of the addition be reduced, for the applicant to consider a less sensitive location for the addition, and to be more properly attached to the main building. The applicant submitted revised plans which relocate the addition over to the east away from the home at 67 Reed Ranch Road. This revision was reviewed at the April 21, 2011 DRB meeting at which time the Board felt the project was generally responsive to the previous concern, but still had issues with the overall height and mass, particularly the monitor section above the upper floor addition. The Board continued the hearing to allow the applicant time to re-design the addition. The re-designed project was then reviewed at the May 19, 2011 DRB meeting. The applicant submitted revised plans which narrowed and reduced the height of the monitor section of the upper floor addition. The consensus of the Board was that the applicant had adequately addressed the Board's concerns and also assured the Board that the walkway leading to the front entry would be properly screened from the home at 67 Reed Ranch Road. The Board added two conditions requiring that grading be minimized to preserve the existing trees along the western side and that 2, 36" box native trees be planted to screen the top of that walkway. The Board voted 4-1 to conditionally approve the project, and on May 31, 2011 the Mihalovichs filed a timely appeal of the decision. The appeal is based on 4 separate grounds: 1. The bulk, height and overall size of the project design are excessive for this property. The subject property includes a portion of the old Northwestern Pacific Railroad right-of-way at the rear and the total size of the lot for purposes of calculating FAR and other zoning regulations includes both the size of the original lot and the railroad lot. The Board discussed the issue of the total floor area, but felt that overall, the size of the project was a reasonable relationship between the size and scale of the improvements and size of the property. The existing house and addition are sited on the original lot of the property with the old railroad right-of-way left open as a rear yard. Although this design does not necessarily represent an Town Council Minutes #xx -2011 July 6, 2011 Page 7 overbuilding to the front of the property, each project design must be reviewed on its own merits and the Board compared the visual size and scale to other residences in the vicinity and found it was consistent with the visual pattern of other homes in the surrounding neighborhood. 2. Adequate information was not presented regarding excessive grading required, for the project. The floor level of the new garage would be approximately 3'31" lower than the level of the existing 2-car garage and therefore, staff believes the amount of grading necessary to accomplish these elevation changes would be minimal and should not be characterized as excessive. At the May 19th meeting, the Board added the condition of approval that grading be minimized to preserve existing trees along the western side of the property to screen the addition from the appellant's residence. 3. Adequate information was not presented regarding changes to the walkway and driveway on the site. The existing front entry of the house is accessed by a series of stairs leading up to a raised landing in front of the front door, and this front entrance would remain unchanged but the landing would be reconfigured with a new stairway that would lead from the western side of the raised landing and curve to the north. The appellant has raised concerns that the new retaining wall might be necessary or that an existing berm might be removed, but the DRB emphasized that retention of the mature screening trees rather than the berm would protect the appellant's privacy. The appellant has requested additional story poles for this walkway, but the Board noted that the front entry of the house would remain unchanged with the raised landing at the same level and the same general location of the current landing. In general, the Board felt the potential privacy impacts from the entry stairways would be relatively minimal. Staff notes the entry stairs are generally used less heavily than other outdoor areas like decks or patios and not considered to be an area where there are considerable privacy concerns as a general rule. The proposed entry stairs would be approximately 26 feet from the appellant's house and the Board required not only to preserve the existing landscaping but 2 other native box trees be planted to st;reen this walkway. 4. Existing and proposed landscaping would be inadequate to provide privacy. The Board took actions to protect landscaping to protect the appellant's privacy and at a very first meeting, moved the addition further away from the property to protect this privacy. In conclusion, Mr. Watrous stated that staff believes the DRB acted appropriately in applying the guiding principles for the site plan, architectural review for protecting privacy impacts of the neighbor, and for reviewing the relationship of the size and scale of improvements with other Town Council Minutes #.x -2011 July 6, 2011 Page 8 buildings in the vicinity. The Board felt it had adequate information to make an informed decision on the application. Staff recommends the Council take testimony on the appeal, indicate its intention to deny the appeal, and direct staff to return with a resolution for adoption at the next meeting. He noted that DRB Boardmember Emberson is present, and provided a brief overview of the appeal hearing procedures. Mayor Slavitz.questioned and confirmed with Mr. Watrous that there are hillside guidelines that talk about general placement of structures on properties, but none for heavily loaded garages in the front. Mr. Watrous explained that the issue of whether the project was front-loaded was discussed by the DRB and they looked at other areas beyond the immediate surrounding area. They found a number of newer homes with similar front facing garages, particularly in the Preserve area. Councilmember Fredericks said what she noticed in particular, about the houses on that side of the street and different from houses across the street, is that they are narrow and long and there is not as much of a front yard setback. She asked if there are any existing 3 car garages on that side of the street, and Mr. Watrous said he was not sure whether there are in that immediate stretch of road. Councilmember Fredericks asked if there were other projects before the DRB that include lots with newly acquired railroad right-of-way. Mr. Watrous stated yes; there are a few lots in Bel Aire that ended up with a piece of the old railroad right-of-way because it had to go through zone changes. The Council made a specific requirement for these lots that the right-of-way would not be used in the overall calculations for floor area. They did not think, particularly in Bel Air, that it would make sense to have much larger houses on those smaller pieces. In other applications around the town it has been factored into the overall FAR calculations. Councilmember Fredericks questioned whether this was because of the constraint and characteristics of the Bel Aire neighborhood. Mr. Watrous said it was because the Council had an opportunity to act on this specific item; this is unusual with the railroad right-of-way pieces, but there are other properties that have acquired land as part of lot line adjustments, and they have always been calculated as part of the overall lot size for purposes of calculating FAR. Councilmember Fredericks said this is a peculiar configuration of the lot, as it is narrow and long, which she thinks constrains the addition. She asked if there were any projects in that area with this sort of configuration. Mr. Watrous said most of these homes were built in the 1970's and 1980's and there are only a handful of properties that have this additional railroad right-of- way. Director Anderson added that however this particular property and the few like it in the vicinity acquired the railroad property as soon as it became available in the early 1970's, and there was no real Town opportunity to have any input on limitations of any kind. He said the Bel Aire acquisition was much later and the Town was able to have some control with what happened. Town Council Minutes #xx -2011 July 6, 2011 Page 9 Mayor Slavitz opened the hearing and asked for the appellant's presentation. Dan Mihalovich, 67 Reed Ranch Road, appellant, said he is speaking on behalf of his family and shared interests of some neighbors, as well. He thanked the Council and DRB members for taking the time to review correspondence on file, for coming to his house and to view the story poles together. He thanked the Parsons' legal counsel for drafting their letter to the Council of June 28, 2011 which helped him articulate his response regarding the appeal, which supplements his presentation tonight. He set forth the following 7 points about the appeal: 1. He is not anti-development or opposed to Parsons proceeding with a tasteful renovation. 2. While everyone will take a fresh look at the proposed project, some disputes have lasted months, and he questioned why there is opposition. He said certain neighbors are opposed to the massive scale and looming design at the street front of Reed Ranch Road. He does not believe the proposed scale is necessary, appealing or consistent with the community. The applicant is trying to push through the design and construction of a 2 story shop and part of a 3 car `garage' which is uncharacteristic of any home in the neighborhood facing the street of similarly sized lots. 3. The other main component of the new structure is the large train room and he questioned why neighbors must be imposed upon by such a large structure. Numerous zoning ordinances will be violated, and he articulated the list of such ordinances in his memo to the Council. 4. As a condition for the Council to deny the project, he asked the Council to confirm why he must prove that the DRB made a mistake or its decision based on faulty or incomplete information. Mayor Slavitz responded that this is a de novo hearing and the Council is forming its own opinions. 5. As late as last night, Mr. Mihalovich said he was finding errors in the architect's drawings which he was unaware of during visits by the Council around the property. He feels the architect's drawings are misleading and incomplete, and should not serve as the basis for approval, but only for denial. On final review, he found that the story poles were not accurately placed by a significant margin. 6. The architect's drawings do not describe the cut in the earth required for the project nor appropriately portray elevations after the cut is made. Elevations after the cut are not shown in the area of the walkway from the new front stairs. He noted that after the DRB voted to approve the project, it now contains reference to the specific size of the cut as 3'3" and, "any future retaining wall would be less than 42 inches in height." He stated these two metrics were not available to DRB members at the third session when the project was approved. 7. If the drawings submitted and representations by the architect are found in error, he asked how the Council will you trust the applicant's information going forward. Regarding the story poles, he noted the architect's drawings are at 1/4"' scale unlike the drawings received from staff. He referred to the site plan showing the measurements of the height of the story poles, stating that the tallest set of story poles is at 119'9-1/4". He pointed out on the plans the elevation of the flat roof above the monitor. The plans before the Council show the architect's north elevation with a new garage level as listed at 99.15'. The Town Council Minutes #xx -2011 July 6, 2011 Page 10 architect's measurement for the highest roof level is at 23' 10.5" above the garage floor and therefore misstated the elevation. It should not be 120.03' but rather 123.02' which is 3 feet higher and well below the story pole constructed at 119'9-1/4". Unlike the street view version submitted by the Parsons' architect, the more complete version still shows the dashed lines to indicate the curb, but more accurately now portrays the cut in the earth required and its impact on the existing trees and neighbors' lots. The new garage height measures 17' tall, 1 foot taller than what he indicated in the appeal and memo he sent. At this height, one could create 2 stories, and indeed, he feels this is a 2-story tall garage. Regarding elevations, Mr. Mihalovich said on the revised proposed north elevation drawing, he has taken the existing grade shown by the architect and sketched it in heavy dashed lines. The architect erred in this drawing, since the correct measurement using a 3.2' cut shows the dashed line below his. The elevations also prove that once the cut is made, all mature Chinese Elm trees in the cut area will have to be removed unless the Parsons construct a 3 foot retaining wall which has never been shown in the drawings. He said one can begin to discern that the grading and proximity of the proposed walkway at about 10 feet from the Chinese Elms, and said this is precisely where the Parsons' original expansion was proposed to take place and where every DRB member instructed the Parsons was not the place to build improvements, as it represented an invasion of his privacy. The building is too close to his property, as well as the walkway. Regarding mass of light, he said it is not just the mass of the development at the front of the house that is offensive. Given the scores of windows both in the 17' tall garage shop area and the rest of the structure, the building addition will pollute them and neighbors with light. If light is needed in the garage, he asked to require interior light fixtures and reduce the windows to 1 or 2. He said there are now 26 windows facing his property, 7 of which are from the garage, plus the garage side door which should be removed, as there are already 3 doors assigned plus the 3 front doors facing the street. The 5 windows that face his house at the same ground level only serve to light an interior corridor behind the new front stairs which will also add to light pollution towards their bedrooms. The proposed east elevation is in contention for the most offensive light pollution. This is the view must of the public will see whenever driving down Reed Ranch Road, and he believes there is far too much mass and light. He feels it is ironic that the Town heavily restricts exterior lighting while at the same time, considers allowing construction of such a polluter. Regarding resolution of what should be, while not attempting to redesign the Parsons home Mr. Mihalovich suggested an expansion as unanimously recommended by the DRB to be spread between the front and rear of the home. The Parsons should continue to develop their plan starting with the relocation of the existing garage so it aligns as per the current plans with the existing house. The 2 car garage should remain and have normal Town Council Minutes #xx -2011 July 6, 2011 Page 11 garage height built on current grade. Expanding it to the front would allow the front entry stairs to remain in their current location. Assuming all construction at the front of the house remains on current grade, the Parsons could maintain their current garden, trees, and not spend additional funds on engineering, grading, drainage, and retaining walls. Efforts should be made to remain within the envelope of the current house. A variance may be needed to expand the house to the rear, but it would be accepted much more favorably by neighbors and would be more fitting in the community. Another more elaborate idea would be that since he knows the project is all about the shop and 3 car garage, he suggested the Parsons move out for awhile in favor of tearing down most of the house, rebuild with a setback 3 car garage and train room on the lower level and main house upstairs and to the rear. This would enhance views of Mt. Tamalpais and maintain the front garden as is. Commissioner O'Donnell asked for clarification on height discrepancies. Mr. Watrous deferred to the architect, stating his review of the story poles indicate that they are at 123.1' and elevations show a high roofline of 123.1'. He added that as a policy, the Town does not require story pole certification by a surveyor for additions; only for new homes. Jeffrey Wong, Architect, recounted how he arrived at the approved project, stating that the original proposal planned to keep the existing garage intact and to construct an addition, including a new garage, at the westerly side yard setback. After much discussion with the DRB at that first hearing and, in light of concerns expressed by the appellant, they revised their proposal. They returned to the next meeting with a completely new proposal to address concerns. The new design came about after the Parsons agreed to significant concessions toward the overall design, specific features and details, the manner in which they would be able to use their completed home, their view of Ring Mountain, and other concessions. They were respectful of input by the DRB and, accordingly, he made changes to the proposal. The plan relocated the proposed addition as far to the other side of the 75 foot wide property as possible from the westerly side yard setback to the easterly side yard setback. This would require additional expense, demolition of the existing garage, and loss of views. They presented the new version and it was agreed that the appellant's issues had been addressed and only a couple of minor concerns remained. At their third and last DRB meeting where there was no other public comment they presented some final design adjustments, including a shorter and narrower roof monitor. They agreed to accept landscape screening and tree protection and were able to arrive at a design good for the DRB, the community, and the Parsons. Regarding the appeal, Mr. Wong pointed out that the grading required in their approved proposal accomplishes a lower garage floor level 3 feet lower than the existing garage. The site and landscape plans presented at each of the DRB meetings showed clearly their intention and ability to grade for the new garages without harming the 6 existing Chinese Elms which the Parsons Town Council Minutes #xx -2011 July 6, 2011 Page 12 have nurtured for years. The elms will anchor the new front yard landscaping and their professional land surveyors, Larry Stevens Associates, have verified they will be able to execute their agreement to the DRB condition to safeguard the trees. . Regarding assertions that the story poles are not correct, Mr. Wong said the same surveyors have verified locations and heights of the story poles. The rows on the east and west facades are glass blocked to provide natural light to the interior while minimizing spillage. He said the pathway is 25 feet from the western property line and 35 feet away when adding the setback of adjacent neighbors. Lastly, on the north elevation, Mr. Wong pointed out the line of the existing curve of Reed Ranch Road, stating that whereas now the existing driveway slopes upwards, after grading the new driveway will slope down to the new garage level. The widths of the proposed curb cut where the new driveway will meet the street is 5 feet narrower than that which exists now, allowing a wider planting area to further screen the house from the neighbors and screen the neighbor's homes from the applicant. He then pointed out existing trees and the wider planting area, said visual screening, privacy, and nighttime illumination all are issues that have effects both ways, and noted that the Parsons also have a vested interest in these issues, as well. Riley Hurd, III, legal counsel for applicant, directed the Council to the Town's code in addressing calculation of floor area ratio, noting it is clear that the applicants are allowed to use all of their lot. He said the appellant expressed concerns about a precedential effect of gigantic lots; however, the Council established a maximum house size in this zone. Floor area ratio is a guideline and not a guarantee, and the DRB still found it to be a project they could approve. They could have made it smaller, but they approved the project. Also important to note is that the garage will be further away from the street as opposed to what is there now. The path is not in the setback but in the actual building envelope, and the appellant's home does not meet the current side yard setback requirement as it is in 5 feet of the Parsons' property, and therefore, they only have a 10 foot setback where 15 feet is required. This non-conformity was exacerbated when the appellant decided to build a second floor in this encroaching area, add living space and windows facing the Parson's property. His clients have had to work around this non-conformity by sacrificing their own time and money to push it away from the appellant's own encroachment. Mr. Hurd then referred to vegetation and privacy and said it is the applicants who have been, and will continue to"be, responsible for providing all screening between the two properties. He stated that the appellant has not one screening plant or tree in the area between the two homes, and the Parsons vegetation is being used for the benefit of both. However, they are happy to provide this benefit. Regarding the walkway and stairs, this is a single family dwelling and the intensity of use is extremely low. Also very important is that in the new design, there is now interior access from the garage to the home, requiring less people using the pathway. In closing, he noted the DRB heavily modified the project in response to the appellant and he asked that the Council uphold the decision of the DRB and deny the appeal. Town Council Minutes #.x -2011 July 6, 2011 Page 13 Vice Mayor Fraser cited the fact that there is a clear difference of opinion, perception, or reality with respect to story poles. He feels there are compelling arguments on both side, and asked how the Council can be convinced in what they saw is correct and what is represented in the drawings is correct. Mr. Wong stated that, while not required, they had Larry Stevens Associates survey the property to verify locations of the story poles and provided a certified document. Councilmember Collins had the following questions to which he received confirmation from Mr. Wong: • The size of the glass blocks is 8x8 and 12x12. • Light will come in and go out of the glass blocks, which are fairly thick. • The size of the floor area under the roof monitor is approximately 140 square feet. • The purpose of the roof monitor is that it allows the integrity of the interior post and timber design of the existing house to be maintained and to add an 8 foot high box next to a room would destroy the character of the interior of the home. • The height of the roof monitor is 12 foot ceiling height over the hobby room. • There is one existing window at the top of the existing roof monitor. • There is no retaining wall proposed in the project. r • The total height of the interior of the garage varies; it is 8 feet over the rear portion considered the workshop area, 11 feet over the second garage, and 15 feet along the L- shaped area. • The dimensions of the entry deck are about 10 feet long, curved, by about 7.5 feet. • The two panel doors facing the west coming out of the garage are solid wood with raised panels. • There is an interior closet on the ground level. Councilmember O'Donnell questioned the need and necessity for a 3-car garage, as he did not see many in the neighborhood. Mr. Wong replied that when he presented the project to the DRB, within 1/ miles there were 10 properties that had more than 2 car garages, mostly on Indian Rock which are newer homes. Councilmember O'Donnell questioned where the connection will be between the garage and the newly created living space, and what the total square footage of the proposed garage is. Mr. Wong pointed out the garage space and interior space on the lower level, and Mr. Watrous confirmed that the total square footage of the living space and garage is 1436 square feet, 600 square feet of which is separate with the remainder going towards the FAR. He confirmed it was the full usage of the 600 square feet. Councilmember O'Donnell confirmed with Mr. Watrous that the resulting FAR would be 3,867 square feet, plus the 600 square feet for the garage. Councilmember Fredericks requested Mr. Wong address the windows on the west side that face the appellant's bedrooms, and asked if there was a way to mitigate the light pollution into the appellant's home. She said there was an appeal a few years ago and an architect on the Council at the time felt interior lighting deign can go a long way to reduce light pollution. She confirmed with Mr. Wong the location of glass blocks versus windows in the plan, and the applicant's Town Council Minutes #xx -2011 July 6, 2011 Page 14 desire to create visual interest and fenestration of the facades. In adding up all square footage on each fagade, each has between 30 and 50 square feet which is the size of an average patio door. Councilmember Fredericks suggested the possibility for interior lighting and cited the new technologies directing down lighting that minimizes light pollution. Mr. Wong said illumination will not go beyond the building. He agreed that recessed lighting can specify direction to restrict light to the domed area, and added that the windows on the side are garage windows and are only minimally used during the night. The hobby room will be the most utilized because it is part of the family room. Mayor Slavitz said once in the garage, one level up is the guest bedroom and model train area. He clarified with Mr. Wong that the floor level for the guest bedroom was below and behind the fenestrations and is nested down into the garage to break up the plane. He stated that if the guest bedroom and the model train area are on the same floor level and the monitor is only at the model train room, he asked why it was needed at all. Mr. Wong said sooner or later, the design will run into the existing roof and they will need to resolve how that works from the exterior design. Mayor Slavitz clarified that the ceiling height is 9 feet in the guest bedrooms going up to 12 feet in the model train area. Mr. Wong described their specific reasoning to do this so as not to make the renovation look like an add-on and require rafters. Councilmember O'Donnell stated the guest bedroom is nestled down in behind the garage, yet the front of the garage it is rising up to almost 15 feet. He questioned why the architect could not integrate the bedroom or a window looking out into the street so as not have such a large garage, which would also require less grading. Mr. Wong said at the various DRB discussions, they tried to reduce the apparent volume of the building envelope. They chose to step it in an array pattern to minimize any angle that one could see it from any wall. If they brought the guest bedroom forward, there would be a two-story high street frontage rather than what would appear as 15 feet tall and stepped back. Councilmember O'Donnell suggested a normal garage height and a graduated slope up to a guest bedroom above the garage. What he said the architect could have done to break up the massing and to eliminate a lot of light pollution in the front is to create a slope from the top of the garage up until the bedroom. Mr. Wong agreed, but noted this was the style his clients were seeking. Vice Mayor Fraser verified that the top monitor is above the train room and a portion of the existing family room, which exists now. Mr. Hurd stated that in addressing Councilmember O'Donnell's point, the DRB said politely to the owner that the main residence is unattractive and they asked him not to match that style again. Councilmember Collins referred to the lower level and the windows facing the west and clarified that the windows are 2 feet wide. The reason for having them there is to capture as much light as possible to light the hallway. Town Council Minutes #xx -2011 July 6, 2011 Page 15 Councilmember Collins suggested installing lighting in the hallway, and Mr. Hurd said the Parsons want a net zero energy impact and build as green as possible. Mayor Slavitz stated that because the windows are smaller, they may add up to the number of normal sized windows in other homes in the area. He asked staff to comment on the amount of glazing. Mr. Watrous noted staff does not usually calculate the amount of glazing as a percentage of a wall. The DRB looks at it on a case-by-case basis. There are some areas where if windows do not face any neighbors, it is solid glass. In other areas, if it is a privacy or light pollution issue, they have asked that windows be lowered or eliminated. He said the applicant did adhere to reducing the number of windows as requested by the DRB by the second and third meetings. Vice Mayor Fraser referred to 3 car garages and asked if the Town has seen this number in new homes or modifications given the number of light boxes or windows. Mr. Watrous stated staff does not calculate them but is seeing more attention being paid to trying to maximize passive lighting approaches with green building principles. Mayor Slavitz said, in recognizing that the final decision of the DRB was not unanimous, he asked DRB Member Em Berson to comment on the project. DRB Member Linda Em Berson explained that Boardmember Kricensky who is an architect, was concerned about mass of the front of the structure and thought that by stepping it back it mitigated some of the large mass. Originally the entire addition was next to the neighbors. The DRB asked that it be moved to the other side which also mitigated privacy issues. Boardmembers drove around the neighborhood and found large houses right on Reed Ranch Road, but the DRB concurred that the applicant was not asking for an exception. They looked at both sides of the issue and arrived at what they thought was a happy median. Mayor Slavitz questioned whether there was discussion regarding number of windows. Boardmember Emberson said she was not at the second meeting but by the third meeting the number of windows had been reduced. The Board also agreed that the windows allowed passive light and reduced energy usage. BREAK Mayor Slavitz called for a brief recess/break at 9:21 p.m., and the meeting then reconvened at 9:26 p.m. J Mayor Slavitz opened the public comment period. There were no public comments, and Mayor Slavitz asked for rebuttal by the appellant. Mr. Mihalovich reiterated that he believed it was productive to have the Council receive a copy of the correspondence from Mr. Hurd and for him to have the ability to articulate, in writing, the concerns as part of his appeal. He noted that the DRB instructed the Parsons to avoid massing of the entire project at the front of the house at the first meeting, which was precisely what they did not do by the second or third meeting, and there is still relatively the same mass of the project in Town Council Minutes # c -2011 July 6, 2011 Page 16 the front. In speaking concurrently about this drawing and about the dissenting vote, Boardmember Kricensky's concern was that the scale of the project was not fitting for this site and the neighborhood. He asked the Council to verify that the measurements in the plan are correct which are taken from the architect's drawings. He has proven that the story poles are not in the right place. In fact, he said the building will be 3 feet taller than the story poles now indicate. Regarding 3 car garages, Mr. Mihalovich said he doubts there are 3 car garages for lots of this size facing the street in the Reedlands, but acknowledged there are in the larger lots in Indian Rock and other parts of Ring Mountain. Regarding the need for a 3 car garage, the applicant wants the Council to believe the Parsons are quiet empty nesters, but said children move back and sometimes people sell their houses after the project is approved and built. He voiced concern with the Council having to approve a 3 car garage just because the Parsons have 4 cars for 2 people. Regarding the surveyor, if the Council is not convinced with the height and bulk of the project, he questioned why the surveyor was not present. And, such a report would contradict the architect's drawings. Councilmember O'Donnell referred to the height of the top of the roof monitor and pointed out that elevation is different than height. The architect has indicated that the elevation is 120'. The height from the ground is at 23'10.5", and he questioned the discrepancy. Mr. Mihalovich clarified that the difference between 99.15 and 120.03 is 3 feet. The story poles are at 119'9 1/" which is on the architect's drawings. Mr. Watrous pointed out that staff shows the corner point at 123.1' and the appellant most likely has an outdated drawing. Mayor Slavitz stated that regardless of the height of the story poles, Mr. Mihalovich would like a 2 car garage and not a 3 car garage. Regarding the guest room and train room, he clarified that it was not a question of where it should go but the height and bulk of the project and the fact that it is sitting out and towering at the front of the building. He added there are other neighbors who have written several times voicing the same opinion. Councilmember Collins confirmed with Mr. Watrous that the reduction of the height was at the request of the DRB at the second meeting. Mayor Slavitz called for the applicant's rebuttal. Riley Hurd, counsel for the Parsons, referred to the grading diagram which he said is a bench cut and not a grading plan., and a topographical survey was done. They are not grading within 9 feet of the Elms on the other side of the property and this is the data Boardmember Kricensky was looking for which is usually presented at the building permit phase. However, they have presented it in order to address it in the appeal. Another important issue is the windows. While it is right to be concerned about light pollution, in this case there will be a giant wall of vegetation screening. He pointed out that the east facing windows coming from the appellant's house into the applicant's property include a second floor office, guest bedroom and two bathroom windows, and on the first floor, bedrooms and a bathroom. There have been no complaints from Town Council Minutes #xx -2011 July 6, 2011 Page 17 the Parsons since they have lived there from the standpoint of the appellant's home. Finally, the DRB never asked them to go to the back of the property because there is a sewer easement and also because of the slope of the lot. Mass would be added directly overlooking the appellant's backyard and private spaces. Lastly, he thinks the 4-1 vote is telling and they have addressed the one `no' vote through the topographical survey. Councilmember Collins questioned and confirmed that the reason there is no retaining wall is because the slope of the street is going in one direction and it is not needed. Mr. Hurd added there is no grade change at either property line. Mayor Slavitz asked whether the front of the garages were at the same line as the existing garages. Mr. Hurd replied that they will be further away from the existing garages and much further away than the appellant's nearest improvements. He clarified they are about 30" further back and wider on the right by another garage bay. Councilmember O'Donnell stated he was on the DRB for several years and this is the most difficult project he has seen. Part of his concern is that he does not like the design itself, as it seems the design builds a mini-castle in front of another house. He also recognizes a person's right to build and the fact that no variance is needed. Regarding the specific 4 points of the appeal, he sees privacy as a complete non-issue because privacy is a two-way street. Both parties can make accommodations for changes on their own property in a positive and negative way. Regarding the issue of walkway and driveway, he does not see much of a problem or impact. He also does not see any issues with grading. He does struggle somewhat with bulk and height, and thinks it is odd to have a 15 foot garage in front of the house with so many windows, noting there are 47 windows excluding the parapet at the top. He understands the DRB is trying to break up mass and bulk but thinks the design creates two separate residences. He said he would have stepped it back somehow above the garage into the bedroom area and limit the 15 feet interior garage height. Councilmember Fredericks said that in the back of the home, height is determined by the Parsons' desire to match the interior design of the roof beam. The trade-off is if the first element is made lower, there will be more of a height jump to the second element. She agrees this is one of the more difficult appeals because of the complexity of the design. She thinks lighting on the west side can be taken care of by thoughtful choice of the kinds of lighting fixtures that beam down and do ndt scatter light. Regarding the 3-car garages in front lots she saw none, but she did see rather large structures close to the road along that side along Reed Ranch Road which were very well screened by trees and vegetation. She thinks this is something people in this neighborhood pay attention to, and given the proposed tree screening, even with a 3 car garage it will have its mass mitigated. She also thinks the curb itself will be a screen for part of the height of the structure. Councilmember Fredericks said she recognizes there are many windows; however, the glazing on the front windows is at an angle to the neighbor across the street which similarly has a monitor design. Therefore, aside from a condition of paying attention on the west side of the house, she Town Council Minutes #xx -2011 July 6, 2011 Page 18 feels the DRB got this absolutely right. Councilmember Collins stated that philosophically, he believes an owner not asking for a variance and FAR exception has a right to develop their property as long as it does not infringe on somebody else and fits within the character of the neighborhood. He did not believe this design fits the character of the neighborhood but is persuaded by the fact that owners should have a right to do what they want to do. He could not vote to change the plan for a 2 car garage, but would like to see considerable mitigation with the downstairs hallway windows. He asked if the stairway could be shielded in some way without losing the square footage and without losing what the living room is intended for. He would like to see the size scaled down and some mitigation to snake it fit better within the neighborhood. Vice Mayor Fraser said that in looking at grounds for appeal, he thinks the privacy issue is a non- issue. He thinks the applicants have demonstrated their willingness to screen to whatever degree necessary, and he expects the appellant can do the same thing. He thinks the walkway and driveway are sufficient. He had been somewhat concerned about the grading issue, story pole and heights, and in moving forward the Council should condition the project to require the surveyor's report as part of the record since it is a controversial point. Given the massing and bulk, he agrees with Councilmember O'Donnell's comments about not liking the design. One area he is troubled with is with lighting and windows and feels many homes approved over the last decade pollute the sky. He agreed with comments as stated by Councilmember Collins regarding the hallway. While dark, interior lighting could be installed. Given the close proximity of neighbors, sensitivity should be given to the amount of light in the evening, and he recommended the garage area be minimized more with respect to lighting. Mayor Slavitz said he agrees with what has been said, especially Councilmember O'Donnell's comments in that the brand new addition looks like two separate houses. The addition actually emphasizes the mass and bulk of the addition, as the 3 garages and wall right above it is all the same plane vertically. An alternative would be to step it back to make it look less massive. The new monitor complicates the design and adds to the bulk. He would remove the windows, meet the roof and simplify the design to remove some of the mass and bulk. He believes that the 3 car garage is not compatible with the neighborhood and suggested stepping one back to look less massive and more acceptable for the neighborhood. Regarding privacy, while green building is encouraged, the downside is that too many windows create light pollution. Councilmember Collins noted that the third garage is a workshop and if used at night, its lights will be on. Mayor Slavitz agreed and questioned whether Councilmembers wanted the project sent back to the DRB or not. Councilmember Fredericks stated that given what the applicant is asking for and the problems that it caused in bringing forward the appeal, she thinks the DRB acted appropriately. She also has concerns with controlling lighting that faces bedrooms. Town Council Minutes #xx -2011 July 6, 2011 Page 19 Councilmember O'Donnell noted there are 9 large windows are right above the garage which he feels are unnecessary. He likes the top roof monitor, thinks a linear plane has been created in front of the house, and suggested the design step back a bit aiad be reduced down. The massive design also takes the full FAR plus adds the 3 car garage and puts a large house on a narrow lot. He thinks it should be redesigned to eliminate the mass, bulk and height issues. He did not have a strong preference for or against the 3 car garage, but suggested eliminating the 15 foot ceiling with a slope to break up the mass. Vice Mayor Fraser said he thinks the applicant clearly responded to the direction given by the DRB. He suggested and confirmed with Mr. Watrous that the Council could direct the applicant to further tweak the project and return to the Council. If the Council feels there is specific direction, it could ask the applicant to eliminate the hallway windows and/or the top row of the larger windows along the garage to address lighting and window issues. Mr. Watrous added that applicants have limited lighting in certain areas to down light fixtures on the interior and there is the ability to address specific additional conditions of approval which could be included in the resolution. If there are other more detailed revisions to the design, and the Council would like to see them, direction could be provided to the applicant, the hearing could be continued and revisions brought back. Mayor Slavitz suggested that the Council could also give specific enough direction and have the revisions reviewed and approved by staff. Mr. Watrous agreed but asked for more clarification in the form of a motion so staff has adequate direction for compliance at the building/plan check process. Councilmember Fredericks said she was comfortable with staff reviewing the lighting, but she thinks a longer discussion would be prompted if the structure is changed to be scaled back, especially given the varying heights inside the garage area. Councilmember O'Donnell suggested slanting the varying height from the top level to where the garage doors are so the 15 windows become 4 windows, similar to a dormer. Ms. Danforth offered that eliminating windows on the west side would be helpful in mitigating impacts on neighbors at 67 Reed Ranch Road, which could be simple fix as could be the lighting design condition described by Mr. Watrous. If something more is required to reduce the actual size of the garage addition, she would be hesitant to have the Council elaborate on it tonight unless the architect describes something the Council could sign off on. Otherwise, the most effective thing to do would be to continue the meeting and return the project. Mr. Watrous approached the Council and provided an example to reduce down the 15 foot section of the garage and angle it. Mayor Slavitz offered that the project could be continued to the next date certain, which is August 3, 2011. Town Council Minutes #xx -2011 July 6, 2011 Page 20 Mr. Watrous clarified with the Council their desired changes to the project; the taller garage roofline to be brought down to meet the second lower plane. Instead of it being flat, it could slope up. Councilmember O'Donnell suggested also decreasing some of the lower windows and increasing the upper window in the guest area to capture views. Mayor Slavitz clarified that the direction is to: 1) step back the garage height, 2) reduce the number of windows in the garage, 3) eliminate some or all of the hallway windows, and 4) add down light fixtures. Councilmember Collins noted there are 4 windows facing the west in the garage. He suggested these be eliminated and moved to face the east on the blank wall. He also stated there are 2 windows in the guest bedroom. If these were pushed out and reversed to the front side, the west side would be mitigated dramatically. Mr. Watrous confirmed the modified conditions of the Council as: 1) modify the garage roofline to lower the higher portion over the two left garage spaces, bringing that roofline down to align with the lower roofline above the western most garage space, which would mirror the roofline that is over the lower garage; 2) eliminate the windows on the west side and move them to the east side elevation; 3) move the west side guest bedroom windows to the front; and 4) delete hallway windows and install interior lighting. The Council asked that the revisions be made and returned to the Council at its August 3, 2011 meeting. MOTION: To continue the public hearing to August 3, 2011. Moved: Fredericks, seconded O'Donnell Vote: AYES: Unanimous 3. Mill Valley Refuse Service - Further consideration of the proposed Mill Valley Refuse Service rate increase (Town Manager Curran; Director of Administrative Services Bigall) - continued from the June 15 regular meeting Director of Administrative Services Bigall gave the staff report, stating the item was continued from the Council's June 15, 2011 meeting wherein the Council received a presentation and considered a proposed rate increase by Mill Valley Refuse Service (MVRS). She said the application is prepared by April 1 St for a July 1St effective date and based on MVRS's projection of revenues and expenditures a 13.61 % increase is requested to provide MVRS with a fair rate of return. At the June 15th date, the new franchise agreement was not in effect, which calls for some other services and an increase to the agreement the Town receives. Therefore, the effective [prorated] increase becomes 15.88%. The Council requested MVRS return with several items, which she outlined: • Exhibit 1 through 4 include 4 years of audited financial statements; Town Council Minutes #xx -2011 July 6, 2011 Page 21 • Exhibit 5 is a quick comparison she prepared comparing those 4 years of audited financial statements which shows that MVRS averaged a 1.7% net profit for those 4 years. MVRS has an in-house accountant, an outside certified auditor, and auditors and CPAs are present tonight to answer questions; • Exhibit 6 is MVRS's detailed rate application increase. For MVRS to achieve a fair rate of return which is 110% of allowable costs plus pass through costs, it would require the increase of 15.88%; • Exhibit 7 is a request for further information on loss revenues as a result of migration; people going from a larger can to a smaller can. MVRS has provided a spreadsheet indicating that over the last year they lost $33,500 due to this migration; • Exhibit 8 is Councilmember O'Donnell's specific request regarding revenues received from the sale of MVRS's salvage, co-mingled recyclables. MVRS receives $20/ton for the co-mingled single stream recyclables and their contract with Waste Management allows this $20/ton to go up as high as $40/ton based on the composite market of those commodities. She added that the Town receives credit for 19% of the salvageable revenue they do receive, and this is proportioned out to other jurisdictions; • Exhibit 9 is a portion of their contract with Redwood Landfill which outlines the increase of disposable rates which take effect July 1, 2011; • Exhibit 10 is MVRS' contract with Royal Petroleum for diesel fuel which provides a fixed rate, averaging 4.66 cents per gallon through September of this year; • Exhibit 11 is a letter from MVRS' insurance broker which indicates that, based on their modification experience and market conditions, their Workers' Compensation rates will increase by 25% to 35% on October 1, 2011; • Exhibit 13 is a Council requested comparison of rates for 32-gallon cans in the flat areas. Tiburon is at the top one-third percent, but somewhat competitive with other Marin County jurisdictions. She said each agency has varying requirements through each of their franchise agreements. • Exhibit 14 is the resolution that would approve the rate increase effective July 1, 2011, and before the Council is a revised resolution which includes the fact that the Council held a hearing on June 15, 2011 which was continued to this date. Ms. Bigall stated MVRS has held off on their July through September billing pending adoption of the new rate increase. If the increase is not approved and it is determined that a September 1St date is a different rate, staff will change the proration from 12 months to 9 months, which will change the percentage to a 21.1 % increase. Councilmember Fredericks questioned and confirmed that franchise fees and pass-through costs in the past have driven rates. Councilmember Collins questioned the existence of MVRS' profit and loss statement. Ms. Bigall responded that MVRS' projections are based on revenues and expenditures and the amount they are short to realize a return, and she clarified it amounts to $318,000. Councilmember Collins questioned and confirmed that a 10% mark up represents $230,000. Town Council Minutes #xx -2011 July 6, 2011 Page 22 Vice Mayor Fraser confirmed that MVRS is able to provide detailed information and request a rate increase every year, and that every 3 years, the Marin County contracted agencies have an independent analysis completed. This analysis was last done in 2009 when a 3.1 % increase was requested. The cities' independent auditor opined that MVRS could have asked for a higher increase. Ms. Danforth clarified that MVRS can request a rate increase every year and go through the entire process; however, for the 2 years following a formal rate increase, they can ask for an automatic cost of living rate increase up to and not to exceed 3%. Therefore, MVRS only has to ask for an increase every 3 years, but has the ability to request one more often. Councilmember Fredericks questioned what is reviewed by the independent consultants in justifying the rate increase. Ms. Bigall said in attempting to make it as consistent as possible, the increase is determined by each agency's individual contract. Vice Mayor Fraser stated the Town has a cost plus contract with MVRS and MVRS revenues are declining. He questioned MVRS' projection for the next 5 years. James Iavarone, MVRS, responded that MVRS does not make 5 year projections. If they continue with the rate structure they have, revenues will continue to go down because people will continue to migrate from larger cans to smaller cans. He explained the economy is causing a lot of problems now, as many businesses are reducing or eliminating service, as well as residential, but trends show a leveling out. Vice Mayor Fraser said it looked as though revenues peaked in 2007, declined in 2008 and 2009, were up in 2010, and projected to be less in 2011. This year dump fees were at 37% and he questioned whether these would rise over the next 5 years. Mr. Iavarone indicated MVRS just signed a new contract and dump fees will rise with the CPI for the next 5 years. He could not estimate what will occur in 5 years. He discussed how they must lock in their fuel price, noting at that time, it was predicted gas would go to $5/gallon; however, things changed. Vice Mayor Fraser referred to the workers' compensation increase of 29%. He questioned whether this was attributable to claims and asked how MVRS could further offset the company's exposure. He believes such increases will only cause increases to the consumer and costs will continue to incrementally increase year by year. He also asked Mr. Iavarone how MVRS could reinvent itself and said he is troubled by the fact that the Town has initiated a cost plus contract with a fair rate of return. The person at the `end of the line' is subject to MVRS' declining revenue while at the same time is being asked to be more responsible with the environment. As a result, consumers are paying more for MVRS' impacts. Mr. Iavarone stated the services MVRS provides are due to the direction from the State to recycle more. People will always have garbage that needs hauling, and one way to reduce fuel costs is through efficient routing. He said they have done route consolidations for years. Fewer routes equals less fuel consumption and hybrid trucks are also coming out. He described the costs of workers' compensation insurance and noted their broker worked with theirs to reduce their Town Council Minutes #xx -2011 July 6, 2011 Page 23 experience modification through safety programs. In addition, if they get people to take food out of the garbage and into the green can, they could pick up cans biweekly and not weekly. Councilmember O'Donnell said he understands MVRS is a private company and taking a profit, but the Council is responsible for investigating numbers and working to achieve a fair rate for its constituents. He discussed in detail the issue of migration and loss in revenues, voicing disagreement with how the loss of $33,000 was justified. He disagreed with loss of revenue figures reflected in combining the additional 50 customers with shifts from 32 gallon to 20 gallon cans, migration, and customers added and subtracted on and off hills and said if 110 customers were taken multiplied by $4/can multiplies by 12 months a year, it does not come anywhere close to the figures provided by MVRS. David Button, Armanino McKenna, LLP, said the migration schedule shows migration amongst all customers in Tiburon for a certain period of time. Two customers may have 45 gallon cans at the rate applied. If they move to one 20 gallon can versus 2 at 45 gallons, there is a loss. The revenue projected for the year is reflected accordingly. Councilmember O'Donnell believed this to be faulty because MVRS would have to measure the exact number of additional new customers versus loss of sales, or a true migration. Mr. Button said the model takes this into account where there is a decrease as well as an increase. This migration cost might be offset by having fewer drivers, but having one additional customer on the hill does not make much difference. Councilmember O'Donnell said his point is that the figure does not just represent migration; it also represents pluses and minuses in business activities. Mr. Button noted for this schedule, there was a loss of customers and a gain of one customer, but the majority of the loss of revenue was $1200 per month. Councilmember O'Donnell said he thinks MVRS is using figures to their own advantage and to the disadvantage of the ratepayers, especially when it sent out a sheet indicating the amount of migration loss. The figures given today which have been reduced down to $33,000 does not just represent migration but how the business model has changed. He confirmed that based on the report, "Recyclable related revenues account for 2% of MVRS' revenue." He referred to the 2009 audited financial reports under Exhibit 4, recycling revenue for 2009, line 2, which is a totally different figure and states that MVRS garners approximately 10% of its overall revenue from recyclable products. The MVRS Accountant, Claudia Hayes, said the recycling revenue includes both charges for service and for salvaging sources because it is a cost combined effort. A portion of the garbage collection is allocated for recycling revenues for pick up services. Included in the line 2 are salvageable sources and income they receive from outside companies. Councilmember O'Donnell objected to the figures being mixed together. Bill Browsey, Armanino McKenna, LLP, said from a GAF standard, there is no requirement to break out recycling from salvage with what MVRS is getting from collection. It could be an Town Council Minutes #xx -2011 July 6, 2011 Page 24 internal decision to track it. If it were contractually required, they would show it. Ms. Bigall added that the resolution breaks out the base rate and the recycling rate as charged to the customer. Councilmember O'Donnell questioned why it was.not broken out, as revenue is being reflected from recyclable materials. Mr. Browsey said from a GAF standpoint, there would be no requirement to do so, but he acknowledged the question from a jurisdictional standpoint. Councilmember O'Donnell said he noted in the last meeting that claims for workers' compensation insurance were reduced yet the letter from the broker indicates they have increased. Mr. Iavarone stated their modification experience rate was reduced from 100 down to 77, but premium rates have increased. Regarding fuel, Councilmember O'Donnell questioned MVRS' business rationale for its fuel contract rate. Mr. Iavarone explained they must make a rate application based on the figures in April and did the best they thought they could at that time. He discussed three years ago when they lost a significant amount of revenue because of the increase in fuel. Councilmember O'Donnell said this is the largest increase the Town has had, and there is no incentive to keep costs down with a cost plus contract. MVRS simply passes down all increases to the consumer. Mr. Iavarone reiterated that they must make a rate application in April and not in July which is based on what the price is then, and they are stuck with it. They do not have a chance to return to the contract agencies if their price is too low, as there are no mid-year adjustments. Councilmember O'Donnell said the problem he sees is that the base rate grows. Then, MVRS requests a CPI increase because of a high fuel price for the next year. Mr. Iavarone disagreed and said when the 3-year independent audit was done they did not get to recover the old price and they lost a lot of money that year which is what protects the towns. Councilmember O'Donnell reiterated there is no incentive for MVRS to keep costs down, as costs can be passed down to the consumer while MVRS still makes a 10% profit, and this is why the ratepayers get angry. Ms. Curran commented that she understands the logic being argued, but there is no evidence that this has, in fact, resulted in excessive profits to MVRS. Councilmember O'Donnell noted that he does not believe that profit and losses reflected for the company were accurate. Similarly, if a higher workers' compensation premium must be paid, it is simply passed down to the ratepayers and there is no incentive by MVRS to reduce costs or increase recycling revenues. Mr. Iavarone referred to comments regarding incentives, and said they have consistently gone through route consolidations. If they did not care about their costs, he would have more drivers working. Councilmember O'Donnell pointed out that based on the prior meeting MVRS was going to see what they could do to keep prices low because it was working on a rate consolidation and on an independent plan to bring costs down. However, the rate consolidation is being done after the contract is signed. Town Council Minutes #xx -2011 July, 6, 2011 Page 25 He noted the dump will agree to a 5-year CPI with MVRS, and he asked Mr. Iavarone if he would agree to a 5-year CPI with the Town based on the rate increase. Mr. Iavarone said he could not accept this without the additional safeguard of having it reviewed to see if the CPI kept up with operating costs for a garbage company operation. He suggested the RRI as a better measure because it is designed to look at operating costs. He argued that he did not reject this concept, but instead mentioned it late in the process, which would have required more negotiation in how it would work. There is a real desire for an RRI model, as well as a full blown rate analysis with an independent consultant afterwards, at which time the contract could be amended. Ms. Danforth said she was hearing a general concern about future costs being lower than they are represented. The contract does give MVRS the right to return next year and request an automatic cost of living adjustment, but because of the pending audit being done by MCCMC and their own internal analysis, if the Council agrees with the resolution, she suggested it be accepted with the proviso that instead of requesting an automatic cost of living adjustment next year, they would do another full blown application for any rate increase. Mr. Iavarone said this is already the case, as towns have already indicated they will want a full blown rate review. Vice Mayor Fraser said he would want to see what the company is going to do differently and is opposed to a cost plus contract, as all the risk is on the Town. He asked how MVRS plans to work on how the industry can change so that costs will go down. Ms. Curran summarized comments, stating that if the contract is approved by the Council, a portion of the Marin Managers served by MVRS intend to request an audit, paid for by the company, between now and the next rate increase application. Included in this concept is to look at rate structure itself, particularly with the base can rate and migration to smaller cans to possibly arrive at a more sensible way to structure rates. She noted that if the audit shows rates are too high, that they would need to be lowered, and asked Mr. Iavarone to confirm this would be the case. Mr. Iavarone agreed, adding that they have never had any choice in the matter. If the outside independent analysis shows the rates should be lower, they must agree with it. Ms. Curran questioned whether Mr. Iavarone was amenable to the concept of CPI caps in increases in years 2 and 3 despite the finding of the audit as was implied by Councilmember O'Donnell. Mr. Iavarone replied no, as they are working according to the structure of the contract and must abide by the auditors conclusions. Ms. Curran noted that per the contract, what the auditor comes up with should govern as opposed to an arbitrarily agreed upon number, and that by definition this should be the fair and accurate rate. She also pointed out that the Town can help select and participate in this process with the auditor. Town Council Minutes #xx -2011 July 6, 2011 Page 26 Councilmember O'Donnell said he still sees this as beneficial to the company and not the ratepayer. Mr. Browsey said he has worked with various garbage companies and consultants for years that look at rate applications. He understands the concerns on costs, but said what will happen is that the auditor will compare costs to industry standards, so it is not strictly based on costs but other factors. Councilmember Collins said governments have cost plus contracts like PG&E and all utilities and if not honest, they quickly go out of business. He hoped that the company stays honest and that the Council's concerns can be addressed. Mr. Iavarone described the company's care to keep costs down through route consolidation and safety programs that have improved operational costs. Councilmember Fredericks voiced the importance of an independent auditor, recognized there are fixed costs, and that a loss in customers results in higher rates. She believes an industry shift is a wonderful idea and vision but would not make it a condition, and supported the resolution. Mayor Slavitz opened the public hearing. Robin Hurling, 101 Esperanza #6, asked that educational materials and information [in pictures] be provided to customers so that they properly place items in correct cans. She also described a positive customer service experience by MVRS. Mayor Slavitz closed the public hearing. MOTION: To adopt the resolution authorizing an adjustment in regular rates of 15.88%. Moved: Fredericks, seconded Slavitz Vote: AYES: Fredericks, Fraser and Slavitz NOES: Collins and O'Donnell TOWN COUNCIL REPORTS • Report from TAM delegate Alice Fredericks Councilmember Fredericks reported that TAM has been asked to make an $8 million contribution to the SMART shortfall for the initial operating system of the railway. The 2008 Expenditure Plan acknowledged that projected revenues and costs would have to be updated annually, but a surprise was the effect of economic meltdown which led to increased costs, and reduced revenue and availability of funding, which then led to a proposal to stage the project. She explained that the first delivery is the Initial Operating System (IOS) running from Santa Rosa to downtown San Rafael. SMART asked MTC for funding for the IOS shortfall, and MTC reviewed all projections and received some documentation in a December 2010 report. As a consequence they deferred some of the elements, revised projections, and adopted the current Town Council Minutes #xx -2011 July 6, 2011 Page 27 configuration in April 2011. MTC reviewed the revised projections. The April configuration of the IOS that was adopted has a total cost of $400 million and is a $54 million shortfall in revenues and financing for it. MTC had previously committed $22 million to the IOS and commissioned an additional $11 million on Marin and Sonoma matching contributions. What MTC has offered is $21 million plus $11 million for the shortfall. TAM was. asked to contribute $8 million to the shortfall and if TAM fails to make this contribution, a $32 million contribution from MTC would go away. She brief MCCMC on the issue about how the shares are apportioned and the considerations arrived at. The issue came before TAM and they voted 8-6 to contribute the $8 million after a vote to reconsider their initial vote. The reconsideration vote was legally valid, but TAM decided . they would reconsider the second vote on the motion to reconsider in deference to the public who had already left after the motion was made. The councilmember from Larkspur had initially voted not to contribute the $8 million because of an overcrossing for a Larkspur Station that takes bikers and ferry riders over Sir Francis Drake to the ferry and bike paths beyond. However, in thinking about it, the Councilmember realized that the project was in the SMART right-of-way and if SMART did not get the $8 million contribution all other contributions fell through and the path would not be built anyway. The subsequent vote came out 8-6 in favor of TAM providing SMART with $8 million in funding. At the next TAM special meeting, the vote taken will either pass or fail. If the approval should stand, the Board will then vote on adopting the conditions discussed and reprogramming funds to snake this money available. Councilmember Collins questioned and confirmed with Councilmember Fredericks that the $8 million TAM contributed is a grant and from funds that do not currently affect funded projects. The grant money that backfills the project will go to other projects and not for TAM projects. Councilmember Collins said he has a philosophical problem with voters getting something different than what they voted for, as (they) do not get to decide now whether or not they want to continue the sales tax or not. Councilmember Fredericks likened it to cutting back the size of some of the parking spaces in capital projects. Before engineering is done, sometimes there are issues with undergrounding, sometimes estimates are high and low, and they are affected over the length of the cost of the process by changes in the economy and cost of materials. She believes voters are not getting a different project but rather a staged project. Vice Mayor Fraser questioned and confirmed with Councilmember Fredericks that a condition restricts SMART from returning to taxpayers for more money; however, they can go to other agencies. She recognized there are risks not only for future segments not being built right now but for the existing segment, as well. Councilmember O'Donnell said he supports Councilmember Frederick's position. He originally voted against the project but it was overwhelmingly supported by voters and he thinks there is an Town Council Minutes #.x -2011 July 6, 2011 Page 28 obligation that a supermajority wanted the service to be put in and paid for by tax dollars. He said everybody has recognized that the economy shifted and he thinks this is the right thing to do. Mayor Slavitz agreed and recognized the expenditure and efforts to date. Councilmember Fredericks added that SMART still has the right-of-way which could be used for one-way bus traffic. She noted that Highway 101 has reached the limit of how it can be expanded and congestion is predicted from population increase from the north. Councilmember Collins questioned if there was talk of this going back to the voters as modified. Councilmember Fredericks stated RepealSMART is attempting to get 40,000 signatures for a ballot measure, although they must also overcome the more positive voter support in Sonoma. On a separate subject, Councilmember O'Donnell said he asked for pension reform to be agendized, noting that the Town of Belvedere adopted a resolution, and he suggested Council's review of its language. Ms. Curran noted that staff was in receipt of Belvedere's report and resolution and will agendize the matter for Council's review. TOWN MANAGER'S REPORT • Marketing and Communications Task Force Interview Process Ms. Curran said the Downtown Vibrancy Report called for a Marketing and Communications Task Force. She recommended and the Council agreed that the Downtown Committee, comprising of Vice Mayor Fraser and Councilmember Collins, interview candidates and develop a list of recommendations for Council's consideration. Ms. Curran noted that in the past the Town provided $2,000 each year to the Art Festival to help it get launched, but had stopped doing so this year. However, in response to a request from Councilmember O'Donnell and herself, she said that the Joint Recreation Committee was adding a new component to the Festival, a Plein Air competition. She requested that Council concur with the allocation of $1,000 from the Town's contingency budget on a one-time basis for this purpose, to which the Council agreed. Mayor Slavitz confinmed with Ms. Curran that the Town provides in kind police support for Friday Nights on Main. Manager Curran confirmed that two events, the Friday Nights on Main and Art Festival, receive no-cost police support from the Town and that all other non-profit events are required to pay for this service. WEEKLY DIGESTS • Town Council Weekly Digest -June 17, 2011 • Town Council Weekly Digest- June 24, 2011 • Town Council Weekly Digest -July 1, 2011 Town Council Minutes #xx -2011 July 6, 2011 Page 29 ADJOURNMENT There being no further business before the Town Council of the Town of Tiburon, Mayor Slavitz adjourned the meeting at 12:00 p.m. midnight. JEFF SLAVITZ, MAYOR ATTEST: DIANE CRANE IACOPI, TOWN CLERK Town Council Minutes #xa -2011 July 6, 2011 Page 30 TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 To: From: Subject: Reviewed By: BACKGROUND Mayor and Members of the Town Council Police Chief Cronin Town Council Meeting July 20, 2011 Agenda Item: CC- Resolution Commending Officer Rob Dehner for exemplary service on July 1, 2011. On July 1, 2011 Officer Rob Dehner was on duty when a service technician received a life threatening electrical shock while installing an appliance in a Tiburon Residence. The shock rendered the man unconscious. When Officer Dehner arrived the man was not breathing and had no pulse. At considerable risk Officer Dehner pulled the man away from the appliance and began CPR. Tiburon Fire arrived a few minutes later and the man was taken to MGH where he made a full recovery. The MGH ER doctor and Fire Chief Richard Pearce both credit Dehner for probably saving the man's life and certainly preventing him from brain damage by administering CPR in the critical minutes before the arrival of the fire department with their advanced life saving equipment. RECOMMENDATION Staff recommends that the Town Council: 1. Adopt the resolution commending Officer Rob Dehner for exemplary service on July 1, 2011. Exhibits: Prepared By: Resolution Michael J. Cronin, Chief of Police TOWN OF TiBURON PAGE 1 OF 2 Resolution No. 37-2011 A Resolution of the Town Council of the Town of Tiburon Commending Officer Rob A. Dehner for Exemplary Service WHEREAS, Officer Rob Dehner was on duty on July 1, 2011 when he heard Tiburon Fire Department dispatched to a report of a possible accidental electrocution of a tradesman who had been installing an electrical appliance at a Tara Hill residence; and WHEREAS, Officer Dehner immediately responded, arriving at the residence within three minutes, and located the victim, Mikhail Nozik laying unconscious on the floor of the kitchen; and WHEREAS, Officer Dehner directed occupants to a safe area while he quickly assessed the situation before placing himself at risk and dragging Mr. Nozik a safe distance before checking for vital signs and determining that Mr. Nozik had no pulse and was not breathing; and WHEREAS, Officer Dehner began CPR, continuing until the Tiburon Fire Department arrived on the scene and began ventilation and defibrillation of Mr. Nozik whose pulse and breathing resumed before he was transported to MGH, where he fully recovered; and WHEREAS, It is the opinion of the treating MGH ER doctor and Fire Chief Richard Pearce that Officer Delmer's quick response, correct assessment and proper application of CPR in the critical few minutes between the electrical shock and the arrival of Tiburon Fire Department personnel saved Mr. Nozik's life, and certainly prevented him from suffering irreparable brain damage. NOW THEREFORE, the Town Council of the Town of Tiburon does hereby commend and congratulate Officer Robert Dehner for his exemplary behavior, reflecting the highest standards of professional conduct, in the protection of life and service to the citizens of the Town of Tiburon. PASSED AND ADOPTED at a regular meeting of the Tiburon Town Council on July 205 2011, by the following vote, to wit: AYES: COUNCILMEMBERS: JEFF SLAVITZ, MAYOR TOWN OF TIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 To: From: Subject: Reviewed By: BACKGROUND Mayor and Members of the Town Council Police Chief Cronin Town Council Meeting July 20, 2011 Agenda Item: cc_ S Resolution Commending Captain David M. Hutton for his 30 years of service with the Town of Tiburon On July 1, 2011, Captain David M. Hutton completed his 30th year of service to the Town of Tiburon. Captain Hutton continues his service as a valued and trusted member of the Tiburon Police Department. RECOMMENDATION Staff recommends that the Town Council: 1. Adopt the resolution commending Captain Hutton for his thirty years of service with the Town of Tiburon. Exhibits: Prepared By Resolution Michael J. Cronin, Chief of Police 11 TOWN OF TIBURON PAGE 1 OF 1 Resolution No. 38-2011 A Resolution of the Town Council of the Town of Tiburon Commending Captain David Michael Hutton on the 30th Anniversary of his Service to the Town of Tiburon WHEREAS, David (Dave) Michael Hutton began his career as a police officer with the Town of Tiburon on July 1, 1981 following five years of service with the Pacifica Police Department and the El Cerrito Police Department; and WHEREAS, Dave has served with distinction in a variety of assignments; first as a patrol officer and later as a field training officer, corporal in 1988, sergeant in 1990, lieutenant in 2001, Captain in 2005, and for a period of time in 2006 and 2007, Interim Police Chief, and WHEREAS, Dave has achieved an uncommon depth of understanding of the needs of his community and the role of the police and has performed an invaluable service by consistently drawing upon that knowledge to assist subordinates and superiors alike adding immeasurably to the department's performance and reputation; and WHEREAS, Dave's belief in the concepts of principle-based leadership learned through his long association with the Sherman Block Supervisory Leadership Institute is evidenced by his daily behavior and amply documented in innumerable letters of appreciation and commendations from police chiefs, council members, business leaders, residents, and visitors alike; and WHEREAS, Dave's commitment to the community extended far beyond his service as a police officer to include fourteen years in Little League as a coach and a commissioner, where he is still referred to as "Coach", a title he treasures, by his former players; and WHEREAS, Dave continues to set a daily example of the highest standards of professional conduct, ethical behavior and commitment to the principles of community policing in meeting the goals of the Town Council, the needs of his co-workers and the wishes and expectations of Tiburon residents: NOW THEREFORE, the Town Council of the Town of Tiburon does hereby heartily commend and congratulate Captain David Michael Hutton for his 30 years of outstanding service to the Town of Tiburon. PASSED AND ADOPTED at a regular meeting of the Town Council on July 20, 2011, by the following vote, to wit: AYES : COUNCILMEMB ERS : JEFF SLAVITZ, MAYOR TOWN OF TIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 To: From: Subject: Reviewed by: BACKGROUND Mayor & Members of the Town Council Community Development Department Town Council Meeting July 20, 2011 Agenda Item: Adoption of an Ordinance Repealing Title VI, Chapter 28 (Smoking & Tobacco Regulations) and Adopting a new Title VI, Chapter 28 (Smoking & Tobacco Regulations) of the Tiburon Municipal Code The Town Council held first reading of this ordinance at its meeting on July 6, 2011 and directed that certain revisions be incorporated and waived any further readings. The revisions have been made and the item now comes to the Town Council for adoption. PROCEDURE This is a consent calendar item. The Council's motion to adopt this item on the consent calendar will constitute a motion to confirm the waiver of second reading from the previous meeting and adopt the ordinance. Each Councilmember's vote on the motion to approve this item on the consent calendar will constitute the equivalent of a roll call vote and will be recorded within the ordinance. Should any Councilmember choose to vote differently on this item than other items on the consent calendar, then the vote on this item should be taken separately from other items appearing on the Consent Calendar such that individual votes may be properly recorded. Should the Council wish to discuss the item, it must be removed from the Consent Calendar and voted upon separately. RECOMMENDATION Staff recommends that the Town Council approve final adoption of Ordinance No. 531 N. S., a draft of which is attached as Exhibit 1, as part of the Consent Calendar. EXHIBITS Draft Ordinance No. 531 N. S. Prepared by: Scott Anderson, Director of Community Development S: Wdministrationl Town CouncillStaff Reports12011 Uuly 20 draftslsmoking ordinance adoption report.doc ORDINANCE NO. 531 N. S. DRAFT AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON REPEALING MUNICIPAL CODE TITLE VI, CHAPTER 28 (SMOKING AND TOBACCO REGULATIONS) AND ADOPTING A NEW MUNICIPAL CODE TITLE VI, CHAPTER 28 (SMOKING AND TOBACCO REGULATIONS) SECTION 1. FINDINGS. WHEREAS, the Town Council adopted its current municipal code regulations regarding smoking and tobacco in October 1992, codified as Title VI, Chapter 28 of the Tiburon Municipal Code; and WHEREAS, since that time there have been changes in the law and increased interest by citizens in the regulation of smoking, and the Town Council desires to update its smoking and tobacco-related regulations; and WHEREAS, the Town Council finds that the magnitude of the proposed amendments to Title VI, Chapter 28 are such that repeal of the entire chapter and adoption of a new chapter is warranted and appropriate; and WHEREAS, the Town Council finds that the regulations contained herein are consistent with goals and policies of the Tiburon General Plan, and specifically with the goals of the Safety Element of the Tiburon General Plan, and are adopted to promote the health, safety and general welfare of the community by further regulating tobacco smoke and tobacco-smoke-related hazards; and WHEREAS, the Town Council held public hearings on October 20, 2010 and July 6, 2011, and has heard and considered all testimony and timely correspondence on the proposed Municipal Code amendments; and WHEREAS, the Town Council finds that that these amendments are covered by the general rule that the California Environmental Quality Act (CEQA) applies only to projects that have the potential for causing a significant effect on the environment pursuant to CEQA Guidelines Section 15061(b)(3), and further finds that if the amendments, were not covered by the above section, the amendments would be categorically exempt pursuant to Sections 15305, 15307 and/or 15308 of the CEQA Guidelines. SECTION 2. REPEAL OF TITLE VI, CHAPTER 28. NOW, THEREFORE, BE IT ORDAINED that the Town Council of the Town of Tiburon hereby repeals Title VI, Chapter 28 (Smoking and Tobacco Regulations) of the Tiburon Municipal Code. Town of Tiburon Ordinance No. 531 N. S. Second Reading Draft Effective 811912011 Page I of 15 SECTION 3. ADOPTION OF TITLE VI, CHAPTER 28. NOW, THEREFORE, BE IT FURTHER ORDAINED that the Town Council of the Town of Tiburon hereby adopts a new Title VI, Chapter 28 (Smoking and Tobacco Regulations) of the Tiburon Municipal Code to read as follows: 28-1 Findings and Purpose. (a) The town council finds that: (1) Numerous scientific studies have found that tobacco smoke is a major contributor to indoor air pollution; (2) Reliable scientific studies, including studies by the Surgeon General of the United States and studies commissioned and assessed by the U.S. Environmental Protection Agency, have shown that breathing sidestream or secondhand smoke is a significant health hazard to nonsmokers; particularly to children and teens, elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; (3) Health hazards induced by exposure to environmental tobacco smoke include lung and other forms of cancer, respiratory infection, decreased respiratory function, decreased exercise tolerance, broncho -constriction and broncho-spasm, and that the most common cause of premature death from environmental tobacco smoke is heart disease; (4) Reliable scientific studies assessed by the U.S. Environmental Protection Agency have found that sidestream and secondhand tobacco smoke causes the death of at least fifty-three thousand nonsmokers annually and is a leading cause of premature death and disability among nonsmokers; (5) Nonsmokers with allergies, respiratory diseases and those who suffer other ill effects of breathing sidestream or secondhand tobacco smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of adverse reactions to same; (6) Persons, particularly employees, have a right to a smoke-free environment if they desire; (7) Tobacco smoking is a leading cause of fires, and cigarette and cigar burns and ash stains on merchandise and fixtures cause economic losses to businesses; (8) Substantial scientific evidence exists that the direct use of tobacco products causes cancer, heart disease, and various other medical diseases. The Surgeon General of the U.S. has hound that tobacco-caused diseases are the leading cause of premature, preventable death and disability in the U.S.; (9) The National Centers for Disease Control have found that at least four hundred thirty-four thousand Americans die each year from tobacco-caused diseases. The Surgeon General of the U.S. and U.S. Department of Health and Human Services have found that a majority of those Americans who die of tobacco-caused diseases became addicted to nicotine in tobacco products as adolescents before the age of legal consent; (10) The National Institute on Drug Abuse has concluded that the nicotine in tobacco products is a powerful addictive drug and identifies nicotine addiction as the most widespread example of drug dependence in the U.S.; (11) The Surgeon General of the U.S. has found that nicotine in tobacco products is as addictive as cocaine and heroin; Town of Tiburon Ordinance No. 531 N. S. Second Reading Draft Effective 8119/2011 Page 2 of 15 (12) 87.9% of non-smokers showed detectable levels of cotinine (a metabolite of nicotine) in their blood, the most likely source of which is secondhand smoke exposure; (13) There is no Constitutional right to smoke; (14) Secondhand smoke can seep under doorways* and through wall cracks and through ventilation systems; (15) State law prohibits smoking in virtually all indoor places of employment reflecting the state policy to protect against the dangers of exposure to secondhand smoke; (16) A local ordinance that authorizes residential rental agreements to include a prohibition on smoking of tobacco products within the common areas of multi-unit residences is not prohibited by state law; (17) California law declares that anything which is injurious to health or obstructs the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance. (b) Accordingly, the town council finds and declares that the purposes of this chapter are: (1) To protect public health, safety and general welfare by prohibiting tobacco smoking in certain public places and in places of employment; and (2) To guarantee the right of nonsmokers to breathe air free of toxins from combustion of tobacco, tobacco product, tobacco-like product, spices or any other plant or herbal materials to the extent that local regulation of sources of combustion of those materials is allowed by law and to recognize that the need to breathe air free of the toxins produced by smoking has priority over the desire to smoke; (c) The town council further finds it is within its basic police power to implement and enforce the provisions of this chapter. 28-2 Definitions. The following words and phrases, whenever used in this chapter, shall be construed as defined in this section: "Bar" means an area which is devoted to the serving of alcoholic beverages for consumption by patrons on the premises and in which the serving of food is only incidental to the consumption of such beverages. "Business" means any sole proprietorship, joint venture, corporation or other business entity formed for profit-making purposes, including retail establishments where goods or services are sold, as well as professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered. "Common interest complex" means a multi-unit residence that is a condominium project, a community apartment project, a stock cooperative, or a planned development as defined by California Civil Code section 1351. "Employee" means any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a nonprofit entity. Town of Tiburon Ordinance No. 531 N. S. Second Reading Draft Effective 811912011 Page 3 of 1S "Employer" means any person, partnership, corporation, including a municipal corporation, or nonprofit entity, which employs the services of one or more individual persons. "Enclosed area" means all space between a floor and ceiling that is enclosed on all sides by solid walls or windows (exclusive of door or passage ways) that extend from the floor to the ceiling, including all space within said walls or windows that may be screened or divided by partitions or other materials or devices that do not extend to the ceiling or are not solid. "'Health department" means the County of Marin Health Department. "Landlord" means any person who owns real property leased as residential property, any person who lets residential property, or any person who manages such property, except that "landlord" does not include sublessors. "Minor" means any individual who is less than 18 years old. "Multi-unit residence" means premises containing four (4) or more Units, except that individual Units on separate parcels within a common interest complex are exempt from provisions of this chapter. "Multi-unit common area" means any indoor or outdoor area of multi-unit residence premises accessible to and usable by residents of different units and/or members of the public, including but not limited to halls and paths, lobbies, laundry rooms, common areas, outdoor eating areas, play areas and swimming pools; except that "Multi-unit common area" does not include outdoor, non- enclosed common area facilities located within a common interest complex. "Nonprofit entity" means any corporation, unincorporated association or other entity created for charitable, philanthropic, educational, character-building, political, social or other similar purposes, the net proceeds from the operations of which are committed to the promotion of the objectives or purposes of the entity and not to private gain. A public agency is not a "nonprofit entity" for purposes of this chapter. "No smoking sign" means a sign containing the words "No smoking" or the international "No smoking" symbol (consisting of a pictorial representation of a burning cigarette in a red circle or red heart with a red bar across it). "Opening" means and shall include any main entrances, exits, operable windows, and ventilation intake systems. "Outdoor eating area" means an outdoor area, whether covered or uncovered, under the control of a restaurant or bar or other food and/or drink- serving business or establishment, where the consumption of food and/or drink occurs. Town of Tiburon Ordinance No. 531 N. S. Second Reading Draft Effective 8/19/2011 Page 4 of 15 "Person" means any natural person, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "Premises" means a piece of land and any improvements upon it such as is usually described in a deed, deed of trust or mortgage; including legally separate but contiguous pieces of land that are owned by the same natural person or by legal persons under common control. "Public event"means an event open to the public, including but not limited to sports events, entertainment, speaking performances, ceremonies, pageants, parades, fairs and farmer's markets. "Public park" means any parkland open to the public that is owned by the town and is designated "Parks & Recreation" on the zoning map of the town. "Public place" means any enclosed area to which the public is invited or in which the public is permitted, including but not limited to, banks, educational facilities, health facilities, shopping malls, laundromats, public transportation facilities, reception areas, restaurants, bars, retail food production and marketing establishments, retail service establishments, retail stores, hotels and motels and the individual rooms therein, theaters and waiting rooms. A private residence is not a "public place." "Reasonable distance" means a distance of at least twenty-five (25) feet. "Restaurant" means any coffee shop, cafeteria, sandwich stand, private and public school cafeteria, including any associated outdoor eating area, and any other eating establishment which gives or offers for sale food to the public, guests or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities. "Retail tobacco store" means a retail store in which the primary merchandise for sale consists of tobacco products and accessories, and in which the sale of other products is merely incidental, and which does not provide any entertainment, or any food or beverage for consumption on the premises. "Self-service merchandising" means open display of tobacco products or tobacco paraphernalia in a manner that is accessible to the general public without the assistance of the retailer or employee of the retailer. This includes point-of- sale tobacco promotional products (such as tobacco industry tee shirts, caps, key chains, give-aways), to which the public has access without the assistance of an employee. A vending machine is a form of self service displays. "Separate ventilation system" means a system that is exhausted to the outside and negatively pressurized. Town of Tiburon Ordinance No. 531 N. S. Second Reading Draft Effective 811912011 Page 5 of 15 "Service line" means any indoor line at which one or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money. "Smoking" means possessing a lighted pipe, lighted cigar, or lighted cigarette, lighted hookah, or other device of any kind, or the lighting of a pipe, hookah, cigar or cigarette, or other device containing tobacco, tobacco product, tobacco-like product, spices, or any other plant or herbal materials to the extent that local regulation of such lighted device, product or material is allowed by law. "Sports arena" means enclosed or unenclosed sports pavilions, gymnasiums, health spas, swimming pools, roller and ice rinks, bowling alleys and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events. "Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products. "Tobacco product" means: (a) any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, blunts, clove cigarettes, or any other preparation of tobacco; and (b) any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body by inhalation; but does not include any cessation product specifically approved by the U. S. Food and Drug Administration for use in treating nicotine or tobacco dependence. "Tobacco vending machine" means any machine, appliance, or other mechanical device operated by currency, token, debit card, credit card, or any other form of payment that is designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms. "'Town" means the Town of Tiburon. "Town manager" means the Town Manager of the Town of Tiburon, or his or her designee. "Town open space" means any open space land or easement owned by the Town and designated as "Open Space" on the zoning map of the town. "Unit" means: Town of Tiburon Ordinance No. 531 N. S. Second Reading Draft Effective 811912011 Page 6 of 15 (a) a dwelling space consisting of essentially complete independent living facilities for one or more persons, including, for example, permanent provisions for living and sleeping, and any private outdoor spaces like balconies and patios; and (b) senior citizen housing and single room occupancy hotels, as defined in California Health and Safety Code section 50519(b)(1) or successor sections thereto, even where lacking private cooking facilities or private plumbing facilities. "Unit" does not include lodging in a hotel or motel that meets the requirements set forth in California Civil Code section 1940(b)(2). "Vendor-assisted" means only a store employee has access to the tobacco product and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased. 28-3 Smoking Prohibited in Town-owned Vehicles and Facilities. Smoking is prohibited in all town-owned vehicles, including jitneys and buses and other means of public transit under the authority of the town, and all enclosed faciliities owned and/or controlled by the town. 28-4 Smoking Prohibited in Public Parks and Town Open Spaces. (a) Smoking is prohibited in all public parks, whether in an enclosed area or an unenclosed area. (b) Smoking is prohibited in all town open spaces, whether in an enclosed area or an unenclosed area. 28-5 Smoking Prohibited in Certain Public Places. (a) Smoking is prohibited in all outdoor eating areas, as defined herein. (b) Smoking is prohibited within twenty-five (25) feet of any entrance, exit, or opening to a public building. (c) Smoking is prohibited in all public events, and at events or functions for which a Special Event Permit has been issued by the Town. (d) Smoking is prohibited in all enclosed public places within the town, including, but not limited to, tl ee following places: (1) Elevators; (2) Buses, taxicabs, and other means of public transit under the authority of the town and ticket, boarding, and waiting areas of public transit depots; (3) Restrooms; (4) Service lines; (5) Retail stores; (6) All areas available to and customarily used by the general public in all business and nonprofit entities patronized by the public, including but not limited to offices (such as attorneys, doctors, and other professionals), banks, laundromats, malls, hotels and motels and the individual rooms therein; (7) Restaurants; Town of Tiburon Ordinance No. 531 N. S. Second Reading Draft Effective 811912011 Page 7 of 15 (8) Bars; (9) Public areas of aquariums, galleries, libraries or museums when open to the public; (10) Any facility that is primarily used for exhibiting motion pictures, stage productions, lectures, musical recitals or other similar performances; (11) Sports arenas and convention halls; (12) Every room, chamber, place of meeting or public assembly, including school buildings under the control of any board, council, commission, committee including joint committees, or agencies of the town or any political subdivision of the state during such time as a public meeting is in progress, to the extent such place is subject to the jurisdiction of the town; (13) Waiting rooms, hallways, wards and rooms of health care facilities, including, but not limited to, hospitals, clinics, physical therapy, mental health, and drug and alcohol treatment facilities, doctors' and dentists' offices; (14) Lobbies, hallways and other common areas in senior citizen residences, nursing homes, and child-care facilities; (15) Multi-unit common areas; (16) Lobbies, hallways and other common areas in multiple-unit commercial facilities; (17) Polling places. (b) Notwithstanding any other provisions of this section, any owner, operator, manager or other person who controls any establishment or facility may declare that entire establishment or facility as a non-smoking establishment. 28-6 Smoking Regulated in Places of Employment. (a) Each employer having an enclosed place of employment located within the town shall adopt, implement, make known and maintain a written smoking policy that shall contain the following requirements: Smoking is prohibited in all enclosed facilities within a place of employment without exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, non-personal vehicles and all other enclosed facilities. (b) The smoking policy shall be communicated to all employees within thirty (30) days of its adoption, and at least annually thereafter. (c) All employers shall comply with these non-smoking provisions and shall be responsible for their implementation in their places of employment. (d) "No Smoking" signs shall be conspicuously posted at building entrances and in employee lounges, cafeterias and lunchrooms. (e) All employers shall supply a written copy of the smoking policy to any existing or prospective employee. (f) Places of employment exempt from the prohibition on smoking in other sections of this chapter shall also be exempt from this section. Torn of Tiburon Ordinance No. 531 N. S. Second Reading Draft Effective 811912011 Page 8 of 15 28-7 Smoking Prohibited in Multi-unit Common Areas and in Multi-unit Residences. (a) Smoking is prohibited in all multi-unit common areas except that a landlord may designate a portion of the outdoor area of the premises as a smoking area as provided in paragraph (b) below. (b) A designated smoking area: (1) Must be located at least twenty-five (25) feet from any indoor area where smoking is prohibited; (2) Must not include, and must be at least twenty-five (25) feet from, outdoor areas primarily used by children including, but not limited to, areas improved or designated for play or swimming; (3) Must be no more than 25% of the total outdoor area of the premises for which it is designated; (4) Must have a clearly marked perimeter; (5) Must be identified by conspicuous signs; and (6) Must not overlap with any area in which smoking is otherwise prohibited by this chapter or other provisions of this Code, state law, or federal law. (c) Non-smoking units required in multi-unit residences: (1) New multi-unit residences: In every multi-unit residence that receives a certificate of occupancy after [insert effective date of this ordinance], one hundred percent (100%) of the units (including private outdoor spaces associated with such units, such as balconies, patios and decks), shall be non-smoking units by law. (A) Required Lease Terms: Every lease or other agreement for the occupancy of a unit in a new multi-unit residence shall include: 1. A clause stating that smoking is prohibited in the unit; 2. A clause stating that it is a material breach of the lease or agreement to violate any law regulating smoking while on the premises, smoke in any unit, or smoke on any multi-unit common area in which smoking is prohibited; and 3. A clause stating that all lawful occupants of the multi-unit residence are express third-party beneficiaries of the above-required clauses. (B) The California Apartment Association's Form 34.0, revised January 2007, meets the requirements for lease terms as outlined and is an option for use to comply with this subsection. (2) Existing multi-unit residences: In every multi-unit residence already existing on [insert the effective date of this ordinance], one hundred percent (100%) of the units (including private outdoor spaces associated with such units, such as balconies, patios and decks), shall by law be non-smoking units by July 1, 2014. A landlord may make units non-smoking prior to July 1, 2014. (A) Landlords shall, by [insert the date 60 days after effective date of this ordinance], notify each existing and new tenant as of [insert the effective date of this ordinance], of the lease terms required by this chapter. (B) Required Lease Terms: Every new lease, lease renewal, lease extension, or other agreement for the occupancy of a unit in a multi-unit residence made on or after [insert the effective date of this ordinance], shall include: 1. A clause stating that smoking is prohibited in the unit; Town of Tiburon Ordinance No. 531 N. S. Second Reading Drnft Effective 8119/2011 Page 9 of 15 2. A clause stating that it is a material breach of the lease or agreement to violate any law regulating smoking while on the premises, smoke in any unit, or smoke on any multi-unit common area in which smoking is prohibited; and 3. A clause stating that all lawful occupants of the multi-unit residence are express third-party beneficiaries of the above-required clauses. 4. Prior to July 1, 2014, this subsection 28-7(c)(2)(B) shall not apply to renewal of a lease or other agreement for occupancy with a person lawfully occupying the unit on [insert the effective date of this ordinance]. On July 1, 2014, this exception shall expire and all leases, lease renewals, lease extensions, and other agreements for occupancy shall comply with this subsection 28-7(c)(2)(B). C. The California Apartment Association's Form 34.0, revised January 2007, meets the requirements for lease terms as outlined and is an option for use to comply with this subsection. (d) The lease or agreement terms required by subsection (c)(1) or (c)(2) of this section are hereby incorporated by force of law into any lease or other agreement for the occupancy of a unit in a multi-unit residence made on or after [insert the effective date of this ordinance] that does not comply fully with subsection (c)(1) or (c)(2) of this section. (e) A tenant who breaches the smoking regulations of a lease or knowingly allows another person to do so shall be liable to: (1) the landlord; and (2) to any lawful occupant of the multi-unit residence who is exposed to secondhand smoke as a result of that breach. A landlord shall not be liable to any person for a tenant's breach of smoking regulations if the landlord has fully complied with the requirements of this chapter. (f) Failure to enforce any smoking regulation of a lease or agreement on one or more occasions shall not constitute a waiver of the lease or agreement provisions required by this section and shall not prevent future enforcement of any such smoking regulation on another occasion. (g) Disclosure of Dedicated Smoking Area. Every landlord shall maintain a diagram that illustrates the precise location and configuration of any designated smoking area. This diagram shall accompany every new lease, lease renewal, lease extension, or other agreement for the occupancy of a unit in a multi-unit residence after [insert the effective date of this ordinance]. (h) Prohibitions and Duties Generally: (1) .No person shall smoke or knowingly permit smoking in an area of the premises under his or her legal or de facto control in which smoking is prohibited by a lease or agreement term, by this chapter, this Code, or any other state or federal law, provided, however, that this prohibition does not apply to a person who is already compelled to act under state or federal law. (2) No person shall knowingly permit the presence or placement of ash trays, cans, or other receptacles within multi-unit common areas under his or her legal or de facto control in which smoking is prohibited by this chapter, this Code, or any other state or federal law, including, for example and without limitation, within at least twenty-five (25) feet of any non-smoking area. (3) "No smoking" signs, with letters of no less than one inch in height or the international "No smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle crossed by a red bar) shall be clearly and conspicuously Town of Tiburon Ordinance No. 531 N. S. Second Reading Draft Effective 811912011 Page 10 of 15 posted in the multi-unit common areas, at every entrance and exit, and on every floor near an elevator or common stairwell. Such signs shall be maintained by the landlord. Signs must be posted in sufficient numbers and locations in the multi-unit common areas and at entrances and exits to make areas where smoking is prohibited obvious to a reasonable person. The absence of signs shall not be a defense to a violation of any provision of this section. (4) This chapter shall not create additional liability for a landlord for a person's violation of this chapter provided that the landlord has fully complied with the required disclosure, sign posting, and other provisions of this chapter. (5) The provisions of this chapter are restrictive only and establish no new rights for a smoker. (6) Notwithstanding any provision of this chapter or other provisions of this Code or failure to restrict smoking under this chapter, including any explicit or implicit provision that allows smoking, nothing in this chapter shall operate to limit a person's legal rights under other laws with regard to smoking, including, for example, claims of nuisance, trespass, property damage, and personal injury. 28-8 Smoking Not Prohibited; Owner Option to Prohibit. (a) Except as otherwise prohibited by county, state or federal law, the following areas shall not be subject to the smoking restrictions of this chapter: (1) Private residences, except when used as a child care or residential health care facility, or except as set forth in Section 28-7; (2) Private vehicles not located in a multi-unit common area; (3) Retail tobacco stores; (4) Unenclosed areas where smoking is not otherwise prohibited by law; (5) An enclosed place of employment that employs only the owner and no other employee or employees, provided that: (A) The place of employment is not a public place, and (B) The enclosed area containing the place of employment does not share a ventilation system with any other enclosed place of employment or public place. (b) Nothing in this section shall be construed to prevent an owner, operator, manager or other person who controls any business, establishment or facility from declaring that entire business, establishment or facility as non-smoking. 28-9 Duty of Person, Employer, Business or Non-profit Entity. (a) No person, employer, business, or nonprofit entity shall knowingly permit the smoking of tobacco products in an area which is under the legal or actual control of the person, employer, business, or nonprofit entity and in which smoking is prohibited by law and the person, employer, business or nonprofit entity is not otherwise compelled to act under state or federal law. (b) No person, employer, business, or nonprofit entity shall knowingly or intentionally permit the presence or placement of ash receptacles, such as, for example, ashtrays or ash cans, within an area that is under the legal or actual of the person, employer, business, or nonprofit entity and in which smoking is prohibited. Town of Tiburon Ordinance No. 531 N. S. Second Reading Draft Effective 811912011 Page 11 of 15 28-10 Posting of Signs. (a) The person, employer, business or non-profit entity with legal or actual control of a building or area where smoking is prohibited by this chapter shall clearly and conspicuously post "No Smoking" signs at the entrances of every building, as well as in other areas under their control where smoking is prohibited under this chapter. However, where an entire building or premises is non-smoking, only entrances need be signed, provided that they are signed to that effect. (b) Every retail tobacco store and every vendor of tobacco products shall visibly post signage pursuant to California Business and Professions Code section 22952, or successor sections thereto, which signage shall expressly reference California Penal Code section 308, or successor sections thereto, at the entrance of any premises subject to regulation under section 28-11 of this chapter and applicable state and/or federal law. (c) The absence of signs shall not be a defense to a violation of any provision of this chapter. 28-11 Sale of Tobacco Products Regulated. (a) It shall be unlawful for any person, business, or retail tobacco store to sell, permit to be sold, or offer for sale any tobacco product by means of self-service merchandising, or by any means other than vendor-assisted sales. (b) It shall be unlawful for any person, business, or retail tobacco store to locate, install, keep, maintain or use, or permit the location, installation, keeping, maintenance or use on his, her or its premises any vending machine for the purpose of selling or distributing any tobacco product. (c) No person, business, retail tobacco store, or owner, manager or operator of any establishment subject to provisions of this section shall sell, offer to sell or permit to be sold any tobacco product to an individual without requesting and examining identification establishing the purchaser's age as eighteen years or greater unless the seller has some other clear and convincing basis for knowing the buyer's age. (d) Any person, business, retail tobacco store or other establishment subject to provisions of this section shall post plainly visible signs at the point of purchase of tobacco products which comply with the signage requirements of California Business and Professions Code section 22952, or successor sections thereto. These signs shall be updated to conform to any subsequent state or federal requirements and/or amendments to California Business and Professions Code section 308(a), or successor sections thereto. (e) Any person, business, retail tobacco store or other establishment subject to provisions of this section shall post signs at each entrance to any premises on which any tobacco product is offered for sale. Such signs shall be plainly visible from outside the premises, shall state, "Warning: The fine for buying tobacco for anyone under 18 is $200" in letters at least one-half tall, and shall cite California Penal Code 308(a) or successor sections thereto. These signs shall be updated to conform to any subsequent state or federal requirements and/or amendments to Penal Code section 308(a), or successor sections thereto. (fl Any person, business, retail tobacco store, or owner, manager or operator of any establishment subject to provisions of this section who violates any provision of this section shall be deemed guilty of a misdemeanor and upon conviction shall be subject to a fine as set forth in Penal Code section 308(a), or successor sections thereto. Town of Tiburon Ordinance No. 531 N. S. Second Reading Draft Effective 811912011 Page 12 of 15 28-12 Enforcement. (a) The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity. (b) Notice of these regulations shall be given to all applicants for a business license or renewal thereof. However, lack of such notice shall be no defense to a violation of this chapter. (c) Enforcement of this chapter shall be the responsibility of the town manager, who shall have the powers enumerated in this chapter and in chapter 31 of the Tiburon Municipal Code as well as the power to issue citations for violation of the chapter in accordance with section 853.6 of the California Penal Code, or successor sections thereto. (d) The health department shall require, while an establishment is undergoing otherwise mandated inspections, certification from the owner, manager, operator or other person having control of such establishment that all requirements of this chapter have been complied with. (e) Health department inspectors, on their regular restaurant inspections, shall check for compliance with sign posting requirements. Restaurants shall be notified in writing of any violations on the standard health inspection report. Further, such violations shall be reported in writing by the health department, on a quarterly basis, to the administrative authority in the jurisdiction where such violations occur. (f) Notwithstanding any other provision of this chapter, a private citizen may bring legal action to enforce this chapter. 28-13 Violations and Penalties. (a) It is unlawful for any person who owns, manages, operates or otherwise controls the use of any premises or areas subject to regulation under sections 28-3, 28-4, 28-5, 28-6, 28-7, 28-9, 28-10, or 28-11 of this chapter to fail to comply with any of its provisions. (b) It is unlawful for any person to smoke in any area where smoking is prohibited under provisions of this chapter. (c) Any person, business, retail tobacco store, or owner, manager or operator of any establishment subject to this chapter who violates any provision of this chapter, other than section 28-11, shall be deemed guilty of an infraction and upon conviction shall be subject to payment of a fine not to exceed $100 or the limits set forth in Government Code section 36900, as may be amended from time to time, whichever is lower. (d) Violations of section 28-11 shall be a misdemeanor. 28-14 Non-retaliation. No person or employer shall discharge, refuse to hire or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any right to a smoke-free environment afforded by this chapter. 28-15 Public Education. The town manager or his/her designee will engage in a continuing educational program to explain and clarify the purposes and requirements of this chapter, as well as a guide to Town of Tiburon Ordinance No. 531 N. S. Second Reading Dra t Effective 811912011 Page 13 of 15 owners, operators and managers with compliance. However, lack of such education shall be no defense to a violation of this chapter. 28-16 Governmental Cooperation. The town manager or his/her designee may annually request other governmental and educational agencies having facilities within the town to establish local operating procedures in cooperation and compliance with this chapter. This includes urging all federal, state, county and school district agencies to update their existing smoking control regulations to be consistent with current health findings regarding environmental tobacco smoke. 28-17 Other Applicable Laws. It is the intent of the town to supplement applicable state and federal law and not to duplicate or contradict such law, and this chapter shall be construed in a manner consistent with that intention. This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. SECTION 4. SEVERABILITY. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this Ordinance, or its application to any other person or circumstance. The Town Council of the Town of Tiburon hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. SECTION 5. PUBLICATION AND EFFECTIVE DATE. This ordinance shall be in full force and effect thirty (30) days after the date of adoption. Pursuant to the provisions of the California Government Code, a summary of this ordinance shall be prepared by the Town Attorney. At least five (5) days prior to the Town Council meeting at which adoption of the ordinance is scheduled, the Town Clerk shall (1) publish the summary in a newspaper of general circulation in the Town of Tiburon, and (2) post in the office of the Town Clerk a certified copy of this ordinance. Within fifteen (15) days after the adoption of this ordinance, the Town Clerk shall (1) publish the summary in a newspaper of general circulation in the Town of Tiburon, and (2) post in the office of the Town Clerk a certified copy of the ordinance along with the names of those Council members voting for and against the ordinance. Town of Tiburon Ordinance No. 531 N. S. Second Reading Draft Effective 8,/19/2(111 Page 14 of 15 This Ordinance was introduced at a regular meeting of the Town Council of the Town of Tiburon on July 6, 2011, and was adopted at a regular meeting of the Town Council of the Town of Tiburon on , 2011, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: JEFFREY SLAVITZ, MAYOR TOWN OF TIBURON ATTEST: DIANE CRANE IACOPI, TOWN CLERK S: IAdministrationlTown CouncibStaff Reports120111July 20 drafts lSmoking ordinance draft 2nd reading version.doc Town of Tiburon Ordinance No. 531 N. S. Second Reading Draft E fective 811912011 Page 15 of 15 TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 To: From: Subject: Reviewed By: BACKGROUND Mayor and Members of the Town Council Department of Administrative Services Town Council Meeting July 20, 2011 Agenda Item: cc, t Recommendation to Approve Fund Balance Classification Policy The Governmental Accounting Standards Board (GASB) has issued its Statement No. 54 (GASB 54), Fund Balance Reporting and Governmental Fund Type Definitions. The requirements of this statement are intended to improve financial reporting by providing fund balance categories and classifications that will be more easily understood. The new Standard does not change the total amount of a given fund balance, but it substantially alters the categories and terminology used to describe the components that make up a fund balance. Part of the Town's implementation of this statement for Fiscal Year 2010-11 is the formal adoption of a fund balance policy. The attached Fund Balance Policy explains the five components of fund balance categories for inclusion in the annual financial reports. Prior to GASB these reserve funds were reported by the Director of Administrative Services as Reserved, Designated or Undesignated and did not require Town Council delegation. Acceptance of a Policy is necessary to comply with GASB 54 requirements. ANALYSIS The term fund balance is used to describe the difference between assets (what is owned) and liabilities (what is owed) reported within a fund. There are almost always important limitations on the purpose for which all or a portion of the resources of a fund can be used. The forces of these limitations "can vary significantly, depending on their source. The various components of the new fund balance reporting standards are designed to indicate to the extent to which the Town is bound by these limitations placed upon these resources. GASB 54 defines five new components of fund balance that will replace the current existing three components. The five new components are: ■ Nonspendable fund balance: These are funds by due to their nature are inherently nonspendable. Examples of Nonspendable fund balance are funds invested in non-liquid assets such as property, structures and inventory. TOWN OF TIBURON PAGE 1 OF 2 j2t ....t i! Restricted fund balance: These are funds with externally enforceable limitations on use. These limitations may be placed by creditors, grantors, or laws and regulations. Examples of Restricted fund balance would be Gas Tax, COPS, or Measure A funds. Committed fund balance: These funds reflect self-imposed limitations on use. It includes amounts that may only be used for specific purposes pursuant to constraints imposed by the governments' highest level of decision making authority, in this case the Town Council. These committed amounts cannot be used for any other purpose unless the Town Council removes or changes the specified use through the same type of formal action taken to establish the commitment. An example of Committed fund balance would be the 25% General Fund operating reserve. Assigned fund balance: This portion of fund balance includes amounts that are constrained by the Town's intent to be used for specific purposes, but are neither committed nor restricted. The proposed policy delegates the authority to assign amounts to be used for specific purposes to the Town Manager or her/his designee for the purpose of reporting these amounts in the Town's annual financial statements. Examples of Assigned fund balance would be Public Works Corporation Yard funds, General fund Streets and Drainage funds, and Infrastructure & Facility Replacement funds. ■ Unassigned Fund Balance: These are residual positive net resources in excess of what can properly be classified in one of the other four categories and do not have any specific spending limitations. An example of Unassigned fund balance would be that portion of the General operating fund above the 25% policy reserve requirement (unallocated balance). FINANCIAL IMPACT There is no fiscal impact of implementing GASB Statement no. 54. The amounts as reported as the total fund balance in any given fund are not altered, only the reporting of the individual components that make up total fund balance is changed. RECOMMENDATION Staff recommends that the Town Council: 1. Adopt the Exhibit Fund Balance Classification Policy Exhibits: 1. Proposed Fund Balance Policy 2. General Fund Reserves as Classified Under GASB 54 Prepared By: Heidi Bigall, Director of Administrative Services - TOWN OF TIBURON Town Council Policy Number: Effective: July 20, 2011 Authority: Town Council FUND BALANCE POLICY 1 PURPOSE: In order to implement Governmental Accounting Standards Board Statement No. 54 Fund Balance Reporting and Governmental Fund Type Definitions, the Town Council needs to establish the procedures for reporting components of fund balance in the various Town funds. This policy also authorizes the Town Manager or her/his designee to determine and define the amounts of those components of fund balances that are classified as "Assigned". PROCEDURES: Fund balance is defined as the difference between the assets and liabilities reported in a governmental fund. Under Governmental Accounting Standards Board Statement 54 there are five separate components of fund balance, each of which identifies the extent to which the Town is bound to honor constraints on the specific purposes for which amounts can be spent. This Fund Balance Policy establishes the procedures for reporting fund balances in the Town of Tiburon's financial statements. The policy authorizes and directs the Director of Administrative Services to prepare financial reports which accurately categorize fund balance as per Governmental Accounting Standards Board (GASB) Statement No. 54, Fund Balance Reporting and Governmental Fund Type Definitions. CLASSIFICATIONS OF FUND BALANCE ❖ Nonspendable: That portion of the fund balance that cannot be spent because it is either: (a) literally not in a spendable form, such as prepaid items, inventories, or loans receivable; or (b) legally or contractually required to be maintained in tact. This classification is used for non-cash assets. ❖ Restricted: That portion of the fund balance in which the use of the funds is constrained by: (a) external sources such as creditors, grantors, contributors, or laws or regulations of other governments; or (b) imposed by law through constitutional provisions or enabling legislation. This classification is used for the funds that are constrained by legal requirements not under the Town's control. ❖ Committed: That portion of the fund balance that is reserved for specific purposes pursuant to constraints imposed by formal action of the Town Council, and which remains binding unless removed in the same manner. This classification is used when the Town Council elects to formally set aside funds via resolution for a specified purpose. ❖ Assigned: That portion of the fund balance that is constrained by the Town's intent to be used for specific purposes, but that are neither restricted nor committed, and which may be established by the Town Manager as designated by the Town Council. This classification is used for specific reserves deemed prudent by the Town. ❖ Unassigned: Amounts that do not fall into any of the above categories and exist in the General Fund Balance only. The accounting policies of the Town consider Restricted fund balance to have been spent first when an expenditure is incurred for purposes for which both Restricted and Unrestricted fund balance is available. Similarly, when expenditure is incurred for purposes for which amounts in any of the unrestricted classifications of fund balance could be used, the Town considered committed amounts to be reduced first, followed by Assigned amounts and then Unassigned amounts. Presented at the Town Council's regular meeting of July 20, 2011 V qZ J W U. V J ~ ~a W z o co O N O w O ~D O U) co N ER roccIco:))) r- r CF) ' O N N O N N i O rn M O (p O ao O rn O O O M O T N H u (D U Q) R f O CY) C Q CU C_ t o d Q 0 O D C O LL ~ O + N ~ J C w L C7 m z a w w N ~ z O O h z U Q O O r r O O 0 O O N U C fC N m m O N C D C LL N a) c a) C7 W z 0 cn N z f TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 To: From: Subject: Reviewed By: BACKGROUND Mayor and Members of the Town Council Administrative Services Department Town Council Meeting July 20, 2011 Agenda Item: r~-_ - - 6 Recommendation to Adopt Resolution Authorizing Signers on Bank of Marin Acco t y The Town of Tiburon currently maintains its commercial checking accounts with the Bank of America. The Town also has established a business relationship with the Bank of Marin, which currently administers the Town's Certificate of Deposit Registry Accounts (CDARS) and money market checking account. The Town now desires to transition its commercial checking accounts to the Bank of Marin. ANALYSIS Staff has reviewed the rates for various services between the Bank of America and Bank of Marin and projects that the Town can save approximately $500 per year by moving accounts. More importantly, due to the mere nature that the Bank of Marin is a smaller community bank, there is more flexibility in how the Town is treated as a banking customer. The Bank of Marin is also very involved in the Tiburon business community and has donated time and money for Chamber events. Staff discussed the proposed change in Banks with the Town Council's ad-hoc Finance Committee and received whole-hearted approval. This transition will take approximately three months, but does require the Town Council adopt a resolution authorizing who may sign checks and instruments on the new Bank of Marin account. FINANCIAL IMPACT It is projected that the Town will save $500 annually in bank fees by making this transition. RECOMMENDATION Staff recommends that the Town Council: 1. Move to approve a Resolution Authorizing the Signing and Endorsing of Checks and Other Instruments with the Bank of Marin Exhibits: Resolution Authorizing the Signing and Endorsing of Checks Prepared By: Heidi Bigall, Director of Administrative Services TOWN OF TIBURON PAGE 1 OF 1 RESOLUTION NO. A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON AUTHORIZING THE SIGNING AND ENDORSING OF CHECKS AND OTHER INSTRUMENTS OF PAYMENT & ACCESS TO DOCUMENTS RETAINED IN SAFEKEEPING WHEREAS, the Town of Tiburon has, by resolution, adopted a policy which identifies the employees and officials who may sign and endorse checks and other instruments of payment on behalf of the Town, and which employees may have authorization for access to Town documents held in safekeeping: and WHEREAS, the Town desires to transition its banking services from the Bank of America to the Bank of Marin. During the transition period the Town will have accounts with both the Bank of America and Bank of Marin. However, it is appropriate that the Town Council adopt a resolution authorizing the signing and endorsing of checks with the Bank of Marin. NOW THEREFORE, BE IT RESOLVED THAT: 1. The Bank of Marin, Mill Valley Branch, shall be the depository for all funds of the Town of Tiburon. Commercial accounts shall be established and maintained by and in the name of the Town of Tiburon at the designated bank upon and subject to such terms as may be agreed to from time to time. 2. All checks, drafts and other instruments for payment from the Town's commercial General account in the amount of $2,500.00 or less, or relating to the Town's state and federal payroll tax obligations or PERS retirement or health insurance benefit obligations in any amount shall be signed on behalf of the Town by any two (2) of the following people: Town Manager (Margaret A. Curran), Director of Administrative Services (Heidi Bigall), Town Attorney (Ann Danforth), or any member of the current Town Council (Alice Fredericks, Jim Fraser, Jeff Slavitz, , Emmett O'Donnell, Dick Collins). 3. All payroll, payroll payable, and payroll benefit checks shall be signed by the Town Manager and Director of Administrative Services, and in the case of either's absence the Town Attorney, or any member of the Town Council. 4. All other checks, drafts and instruments for payment shall be signed on behalf of the Town by the Town Manager and Director of Administrative Services or Town Treasurer and by one member of the Town Council. 5. All checks, drafts or other instruments for payment made payable to the Town of Tiburon may be endorsed for deposit by written or stamped endorsement in the name of the Town of Tiburon without individual signatures. 6. Staff is directed to provide a certified copy of this resolution to the Bank of Marin along with signature authorization forms which include signatures of the individuals currently holding the following positions: Town Manager, Director of Administrative Services, Town Attorney, and Town Council members. The Town Clerk shall inform the Bank of Marin of any changes in these positions and provide new signature cards when necessary. 4- 7. The Bank of Marin is requested and authorized to honor, receive, certify or pay any instrument signed or endorsed in accordance with this Resolution. This Resolution and signature authorization forms submitted by the Town Clerk shall remain in full force and effect, and the Bank is authorized and requested to rely and act thereon, until such time as the Bank receives written notice of any changes from the Town Clerk. 8. The Bank of Marin, Mill Valley is the location of four Safe Deposit Boxes that the Town rents from the Bank. The following employees of the Town are authorized by signature to place, extract, or review items held in safekeeping: Town Manager (Margaret A. Curran), Town Attorney (Ann Danforth), and Town Clerk, (Diane Crane Iacopi) Director of Administrative Services (Heidi Bigall). PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon on , 2011, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: JEFF SLAVITZ,MAYOR Town of Tiburon ATTEST: DIANE CRANE IACOPI, TOWN CLERK -2- TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 To: From: Subject: Reviewed by: BACKGROUND Mayor & Members of the Town Council Community Development Department Town Council Meeting July 20, 2011 Agenda Item: Receive Presentation and Consider Acceptance of the Tiburon Peninsula Summary of Findings: Recreation Needs and Existing Condition Assessment Report 46 In June 2010, the Town of Tiburon retained The Sports Management Group (TSMG), a Berkeley- based consulting firm, to prepare a recreation needs and existing condition assessment for the Tiburon Peninsula. The assessment was jointly funded by the Town of Tiburon and the City of Belvedere. The draft report was completed and circulated for public review in May 2011. Members of the Town Council received copies at that time. PURPOSE AND PRINCIPAL FINDINGS The primary purposes of the assessment were to chronicle existing conditions with respect to peninsula recreation programs, facilities, and opportunities, and to evaluate the effectiveness of current programming and facilities in meeting the needs and desires of residents. A "gap analysis" was performed to assess the capacity of existing facilities to meet demand and determine whether gaps exist in service or capacity. To staff's knowledge, this was the first effort to assess community-wide satisfaction with recreation programs and facilities on the peninsula on a comprehensive, scientific basis. To that end, a statistically valid and projectable telephone survey of 300 adult peninsula residents was conducted by sub-consultant Godbe Research in August 2010 in order to gather public opinion of the state of recreational services on the Tiburon Peninsula. The survey results indicated that peninsula residents are generally quite satisfied with both recreational programming and facilities available to them. The assessment provides analysis and states reasons as to why this may be the case on the peninsula. Somewhat unusual for a survey of this type, there were no obvious "gaps" in recreational services identified by respondents. The closest any subject came to being identified as potentially deficient was "recreational opportunities for teens", but the data were inconclusive even on that topic, which is commonly identified as a deficient area in similar surveys for other communities. The survey results v' i2 ..i 1.111 t 3 reinforced the need to preserve, at existing levels or better, after-school programs for children, and indicated that demand exists for additional facility space for certain types of programming. The Executive Summary succinctly sets forth the primary findings and conclusions of the recreation assessment; the remainder of the document provides additional information and detail. Appendix C contains the actual survey questionnaire and the "Topline" or summary results. The complete write-up of the survey results by Godbe Research comprises a separate 263-page document that is not attached. POST COMMISSION REVIEW The Parks, Open Space and Trails Commission received a staff presentation of the report at its regular meeting on May 17, 2011 and provided its comments. Draft minutes of that meeting are attached as Exhibit B. RECOMMENDATION Staff recommends that the Town Council: 1. Receive the presentation by Lauren Livingston, Principal with TSMG, and Brian Godbe of Godbe Research. 2. Accept any public comment on the Summary of Findings report. 3. Make any desired comments and, if appropriate, accept the report. EXHIBITS A. Public Review Draft Tiburon Peninsula Summary of Findings: Recreation Needs and Existing Condition Assessment report prepared by The Sports Management Group [PREVIOUSLY PROVIDED TO THE TOWN COUNCIL]; available for review on the Town website www.ci.tiburon.ca.us from a link in the News Box. B. Minutes (Draft) of Parks, Open Space and Trails Commission meeting of May 17, 2011. Prepared by: Scott Anderson, Director of Community Development I S: IA dm inistrationI Town Co uncil lStaff Reports 12011 Uuly 20 draftslrecreation assessment repo rt.doc Ldp ~ 1 • ti . - ~ HI. Tiburon Peninsula Summary of Findings: Recreation Needs and Existing Condition Assessment Public Review Draft May 2011 EXHIBIT NO.-A 1. Consider Recommendations to Town Council Regarding Proposed Improvements to the Trestle Berm Portion of Blackie's Pasture and Regarding Rescission of the Blackie's Pasture Development Plan Adopted in 1992: • Director Anderson presented the staff report, describing the improvements to the trestle berm area being proposed by the Belvedere-Tiburon Landmarks Society and the Tiburon Peninsula Foundation and providing background on the Blackie's Pasture Development Plan. • Commissioner McDermott asked if the proposed improvements encompassed other areas of Blackie's Pasture. Director Nguyen indicated that the first phase currently under consideration focused on the immediate berm vicinity. • Arlene Nielsen of the Tiburon Peninsula Foundation gave a presentation for their proposal. • Chairman Winkler asked if funding was locally available, outside of Town funds, for their overall plan. Ms. Nielsen believes they can raise local monies. • Ed Lynch of the Tiburon Peninsula Foundation (TPF) explained that the plan is broken into phases and the first priority is to perform a general cleanup of the berm area. The rest of the areas would follow in subsequent years. • Resident Vicki Sodero who lives on Jefferson Dr indicated that if a new development plan for Blackie's Pasture is to be created, it should have minimum impact on surrounding neighborhoods. • Commissioner Feldman stated that any work as part of this proposed plan by the TPF or any future plan should be consistent with requirements of the Coastal Commission and BCDC. • The Commission voted to endorse staff's recommendation with respect to both the proposed improvements and rescission of the Development Plan; 5-0. 2. Receive Informational Presentation from Town staff on the Tiburon Peninsula Summary of Findings: Recreation Needs and Existing Conditions Assessment report prepared by the Sports Management Group: • Director Anderson presented the staff report. • Commissioner McMullen inquired about the condition of McKegney field and thought it could be improved. Director Nguyen indicated the heavy use by the soccer leagues and noted a new maintenance plan for the field. However, a complete field renovation is not funded. • Commissioner McMullin noted the issue of a lack of teen programs as approaching "gap" proportions in the assessment. He suggested that a survey of teens be included in any future study, noting that only adults had been surveyed for this assessment. • Commissioner Feldman indicated that the assessment did not discuss a lack of public boat launch facilities, which he believed to be a recreational shortcoming on the Peninsula. Director Anderson indicated that this particular item was apparently not frequently mentioned by respondents during the survey and that the assessment was Tiburon Parks, Open Space & Trails Commission May 17, 2011 Draft Page 2 K ly I.z.J HT CIO. 18 necessarily limited in its scope of questions. • Staff indicated that these comments would be forwarded to the Town Council at such time as the assessment is presented to it. ADJOURNMENT There being no further business, the meeting was adjourned at approximately 7:02 P.M. PETER WINKLER, CHAIR Parks, Open Space & Trails Commission ATTEST: NICHOLAS NGUYEN, SECRETARY Tiburon Parks, Open Space & Trails Commission May 17, 2011 Draft Page 3 To: From: TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 Mayor and Members of the Town Council Department of Public Works Town Council Meeting July 20, 2010 Agenda Item: P//- / Subject: 1895 & 1897 Mar West Street: Encroachment Permit Application #11-51 and #11-72; Brian and JoAnne McCullough and David Barley, Owners and Applicants; Assessor Parcel Nos. 059-121-10 and 11 Reviewed By: BACKGROUND The Town has received two encroachment permit applications requesting installation of private improvements on the Mar West Street public right-of-way adjacent to residential properties located at 1895 and 1897 Mar West Street. One application requests (among other things) that a portion of a garage addition be constructed in the public right-of-way. The second application requests the installation of a concrete staircase, retaining walls, and the replacement of a concrete pad for refuse can storage. While the Public Works Director typically approves encroachment permits of a minor or temporary nature, Chapter 19 of the Tiburon Municipal Code requires Town Council approval of any encroachment permit "entailing the construction of buildings, car decks, carports, garages or other long-term improvements of a substantial nature". Staff has determined that both of these applications are beyond the scope of its authority and require Town Council action if they are to be approved. REGULATORY FRAMEWORK Chapter 19 of the Municipal Code establishes the encroachment permit requirement, process, and procedure, but actual policy concerning encroachment permits is set forth in Town Council Resolution No. 16-2010, attached as Exhibit 1. The Town Council adopted the policy to provide clarity and consistency concerning the purposes of encroachment permits. The policy contains lists of "allowable" and "impermissible" purposes for encroachment permits, and has proven to be a highly useful tool for Town staff. PROJECT DESCRIPTION In April 2011, architect Michael Heckmann submitted Encroachment Permit #11-51 for work in the public right-of-way adjacent to 1897 Mar West Street. This residential property is owned by Brian and JoAnne McCullough and the project is known as the "McCullough Garage". The encroachment permit proposes installation of a one-car garage addition to an existing garage, a concrete driveway, retaining walls, a stone veneer stairway, and a wood trellis in front of the garage. A substantial portion of the garage would be on private property, but all the other TOWN OF TIBURON PAGE 1 OF 4 (1 t._.i?(.(1"lt.; improvements and a portion of the garage would be installed in the Mar West Street public right- of-way. Please refer to application materials attached as Exhibit 2 for details. In May 2011, Mr. Heckmann submitted Encroachment Permit. # 11-72 for work at 1895 Mar West Street, which is owned by David Barley and is adjacent to the McCullough property. The project is referred to as the "Barley Stairs". Please refer to application materials submitted as Exhibit 3 for details. This permit requests the installation of a concrete staircase with retaining walls, a metal handrail and a replacement concrete pad for refuse containers. These improvements are proposed in the Mar West Street public right-of-way, and would allow access for the property owner and an adj acent neighbor at 1893 to their respective homes. Currently, the only way to access these properties is to use the driveway leading to 1897 Mar West Street, and then the narrow sidewalk passing in front of the McCullough residence. The slope up from Mar West Street is quite steep in this area, creating the unusual access situation for the residents of 1893 and 1895 Mar West Street. Several Black Acacia trees would need to be removed to allow installation of the proposed improvements. Please refer to Exhibit 4 for photos of the existing sidewalk. ANALYSIS Staff has reviewed these two permits within the regulatory framework established by Resolution No. 16-2010, and provides the following analysis for each. Barley Stairs Application (EP 11-72) If designed and conditioned to conform to Town requirements, such as minimum setback from the edge of pavement, the Barley Stairs proposal would be, in staff's opinion, an acceptable encroachment to improve access to the property and replace existing encroachments as authorized under Sections C-1 and C-4, respectively, of the Resolution. The installation of the stairs would allow direct pedestrian access to and from Mar West Street for the residents of 1893 and 1895 Mar West Street without the necessity of using the McCullough driveway. The existing sidewalk in front of these three homes is narrow and in need of maintenance; the portions no longer needed would be removed as part of the work. The new stairway would constitute a permanent (although revocable) improvement within the public right-of-way and would be highly visible based on the elevation drawings. Design review approval of the project elements would be required should the Town Council approve the encroachment permit. McCullough Garage Application (EP 11-51) The McCullough Garage application presents a more problematic situation in that it proposes a portion of an enclosed garage addition to be located on the public right-of-way, which is an impermissible purpose under Section D-1 of the Resolution. To staff's knowledge, no one has applied with the Town for an enclosed garage on the public right-of-way since 1998. The last such application, for a property on Spanish Trail Road, was denied by the Town Council as being poor public policy, and staff has diligently enforced that policy ever since as an important and appropriate protection to keep public property from effectively becoming private property. In 2010, the Town Council reinforced the policy and ongoing practice by adopting Resolution 16- 2010. However, even into the 1980's some properties, particularly in the Old Tiburon neighborhood, received approval to construct garages in the right-of-way, sometimes under the mistaken belief by the Town that the unused street right-of-way was still privately-held and had not been accepted into public ownership. Photographs provided by the-applicant depict a few of those instances along Mar West Street. However, staff has verified that all of Mar West Street, including its entire right-of-way, has been deeded or dedicated for public street purposes and that no portion remains owned by the heirs of the original sub-divider (Dr. Lyford) or any other private individual. Section C-5 of the Resolution allows flexibility to accommodate "required parking" on the public right-of-way when not feasible on private property, but allowing new fully enclosed buildings to be built (even partially) on the public right-of-way remains highly inadvisable as it unnecessarily burdens the right-of-way and has the effective of creating a long-term privatization of public land. Simply because an applicant cannot accomplish what he or she wishes on their private property does not create a basis for doing so on public land. An open-style parking improvement (as opposed to an enclosed garage) with minimal encroachment into the right-of-way is the approach that allows the parking but in a manner that is consistent with both policy and practice. Except for the proposed trellis, the other elements of this application, including the access staircase, driveway, and retaining walls would be acceptable under Sections C-1 and C-2 of the Resolution, provided that they conform to Town requirements such as setback from edge of pavement. In both cases, the proposals represent "long-term encroachments of a substantial nature" and could have a substantial adverse effect on vehicular or pedestrian circulation or on public health and safety, particularly given the narrow rights-of-way that characterize the neighborhood. Therefore, any Town Council approval should be conditioned to include a recorded Memorandum of Encroachment to address revocability, maintenance and other issues, as well as other reasonable conditions to be imposed by Town staff. FINANCIAL IMPACT Other than staff time, there is no fiscal impact anticipated. Installation and maintenance of the improvements would be the responsibility of the property owner/permit holder. RECOMMENDATION Staff recommends that the Town Council: a 1. Review the two encroachment permit applications and hear any public comment. 2. Approve the Barley Stairs application (EP 11-72), subject to the imposition of reasonable conditions by Town staff. 3. Approve the McCullough Garage application (EP 11-51), amended to eliminate the trellis and provide an open parking space in lieu of the proposed enclosed garage, subject to the imposition of reasonable conditions by Town staff. EXHIBITS 1. Town Council Resolution No. 16-2010 2. Application materials for the Barley Stairs project OfAl )CH 3. Application materials for the McCullough Garage project 4. Photos of existing sidewalk Prepared By: Matt Swalberg, Engineering Technician Nicholas Nguyen, Director of Public Works Scott Anderson, Director of Community Development S: IAdministrationITown CouncibStaffReports1201I Uu1y 20 drafts Mar West Street Encroachment Permits report.doc `.1. . % 5 I I Brr I RESOLUTION NO. 16-2010 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON ADOPTING A POLICY REGARDING THE ISSUANCE OF ENCROACHMENT PERMITS PURSUANT TO TITLE V, CHAPTER 19 OF THE TIBURON MUNICIPAL CODE WHEREAS, the Town's regulations regarding encroachment permits for work proposed in Town streets, street right-of-ways and other Town interests in real property (including easements) are set forth in Title V, Chapter 19 of the Tiburon Municipal Code; and WHEREAS, said Chapter 19 establishes definitions and procedures for the review, issuance, conditioning and revocation of encroachment permits but does not set forth policy direction for the benefit of Town decision-makers as to the appropriateness of various requests for encroachment into said areas; and WHEREAS, the Town Council finds that the Town has not, in the past, adequately restricted the granting of such encroachments, and that as a result, Town property has on occasion been converted to private use and Town-owned access has been unduly limited or eliminated, all for private benefit and/or exclusive use of one or a limited number of individuals rather than for the general public; and WHEREAS, although Town encroachment permits are conditioned to require the permit holder to remove encroachments at the Town's reasonable request, the substantial and costly nature of some improvements, among other factors, inhibits actual removal and compliance with Town direction to that effect; and WHEREAS, the Town Council intends to continue granting encroachment permits to the extent necessary and appropriate to promote the public safety and welfare and, on a short term basis, accommodate short term work that cannot feasibly be accomplished without a temporary encroachment; and WHEREAS, the Town Council has determined that it is timely and appropriate to adopt policy direction to further guard Town property interests against incursion by private property owners and to clarify the Town's discretion to require the removal of encroachments; and WHEREAS, the Town Council has held a public meeting on this matter on March 175 2010 and has heard and considered any public testimony and correspondence; and NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of Tiburon does hereby adopt the following general policy with respect to encroachment permits issued pursuant to Title V, Chapter 19 of the Tiburon Municipal Code. Tiburon Town Council Resolution No. 16-2010 0311712010 A. Definitions For the purposes of this Resolution, the meaning of words and phrases, including without limitation, Town streets, street right-of-ways, Town --owned land and other Town interests in real property (including easements), shall be as set forth or used in Title V, Chapter 19, of the Tiburon Municipal Code. B. General Provisions The Town shall have discretion to revoke any encroachment permit at any time. No encroachment permit shall grant any private property owner a permanent right to perform work in or use the area subject to the encroachment permit. The Town may, in its discretion, grant an encroachment permit allowing access from private property to the public right-of-way, provided that the Town shall condition any such encroachment permit as it deems appropriate to manage or enhance the public right-of-way. The Town is not responsible for the cost of altering, modifying, or removing any such encroachment if it deems such alteration, modification, or removal is warranted. C Allowable Purposes For the following purposes, and only if the Town finds that the encroachment will serve public safety or welfare, the Town may issue encroachment permits for work within, upon, or beneath Town streets, street right-of-ways, and other Town interests in real property (including easements). Said permits shall contain conditions that shall include, without limitation, revocation at the Town's discretion. 1. To allow access to private property for entry/egress purposes. 2. To allow applicants to install, build or replace sidewalks, curbs and gutters and curb cuts. 3. To allow applicants to install, maintain, or replace landscaping, within the parameters of this policy. - 4. To allow applicants to maintain, repair or replace previously lawfully-installed encroachments. 5. To accommodate required parking where the Town finds that (a) the applicant cannot feasibly locate such parking on private property; or (b) the public safety or welfare is better served by allowing such parking to encroach. 6. To allow applicants the opportunity to secure approval for existing encroachments that the applicant cannot prove were lawfully installed and that are consistent with this policy and Title V, Chapter 19 of the Tiburon Municipal Code. 7. To allow applicants to drain their properties of storm water in a controlled fashion acceptable to the Town Engineer. 8. To allow utility companies to perform necessary work. 9. To allow Town contractors and/or service providers to perform authorized work. 10. To allow community groups to perform authorized work, either using volunteers or contractors. Tiburon Town Council Resolution No. 16-2010 0311712010 2 11. To allow applicants to position a debris box or portable moving box for temporary construction, storage or moving purposes, where such placement will not unreasonably impede traffic circulation and pedestrian safety or otherwise be detrimental to public safety or welfare. 12. To allow a limited and controlled amount of equipment and material associated with permitted building construction activity. 13. To allow permitted special events with civic purpose and benefit. 14. To allow applicants temporary relief from unusually severe topographic or other physical circumstances that create practical hardships to the creation of proper access to or improvement of private property in the absence of the encroachment. 15. To allow control of invasive or fire-prone plants, for fire prevention or other purposes of public benefit. D. Impermissible Purposes Encroachment permits for work within, upon, or beneath Town streets, street right-of-ways, and other Town interests in real property (including easements) should not be issued~in the following instances: 1. Encroachments for the purpose of, or having the practical effect of, privatizing the affected area for the exclusive use or benefit of one or a limited number of individual owners in lieu of the general public. 2. Encroachments that would block, impede, or discourage public use or access over an area determined by the Town Engineer to be appropriate and suitable for public use or access either at present or in the foreseeable future. 3. Encroachments that in the judgment of the Town Engineer are not necessary or appropriate to serve one of the allowable purposes listed in Section C above. E. Duration. Encroachment permits shall contain conditions of approval to restrict the duration of the encroachment to a reasonable time necessary to accomplish the purpose thereof. 1. Except where the Town grants the permit pursuant to Sections C.1, C.2, C.3, C.4, C.5, C.6 or C.7, above, or as provided in E.2, the Town will allow only temporary encroachments. 2. Notwithstanding Section E.1, the Town shall have discretion to issue a permit for a long- term encroachment if it finds that the encroachment is necessary for public safety reasons or that the encroaching improvement will have a long-term public benefit commensurate with the private benefit to the permit holder. 3. The conditions of approval for any permit for a long-term encroachment shall include, without limitation, the following conditions of approval: a. By acceptance of the permit and construction of the improvement or performance of the work, the permittee agrees to indemnify, defend and hold the Town harmless from Tiburon Town Council Resolution No. 16-2010 0311712010 any claims, losses, litigation or other liabilities that may arise from the permittee's performance of the work or construction and maintenance of said improvement. b. The permittee shall execute a Memorandum of Encroachment, record it in the County of Marin's Recorder's Office and provide the Town Engineer with a conformed copy of the recorded Memorandum. If the subject project requires a building permit, the permittee must record the executed Memorandum of Encroachment before the Town issues said building permit. For all other projects, permittee must record the executed Memorandum of Encroachment before the permittee enters onto the Town's property to perform work pursuant to the encroachment permit. c. The Memorandum of Encroachment shall describe the improvement that is subject to the encroachment permit and shall contain the following advisory notice: The encroachment permit does not grant the owner of the encroaching improvement any permanent rights. The Town has discretion to revoke the encroachment permit at any time. In the event that the Town revokes the encroachment permit, the owner of the encroaching improvement must promptly 0 remove the encroachment. The Town is not responsible for the cost of altering, modifying, or removing any such encroachment. E. Fee Waivers The Town Council hereby authorizes the Town Engineer to waive application and/or processing fees, in whole or in part, for certain encroachment permits in the circumstances listed below. 1. Where the applicant is a non-profit corporation or one or more citizens seeking permission to perform work for the benefit of the public, the Town Engineer may waive fees to an extent commensurate with the public benefit. 2. Where the applicant is a contractor performing work for the Town, the Town Engineer may waive the fee in its entirety. 3. When permits are deemed, at the discretion of the Town Engineer, in support of the public benefit. Tiburon Town Council Resolution No. 16-2010 0311712010 4 PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon on March 17, 2010, by the following vote: AYES: COUNCILMEMBERS: Collins, Fraser, Fredericks & O'Donnell NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Slavitz 'RICHARD COLLINS, MAYOR TOWN OF TIBURON ATTEST: DIANE CRANE Lk(fOPI, TOWN CLERK Tiburon Town Council Resolution No. 16-2010 0311712010 ENCROACHMENT PERMIT APPLICATION Town of Tiburon - 1505 Tiburon Boulevard - Tiburon. CA 94920 - (415) 435-7354 Encroachment Permit No: Date Received: Plan Attached: ❑ Yes *No fl o Payment Amt: 4 Check No: L91 D--~ ❑ Cash Notes: ❑ Inspection Required. Contact Public Works at 435-7399 two days before starting wo ❑ Performance Bond / Deposit required ❑ Additional Conditions Apply - See Attached List. CONDITIONS OF APPROVAL: Approved by Public Works FOR OFFICE USE ONLY Approval Date Initials Planning Dept. Rev. (if apply): The permit is valid for 6 month from approval date, unless otherwise stated. APPLICATION INFORMATION Basic applications (e.g., driveway resurfacing or routine utility connections) are reviewed by the Public Works and usually granted within 5 to 7 business days. The basic Encroachment Application fee is $85 with a $150 Inspection Fee (for 1 inspection). Applications for more involved projects are reviewed by the Town Engineer and there may be an additional fee charged. After the encroachment application has been reviewed and granted, the applicant will be notified to pick up a copy of the approved application which serves as the permit. When the project is completed, a final inspection will be performed. If related to a building project, occupancy permit will be withheld until final Public Works approval. 1897 M.4F- WES-r t*AK LAS LOMA-5 Loi, Ng DkIA4 A~ JeAAq IM6CMk,6U4* Location of Work & Nearest Cross Street Name of Property Owner Description of Proposed Work - Attach any drawings, documents, schematics, and written description to illustrate your scope. For driveways, specify type of surfacing and size of culvert, if applicable. oRTt o N o~ Cxh~c,~- , c o N c ~.~-1"1<- bl~ 1 ~ L w,~~{ , GoN c~~/srb N>E. I Estimated Start Date: -I /trl 11 Estimated Completion Date: 41/15/11 Zai-Icul Q, ~ alArvd M Yv-((Cq~ Name of Applicant I/ I S y 3 I'Y-S"O (Area Code) Phone Number MAR KVT-ST SblL-tER-5 tAG. Name of Contractor ao1 S F1 License No. 4is - 3o z - Lb GQ'1 (Area Code) Phone Number The undersigned hereby applies for permission to perform the above described work and/or otherwise encroach on Town of Tiburon right-of-way or property pursuant to any required building permits. Applicant agrees that all work shall be performed in accordance with the rules, regulations and standards of the Town of Tiburon, in addition to the General Provisions or Special Conditions as applicable. All work shall be subject to inspection and approval by the Public Works Department. Applicant agrees o indemnify, defend and hold the Town of Tiburon, and its employees, agents, and officials, harmless from any claims, loss s or damages that may arise from Applicant's exercise of this encroachment permit and any other permit granted by the To . Proof of i71LC&,~Ui-q ce is reqd upon request. Applicant's Signature: Date: / - TOWN OF TIBURON 1505 TIBURON BLVD. TIBURON CA 94920 TEL:(415) 435-7373 FAX:(415) 435-2438 PROJECT ADDRESS 1897 MAR WEST BP i RBR # Ell-51 RECEIVED FROM BRIAN MCCULLOUGH E DATE 04.21.11 VALUATION $ DESCRIPTION/ TPERMIT TYPE r G E AV AN 1 FE PLAN CHECK $ - DESIGN REVIEW $ _ BUILDING PERMIT $ - VARIANCE $ _ BUSINESS LICENSE $ SIGN PERMIT $ _ PLAN STORAGE $ - LOT LINE ADJ $ _ CA SEISMIC TAX R $ - TENTATIVE MAP $ _ PLUMBING $ - FINAL MAP $ _ ELECTRICAL_' $ - TREE PERMIT $ _ MECHANICAL $ - USE PERMIT $ _ GRADING $ - MASTER PLAN $ _ ENCROACHMENT $ 85.00 PRECISE PLAN $ PENALTIES $ - GP ZONING AMDMT $ _ STREET IMPACT $ - PLAN STORAGE $ _ TRAFFIC MITIGAT. $ - CEQA $ _ D/R COMPLIANCE $ - NOTICING $ - GEN. PLAN. MAINT. $ - FINES/PENALTIES $ _ RE-INSPECTION $ - DOCUMENT SALE $ _ RESALE INSPECTION $ - RESEARCH $ _ UNDERGRD. WAIVER $ - APPEAL $ _ DRAINAGE REVIEW $ - F.A.E. $ _ PERMIT REACTIVATION $ S. WATER R.OFF IMP.FEE - ADIT~flN TECHNOLOGY FEE $ - _ BUSINESS LICENSE _ $ _ CA BLDG. STD. AD. FUND $ - PARKING PROGRAM $ _ $ - COUNTY RECORDER $ - $ - RENTALS $ _ I'CDEI'O LANDSCAPE BOND $ PHOTOCOPYING $ _ $ _ CHECK NO 2107 TOTAL E_-_ 85.00 J 20166 Thank, you RECEIVED BY MS May, 31,2011 RE: Encroachment Permit Application # 11-51 Dear, Applicant As per the resolution No. xx-2010, pursuant to Title V, Chapter 19, Item D "Impermissible Purposes" 1. "Encroachments for the purpose of , or having the practical effect of, privatizing the affected area for the exclusive use or benefit of one or a limited number of individual owners in lieu of the general public." Shall not be allowed. Noting the above, as Superintendent of Public Works, Town of Tiburon, I cannot approve without Councils consent. Sincerely, Joel B. Brewer Superintendent of Public Works Town of Tiburon 415-435-7399 jbrewer@ci.tiburon.ca.us rasftm%,, Is'll M04k WtST MAX ~-IE44r 6tA w4G 0 - KOH pave tl E-14-r SMS Town of Tiburon MEMORANDUM TO: Dan Watrous FROM: Nicholas Nguyen CC: Matt Swalberg SUBJECT: 1897 Mar West St DATE: April 11, 2011 Upon review of the submitted proposed development / re-modeling plans for the above- referenced site address, the Public Works Department provides the following preliminary comments: 1. The submittal shows a considerable amount of work on public right-of-way. 2. If the applicant pursues an encroachment permit for this work, under section 19-4 of the Town's municipal code, the town council must review and act upon their permit application. Staff cannot act on applications with these kinds of significant and permanent structures, and would refer them on to Council. 3. Public right of way should be protected from damage during construction, or repairs will be made to the satisfaction of the Town Thank you for the opportunity to review. ~qA7 ,t Town of Tiburon MEMORANDUM TO: Public Works Staff FROM: Nicholas Nguyen e_ CC: Peggy Curran SUBJECT: Municipal Code and Policy on Approval of Encroachment Permits DATE: March 22, 2010 In general, the Town's municipal codes, Chapter 19, address rather clearly the key elements of "what, how, when, and whom" of the encroachment permitting process. In particular," Chapter 19, states when the Town Council must weigh in on an encroachment permit application: "The following encroachment permit applications shall be reviewed and acted upon by the town council: (1) Encroachment permit applications entailing the construction of buildings, car decks, carports, garages, or other permanent structures of a substantial nature; (2) Encroachment permit applications that would have a substantial adverse effect on vehicular or pedestrian circulation, or on public health and safety. The town council may approve, approve with conditions, or disapprove the application. If approved, such applications shall require a recorded encroachment permit. In no event shall construction of enclosed living space be allowed to encroach within a town street, easement, or right- of-way." Staff, including the Town Manager, does not have the authority to approve permits contrary to the above. In these circumstances, the application must be denied and appealed to the Council as necessary. Please make note of this. On March 17, 2010, -the Town Council also adopted amendments to Chapter 19 by resolution, which pertain to the specific purposes of encroachment permits. The resolution is attached for your files. Please make note of these amendments. Cc: Amendments to Municipal Code Chapter 19 May 04 11 05;21 p David Barley 4156140310 p,1 t ENCROACHMENT PERMIT APPLICATION Town of Tiburon - 1505 Tiburon Boulevard • Tiburon, CA 94920 • (415) 435-7354 - P-11 T-TPP TrI FOR OFFICE USE ONLY Payment Ant:4 t 5 ' Encroachment Permit No: ACheck No: Date Received: o Cash Plan Attached: Xes ❑ No Notes: ❑ Inspection Required. Contact Public Works at 435-7399 two days before starting worl ❑ Performance Bond / Deposit required Q Additional Conditions Apply - See Attached List. CONDITIONS OF APPROVAL: Approved by Public Works Planning Dept'. Rev.-(if Approval I?ate Initials The permit is valid for 6 montlk from approval date, unless otherwise stated. APPLICATION INFORMATION a Basic applications (e.g., driveway resurfacing or routine utility connections) are reviewed by the Public Works and usually granted within 5 to 7 business days. The basic Encroachment Application fee is $95 with a $150 Inspection Pee (for 1 ingwxtioan). Applications for more involved projects are reviewed by the Town Engineer and there may be an additional fee charged.- After the encroachment application has been reviewed and granted, the applicant will be notified to pick up a copy of the approved application which serves as the permit. Wben the project is completed, a final inspection will be performed. If related to a building project, occupancy permit w-ill be withheld until final Public Works approval. 166m [A^vL Wlir Art i-A.% l_o"Ag Wis Dmty 4 Gt.1i1jotm% Uv-raf Location of Work & Dearest Gross Street Name of Property Owner Description of Proposed Work - Attach any drawings, documents, schematics, and written description to illustrate your scope. For driveways, specify type of surfacing and size of culvert, if applicable. C om milm 5m%p- w rt* Go N cv-rm Rrr^ l141146t W ^ 1.u5 .4,14V REII&L- RA i L 1 jj& e. Estimated Start Date-. Estimated Completion Date: Ct t6Y 9A .V 1 Q 13ATt L.7% `r NaTne of Applicant 4n • at 31- rlV1 (Area Code) Phone Number MAP. W ES-t- t us t-otites Ike. Name of Contractor °iol g~ License No. - +V3 - OD MCC (Area Code) Phone Number The undersigned hereby applies for permission to perform the above described tivork and/or otherwise encroach m Town of Tiburon right-of--way or property pursuant to any required building permits. Applicant agrees that all work shall be performed in accordance with the rules, regulations and standards of the Town of Tiburon, in addition to the General Provisions or Speeiat Conditions as applicable.-All work shall be subject to inspection and approval by the Public Works Department. Applicant agrees to indemnify, defend and hold the Town of Tiburon, and its employees, agents, and officials, harmless from any claims, losses or damages that :nay arise from Applicant's exercise of this encroachment permit and any other permit granted by the Towm. Proof of insurance is required u on roquest. Applicant's Signature: Date. May, 31,2011 RE: Encroachment Permit Application # 11-72 Dear, Applicant As per the resolution No. xx-2010, pursuant to Title V, Chapter 19, Item D "Impermissible Purposes" 1. "Encroachments for the purpose of , or having the practical effect of, privatizing the affected area for the exclusive use or benefit of one or a limited number of individual owners in lieu of the general public." Shall not be allowed. Noting the above, as Superintendent of Public Works, Town of Tiburon, I cannot approve without Councils consent. Sincerely, Joel B. Brewer Superintendent of Public Works Town of Tiburon 415-435-7399 jbrewer@ci.tiburon.ca.us co i O c~ U c 2 CD L Ccz G LO co T U a) oc N L co m 0 F- Z „r t t le 3o 00 (r Z a w~ Q Q0 F- Z X w Lr) r" co N Lr) co IT U) d' C O t a. N Lr) M IT Lr) O N m d' rn Q Z O LL J Q U Z Q O Z Z 0O Q f-- U w p _ > J Q m Z O W Q ~ m U o %o rkpL t 19116 MAK WUST CV Attu ,4v-G-r e7T..IK Town of Tiburon MEMORANDUM TO: Laurie Tyler FROM: Matt Swalberg CC: Nick Nguyen SUBJECT: 1895 Mar West St DATE: April 14, 2011 Upon review of the submitted proposed development / re-modeling plans for the above- referenced site address, the Public Works Department provides the following preliminary comments: 1. The submitted proposed plans show all work to be completed in the public right of way. 2. Any proposal that would encroach onto public right-of-way is discouraged and generally not permitted. This would include fences, retaining walls, and permanent improvements. However, this appears to be a unique circumstance involving improved access to their property. We would be open to reviewing their encroachment permit application and final submittals once Planning has endorsed the project. 3. Once deemed permissible and all conditions have been established, payment of encroachment permit fees and the submission of an executed and recorded Memorandum of Encroachment (MOE) will be required. 4. The lower half of the stairway must be setback into the hillside to provide a safe landing zone outside of the roadway. This has been discussed previously with the applicant. If the 3 square foot landing is installed in its proposed location it will only allow 7 feet of roadway for passing vehicles. Due setback and traffic safety, this landing is not permissible in its current location. 5. On page AO.1 the Construction Type is listed as: Wood, Concrete and Glass but no where in the plans does it mention wood or glass in the stairway construction. Specs call out a concrete stairway with slopes and a metal guardrail. Greater detail should be provided to clearly show the detail of the metal guardrail. 6. Ficus repens has been identified as the only plant material to be planted on site. How will this plant be irrigated? 7. The existing Acacia melanozyon, black acacia in front of the landing on the slope must - be removed to prevent possible damage to the stairway. Additionally, roots, tree litter and brittle branches are a problem in confined areas. Town of Tiburon MEMORANDUM 8. Any potential slide area in this stairway application must be mitigated to prevent such action from happening. If the removal of trees and/or installation of the stairway cause the hillside to slide or give way, it shall be the property owners responsibility to repair. 9. Public right of way should be protected from damage during construction, or repairs will be made to the satisfaction of the Town Thank you for the opportunity to review. April 14, 2011 Page 2 of 2 TRANSMITTAL DATE: JULY 6, 2011 TO: TOWN OF TIBURON PUBLIC WORKS 1505 Tiburon Blvd. Tiburon, California 94920 VIA: Delivery ■ As you requested ■ For your use ❑ For your approval ❑ Please comment SUBJECT: The Barley Entry Stair - 1895 Mar West Street - 5 May 2011 Planning Submittal ENCLOSED: (7) reduced size sets [11 " x 17"1 1680 Tiburon Boulevard, Suite 7 Tiburon, CA 94920 Tel 415.435.2446 Fax 415.435.2875 heckmannarchitectsCearthlink. net www.heckmannarchitects.com MMMIT 6el+• d- t/2Z i