HomeMy WebLinkAboutTC Agd Pkt 2012-09-19TOWN OF TIBURON
Tiburon Town Hall
1505 Tiburon Boulevard.
"Tiburon, CA 94920
AGENDA,
TIBURON TOWN COUNCIL
CALL TO ORDER AND ROLL CALL
Regular Meeting
Tiburon Town Council
September 19, 2012
Meeting time - 7:30 p.m.
Councilmember Doyle, Councilmember Collins, Councilmember Fredericks, Vice Mayor
O'Donnell, Mayor Fraser
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.
PRESENTATION AND APPOINTMENT
1. Commendation for Outgoing Artist Laureate- Consider recommendation of Heritage
and Arts Commission to honor outgoing Artist Laureate Mary Musalo with
commendation for her outstanding service to the community (Heritage and Arts
Commission Chair Marlene Rice)
2. Appointment of New Artist Laureate - Consider recommendation of Heritage and Arts
Commission to adopt resolution appointing Jaleh Etemad to a four-year term as the
Tiburon Artist Laureate and authorize Town Manager to enter into agreement with Ms.
Etemad on behalf of Town (Heritage and Arts Commission Chair Marlene Rice, Town
Manager Curran)
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 Nvish 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 August 15, 2012 regular meeting (Town Clerk
Crane Iacopi)
2. Lyford Drive Parking Lot - Approve Agreement with City of Belvedere for provision of
water, power and landscaping for Lyford Drive Parking Lot (Town Manager Curran,
Town Attorney Danforth)
3. FY 2013 Street Paving Project - Approve Award of Contract - Del Mar Underground
District Streets (Public Works Director Nguyen)
4. Supplemental Law Enforcement Funds - Approve Resolution approving expenditure
plan for COPS funds for FY 2013 (Chief of Police Cronin)
5. 440 Ridge Road - Adopt Resolutions denying appeals of a Design Review Board decision
to approve a new single family dwelling; Applicants, Ridge Road, LLC; Appellants, Lynn
&t Mark Garay; Fani Hansen & Angela Danadjieva; AP No. 059-082-21; (Planning
Manager Watrous)
6. Del Mar Undergrounding Project - Approve amendment to Del Mar Undergrounding
Project budget (Public Works Director Nguyen)
ACTION ITEMS
1. Downtown Parking and Circulation Analysis - Hear presentation from Consultants
Nelson\Nygaard-Inc. regarding the findings and recommendations in their report to the
Town dated August 2012 (Community Development Director Anderson, Town Manager
Curran)
PUBLIC HEARINGS
TOWN COUNCIL REPORTS
TOWN MANAGER'S REPORT
WEEKLY DIGESTS
ADJOURNMENT
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
To:
From:
Subject:
Reviewed By:
BACKGROUND
Mayor and Members of the Town Council
Heritage & Arts Commission
Town Council Meeting
September 19, 2012
Agenda Item:
Recommendation of Heritage & Arts Commission to Honor Outgoing Artist
Laureate Mary Musalo with a Commendation for her Outstanding Service to
9 thmm
In August of 2008, local artist and community supporter Mary Musalo was appointed by the
Town Council to the office of Artist Laureate for a four-year term from August 2008 to
September 2012. Ms. Musalo created the first official plan for the position of Artist Laureate and
then put into action the ideas that she had developed for the position.
ANALYSIS
Ms. Musalo's enthusiasm and imagination inspired over 135 people from the community to join
in art classes taught by Musalo and 5 other guest artists. She encouraged people to try their hand
at creating art work in a variety of media from drawing to painting to collage. In these classes,
people who had previously sworn they were unable to produce anything even remotely artistic
turned out beautiful pieces that were admiringly critiqued by their fellow students. Other groups
of people learned new things about art history and art therapy through interactive "art talks".
Mary's plan started the ball rolling for a community-based art program which benefited the
people of the Tiburon peninsula. The classes and talks, open to all, were absolutely free of cost.
RECOMMENDATION
The Heritage & Arts Commission recommends that Mary Musalo, outgoing Tiburon Artist
Laureate, be given a Commendation of Appreciation and Thanks for four years of service
generously given to the Town of Tiburon.
Exhibits: Commendation
Prepared By: Joan Palmero, Staff Liaison
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TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
To:
From:
Subject:
Reviewed By:
BACKGROUND
Mayor and Members of the Town Council
Heritage & Arts Commission
Town Council Meeting
September 19, 2012
Agenda Item:
Recommendation of Heritage & Arts Commission to Adopt Resolution
Appointing Ms. Jaleh A. Etemad to the Position of Artist Laureate
On September 5, 2001, by resolution of the Town Council, Professor Yeh Jau Liu was designated
as the first Artist Laureate of the Town of Tiburon. Because no selection process was in place at
the time, Professor Liu's name was brought forward by a group of supporters and advocates both
for Liu and for the creation of the position of Laureate itself.
Professor Liu served for almost two years principally painting original artworks to be given as
awards. On July 24, 2003, Professor Liu passed away. The position remained open for 5 years
after which the Heritage & Arts Commission undertook to seek another Artist Laureate to benefit
the Town's art community.
The Commission developed a selection process and pared the list of 13 applicants down to 5
finalists. From the very capable finalists, Mary Musalo was selected as the Town's second Artist
Laureate for a term of 4 years. Since then, Ms. Musalo has set the tone for the scope and goals of
the position by providing an atmosphere of opportunity and encouragement for the emerging
artists of the Tiburon Peninsula through the development of two ongoing art programs for the
citizens of Tiburon.
The first was a quarterly artist workshop, open to all and free of charge, where Ms. Musalo and
her five guest artists (including Jaleh Etemad) taught pen-and-ink drawing, painting, collage and
art techniques in a fun and affirming setting. These workshops served more than 136 people.
The second program was called "Art Talk", also held on a quarterly basis. Speakers were invited
to lead interactive discussions in small, intimate groups on various art-related topics from which
interesting ideas and contributions emerged. This activity was also free of charge and open to all.
ANALYSIS
The current Artist Laureate term expires in August, 2012. Through the selection process a new
Laureate has been chosen for recommendation to the Town Council. That person is local artist,
community supporter and long-time Tiburon resident Ms. Jaleh A. Etemad. Ms. Etemad's
TOWN OF TIBURON PAGE 1 OF 2
artistic career spans 20 years and includes showing internationally and teaching in local focus
groups.
If selected by the Town Council for this honor, Ms. Etemad plans to continue with the features of
the former Laureate's program and expand it to include two new elements.
First would be a series of master classes on outdoor sketching of local historic sites to allow
people to gain techniques and experience for travel sketching. Second, she hopes to use her
photography skills and unique layerist painting technique to help preserve Tiburon's historic past
by artistically photographing long-time residents and collecting their stories. These art photos,
with accompanying words, would ultimately be displayed in a unique, one-of-a-kind exhibit in
Town Hall.
RECOMMENDATION
Staff recommends that the Town Council act upon the recommendation of the Heritage & Arts
Commission and adopt the attached resolution appointing Jaleh A. Etemad to the position of
Artist Laureate for the term- September, 2012 to August, 2016.
Exhibits: a. Curriculum Vitae
b. Criteria for Laureate Selection
c. Resolution
Prepared By: Joan Palmero, Staff Liaison
EXHIBIT NO._.~Z„=
JALEH A. STEM A D
Selected Solo Exhibitions
"The Art of Life"-Valley Performing Art Center Gallery, Nortliridge,LA,CA, April I-May 30,2011
'Photography with a twist..."-Crashing Thunder Gallery, Gallup, NM, August-September,2008
`Martini Splash`, Nordstrom Collection and Couture, San Francisco, CA, April 2006 & Sept.2007
"Exploring Time-Past and Present" Belvedere-Tiburon Heritage & Arts Commission, Tiburon Town Hall, Oct.-Nov. 2005
"Postcards and Birds- Mixed media paintings" Belvedere-Tiburon Library Founders Room, Tiburon, CA April-May 2004
"Landscapes, and abstracts" Tiburon City Hall, Tiburon, California, Nov.-Dec. 2003
"Illuminations/Mixed Media Paintings," Gallery 211, Solo Gallery, Gallup, New Mexico, September 2003
"Still Life In Motion-Installation, Drawings & Paintings", Red Mesa Gallery, Gallup, New Mexico, June 2002
`Tie Birds and the Bees..." Crashing Thunder Gallery, Gallup, New Mexico, September 2001
"Muse..." a Solo Exhibition, Lobby, Pacific Professional Building, San Francisco, CA, April-June 2001
"A two person exhibit at San Jose Repertory Tlieatre, San Jose, CA, Oct. 2000- Max. 2001
"Sight and Insight," World Automation Congress, Maui, Hawaii, 2000
"Illuminations, Past and Present," Mill Valley Art Commission, Mill Valley, CA, 1996
"Ancient Egypt," Bechtel International Center, Stanford University, Palo Alto, CA, 1996
"Les Femmes Fatales," Bucci's Green Room Gallery, Emeryville, CA, 1995
"Recent Paintings," San Francisco Federal Savings, Greenbrae, CA, 1995
"Figure Paintings," Branson Gallery, Ross, CA, 1993
Selected Juried and Group Exhibition
"International Women Artists' show" ARC Gallery, Chicago, IL September2012-0ctober 2012
"Islamic Art" Showing as a juror Marin Community Foundation, Novato, CA March 2012-May 2012
The Altered Book" Marin Museum of Contemporary Art, Novato, CA April 2012 -May 2012
"Valentine Show" College of 1vlarin, Kentfield, CA, March- April 2011
"Reconfiguration" Mann Museum of Contemporary Art Januay22-February27,2011
"Painting With Words" Marin Museum of Contemporary Art, Novato, CA , July 24-August 28,2010
"Make It Shine' Marin Museum of Contemporary Art, Novato, CA -April23-May23,2010
"Journeys" Art at the Cheese Factory, Stinson Beach, CA March12- May31, 2010
"California Dreaming" Hill Top Gallery, Ashland, Oregon - May30- August23,2010
"International Women Artists" at "Club France Amerique", Paris France February 17-March 4,2010
"Exploring Contemporary Printmaking", Marin M O C A ,January 9-February 7,2010
Annual Members Exhibit, Marin Arts Council, December 21-March 25,2010
"Exploring Multiple Dimensions". The Albuquerque Museum of Art and History, Albuquerque, NM, July 15- Oct. 7, 2007
"Espace Victoria Chatelet", 19 Av. Victoria, Paris, France, May 28-June 15, 2007
Alliance of Women Artists International, Asylum Gallery- Sacramento, CA, Jan,.13-Feb.10, 2007
"International Alliance of Women Artists", Salrnaghundi Center for American Art,NYC-Oct. -Nov. 2,200 7
"Beyond Persia" Gallery One-Embarcadero center, San Francisco, CA, Dec. 8-16, 2006
"Alliance of Women Artists Exhibition" Galleria Tondinelli, Rome Italy March 31- April 10, 2005
"A Multiplicity Of Vision"-SLMM Exhibition, University Art Gallery, CSU Dominguez Hills, Carson, Feb.-March 2005
"Wish You Were Here," National Collage Society, The Cork Gallen, in Lincoln Center, NY, NY June-July 2004
'International Alliance of Women Artists Presents" Oslo Radhus (Oslo City Hall) Oslo, Norway August 2004
'Bridging Time and Space-CA Layerists Create," SomArts Bay Gallery, San Francisco, CA. January 8-28 2004
"Group Show"-Tiburon Fine Arts Gallery, Tiburon, California, Sept. 21003,
"Fire in the Heart: The Creative Process," Schneider Museum of Art, Ashland, Oregon, June-Sept. 2003
'Wish You Were here," Postcard Show- National Collage Society, Lincoln Center, NY, NY, June-July 2003
"Expression of Creations," Chico Art Center, Chico, California, Sept.-Oct. 2002,
"Group Exhibit," Catharine Finn Gallery, Tiburon, California, April-May 2002
"Collage," International Art Exhibition, Art Addiction Gallery, Palazzo Correr, Venice, Italy, March-Aug. 2002
"Women Artists," Marin Technology Center, Lucas Films, San Rafael, CA, July-September 2001
"International Artists," La Galerie International, Palo Alto, CA, May 2001
"Annual Juried Exhibition of Marin Artists," Falkirk Cultural Center, San Rafael, CA, March-April.2001
'Evolving Perceptions 2000, Art for Peace", 505 Gallery, Washington DC, 2000
`Beyond Boundaries," IWS Foundation, Worth Ryder Gallery, UC Berkeley, CA, 2000
'Salon de Printemps," La Galerie Internationale, Palo Alto, CA, 1999-2000
"Art Contemporain,n tea erie Everarts, Paris, France, 1999
"World Contemporary Art `98," Los Angeles Convention Center, Los Angeles, CA, 1998
'International Women Artists," La Galerie Internationale, Palo Alto, CA, 1998
"New Visions," La Galerie Internationale Palo Alto, CA, 1999
"Most Talented Artists," Art Addiction International Gallery, Stockholm, Sweden, 1997
"Arizona Aqueous XIII," Tubac Center of the Arts, Tubac, Arizona, 1998
"2nd International Women Artists Festival," Fort Mason, San Francisco, CA, 1998
"Les Americaines," Galerie Everarts, Paris, France, 1997
"The World's Women On-Line Internet Show," Beijing, China, 1995
"Wonders of the World," Frank Lloyd Wright Galleries, Civic Center, S R, CA, 1996
"The Quest," Western Wyoming College Art Gallery, Rock Springs, Wyoming, 1995
"Figures and Abstractions," Sea Ranch Lodge Gallery, Sea Ranch, CA, 1994
"Figure Paintings," Artists Proof. Gallery, Larkspur, CA, 1994
"The First International Arts Festival," Fort Mason, San Francisco, CA, 1994
Education: California State University Northridge, Northridge, CA: BA, Painting, 1986
Northampton College of Advanced Technology, London, MS, Electron Microscopy, 1964
Royal Institute of Medical Technology, London University, London, UK: BS, 1962
Publications: "The Art of Layering: Making Connections" Society of Layerists in Multi Media, vol.l 2004
"100 Contemporary Artists", World of Art Books„ Art addiction, Stockholm and Venice Vol.l, 2003
"International Women Artists", vol.l, 1997, vol. 2, 2001
"Process & Projects" Alliance of Women Artists, vol. 3, 2010
"VISUAL JOURNEYS: ART IN THE 21ST CENTURY" vol.3, 2010
Awarae: Diploma of Excellence award in Collage Int. Art Exhibition, Stockholm, Sweden 2003
Certificate of Recognition, World Contemporary 2001
Merit Award, Best of Show, Stockholm, Sweden, 1997
Member. Alliance of Women Artists, Marin Arts Council, Society of Layerists in Wilti-Media, National Collage Society, The
Landmarks Society, Art and Garden Center Art Guild Art Commissioner-Belvedere-Tiburon Library Society
EXHIBIT NO.
Artist Laureate Selection Criteria
After lengthy research and discussion, the Heritage & Arts Commission agreed upon the following list of
criteria for the selection of future town Artist Laureates.
The Laureate should be a visual artist.
2. The Laureate must be a resident of Tiburon or Belvedere.
3. The Laureate must have a critically acclaimed body of work, which is informed or colored
by living in the Bay Area.
4. The Laureate must be willing to contribute to the community and/or civic events through his/her
work.
5. The Laureate will serve for a term of four years.
6. When the term is complete, the position may remain open until a qualified candidate is found.
7. The Heritage & Arts Commission will review and budget annually for a modest stipend of
approximately $250 per year to be paid to the Laureate. Expenses will be reimbursed
separately for projects assigned by the Town to the Laureate.
8. To select a new Laureate, a special committee shall be put together to recommend a
candidate for Town Council consideration. The committee shall be comprised of:
a) The previous Laureate
b) Two Heritage & Arts Commission members
c) An art professional who is not a candidate for the position
d) The Tiburon Mayor or his/her designee
9. The recommended candidate will be brought forward for Town Council appointment.
All members of the special committee must be Tiburon/Belvedere residents
and/or Tiburon/Belvedere business owners.
Following is the screening process:
a) Heritage & Arts Commission pre-screens all applicants down to a maximum of 5 candidates.
b) Special Committee further screens to one final candidate
c) Proposed candidate brought forward to Town Council for appointment.
3/26/02
Revised 8/22/07
Revised 4/18/12
EXHIBIT NO. &
RESOLUTION NO. 2012
A RESOLUTION OF THE TIBURON TOWN COUNCIL DESIGNATING
JALEH A. ETEMAD
AS THE TOWN OF TIBURON'S ARTIST LAUREATE
WHEREAS Jaleh Etemad was born in Azerbaijan, Iran, educated in England, obtaining a BS and MS
degree in Advance Medical Laboratory Technology in Electron Microscopy, and dedicated herself to
cancer research for 8 years, and
WHEREAS Jaleh moved to the United States in 1970 where she continued her education by obtaining a
Bachelor's Degree in Painting from CSU Northridge in 1986, and
WHEREAS, Jaleh Etemad has accumulated many prestigious national and international awards during 18
years of creative effort, and participated in more than 15 solo exhibitions and 48 juried group exhibitions
of her work both at home and internationally, and
WHEREAS in 1986 Jaleh moved to Tiburon with her family to make this home, and showed her support
for the community by joining many of the local committees and commissions including Heritage & Arts
Commission, Belvedere/Tiburon Art Committee, Tiburon Art Festival Committee and Belvedere/Tiburon
Landmarks Society as a docent, and
WHEREAS Jaleh was chosen by the 2012 Special Selection Committee to be recommended for Tiburon
Artist Laureate filling the vacancy left by Mary Musalo, and
WHEREAS Jaleh plans to continue the previous Laureate's programs while adding new educational
components to serve and benefit the public,
NOW THEREFORE BE IT RESOLVED that the Town Council of the Town of Tiburon does hereby
appoint Ms. Jaleh A. Etemad as Tiburon's Artist Laureate and does hereby bestow upon her the
traditional and symbolic laurel wreath as a sign of that office.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon on
September 19, 2012, by the following vote:
AYES: COUNCILMEMBERS: FRASER, O'DONNELL, FREDERICKS, DOYLE, COLLINS
NOES: COUNCILMEMBERS: NONE
Mayor, Jim Frasgr
Attest
C.C. /
TOWN COUNCIL
MINUTES
CALL TO ORDER
Mayor Fraser called the regular meeting of the Tiburon Town Council to order at 7:30 p.m.
on Wednesday, August 15, 2012, in Town Council Chambers, 1505 Tiburon Boulevard, Tiburon,
California.
ROLL. CALL
PRESENT: COUNCILMEMBERS:
PRESENT: EX OFFICIO:
ORAL COMMUNICATIONS
None.
CONSENT CALENDAR
Collins, Doyle, Fraser, Fredericks, O'Donnell
Town Manager Curran, Town Attorney Danforth,
Director of Administrative Services Bigall, Director
of Public Works/Town Engineer Nguyen, Police
Captain Hutton, Planning Manager Watrous,
Associate Planner Tyler, Town Clerk Crane Iacopi
1. Amendments to Town Code pertaining to Mobile Vending Vehicles - Adopt ordinance
amending Title VI, Chapter 23 (Motor Vehicles and Traffic) of the Tiburon Municipal
Code to prohibit the parking or standing of mobile vendors on certain street segments
during certain hours (Chief of Police Cronin)
2. Amendments to Town Code pertaining to the Keeping of Chickens and Honey Bees
and other text amendments - Adopt ordinances amending Title VI, Chapter 20
(Animals) and Title IV, Chapter 16 (Zoning) of the Tiburon Municipal Code (Town
Code) (Director of Community Development Anderson)
A) An Ordinance of the Town Council of the Town of Tiburon Amending Municipal Code
Title IV, Chapter 16 (Zoning) by Making Various Text Amendments including but not
limited to adding, deleting and modifying definitions, adding a section regarding
reasonable accommodation [for the disabled], requiring site plan and architectural review
approval for demolition of structures, making amendments to requirements for
Temporary Use Permits, Tidelands Permits, vehicle gate setbacks, secondary dwelling
unit s and termination of nonconforming uses, and modifying affordable housing overlay
zone incentives consistent with the Tiburon General Plan;
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Town Council Minutes #xx -2012 August 15, 2012 Page I
B) An Ordinance of the Town Council of the Town of Tiburon Amending Municipal Code
Title IV, Chapter 16 (Zoning) and Municipal Code Title VI, Chapter 20 (Animals) with
respect to Chicken and Honey Bee-Keeping Regulations and Miscellaneous other
Amendments
3. Management/Mid-Management Compensation Program - Adopt resolutions repealing
Resolution No. 22-2012 and No. 23-2013 and adopted amended resolutions for Fiscal
Year 2012-13 to correct clerical errors (Director of Administrative Services Bigall)
4. Memorandum of Understanding (MOU) with Service Employees International Union
(SEIU) - Approve MOU between Town of Tiburon and SEIU Local 2021 effective July
1, 2012 through June 30, 2015 (Director of Administrative Services Bigall)
MOTION: To adopt Consent Calendar Item Nos. 1 through 4, as written.
Moved: Collins, seconded by O'Donnell
Vote: AYES: Unanimous
ACTION ITEMS
1. Establish Name for new Joint Recreation Facility at 600 Ned's Way - Consider
recommendation of Heritage & Arts Commission and determine appropriate name for
new building at 600 Ned's Way (Town Manager Curran)
Town Manager Curran gave the report. She said the project that has been known as "Ned's
Way" for some time now needs a better name. She said this would also assist the Jt. Recreation
Committee in its fundraising for furnishings for the new facility. Curran said that one name that
had been proposed and discussed was "Dairy Knoll;" she said this referred to the fact that a
Portuguese dairy was located near the site.
In originally considering a name for the building several years ago, the Town Manager said that
several governing concepts were employed. These included finding a name that: a) was unique
and evocative rather than routine; b) was rooted in Tiburon history; c) had not been used in other
major place or building names in the Town or County; d) avoided the use of bureaucratic or
institutional sound names like "facility"; e) was perhaps a bit whimsical, in light of its
recreational use; and f) was not overly specific to "recreation" in the event the use of the building
expands over time.
Town Manager Curran said that pursuant to the Town's naming policy for public spaces, the
Heritage & Arts Commission had been consulted for its recommendation about the proposed
naming of the site. She said that at its June 26 meeting, the commission recommended a slightly
different version of the name: "Dairy Hall." Curran said the commission thought it would be
descriptive of the new building that was being constructed at the site. She said that either name
would seem appropriate and that the ultimate decision was in the Council's purview.
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Town Council Minutes #xx -2012 August 15, 2012 Page 2
Vice Mayor O'Donnell asked which name, if any, was preferred by the Jt. Recreation Committee
members. Town Manager Curran said that in her discussions with Director Andreucci, a
preference was given for "Dairy Knoll." She noted that there had not been a formal
recommendation by the committee; however, Curran said that the committee members had
"adopted" the name and were enthusiastic about the concept of "Dairy" in the name, whatever it
might be.
Mayor Fraser opened the item to public comment. There was none.
Councilmember Fredericks said she, too, liked the reference to a dairy, especially since the
calving barn still stood at the Public Works Corporation Yard. She said that naming it after the
site rather than a building might be the better course, as the uses of the site could broaden in
future. On the other hand, Fredericks said she would be willing to defer to the expertise of the
Heritage & Arts Commission in this matter.
Councilmember Collins said that he thought the name was adequate but that he was not
enthralled with it. He asked whether the committee was open to, and had pursued, other ideas.
Town Manager Curran said that some time had passed since she had discussed the name with the
Jt. Recreation personnel; she said that it might be possible to pursue this recommendation.
Councilmember Doyle said he liked the choice of "Dairy Knoll". The Councilman said his home
was located in the vicinity of the farm that had once been in that area; he said the name fit the site
well since it was a knoll, not a hall. He also said that Ned's Way was built with the idea of
preserving some of the open space in the area, so in his opinion, it also worked to name the site
with that in mind.
Mayor Fraser said the name also rang true for him and that it brought meaning to the site. The
Mayor said that he was not opposed to Councilmember Collins' suggestion, if the rest of the
Council wanted to pursue it.
MOTION: To adopt the name "Dairy Knoll" for the new facility at 600 Ned's Way.
Moved: Fredericks, seconded by Doyle
Vote: AYES: Unanimous
2. Encroachment Permit for Staircase at 1877 Centro West - Consider approval of
encroachment permit for the installation of a staircase in the public right-of-way at 1877
Centro West Street, Assessor Parcel No. 059-07-16 (Director of Public Works/Town
Engineer Nguyen)
Director Nguyen gave the report. He said that in June 2012, local contractor Mark Swanson
submitted an encroachment permit application for work at 1877 Centro West Street to replace an
entry stairs, handrails, a steel gate and retaining walls. The Director noted that the previous
staircase and retaining wall had been installed years before in the public right of way (ROW) and
that the new staircase and retaining wall proposed to do the same. Nguyen said that since the
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Town Council Minutes #xx -2012 August 15, 2012 Page 3
proposed staircase is of a permanent and substantial nature, Town staff was required to bring the
application to the Council for its review.
Nguyen said that staff had reviewed the plans and finds the encroachment to be in general
compliance with Town requirements and guidelines. He said that if the Council voted authorized
the encroachment, staff would prepare additional conditions of approval and require recordation
of the encroachment permit, making it revocable [per Town policy].
Councilmember Fredericks asked whether the proposed structure would encroach less than the
existing one. Nguyen said that statement was correct.
Councilmember Collins asked whether stairs in various other places along the same street also
encroached onto the ROW. Director Nguyen said that they did.
Collins also asked whether the applicant had looked at constructing the improvements in another
way. The Director said that staff had asked the applicant to consider not encroaching into the
ROW but was told that it created too many difficulties; he suggested allowing the applicant to
explain the reasons.
Mayor Fraser noted in the staff report that the staircase existed before the garage was built.
Director Nguyen said that he was not familiar with the garage construction; however, Planning
Manager Watrous said that the previous stairs existed prior to construction of the new garage.
Mayor Fraser said that the neighborhood had a history of problems with speeding cars. He noted
that the ROW was used by pedestrians, cars and bicycles; he asked if an encroaching staircase
might exacerbate an already dangerous situation. He asked whether the stairs might come down
the left side of the house instead.
Director Nguyen said that staff had also discussed this question with the applicant; he said that
staff's premise was that the applicant should be allowed to replace the existing staircase for
ingress and egress, however, staff also believed there was an opportunity [for the Council] to
determine whether there were other ways to access the property.
Contractor Mark Swanson handed out a timeline of the project and described the history of the
project to date. He showed the configuration of the existing stairs when the garage was built in
2005 (page 1); he then showed the site plan approved by the Town in 2010 (page 2); he said this
also showed the site at the start of the current construction, with an existing concrete retaining
wall and stairs that come towards Centro West Street. Swanson said that his clients thought that
it would be better for the stairs not to spill out onto Centro West so they had proposed bringing
them back even more than the 2010 plans allowed.
Mr. Swanson said that he started work on the other improvements in 2010. In 2012, Swanson
said they came up with the revised plan [for the stairs] which seemed to be a better solution for
his clients and the community. He said the plan was circulated to the neighbors and received their
DRAFT
Town Council Minutes #xx -2012 August 15, 2012 Page 4
endorsement.
Mr. Swanson said that a lot of time and money had been spent to date on building new retaining
walls and a swimming pool. He said that this work included cutting back the slope and removal
of walls which would also improve the sight line at the corner. Swanson said that he had relied
upon prior approvals from the Town to proceed; he said it would be difficult and that he did not
have authorization to change his course of action now. He reiterated that his clients think the re-
oriented stairs are in the best interest of the Town, as well.
Mayor Fraser asked if there was any public comment on the matter. There was none.
Vice Mayor O'Donnell said he supported the application, as submitted. He said that he lived in
the neighborhood above the property in question and passed the home on took Centro West.
O'Donnell agreed that it was a narrow street with a difficult corner; he said that although the
encroachment was a taking of a public space, there were no good alternatives, and it was a
significant improvement for both the property owner and the Town.
Councilmember Collins said that he, too, supported the application and that it would make the
area safer than before.
Councilmember Doyle concurred with his colleagues.
MOTION: To approve encroachment permit #12-75 for installation of a staircase in the
public ROW at 1877 Centro West Street, as presented.
Moved: Fredericks, seconded by Doyle
Vote: AYES: Unanimous
PUBLIC HEARINGS
1. 1 Blackfield Drive - Consider appeal of Design Review Board decision to approve a
request for site plan and architectural review to construct exterior alterations to an
existing commercial building (Planning Manager Watrous)
Applicants: Fresh & Easy Neighborhood Markets; Nadel Architects
Appellants: Darren Wein, Jennifer Rasmussen, Lynde Selden, Kyle and Ann Mary
Belek, Murray and Tiffany Dunn
AP No. 034-212-18
--Application withdrawn on August 15, 2012.
2. 2308 Mar East Street - Consider appeal of Design Review Board decision to approve a
request for site plan and architectural review to construct additions to an existing single-
family dwelling with variances for reduced side yard setbacks and excess lot coverage,
and a floor area exception (Associate Planner Tyler)
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Applicant: Dr. Peter Wilton
Appellants: Magdalena Yesil and Jim Wickett, David and Kathryn Kulik
AP No. 059-195-01
Staff presented the report detailing the history of the project and described the appeals procedure.
Councilmember Fredericks asked for clarification regarding the problem identified in
determining lot size and floor area ratios (FARs) for some of the lots because of the mean high
tide. Ms. Tyler stated that in order to determine the lot coverage and FARs for the properties that
are on the waterfront, the amount of dry land must be determined using the mean high tide line.
Generally, BCDC can help determine where this mean high tide line is.
Councilmember Fredericks said she reviewed the data and did not have a sense of whether the
applicant's lot is smaller or larger than the other two, and she asked if there was any information
about this at all or would this only be available if one has the mean high tide boundaries. Mr.
Watrous replied that the Town only has the mean high tide boundaries in the calculations for the
dry land area for lots that have submitted applications within the last 20-30 years. The Mayor had
asked for additional information on this and staff found 6 parcels out of 29 parcels with
information on them, not including the ones on either side. He added that the Town has not been
given the lot line information in connection with detailed maps to make those calculations. This
is not something they normally do until somebody applies for an application for the property and,
at that time they ask the applicants to provide this information.
Councilmember Fredericks asked if the proposed kitchen is within the appropriate setback or is
the variance on the setback to accommodate the kitchen structure. Ms. Tyler replied that the
variance is for the kitchen addition expansion because it intrudes irito the side yard setback. She
explained that when the project was initially submitted, the applicants had requested two side
yard setback variances, but upon revisions, they eliminated the west side yard setback variance.
She said that the only one that was approved was for the eastern side adjacent to 2310 Mar East.
Councilmember Fredericks questioned the basis of the finding that the privacy was improved for
2310 Mar East. Ms. Tyler noted it had to do with how the expansion of the kitchen's projection
out would actually block certain windows now viewed from 2310 Mar East Street.
Councilmember Fredericks further confirmed it was a combination of the fact that there was a
window in the solid wall and how the windows were placed in the kitchen. She stated when there
is a lot which has various forms of non-conformity that comes in on an application, she asked if
there is any particular policy for curing non-conformity, and Ms. Tyler stated "no."
Vice Mayor O'Donnell stated that along Mar East when a property has a deck that extends out
into the Marine zone of the property, he asked if this goes towards their FAR within the property.
Mr. Watrous replied that an open deck would not count towards FAR whether it is on dry land or
not. It does count toward lot coverage; however, the Town's zoning allows decks to extend into
the marine zone but does not allow floor area to necessarily extend into the Marine zone.
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Town Council Minutes #xx -2012 August 15, 2012 Page 6
Councilmember Collins asked Mr. Watrous whether or not 2306 Mar East was a double lot.
Councilmember Collins asked when the applicant purchased 2308 Mar East, and Ms. Tyler said
she was not sure of the date but the applicant was present and could answer the question.
Mayor Fraser said a comment in the staff report states, "The Board articulated findings for both
variances but noted that the hardships on the applicant were the standards of the R2 zone."
When he was on the Planning Commission he remembered they talked about zoning and, in
some instances, they would make a recommendation for a change to the zoning ordinance and he
asked what the process is for the Council to address or zoning issues through such changes. Mr.
Watrous said this would be an amendment to the Zoning Ordinance which requires hearings
before the Planning Commission and Town Council and adoption by ordinance. He said they
have had this discussion in workshops regarding other zones. The one that often arises is the RO-
2 zone which has 15% lot coverage, and they end up approving many variances for this. In that
case, the Council has discussed on a number of occasions whether to change that ordinance to
better fit the neighborhood and has chosen not to. He added that there has not been a global
discussion on the R-2 zone.
Mayor Fraser asked and confirmed that the Council has not had discussion with regard to the R-2
zone or as it relates to Mar East and as it relates in terms of looking at the zoning there in recent
times. Vice Mayor O'Donnell added that they have not held this discussion for most of Tiburon
for that matter and he said as Councilmember Fredericks stated the, flavor of each property is
unique.
Mayor Fraser asked for the appellant's presentation.
Magdalena Yesil, Appellant, said she is here with her husband, Jim Wickett and her son, Justin
Wickett. They own and live in 2306 Mar East. She said they are here because after numerous
visits, the Planning staff could not make the finding for variances for 2308 Mar East, yet the
DRB could. They are appealing the decision because they believe what the Planning staff said,
as she quoted; "There would appear to be insufficient evidence to support the findings for the
variances requested specifically for physical hardship and injurious to neighboring properties."
She asked how the DRB made the findings that Planning staff could not. Regarding physical
hardship, they already heard from Ms. Tyler that the way the DRB made this finding is that the
hardship and practical difficulty is that zoning does not fit the site. She said in other communities
like Newport Beach, one is allowed to build 50%-60% lot coverage. The question as to what lot
coverage currently this house has, according to the application it actually currently has 69% lot
coverage. Even if it were in Newport Beach, it would be above the lot coverage required.
On the variance finding that the project would not be injurious to other properties, the
Boardmembers made this finding by saying the 5 foot balconies in the back would not be party
decks and the project, in general, would not be injurious to neighboring homes. This decision
was reached with three of the five members present.
Ms. Yesil said one reason they bought their home was because it was a wide lot. They knew it
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would provide them with more frontage and it already had an existing pier and dock which was
in fairly bad shape. They bought this home about 5 years ago and did a retrofit as approved as a
conditional use permit in 2008. Unlike the applicant's letter which indicated they added 770 feet,
they actually added 703 feet, but this did not require a variance. She also pointed out that the
screening between the two homes at- the water level is very difficult. She provided a picture
showing the proximity of the two homes to each other and said they are quite close in one area
which she showed as the view into the master bedroom.
Regarding two issues of hardship, Ms. Yesil said Vice Chair Emberson of the DRB said that to
live on the water and not to be able to enjoy a deck on the water is a hardship. In fact, today the
home at 2308 Mar East has two decks totaling about 400 square feet at the lower level. The
applicant has said the decks do not have sunlight and rear views, but both decks get quite a bit of
sun, have furniture and other items on them, and have direct views toward Angel Island. She
said the applicant is planning to fill this deck and make it into a fourth bedroom, and then push it
out 5' 10" and build a new deck downstairs, as well as new deck upstairs. She believes this is
exactly the kind of self-induced hardship that the variance process does not allow for. To fill in a
deck that already exists and then to say they need another deck is not a hardship argument
because the lack of decks does not apply. She also pointed out that the hardship argument that
the applicant has put forth on maintaining the rear of his home does not apply. He has said he
cannot maintain the rear of his home; therefore, he needs decks at both levels for maintenance.
But as the picture shows, during low tide there is plenty of dry beach for external maintenance.
Her home was painted about 1.5 years ago and they have no decks, docks or any access on two
sides of their home and have no difficulty painting the whole house because they basically timed
it and worked with the tides.
She displayed a picture of their master bedroom and said today, outside light, sounds, and views
from 2308 Mar East are limited in the present condition. Now two decks are being proposed and
they do not really know what those two decks will do because they are not architects and cannot
visualize it. They were told that the decks with their privacy screens would not be injurious to
them. She went and retained an architectural and structural engineering firm and asked them to
provide their expert opinion. The firm works as expert witness in cases of this kind, and they are
extremely careful in what they say because they must appear in court at times and defend their
findings. She asked them to help them visualize whether the two decks would be injurious to her
or not from a privacy standpoint.
Ms. Yesil then presented a perspective from overhead showing the two homes as they exist and
the master bedroom roof (in yellow) and the two decks proposed at the upper and lower level. At
the lower level, there is a triangular deck connecting another deck. The two new decks add 5' 10"
at both levels which add up to about 410 square feet of new deck, bringing 2308 Mar East's
outside living space 25% closer to their master bedroom at two different levels. She said the
Council may think 5' 10" is not that much, but from a percentage or relative closeness point of
view, it brings outside living space with all of its issues 25% closer to their master bedroom at
two different levels. The 410 square feet of outside living space means they will hear
conversation. During the DRB hearings they were told that 5 feet decks are not likely to support
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large parties. They understand this but do not know how one could stipulate that, but the bottom
line is there does not need to be a loud party to hear what is going on next door because of their
proximity. They can hear conversations and laughter, and this is furthermore exacerbated by the
fact that there is water, and when calm, sound waves reflect off the water and make the situation
worse for them. The injurious situation can be conversation, laughter, an intimate gathering and
not necessarily loud parties. She said same as sound waves, light waves also will project out and
its reflection off the water will cast into their bedroom. They have no ability to screen with trees
or bushes.
Regarding the proposed privacy screen which the DRB discussed and approved for the upper
deck, she presented a picture from the applicant's packet. She believes that the upper deck was
granted based on this privacy screen functioning. She presented a picture of the proposed decks
and, while they are not architects, they asked for the expert opinion of architects and engineers to
help them understand if the privacy screens would provide privacy for them. They found that
someone going out on those decks will be able to see them. The privacy screens do not block
direct view into her bedroom, do not eliminate views into their master bedroom and bed, and the
permit-granting process has been built on Photoshop images because no one can go out to the
decks to confirm that the privacy screens work. Their architects show that the privacy screens
deployed do not offer the visual privacy for their bedroom as was discussed. The screens
furthermore do nothing to avoid the injurious effects of the two new decks from an acoustic
privacy and lighting point of view. Ultimately, the 2308 Mar East additions in the rear provide
direct line of sight and injurious effect from an acoustic and lighting point of view.
Ms. Yesil said they were told in the hearing that they live in a very open environment and it will
not be made worse through these decks, but she questioned whether this is true. If the project is
built they have two levels of 5'10" protruding further into their master bedroom. She asked to see
what percentage this would be from a penetration point of view, asked that a satellite image of
the two homes be taken and that the applicant's architectural plans be overlaid on top of them.
They were told that from the closest point of view of the decks they will now have a 60% visual
penetration into their master bedroom. This gets worse moving further back on the decks. The
closer one is the smaller the angle; the farther one is the wider the angle. She put the two slides
side by side for the Council to help make their own decision and asked if the project would be
injurious to them or really enhance their privacy. They think not with all due respect to the DRB
members, and they do believe they will be injured from the building of these two decks. She said
even in approaching the granting of the variance on a balancing of equities theory which is not
the zoning ordinance, this design still does not stand up to the test. When one balances the
relative equities of what the applicant is gaining and what is being taken away from them, the
applicant complains he is getting merely a modest balcony and hardly even a deck. Yet to get him
this, his structure comes 25% closer to their master bedroom within 20 feet, encroaches upon
their bedroom privacy, and prevents their ability to sleep in that room since they cannot shield
from the conversations and light. They cannot plant trees since it is water and rock between them
and the applicant's words "the modest gain he will receive" does not balance the very major
detrimental impact to the quality of their daily lives, their ability to sleep, their loss of privacy
and the loss of property value they will experience.
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Ms. Yesil then discussed the second bedroom in the rear (highlighted in yellow), presented the
layout and said with the new plans the southwest area of the home gets 4' closer to them. Today
they have two outdoor areas in the southwest elevation-the entry walkway and the lower deck.
If the project is built, they will have four additional outdoor areas right by their second bedrooms.
So, what is a quiet area today will have significantly more traffic, more light, and it will affect the
quality of life in their second bedroom. She presented a picture of what exists today as the
second bedroom, windows, an existing fence between the two properties, and she said they do
not have the ability to plant a tree, lattice for the fence for the wind to go through, and the privacy
tree which screens between the two homes. The applicant's plans will expand through the area;
the tree will be taken away because it will most likely not survive, and if the plans are built as is
they will have the home 15 feet away from their window, two stories of windows and a new
sliding door. The proposed design creates areas of light and activity adjacent to the 2306 Mar
East second bedroom.
Ms. Yesil said they requested clerestory windows at the entry and stairway. This was discussed at
the May 4`h DRB meeting but it was never incorporated into the plans. The clerestory windows
are very important to them because this is the entry into the home as well as the stairway, and
most of the time it will be lit which will shine right into their bedroom. They also requested the
tree be maintained or replaced which the applicant agreed to but it was never stipulated into the
permit. They also asked that the sliding doors be made into solid doors to reduce glazing.
Regarding the decks, they believe that the lower deck should not be granted because it is a good
example of self-induced hardship. There are already two decks at this level totaling 400 square
feet and furthermore, the lower deck is injurious to their privacy to their master bedroom as it is
exactly at the same level. They also asked for the DRB to reconsider the upper deck. The upper
deck has been granted based on the theoretical function of the privacy screen which does not
provide the visual privacy claimed by the applicant nor does it eliminate the injurious acoustical
and lighting into their master bedroom. The upper deck is injurious'to the privacy of their master
bedroom and they also believe it should be eliminated.
In closing, they are before the Council because they have asked that 2308 Mar East not be
granted. Staff in three different reports said that there appears to be insufficient evidence to
support the findings for the variances requested, specifically for physical hardship and injurious
to neighboring properties. In contrast, in granting the variances for 2308 Mar East, the DRB
determined that the zoning designation did not fit the site or the Mar East waterfront vicinity in
general. She believes this is dangerous precedent for the Town of Tiburon because it creates a
lawless environment for the Town. She asked that the Council adopt the staff s recommendation
by denying the excess lot coverage variance in light of lack of physical hardship to the applicant
and the injurious and detrimental effects of this variance on them and on their property.
Councilmember Fredericks asked Ms. Yesil to clarify the shortcomings are of the screen on their
patio, as when she visited the site it was not in good shape. Ms. Yesil said the screen was there
when they purchased their home. It is a very thin fence and is very high from their side because
they are 25 feet lower than 2308 Mar East. She said she cannot grow bushes there but if they
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could they would prefer more light screening. But because there is not dirt underneath for theirs
to grow bushes in, they are basically limited to whatever the current fence can provide. It is not a
perfect fence and light does come through. Light goes in every direction and diffuses out, so they
believe even though there is a fence in front of the sliding glass doors, at night when turning on a
flashlight in the area, it does light up towards the sky and they can see the light. They originally
were not opposed to the house coming out 4 feet towards them and they just ask that changes be
made so their life is not as difficult, as they believe it will be if the request is approved.
David Kulik, Appellant, said his wife Kathryn and he are the owners of 2310 Mar East and
thanked the Council for the time put in preparing to hear this meeting. He has three goals for his
presentation-the first is that he wants to demonstrate the injurious impact that these variances
have on their property through a PowerPoint presentation. Secondly, there are many legal issues
in play and he will ask that his attorney, Mr. Len Rifkind to articulate on those, and finally, they
want to show where they think the DRB missed the mark in finding for these variances.
Mr. Kulik presented the orientation of the two properties; 2310 and 2308 Mar East. He said what
is shown is the result of a fierce battle waged 40 years ago. The final result was set in detail to
maximize the privacy in an area that was inherently not private while also minimizing the impact
to light and views for all players involved. There is a lot of evidence when going through their
home, given the strategically placed windows that look directly down property lines, privacy
enhancements, unique cuts that maximize the view from 2308 over.to Berkeley. All of this was
done with careful consideration of the relative orientation of the two properties and done on
purpose. He brought up the concept of absolute versus relative, stating they fully concede that
what is being proposed is not that much from an absolute perspective. It is 5' 10", and if the
properties were separated by 100', less than a 6% relative impact to the separation, it would not
be an issue and would be negligible. However, these two properties are separated by 8' and 5'10"
represents a 72% impact to the relative separation of the two properties. What it does is create
levered and adverse impacts for every change in 2308 Mar East to this carefully constructed
scheme of 2310 Mar East. He said he would show the result of variances to the zoning ordinance
that were granted by the DRB and he asked the Council to keep one thought in mind as he goes
through the slides-he asked that the Council ask itself the question, is 2310 Mar East made
better or worse for what is being proposed? The answer to that question is the very basis for their
appeal.
Mr. Kulik stated at the closest point of approach now from one of the two open-air decks to their
property, they have 20 feet of separation, which they accept. The new project, from their
perspective, calls for two decks and a kitchen extension, and that separation now from 20' gets
reduced to the order of 8' which is a 60% reduction in the separation between an open-air deck
and their living room, which has several adverse effects for them. First, in looking at the
acoustic issues, from 8' in their living room listening to the deck, they can hear every word that is
said. Worse, in the opposite, someone standing on that deck can hear every conversation that
occurs in their living room. It changes the way they live in their house. On the upstairs, they
would have a kitchen pop-out which has cooking and cleaning sounds at unpredictable hours,
which is 8' from their master bedroom, which changes a lot of things in their master bedroom.
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Also, having lived at 2310 Mar East for 4 years now, they know the prevailing wind is right
down the line of 2308 Mar East. They use this window for ventilation at night and they open it.
They can hear the water and can get a lot of fresh air. Regardless of how good the ventilation
system is in the kitchen, they know from experience that every odor emanating from the kitchen
will end up in that window.
Mr. Kulik pointed to an illustration which represents the visual privacy intrusion range from the
new decks into their main living areas. Their master bedroom is upstairs, the main living room is
downstairs, and the yellow represents what they have to do with window treatments to maintain
their visual privacy in those spaces. He presented a slide that represents a 55 degree intrusion
angle into their main living spaces. Admittedly, this is not great, but what the project does is
when they move out 5'10", it increases that angle to 80 degrees. This is a 45% increase in the
visual penetration into their master bedroom and main living room. From pictures inside their
home, they can see the deck 20 feet away from their living room. What will happen with the new
project is someone will be 8 feet away from their living room, can literally read the paper over
his shoulder as he sits on the couch, and this presents a look down porch directly into their main
living space. This forces them to use window treatments to guard their privacy. They have a
fantastic view of the Golden Gate Bridge and it puts them in a difficult scenario because their
choice is to look at the bridge and accept the new privacy intrusion or maintain their privacy and
block off the view from their entire living space of the dining, living room and kitchen. He
displayed a picture taken from the perspective from his pillow in his bedroom upstairs. He said
one can see a silhouette of a person and actually see the tenant renting 2308 now in the picture.
Again, they know the scenario is not perfect and inherently not private, but this gets much worse
when the upper deck creates a perch of an 80 degree or worse intrusion angle into their bedroom
looking directly at him as he sleeps on his pillow. This puts him in the choice again of whether
he should cover up 2/3 of the window and block the view from his'master bedroom and maintain
his privacy or does he sacrifice all that and let somebody look at him while he sleeps.
Mr. Kulik then presented before and after views from his dining room table, showing the lower
decks that extend out which is the same concept. Someone has the ability to look at him and his
only option is to cover the window with a treatment and all the people at his table cannot see the
Golden Gate Bridge and to say nothing of the fact that the person is 8 feet away from their table.
This is a significant problem and a devastating change to their quality of life because they have
no private conversation at their dining room table.
He then presented a picture from the perspective of where the upper deck will be and it is taken
from the line of the story poles in place now. The red silhouette shows a person standing on the
deck, the pillow from where the previous picture was taken, and inverting the silhouettes, he
showed the view from the upper deck into their bedroom. The only choice he has is either let
somebody watch him in bed or use a treatment and block off views of the bridge. It is the same
concept on the lower deck, which he then similarly explained. Admittedly, he said this is not a
primary view window but it is tremendously enhancing to the character of the house and it speaks
to the meticulous design placed there. It adds a lot of light to the stairs, is a safety enhancing
feature, and adds character to the room. Looking out the window one can see the Sutro Tower,
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Angel Island and the water, and he asked the Council to ask the question--Is 2310 Mar East made
better or worse by this?
Len Rifkind, attorney for the appellant, said he knows the Council understands the concept of
findings, but in his view this is the analysis they will have to partake--to decide whether or not
the Council can make findings under the Tiburon Municipal Code Section 16.52.030 (e). There
are four findings required by State law to be made in order to determine whether or not the
Council can grant what has been requested, namely a side yard setback variance, a lot coverage
variance, and a floor area exception. He read verbatim number 3 of the Municipal Code and
specifically called out that "self-created hardships may not be considered among the factors that
might constitute special circumstances and a self-created hardship results from actions taken by
present or by prior owners of the property that consciously creates very difficult hardships
claimed as the basis for an application for a variance." He noted that staff, in three staff reports in
December, May and June all concluded each time that they could not make this finding, which is
significant. The reason they could not is that at least with the lot coverage exception, this
property is so overbuilt, it exceeds six standards in the R-2 zoning that there is no need to go
even further beyond the overbuilding that has already occurred, so staff could not make the
finding for that very reason. Staff has said in fact that any application that requests both a lot
coverage variance and a floor area exception is by definition an example of fundamental
overbuilding, and this is what this application is requesting.
Regarding the side yard setback on the east side, Mr. Rifkind said it is down to 6", but this was
created 40 years ago and the language right in the ordinance states that a "self-created hardship,
whether by present or prior owners..." Therefore, when 40 years ago a lot line adjustment was
determined between the two properties, it unfortunately affected 2308 with the situation it is
finding today. The reason the lot line adjustment was created was so the owner who owned both
2308 and the lot would be able to build what is now 2310 Mar East.
Mr. Rifkind also pointed out the second finding that the Council must snake is the idea that it
cannot be injurious to the neighbors' property. He thinks the picture says this and tells the story.
It seems abundantly clear that the Kulik family's privacy, views, and sunlight are all significantly
impacted by the proposed project as it is designed.
Regarding the findings, he stated the California Supreme Court in 1974 had a case called
"Topanga" and one of the lines he loves about the decision says, "a finding bridges the analytic
gap between the raw evidence and the agency's ultimate decision." The raw evidence here is the
two decks seen in the kitchen pop out. The ultimate decision is whether this Council decides
whether or not to grant these variances. What the finding is going to be is the gap between the
two and the reason why you either decide to grant or not grant them. It seems there is enough
evidence presented that the Council cannot make those findings. It is clear that for the injurious
aspect, the Council has heard from Mr. Kulik that there is a levered and adverse impact, which
the pictures show. In terms of the hardship, when the house already exceeds every aspect of the
zoning standards, the resolution would be there is nothing stopping the applicant from building
within the existing footprint. They could have the same decks and kitchen albeit the house is
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slightly smaller at 2,600 feet. They want 2,900 feet, so they could still build all the same design
within those 2,600 feet there, and this is what they are suggesting the Council go.
Another point raised and staff talked about it is the idea of non-conforming use and non-
conforming structure, and the zoning ordinance, Section 16.62.030 addresses both. Regarding the
structure part, they are not changing the use but the whole point of having a non-conforming
ordinance is the goal of any zoning ordinance is so that all the structures and uses actually
conform and comply. The goal is not to have a structure that will go beyond what is permitted by
the standards, and that is what unfortunately this application does and contrary to what provision
Section 16.62.030(b) says, which he read into the record. Usually an applicant will ask for a
variance in order to get around it, and they have indicated and shown clearly is that the Council
cannot make those findings.
Lastly, from a policy standpoint and from the concept of precedence, Mr. Rifkind stated he thinks
every Council thinks about that, if the Council decides to grant this application because the
applicant thinks it is modest and only 5' 10" and the DRB said it was not a big deal; that they are
only increasing the square footage by 10%, the facts are that they are moving from 20 feet to 8
feet. The applicant says that all homes in the Mar East neighborhood are non-conforming. This is
a sweeping statement but there is no evidence that is actually true. He does not know if anybody
really knows this. The applicant has said that all homes in the Mar East neighborhood have
variances, but 2310 does not, 2332 does not and 2248 does have one but it has specific findings
stating it was not injurious to any adjoining properties. If this is granted, the Council will have
the potential for every home in Mar East to be able to come forward and point to 2308 as an
example and neighbors will oppose this. If the Council stands up for the zoning ordinance and
does not grant this, the Mayor suggested doing a zoning change which he said is not before the
Council tonight, and he would appreciate based upon everything heard if the Council would
uphold the appeal, deny the application.
Mr. Kulik concluded the presentation, stating he spent a lot of time doing some research of a
precedent setting case on Mar East that would show all elements in play here--an application,
variance, neighborhood opposition, Town opposition and ultimately an appeal. He found the
most applicable case and this is his house; 2310 Mar East. Forty years ago a man owned a vacant
lot and wanted to construct a residential structure. He submitted plans to the Town that called for
a variance. On seeing these plans, neighbors were opposed and the Town encouraged the
applicant to redraw his plans. He did so, resubmitted the plans for a structure that had zero
variance to the zoning ordinance, and this structure is his house. He thinks it is precedent setting
that in asking for a variance not just in Tiburon or not just on Mar East Street, but in this specific
locale, there is a precedent that if you ask for a variance you cannot injure somebody else.
Obviously, putting up a structure on a vacant lot would be injurious and the neighborhood and
the town made it happen, so that wouldn't go forward. Now what the Council sees is a structure
that is completely compliant and required no variances to be built. With no disrespect to the
DRB, when things are granted through variance and justification is used, attention must be called
to it if it is disagreed to.
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Mr. Kulik stated that a Boardmember said the screen would completely eliminate the view of the
bedroom next door. He was referencing 2306. He knew it was a problem from looking at a deck
through a bedroom and said the screen that has gotten so much air time through debates would
solve that problem. What that Boardmember did not address was this situation; he worried about
the screen at 2306 but never mentioned the situation in his finding for both variances. Another
Boardmember said the project would not be injurious to other properties but instead would
enhance their privacy. With all due respect, Mr. Kulik said they are not familiar with the chain of
logic that would allow somebody to conclude that this does not injure their property. Finally, a
third Boardmember states that the hardship and practical difficulty was that the zoning does not
fit the site. This is an opinion and it is fine, but to find for a variance that injures their property is
not appropriate. In other communities like Newport Beach are allowed to build 50%-60% lot
coverage, but this is Tiburon and we should not be modeling our zoning after them. To grant a lot
coverage variance without mentioning the injurious effects or lack thereof to his property is
something he cannot agree with.
Mr. Kulik said his goals are that he wanted to demonstrate the injury this has to his property, his
attorney talked about the legal points, and he wanted to say why they disagree with what the
DRB said in finding for the variances. Staff, over the course of the past seven months, has been
completely professional and he appreciates this.
Mayor Fraser asked for any clarifying questions from Councilmembers, and there were none. He
asked the applicant to come forward for his presentation.
Dr. Peter Wilton, Applicant, said he appreciates the Council's time to come out and look at the
property. He began by agreeing that the findings were made unanimously. There was mention
there were only 3 members of the DRB present which is correct, although there are plenty of
comments from the fourth member who was present at the two previous hearings. In the minutes,
he was equally supportive. He said that the question was whether the DRB act appropriately and
he believes this requires them to look at these issues; 1) the nature of the review process and was
it fair and meaningful; 2) what is the nature of prevailing development along Mar East; 3) what is
the scope of the proposed work; and 4) what have they done in response to concerns of the
neighbors.
In looking at these individually, the review process involved three meetings with the DRB. It
involved very extensive direct engagement with the neighbors and they even retained an
independent party to try and resolve the issue and take further input to try and address the needs
of neighbors. The outcome of that was different depending upon who you are talking to. Mr.
and Mrs. Kulik purchased the home at 2310 Mar East in December and before they purchased,
they were well aware of their plans and they actually story poles that were the original story poles
that were three times larger than what they ended up with, but they made the decision to purchase
anyway.
Dr. Wilton said that they engaged the Kulik's even before they purchased, tried to get their input,
the result of which has continued and has been neither collaborative nor compromising. Mr.
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Kulik has basically said the only thing that is acceptable to him is to stay within the envelope and
that he was wasting their time and money putting story poles up and doing anything else. Dr.
Wilton characterized discussions with 2306 Mar East as collaborative but not compromising.
There has been a lot of compromise made but so far it has all been unilateral. He said they even
tried to reach out to the Wickett's one week ago suggesting further discussions. The result was an
approach of "give us everything we want and we will drop our appeal." So, unfortunately, that
process has not been that productive, but it has been active.
Regarding prevailing development, Dr. Wilton believed the properties are all unique on Mar East
which is why precedence does not apply because everything is so different in each case. This
particular property is highly compromised for many reasons. The first two involve the setback
from other properties along Mar East and the setback from two immediate neighbors. He
displayed an exhibit showing the setback line to the edge of the prevailing development along
Mar East and said that no other property is set as far back than this particular property. The next
reason they feel it is compromised is because of the lack of an upper and lower deck which is
open and unobstructed. Every other house along Mar East has a multi-level exterior deck with
unobstructed views of the Golden Gate Bridge and the rest of the Bay. The one exception is the
Wickett's house, which has a single level deck. He showed photos of decks at 2310, 2312 and
2306 Mar East. Their original request for decks was approximately 700 square feet and in light
of what happened with the Wickett's house two years ago, they do not believe they are asking for
the world, but rather something quite similar. Today, they are requesting a deck of only 280
square feet.
Dr. Wilton said that other properties along Mar East are all basically tiered, meaning the lower
deck extends out further than the upper deck. Their proposal is not to do this but have the decks
in line which denies them a lot of light and sun on the lower deck. ~He said they have a partial
view of the Golden Gate Bridge from the lower deck, but there will be a privacy screen and that
view will no longer be possible. They do not have a dock and would like access to the water.
They originally included a dock in the plan, but removed it because of objections from neighbors
and the desire for more privacy. The Wickett's have a dock so the fact that they are not able to do
this is further hardship.
Dr. Wilton said that the lack of maintenance is a serious issue for them. He presented a picture of
the property at low tide on the water's edge. When they bought their house in March of 2011 they
found leaks everywhere. He pointed to areas which are rotted and the only way they could access
it is having somebody in a sling go over the roof. The other main purpose of these decks is to
give access to maintaining the waterfront side of the property. They found holes all along the area
because the property had never been maintained because of the fact that nobody can get to it. So
the house is deteriorating and needs to be upgraded.
Dr. Wilton said that the Council heard reference to a lot line adjustment, and he showed plans
showing the locations of 2310 and 2306 Mar East. He said that in 1971 the owner decided to
build the house at 2310 Mar East and its original location was right on the boundary line with a
zero variance. Mr. Kulik asserted that his house was built with no variances, which is correct, but
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only because the owner moved the lot line. This immediately created a substandard side yard for
his property and in addition, it took a large portion of available dry land from their original plot.
They feel this is a very significant issue that has brought him here today, and this is why they
have a side yard setback variance request. He said that the Town transferred the variance granted
to 2310 to theirs by precedent, so, they are asking for a continuation of that side yard setback.
Councilmember Fredericks questioned what Dr. Wilton meant by "they transferred the variance."
Dr. Wilton said there was a lot of protest about building 2310 Mar East and discussions back and
forth between neighbors. Because of the opposition from neighbors, the owner of this property
wanted to get away from the variance so he moved the lot line. He said there is a high tide line so
that portion of dry land area is gone and taken from him, which again, is why they are before the
Council. While it is history, it is context and part of the reason why this property is
compromised.
Dr. Wilton stated the DRB looked at all of this and concluded there is hardship for this property.
in terms of the physical maintenance and because they were being denied the privileges of every
other owner along Mar East has, particularly in terms of the open, multi-tiered deck.
Regarding the scope of the project, Dr. Wilton said that they have been questioned on their
personal motivations for what they are doing. This is their retirement home and would like to
grow old there. To do this they need to put what is necessary to live on one level without stairs.
They would like single floor access to the kitchen, bath, bedroom, living room and dining room
on the top level. It has been proposed to them to take away the roof of the existing structure and
stay within the envelope and put the decks there, but to do this and accommodate aging in place
would basically be extremely expensive or impractical. They are starting a family and want room
for kids. He continues to research and write from home and both have wheelchair-bound
dependents that are going to visit. Therefore they do think the plan to have 4 bedrooms is
excessive. They are increasing the lot coverage by about 300 square feet, most of which is within
the existing envelope. The only actual increase in the envelope is the kitchen pop out at 50 square
feet. Everything else is reclaiming the existing footprint of the property.
Dr. Wilton said they calculated FAR's on the adjoining properties and looked at the dry land
area. His architect, Mr. Sadrieh ran the numbers for lot coverage and floor area and the house is
not that far out of line.
Councilmember Frederick asked how Mr. Sadrieh determined what the mean high tide line was.
Mohammad Sadrieh, architect, stated they are not exact, but are extrapolated from where the
mean high tide line is on the property below them.
Dr. Wilton agreed it is an estimate but better than nothing. This is why the rest of the lot
coverage does not make sense in this area. If he wants to get a low lot coverage number, he can
just build on water which is exactly what has happened with 2306 Mar East, and which is why he
thinks the variances need to be granted. He felt that the calculations are not meaningful in this
kind of situation and this is the conclusion the DRB reached. He could get around the lot
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coverage by putting everything on the water which they have not done, but 2306 Mar East has
done.
Dr. Wilton presented the square footage they are proposing at 2,900 square feet and he showed
other properties along Mar East showing it is not excessive, and he said this is one of the reasons
also the DRB reached the conclusion that it was modest. There are complaints about them filling
in the lower deck, but the lower deck is covered so it does not get sunlight except for a very brief
period of the day on a very small portion of the deck, so they would like to have an uncovered
deck. It is actually a porch, but the main issue is getting access to maintenance, and this is why
they are asking for the lower deck-to be able to maintain the property just like everybody else
along Mar East.
Regarding the concerns about privacy and views, deck size and view intrusion, the DRB looked
at all things mentioned tonight and they made the comment at the end of the process that it is a
very thoughtful design, that they responded appropriately to the issues raised, and they concluded
it did not intrude into the primary view spaces. He displayed adjustments made to the original
plans on the decks made in May and in June. The original deck was supposed to be 700 square
feet and the decks have been reduced to 280 square feet. They are surrounded by a deck of 1,660
square feet, 700 of which was added 2-3 years ago. The DRB called this a balcony where people
are not going to be able to congregate and not a deck. The Council heard a lot of complaints
about noise from both neighbors, but in thinking about the ability to congregate outside and
create noise, it is easier to do that on the two adjoining properties. Privacy is a two-way street and
they are being asked to accept noise into their house but they are not being given the same
privilege by their neighbors.
Notwithstanding that, they have done a lot of things to give privacy which no other house on Mar
East has done. They have extensively used privacy screens to try and address the privacy issue.
The DRB concluded that as a result, the house would actually increase privacy and that
expectations of total privacy along Mar East are just not reasonable nor are the possible. He
displayed where photos were taken from and explained them, stating in the previous presentation
this was not shown. They were taken from angles that were very advantageous to the views of
their neighbors.
Councilmember Fredericks asked how far the viewpoints are from the windows, and Dr. Wilton
said it depends on where one stands and said the decks give them even less privacy. He
explained one photo was taken from the middle of the dock of 2306 Mar East or 2/3 away from
the end of the Wickett's dock. Another was taken from the first boat hook from Mr. Kulik's
house or about 40 feet, and he continued displaying various views and explaining what they have
done to address the DRB's comments. He noted it is not possible that light can protrude through
the timber fence.
Dr. Wilton said they had proposed a solution to the Wickett's that will completely solve their
privacy problem, have offered to pay for a design of their own choosing that would sit at an angle
off of their house and given them total privacy. He presented a view from their bedroom, taken
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from their own submission on record when they wanted to replace the window. The reason their
photos look different is because when they took photos of his home, the Wickett's stood right up
against their wall and looked back. However, it would be possible to have a modest screen which
would provide them with total privacy while still retaining their views of the east bay and sunrise
which they want, but they have not chosen to do that. In looking at all of this, the DRB basically
said the granting of this variance will not be detrimental to the welfare or injurious to the other
property in the vicinity. It is not a perfect solution, but it is modest and reasonable.
Dr. Wilton said he thinks the design is good for the community. He presented a picture of what
the home looks like today and 3D renderings of what they are proposing, stating there is not
significant expansion on the envelope at 55 square feet at the kitchen pop-out, and they believe it
will do a great deal to improve the general value of properties and communities along Mar East.
Councilmember Doyle said he noticed the use of deck spaces and asked why the option for a
dock going out to the water was not considered. Dr. Wilton said because Mr. Wickett and Mrs.
Yesil indicated this would go straight past their bedroom window and be even more intrusive of
their privacy. They would love to be able to do this, but this is one of the reasons why they think
this property is compromised.
Councilmember Doyle asked about the tiering with steps going down and Dr. Wilton said this
would be great, but in responding to the neighbors and the DRB's suggestions, they pulled the
balconies back into the line of the kitchen pop-out. Everybody else along Mar East is sitting
outside at a table having a BBQ with friends, and they want to do this, but they have been
responsive to the DRB.
Mayor Fraser noted Dr. Wilton purchased the house in March of 2011 and he mentioned the
many hardships that his house has. He asked if he was aware of this when he purchased the
house. Dr. Wilton said what he was not aware of was the deteriorated condition of the house.
Mayor Fraser said he was talking more about the physical characteristics noted in the
neighborhood, such as decks and the docks that everybody else has. Dr. Wilton said he bought
the house as a fixer-upper and bought it with reasonable expectations that he could get approval
to do that from the Town for something reasonable and sensible, and it has proven to be one of
the most arduous things he has done in his life. He did not feel it should be this difficult to try
and improve a property in a responsible way.
Mayor Fraser opened the public comment period.
Karen Hardesty, real estate broker, said she moved from Newport Beach and has lived in Old
Tiburon since 1982. She objected to the reference to Newport Beach because she felt that
development took over and ruined the beautiful seaside town. One reason she chose Tiburon was
because she was confident this would not happen. Her other concern with the DRB's findings
was a disregard for the ordinances as they stand on the books. She suggested they be amended,
said she has sold 4 waterfront properties in Mar East, representing the sellers of 3 and the buyer
of one. She was sorry Dr. Wilton was not alerted of the arduous task of getting something
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through in Tiburon, but the reason is to protect the character of their community. Every buyer she
has worked with is notified they must love it the way it is but there are no guarantees. She said
there are many houses on Mar East that have less light, less outdoor space and one of the
Boardmembers told her that people who live on Mar East "can't expect privacy." She objects to
this. The values of privacy and views on that street are very important, and having represented
the 4 properties, she has run across many potential buyers that not only state the views are
important, but that privacy is an issue. She said that Marjorie Nevers, who resided in the house
at 2308 Mar East for many years, never felt that her privacy was intruded upon by the neighbors
on either side. The line of sight was not an issue and her views, light and the outside decks below
were wonderful. Regarding the comments about the aging of the property, she noted that the
main level does have a bedroom, bath, kitchen, a dining area and living room, and Ms. Nevers
lived there happily until she died at the age of 98.
David Schwartz said he has lived in Tiburon for decades, sells real estate in Tiburon and he finds
it preposterous that somebody would purchase the property without having the proper
investigation into looking at what needs to be done. He represented the Kulik's in the purchase of
their property. The story poles were up and he suggested the Kulik's go to the Town to get a feel
of what can be done. Mr. Schwartz said that staff was reassuring in that they could not support
any kind of push out on the building. The property has gorgeous views, is well-located, and the
bigger issue is not if you propose modest things it should be approved, but how much will it
harm the neighbors. Views, privacy and light are what the DRB is supposed to uphold the most
when they are looking at a project, and in this case, they turned a blind eye.
Mik Flynn said they live on the water side and although she had previously said that their home
is not affected by what the Wilton's are doing, their home is, in fact, impacted by anyone along
Mar East making major changes as they are proposing. When they, purchased their home, one
thing abundantly clear is that they needed to stay within the footprint of the house. She has been
inside the Kulik's house and can say as an owner, the project would make an enormous
difference. When putting a deck all alongside a house, it completely impacts everything it is that
someone paid for and worked so hard to do. Generally, people along Mar East cannot get outside
and clean their windows, but people have to figure it out and take care of it.
Rick Barberi said when he looks at this proposal he thinks it is a classic Trojan horse situation.
He asked how many times staff has seen proposals that are scaled back 50% to 70% as they go
through the process. More importantly, the creation of the artificial hardship for new decks is
preposterous. What bothers him, given they all live with privacy issues, they have had a number
of similar projects slip through the cracks, like the house two doors down from him. Clearly,
when both of the people claiming hardship come forward and show the Council diagrams
looking from the balcony of the new decks or the balcony of the new house into their bedrooms,
it is interesting to see how the applicant's pictures show you inside the bedroom looking into
another bedroom. He hoped that common sense will prevail and the DRB is overruled.
David Salizar said he was asked to attend the meeting by Christina Hansen who is an architect
and resident of Tiburon and used to be a tenant at 2310A Mar East. He is an architect and feels
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this is a complicated situation and he sympathizes with all parties involved. He read a letter from
Ms. Hansen into the record. He said given situations like this, he thinks that having everyone
appreciate the views and coming to some sort of degree to consensus is an appropriate solution.
Muriel Martenz said she is the current tenant of 2308 Mar East and is an interior designer who
has worked on several large remodel of home throughout Marin, Pacific Heights and in Seacliff
in San Francisco where they face the same challenges that this situation does. She believes the
improvements are extremely modest and have been made in the spirit of reaching out to the
neighbors to embrace whatever ability to keep their privacy maintained as possible. The outdoor
space they are adding is very limited and is definitely a balcony and not a deck. The neighbors on
both sides have huge decks and docks and this addition is very minor. In terms of needing the
outside decks from living there, maintenance cannot be addressed without having some deck
space that is uncovered on the lower level in order to improve and maintain the property above.
It cannot be done from the rocks down below as it is way too dangerous. Having lived on the
property, she is definitely in a fishbowl with no privacy and she looks forward into 2310 Mar
East. There is only one window at 2306 Mar East which is set far ahead so she does not see into
the bedroom at all, but just one tiny corner of it. The house at 2310 Mar East has the ability to
look directly into the entire main living area of 2308 Mar East and she believes that the addition
they are proposing adds immense privacy for 2310 Mar East. It makes a solid wall out of an
entire wall of panoramic windows that right now look at 2310 Mar East. She is surprised that the
neighbors are fighting this so much because it adds such a degree of privacy between the two
homes. She knows Mr. Kulik was talking a lot about window treatments and having to cover up
the views, but she has lived in the house for 3 months and the entire time, the one bedroom
window at 2306 Mar East and 3/ of the windows at 2310 Mar East have had their shades drawn
the entire time they have lived there. Right now there is a huge solid wall between the two houses
and 2306 Mar East has large skylights at the top of the house which are lit every night and there
is already a huge about of light coming from them, so she is very confused about the concerns on
lighting between the two properties. She voiced her support for the plans, thinks they are quite
modest and appropriate.
Mayor Fraser called on DRB Member Kricensky to answer questions of the Council.
Vice Mayor O'Donnell asked Mr. Kricensky for his opinion of the meeting and how the DRB
arrived at their decision. Boardmember Kricensky said they looked at the development occurring
along Mar East and the extent to which other homes extend out to the bay and what they enjoy.
He said that when any house builds before another one they try to obtain the maximum views
they can get. He referred to neighbors claiming views as a"borrowed view." The DRB feels there
is a compromise that can happen. He understood the issue of nonconformance caused by zoning,
which happens all over Tiburon. The Town has done a relatively good job of keeping their
generalized zoning categories over certain areas for consistency, but when there is something like
this with so little land area, very marrow lots and a these houses were not built with that zoning.
They have often granted variances to allow applicants to build a reasonable home. The staff
report stated that if they went by the dry land area and did the setbacks, they could build a 700
square foot home, which is unreasonable. They felt that looking at the development and homes
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along the waterside and what they got to enjoy, they felt this house could afford to have some
decks and not necessarily interfere at all with the neighbor's primary views. They came to the
conclusion that the side views were not primary views, but still look into each other's houses.
Mayor Fraser called for the appellant rebuttal.
Magdalena Yesil said that Christina Hansen was outraged with the project, and then she was
retained by Dr. Wilton as a consultant, so it is very unfair to represent her as an independent
party. She thanked the tenant as well as Dr. Wilton for saying that the home at 2308 Mar East
cannot see into our bedroom now, but if the plans go through, they will and this is the injury they
are talking about. There is a significant difference with what exists today and what will happen
tomorrow if these proposed plans go through. When they got the approval to build the deck, it
was with the cooperation of their two neighbors on either side. They had one neighbor get up and
speak on their behalf, they did not intrude on anyone's privacy. Both 2306 and 2308 Mar East
were built about the same time and to say one was disadvantaged over the other is wrong.
Jim Wickett said until tonight, they never talked about a dock. Dr. Wilton never told him there
was a dock and in fact the first time he heard about it was when the DRB mentioned a dock. Dr.
Wilton would have to build a pier 300 feet out into the bay. This would be a great weekend
house, but not for many children and invalids.
David Kulik said they bought their house in December 2011. Until June 2012, the Chairman of
the DRB was never in his house to see this from his perspective. He said 2310 Mar East was
built in compliance with the zoning. Not every house in the area has been granted a variance and
he never mentioned the injury effect to his house by variance, and this was never considered by
the DRB. As it pertains to the buying situation, they were accused -of being knowing buyers and
aware of the plans which is absolutely correct. Having lived in 2310 Mar East, they knew
exactly what the situation was and they knew about the history of the properties and how
essentially the development potential of 2308 Mar East was compromised build 2310 Mar East.
He and Dr. Wilton had nothing to do with that. When they bought their properties, everybody
knew the rules or should have known the rules in what the limitations were on those properties.
They did not bring any of this on themselves. They were informed buyers, knew what the
situation was, and they are being compromised. The present issue is that it sets up a tremendously
dangerous precedent and a business model that says to buy the cheapest house on the street,
extract value from your neighbors, improve the property and have a greater rate of return at
everyone else's expense.
Len Riflcind, attorney, asked the Council to focus on the findings as to whether there is an injury.
There are advantageous ways photos can be taken and he agreed their photographs are taken from
the vantage point of showing when nearest the closest corner and over the railing. Dr. Wilton's
photographs step back from the corner so it looks like there is more privacy. He thinks that if you
extend out and look to the east from the deck railing that someone might do on a 5' 10" deck or
balcony, you will see more of the house. He said that Christine Hansen was a tenant at 2310 Mar
East and conflicted herself out by her previous letter to the Town stating that any extension to the
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present building volume at the southeast fagade would essentially eliminate privacy to the
sleeping and living areas.
Paul Smith, attorney for Dr. Wilton, said the three presentations the Council saw are
sophisticated, high tech and articulate and make the Council's job both harder and easier; easier
because they have a lot of information in photos and visuals and harder because there is some
contradictory information. For those who were able to visit Dr. Wilton's house, he asked the
Council to use common sense and their eyes. The core of the appeals is privacy. Views might
have been an issue early on but through the DRB process, a series of meetings where they
methodically reviewed the project and tailored it back every step of the way, the Council is down
to one question-Is the privacy impact injurious to the neighbors or is it not? Whenever
appellants disagree with the DRB's determination of the findings, you hear a lot about what staff
said and the DRB does not always agree with the staff. The Board goes through and
methodically reviews the process, facts, visit the site and try to make their own determination of
how the facts and circumstances apply on any given property. The Council has heard a lot about
precedents, but they have always said these projects do not set precedents. Each decision is based
on facts and circumstances of the applications before the Council. In looking at precedents, the
Council can go up and down Mar East and see many exceptions and many variances, so there is
nothing unusual about the application. It is simply a question of whether or not the DRB made
the findings. He referred to specific language in the DRB minutes where they stated and
articulated how they made the findings. The record is replete with their determinations of the
findings and this is what is before the Council now. He asked to recognize there is substantial
evidence in the record that the DRB properly made the findings and there is a strong legal
position for this finding.
Mayor Fraser closed the public comment period and asked for Council comment and
deliberation.
Councilmember Fredericks said in previous appeals when the Council has talked about
"borrowed views" the concept has usually been applied to new construction when a previously
built home has used a view from their main living areas across a lot, often a lot where there is
only a place to be built that would constrain the view of the existing house. She has never heard
it applied to a remodel, and she asked if this is an existing policy. Mr. Watrous stated that the
Hillside Guideline that describes borrowed views as she described has to do with a view across
an undeveloped piece of property. He thinks there is a broader, somewhat looser interpretation
and usage of the term that has been used to describe views across a portion of a lot where a house
could reasonably considered to expand, in the same way Boardmember Kricensky described it.
Councilmember Collins said that he agreed with Paul Smith that the presentations were terrific,
were professional in content, and he commended both the appellant and the applicant for what
they had presented. He said that he believed that the DRB tried to accommodate both sides of the
issues with a mutually acceptable plan and tried to get people together to do something that
would work for everybody, which is a part of the DRB's role. He said that the Board tried to
provide guidance for the project, but that in his opinion the DRB stretched too far to make the
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findings. He said that he cannot reach the same conclusion that the DRB did. He said that he
agreed with what staff repeatedly informed the DRB about the Staff s inability to make findings
3 and 4. He said that the Town's Municipal Code is clear in its wording that although a non-
conforming structure may be altered or remodeled or enlarged, the discrepancy between existing
conditions and the zoning standards shall not be increased. He said that residents must be able to
rely on what the Town's Municipal Code provides, and on the facts of a given situation, and that
that one cannot ask for or be entitled to a variance that changes the facts for those people that rely
on the Town's Municipal Code. He said that he thinks the proposed project would affect the
important views and the privacy of Mr. Kulik. He said that he thinks that the applicant's house
should be redesigned within the footprint of the existing house and not beyond it. He said that
the applicant can have decks facing out onto the water, but that the applicant has to decide what
the applicant is willing to give up to have those decks, such as, one bedroom less, or shifting the
kitchen to somewhere else. Therefore, he said that he cannot support the application. He also
has a concern that if the Council does not uphold the appeal, that the Town could be facing
meritorious litigation for an abuse of discretion in granting what has been asked for when there is
no basis in fact for, nor is there a logical rationale for the making of the last two findings
necessary to approve the application.
Councilmember Fredericks said zoning is meant to control incompatible uses within a zone.
Some of the really fine analysis that has to be done when zoning does not fit an area has to do
with why you have zoning to begin with. In this case, if one just looks at the juxtaposition of the
three houses and their privacy, views, noise and light conflicts, you have to make very fine
decisions. The Mar East neighborhood is an example of the kinds of incompatibilities that are
generated by their legacy building before the Town was incorporated and the attempt to make
zoning work in a place where the lots are non-conforming, where there are greater potentials for
view blockage, smaller setbacks, privacy issues and access issues, and it is a real challenge. The
result of that is that when there are remodels, some of the lots do enjoy the privileges of the lots
that have already put second stories on, but others do not because their impact on their neighbors
is different. So, to make an argument that one is entitled to a certain remodel because under the
findings for a variance you should enjoy every view and every advantage of every lot around you
in a neighborhood where the lots and their positions and the siting of the structures are so
different is a very hard argument to make, although she really wishes it was something everyone
could always be granted. She said she, too, cannot make the findings to grant the variances.
She thinks some of the hardships, particularly those generated by the setbacks, were generated by
previous owners, as Mr. Rifkind pointed out. In making a finding about the detriment and injury
to other properties, she found the most compelling thing was being in the living room of 2310
Mar East and walking from the back of that room to the front of that room while looking up at
the applicant's home. As you move forward, you can see more and more of that room. So the
amount of view penetration is really specific to where you are in the room and not to isolated
areas. Based upon this, she tends to feel there are great privacy and view impacts, even though
the protrusion from the wall of the existing applicant's home is relatively small. There are other
questions of whether the walls of the kitchen really balance the new views, the increased privacy
that is offered by them balance the views into both the appellant's homes that is offered by the
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new upper and lower decks. She thinks the idea of borrowed views is not so important because
the actual view detriment looking outboard to the vistas tends to be the most impacted and not
the primary views necessarily protected by the Hillside Guidelines and ordinances. But the
privacy issue is very compelling and the neighbors always have to make a choice between
privacy, light and air and what is more important to them. She thinks this is very injurious.
Also, the closeness of the lots and the positions of the dwellings on the lot make a big difference
too. Therefore, she cannot make a finding that the proposed remodel is not injurious to the
properties around it and she cannot make a finding that any of the hardships claimed were not
self-created by the applicant.
Councilmember Doyle said he thinks design-wise, there are some elements of the project that can
be shifted around. The Council is not here to tell the applicant how to do it, but there are some
changes that can make things work. He does not have that big of an issue with that entryway
being changed. The kitchen could be pulled over further and make it wider and only go out half
that distance. That would solve one of the problems on the second floor of looking into a
bedroom and would place that upper balcony farther away from the bedroom of the house to the
left.
There was talk about tiering that happens in all of the other houses around there, and if a design
had been proposed where the upper area was only pulled out just a little bit to extend the kitchen
and make it wider and the deck was pulled away from the house to the right it solves one of the
problems. The view would not be blocked and people on the upper deck would still be a good
distance away. He does not see how the lower deck changes what is happening if there are
screens to block views of the house to the other side. He thought they could have a deck that is
closer to the water that would take away some of the physical hardships of not having a deck and
not being able to enjoy the sun. He thinks there could be design changes made to this that would
be positive for both neighbors and the applicant and still have a beautiful home. He agreed with
what Councilmembers Fredericks and Collins said about buying the house and knowing what one
can and cannot do. The DRB is not here to help somebody make money, but do what is right for
the community. If a house can be designed within the guidelines and you make money on it, that
is fine, but he does not think it is their job to worry about whether you will not make as much
money if you pull the kitchen back two feet. So, he would like to see the project return with
some variations and continue the matter. He thinks there is an opportunity to have a deck
somewhere closer to the water that goes out, and there is an opportunity not to infringe on the
neighbor's privacy. When someone is looking into someone's master bedroom and you are 8 feet
away, there has to be a way around that. He does not think they can protect side views for every
property. He was surprised at how magnificent the views are from all three houses. The architect
designed it well, but in the spirit of compromise with some minor changes, there could be some
good results. He would like to see the matter come back with some minor changes.
Vice Mayor O'Donnell said he was able to visit all three properties that afternoon and meet
almost everyone in the chambers. He said it is unfortunate that this has become such a
contentious issue and he does support the statement made by Paul Smith that privacy seems to be
the number one issue here. If you go through the DRB minutes, Boardmembers Kricensky,
DRAFT
Town Council Minutes #xx -2012 August 15, 2012 Page 25
Johnson and Tollini talked specifically about that issue. The question is whether the privacy that
is lost or gained and how you argue it is an injurious act. On that particular street, you are always
going to be dealing with privacy issues. Some people have docks, some do not, you can always
turn, pull a shade, and when talking about something that is injurious, you are usually talking
about whether someone's primary views are blocked. In this case, there are none that are
blocked.
Vice Mayor O'Donnell supports Councilmember Doyle's suggestion to continue the project and
would like to see if a compromise could be fashioned by the parties. He thinks that the need for a
deck at the top level is not as great and since the house is being completely remodeled or
restored, if the deck started at the current point of where the house ends now, the property owner
is not losing that much space and would gain that tiering effect of a lower deck and upper deck as
seen throughout Mar East and would solve the maintenance issue, although he does not see that
to be a huge impediment. It would also solve the privacy issue for 2310 Mar East because it
would have the same impact they are dealing with today. It would also solve the privacy issue for
2306 Mar East and would remove the screen that hangs off the side of the building. He would
allow the property owner to expand on the lower deck and even as the rendering shows, to
connect the lower deck to the existing side deck which allows for a larger outdoor enjoyment
space. It would be difficult for the other property owners to argue against that because they have
huge docks that extend out. He would like to also see some sort of compromise fashioned. He
also had an opportunity to spend some time in Ms. Nevers' house. It is a substandard house and it
needs renovation. It will improve everyone's property values by having a nice home there and he
would like to see things work out, the project continued, and designed in a fashion that
Councilmember Doyle and he described as a compromise.
Mayor Fraser complimented the applicants and appellants for their-passion and persuasion.
However, in thinking about this and going back to the fundamentals, he is unable to make the
findings that will support an additional variance on top of a non-conforming use that already
exists. It is very clear what the code says and he believes the Council should abide by the code. If
they are not happy with it and think their zoning or code is incorrect, they should find a way to
bring that forward and change it in the proper process. Mar East is an eclectic environment and
the Council looks at neighborhood issues, and may adjust the code to be reflective of how the
times have changed. Maybe that will be true someday along Mar East, but they are now living
with the R-2 zoning and the Municipal Code the way it is. He also is not able to make a finding
that the project is not injurious to both 2306 and 2310 Mar East with the extension of the decks
as proposed now. Therefore, he cannot support the DRB's decision. He does think that
Councilmember Doyle and Vice Mayor O'Donnell have made a good suggestion in terms of
coming together for a compromise solution. But he thinks they must work within the existing
footprint because outside of it means they have to go against their codes, and he does not think
they can make a finding for a property that already has a lot coverage of 67% and approve a
further variance, and justify that with any reasonable finding. He also thinks that if they do that, it
should be remanded back to the DRB as opposed to having the Council become the design team
for the house. He thanked the appellants, applicants, and participants, and he thinks a
compromise should be struck so that the applicant can improve his property within the existing
DRAFT
Town Council Minutes #xx -2012 August 15, 2012 Page 26
footprint.
Councilmember Fredericks said it seemed to her that Councilmember Doyle's suggestion was
outside the existing footprint and she would not preclude some modest non-privacy intrusion.
Councilmember Doyle said in looking at all of the houses along there, this house is stuck back
and a bit different, but if you bump something out half the distance of 5'10" and make it wider
within the interior structure of the house, there is still the same footprint of the kitchen and they
are not infringing upon someone's privacy. The owner would get something and the neighbor
would get something. He thinks some small alterations will result in something everybody can
live with.
Vice Mayor O'Donnell said he very much believes privacy is a two-way street. He thinks the
privacy issue can be mitigated but does not find them injurious. With respect to overcoming the
findings when it comes to bumping the house out, they must be fair and remember that the codes
and zones were dropped on the neighborhood after the neighborhood was built. This is probably
the most difficult street to analyze because of the fact that the property is extended to the water
and they must have a little bit of allowance and fairness in making a finding that would bring
some harmony between the groups. He would like to see the project continued and remanded to
the DRB with the recommendations that the Council developed tonight if the applicant agrees.
Town Attorney Danforth clarified that the Council could remand the application back to the DRB
if the applicant is willing to make the changes stipulated by Council that would lessen the
impacts on the neighbors. Mr. Watrous stated the other option is that if the Council feels it
cannot make the findings for the variance they could grant the appeals and deny the project
without prejudice with the direction that it can return to the DRB with a new application that
addresses the issues in the fashion described by the Council.
Town Attorney Danforth said the reason for doing this is because in the normal case, if an
application is denied, they cannot return with a similar application for a year, hence the without
prejudice stipulation. Then the question would be if the Council asks them to file a new
application, would the Council wish to waive the fees. Mr. Watrous said the Council has done
this on occasion.
Vice Mayor O'Donnell said Councilmember Doyle's suggestion is for 2.5 feet, but his idea is
more restrictive; to leave the edge of the current property at the top level where it is. They could
pull the wall back if they wanted to put a deck there. On the lower level, they could come out to
the 5' 10" which would create a tiering effect and it would solve the major privacy issues on the
upper level into the bedrooms of both levels. Mr. Watrous clarified the suggestion to stay within
the footprint for the upper level and possibly expand the lower level.
Councilmember Fredericks referred to the privacy issue for 2310 Mar East. Vice Mayor
O'Donnell said his understanding is there is a much greater privacy issue with the upper deck and
bedroom. He felt all the presentations were skewed based upon who was giving them.
Councilmember Fredericks said she was at the site and saw the lower deck's possible impact
DRAFT
Town Council Minutes #xx -2012 August 15, 2012 Page 27
even when it is pulled back to the facade looking back into the bedroom for 2306 Mar East. She
thinks if they want people to agree, they cannot reintroduce the same problem.
Councilmember Collins said there is already a deck below and they could make a deck above and
pull back the wall within the interior of the house. His problem is they would still have the need
for variances going outside the existing building footprint.
Vice Mayor O'Donnell said building this will violate three ordinances, and asking them to create
a lower deck to create a tiering effect he sees as a fair compromise. Councilmember Fredericks
said rather than designing it for Mr. Sadrieh and his client, they should take into consideration
the discussion they had, the suggestion that Councilmember Doyle made and see if they can
come up with something when and if they decide to re-apply.
Mayor Fraser said he thinks the issue is variance. Within the existing footprint, he thought that
the Council had some agreement. When going outside of the existing footprint is where they
have a difference of opinion.
Mr. Watrous said in his opinion, if the Council is talking about a project that does not extend
beyond the existing footprint of the building, not only would it not necessarily need a variance, it
is a substantially different project, which lends itself toward a separate application rather than
remanding this application for re-design. Something like that could conceivably be a staff level
design review, and would be a different project. If the lower deck is expanded out, it would
trigger a variance, depending on how it is designed and extended out.
Councilmember Doyle said it is also the design factor and what it would look like. If they just
bump it out a bit, it solves some of the problems on the upper floor and also looks better. When
he was looking at the plans, he was thinking of a small bump out that does not affect what the
neighbors are seeing and that does not affect privacy that will give the applicant all the same
amenities they are looking for without some of the effects on the neighbors. He was looking at a
very small front change of about 2.5 feet which should not cause problems while also providing
for the architectural detailing. He suggested granting the appeal and having them go back to the
DRB. If they designed something that was not injurious to the neighbors, he could support that.
Town Attorney Danforth said she is hearing two Councilmembers recommending modest
changes and three Councilmembers saying very definitely that they cannot make the findings
with respect to this project. However, she has not heard anyone rule out the possibility that with a
change along the lines that Councilmember Doyle has outlined, they might be able to make the
finding with respect to injury, or the lack thereof. So, if the Council ,feels that some variance
might be tolerable if it was considerably reduced in scope so as to lessen the impact on the
neighbors, this could be specified in the resolution. If not, she thinks the best thing is for the
resolution to be silent on that point and assume that the applicant has listened and knows the risk
if they return with a project that needs a variance.
Mayor Fraser supported being silent in the resolution, because he thinks the Council is designing
on the fly and the issue is rather dramatic. To respect everybody's input, it would be
DRAFT
Town Council Minutes #ax -2012 August 15, 2012 Page 28
inappropriate for the Council to make such a decision for any number of feet being acceptable
when three Councilmembers agree that they do not believe that a variance makes sense.
Councilmember Fredericks said she cannot make the appropriate findings for a variance on what
is before them now. She feels they should grant the appeals and deny the application without
prejudice and the applicant can return.
Mr. Watrous suggested the motion be to direct staff to prepare a resolution granting the appeal to
deny the project without prejudice.
Councilmember Fredericks recommended that fees be waived if the applicant returns with a
substantially different application. Mr. Watrous summarized the direction is to assume that the
applicant has been paying attention to the deliberations of the Council in terms of direction of
what issues need to be addressed in a future application, to which the Council agreed.
MOTION: To direct staff to prepare a resolution granting the appeal to deny the project
without prejudice and to impose no fees.
Moved: Fredericks, seconded O'Donnell
Vote: AYES: Unanimous
TOWN COUNCIL REPORTS
None.
TOWN MANAGER'S REPORT
None.
WEEKLY DIGESTS
• Town Council Weekly Digest - August 3, 2012
• Town Council Weekly Digest - August 10, 2012
ADJOURNMENT
There being no further business before the Town Council of the Town of Tiburon, Mayor Fraser
adjourned the meeting at 11:10 p.m.
JIM FRASER, MAYOR
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK
DRAFT
Town Council Minutes #xx -2012 August 15, 2012 Page 29
To:
From:
Subject:
Reviewed By:
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
Mayor & Members of the Town Council
Office of the Town Manager
Office of the Town Attorney
Town Council Meeting
September 19, 2012
Agenda Item: GC
Recommendation to Approve Agreement with the City of Belvedere to
Provide Water, Power and Landscaping for the Lyford Drive Parking Lot
Proj ect
BACKGROUND AND ANALYSIS
On May 3, 2012, after several years of planning, the Town Council approved plans to construct
an improved parking area on Tiburon Boulevard southeast of its intersection with Lyford Drive
and authorized staff to solicit bids for the construction process. The Council awarded the
contract on July 18 and construction began at the end of August.
When the project was originally conceived, the Town approached the City of Belvedere to
explore cost sharing. This was based on the fact that many contractors and others bound for
Belvedere use the site for parking and car-pooling. The safety and aesthetic improvements the
project offers also benefit peninsula residents as a whole. Belvedere declined to provide a cash
contribution to the project, but did agree to provide water and power to the site to help defray
some expense to the Town.
Over a year later, as the project neared final approval by the Town Council, it became apparent
that some City of Belvedere residents living on Lagoon Road were unhappy with the design of
the new parking area, arguing that it would impinge on their neighborhood. In the spirit of
compromise, the Town agreed to re-design the project to increase the setback of the planned
retaining wall from the multi-use path. This required that one lane'of parking be changed from
diagonal to parallel, with a concomitant loss some parking capability. In exchange for this
design modification, the City of Belvedere agreed to take responsibility for landscaping the now-
wider area between the project and the multi-use path. The nature of landscaping was left to the
discretion of the City so long as it was acceptable to the Town from a maintenance perspective.
01
010
The attached agreement documents the City obligation for the provision of water, power and
landscaping. Belvedere has reviewed the agreement and advises it is acceptable as presented.
J1 .jg'et' '.tl~ r
STAFF RECOMMENDATION
Staff recommends that the Town Council:
Move to approve the attached Agreement with the City of Belvedere to provide water,
power and landscaping for the Lyford Drive Parking Lot Project.
Exhibits: Draft Agreement with Belvedere
Prepared By: Peggy Curran, Town Manager
Ann Danforth, Town Attorney
Agreement
Between Town of Tiburon and City of Belvedere
Regarding Parking Lot on Tiburon Boulevard at
Lyford Drive
This Agreement ("Agreement") is entered into by the Town of Tiburon (the "Town")
and the City of Belvedere (the "City") on this day of September, 2012.
Recitals
1. Residents and visitors to the Town and the City have used the gravel shoulder
area on Tiburon Boulevard southeast of the intersection with Lyford Drive ("Site") as an
informal parking lot for many years.
2. The Town has designed a project that would improve the Site's ingress from and
egress to busy Tiburon Boulevard ("Project"), reducing turning movements, and
eliminating the need to back into a parking spot from busy Tiburon Boulevard. The
Project would also enhance the aesthetic quality of the Site and create more efficient use
of space.
3. Tiburon Boulevard is the gateway and main artery for both the Town and the
City.
4. The City will realize significant benefit from the Project and is willing to
contribute as set forth herein if the Town constructs the Project.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the City and the Town agree as herein set forth:
Agreement
1. CONTRIBUTION FROM THE CITY. If the Town constructs the Project, the
City shall contribute the following to Project construction.
A. Electrical Facilities: The City shall provide and install the facilities
reasonably necessary to bring electrical power to the Site. This contribution shall
include, without limitation, conduit and wire installation to a pre-determined point of
connection within the Site, necessary service box(es) and material, new PG&E service if
needed, and monthly service fees. The City shall not terminate electrical service without
the Town's prior written consent.
B. Water Service: The City shall pay all reasonable costs associated with
providing water service to the Site for irrigation purposes, including monthly usage. This
obligation shall also include the cost for a new water meter and service at the Site,
necessary material, and an additional line stub-out to serve the southern portion of the
Site depicted on Exhibit A. The City shall not terminate water service without the
Town's prior written consent. The Town shall not use any of the water supplied through
the City meter for any use other than irrigation for landscaping within the Site. The
Town shall not change landscaping to a more water-intensive plan without the City's
prior written consent, which may be conditioned upon the Town's agreement to pay the
cost of additional water.
C. Planting: The City shall install landscaping and irrigation to the extent
that the City reasonably deems appropriate in the areas shown on Exhibit A, which is
attached hereto and incorporated herein by reference. The City's landscaping and
irrigation plan shall be subject to the Town's review and approval, which shall be limited
to maintenance issues and which shall not be unreasonably withheld. The City shall
maintain the landscaping and irrigation for a period of three months after Project
completion. Thereafter, the Town will maintain the landscaping and irrigation.
2. MISCELLANEOUS
A. The laws of the State of California shall govern the interpretation, validity,
and enforcement of this Agreement. Any suit, claim, or legal proceeding of any kind
related to this Agreement shall be filed and heard in a court of competent jurisdiction in
the County of Marin.
B. In the event any legal action is commenced` to enforce this Agreement, the
prevailing party is entitled to reasonable attorneys' fees, costs, and expenses incurred.
C. This Agreement constitutes the entire Agreement and understanding
between the Parties and may not be modified orally or in any manner other than by an
agreement in writing signed by both Parties.
D. The individuals executing this Agreement represent and warrant that they
have the right, power, legal capacity, and authority to enter' into and to execute this
Agreement on behalf of the respective legal entities of the Town and the City. This
Agreement shall inure to the benefit of and be binding upon the Parties hereto and their
respective successors and assigns.
TOWN OF TIBURON
Dated:
James Fraser
Mayor
SIGNATURES CONTINUED ON NEXT PAGE
SIGNATURES CONTINUED FROM PREVIOUS PAGE
CITY OF BELVEDERE
Dated:
Sandra Donnell
Mayor
APPROVED AS TO FORM:
By
Dated:
Ann R. Danforth, Esq.
Town Attorney, Town of Tiburon
By
Robert Epstein, Esq.
City Attorney, City of Belvedere
ATTEST:
DIANE CRANE IACOPI
TIBURON TOWN CLERK
Dated:
ATTEST:
LESLIE CARPENTIERS
BELVEDERE CITY CLERK
'7-
,
f,
To:
From:
Subject:
Reviewed By:
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
Mayor and Members of the Town Council
Department of Public Works
Town Council Meeting
September 19, 201
Agenda Item:
Recommendation to Award The 2012 Del Mar Neighborhood Street
Improvement Project, and Amend Budget to Complete The Project
BACKGROUND & DISCUSSION
On July 18, 2012, the Council authorized staff to complete the design plans and seek bids for the
construction of the 2012 Del Mar Neighborhood Street Improvement project. The project plans
were completed and subsequently advertised as required by the State of California's Public
Contract Code. In addition to the required advertising notice, the Town sent notices inviting bids
to construction trade publication plan rooms, and bids were opened on September 13, 2012.
Since the bids were opened on the same day as the agenda package preparation, there was
insufficient time to review the bids for conformity and assess the lowest responsible and
responsive bidder. Staff will provide a supplemental staff report at the earliest possible
opportunity and prior to the September 19 Council meeting, providing further detail and
recommending the appropriate contractor for the project.
Prepared By: Nicholas T. Nguyen, Director of Public Works/Town Engineer
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
To:
From:
Subject:
Reviewed By:
BACKGROUND
Mayor and Members of the Town Council
Department of Public Works
Town Council Meeting
September 19, 2012
Agenda Item:
Supplemental Report - Recommendation to Award The 2012 Del Mar
Neighborhood Street Improvement Project to Synergy Project
Management, Inc., and Amend Budget to Complete The Project
I
On July 18, 2012, the Council authorized staff to complete the design plans and seek bids for the
construction of the 2012 Del Mar Neighborhood Street Improvement project. The project plans
were completed and subsequently advertised as required by the State of California's Public
Contract Code. In addition to the required advertising notice, the Town sent notices inviting bids
to construction trade publication plan rooms, and bids were opened on September 13, 2012.
The Town received seven bids:
• Team Ghilotti in the total amount of $1,089,412.00,
• Maggiora & Ghilotti in the total amount of $1,058,980.11,
• Ghilotti Bros in the total amount of $1,087,577.64,
• Ghilotti Construction in the total amount of $1,046,097.46,
• JA Gonsalves in the total amount of $1,230,762.90,
• Argonaut in the total amount of $971,331.00, and
• Synergy Project Management, Inc. in the total amount of $964,879.88.
The Engineer's Estimate was $1,258,000 for the project.
The planned improvements include localized base repair, slurry seal, pavement grinding, asphalt
overlay, re-striping, concrete replacement and appurtenant work. The low bidder, Synergy Project
_l_c NVII C OLHIc.il N".1cetit3n
Management, Inc. is a qualified contractor with a valid Contractor's License, and is responsive to
the contract specifications with reasonable references.
If the project is approved by Council, the following general timeline can be established:
• Contract documents could be executed by mid October.
• A preconstruction meeting could be scheduled by late October.
• Construction could start by early November.
• The work could be completed by the mid December.
FISCAL IMPACT
Based on the total low bid of $964,879.88 and a 17 percent contingency for any approved
unforeseen work of $164,03 0, a total of $1,128,910 will need to be programmed for the
construction component of this project. Another $60,000 will be needed for construction
management and materials testing for a total not-to-exceed amount of $1,188,910.
This year's budget allocates $1,100,000 of restricted Street Impact Fund towards the soft costs
and construction of this street improvement project. The budget was estimated and adopted prior
to the final estimate being developed by the engineering consultants and bid opening. Upon bid
opening, there is a gap of about $88,910 that must be addressed through an amendment to the
current budget. There are sufficient monies in the restricted Street. Impact Fund to accommodate
this proposed amendment.
RECOMMENDATION
Staff recommends that the Town Council:
a. Move to approve the award of a construction contract for the 2012 Del Mar
Neighborhood Street Improvement project to Synergy Project Management, Inc. in
the amount not-to-exceed $964,879.88, plus 17 percent for contingency, and
b. Move to amend and increase the current budget by $88,910 for the completion of
this project using funds coming from the Street Impact Fund.
Prepared By: Nicholas T. Nguyen, Director of Public Works/Town Engineer
l c~~~ oT [ fit 1Za\* Paw 2 of '2'
To:
From:
Subject:
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
Mayor and Members of the Town Council
Michael J. Cronin, Tiburon Police Department
Town Council Meeting
September 19, 2012
Agenda Item: C c
Recommendation to Adopt Resolution Regarding Citizen's Options for
Public Safety (COPS) Funding
Reviewed By:
BACKGROUND
Assembly Bill 3229, signed into law as Chapter 134, Statutes of 1996, established the Citizen's
Option for Public Safety Program (COPS). The law allocates funds for "front line law
enforcement" on a population based formula with a minimum award of $100,000.00 per fiscal
year.
This year the Governor signed the state budget providing communities with the annual baseline
funding in the amount of $100,000. Funds are being distributed over the FY in four increments of
$25,000.00 each through the county. To receive the funding the Town Council, at a public
hearing must by resolution, approve the spending plan for the expenditure of COPS funds.
The Tiburon Police Department's 2012/2013 budget includes funding for a COPS spending plan
for the assignment of officers to additional duties including follow-up investigation, community
events, school safety programs and joint enforcement activities with allied agencies.
FINANCIAL IMPACT
The Town can expect to receive $100,000.00 this FY.
RECOMMENDATION
It is recommended that the Town Council:
1. Adopt the Resolution for Approval of COPS Spending Plan
2. Direct staff to submit the resolution to the County Supplemental Law Enforcement
Oversight Committee and accept the funding.
Prepared By:
Michael J. Cronin,
Chief of Police
RESOLUTION NO.
A RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF TIBURON
APPROVING AN EXPENDITURE PLAN FOR THE UTILIZATION OF
SUPPLEMENTAL LAW ENFORCEMENT FUNDS
("COPS") MONEYS RECEIVED FISCAL YEAR 2012-2013
WHEREAS, Assembly Bill 3229, signed into law as Chapter 134, Statutes of 1996,
established the Citizen's Option for Public Safety Program (COPS); and
WHEREAS, on June 28, 2012, the Governor signed the state budget that provides local
government law enforcement jurisdictions with an annual baseline funding in the amount of
$100,000, for frontline law enforcement personnel and other related equipment; and
WHEREAS, the Town Council, at a public hearing held annually, must approve of a
spending plan for the expenditure of COPS; and
WHEREAS, the Town Council of the Town of Tiburon, at its regular meeting held on
June 20, 2012, adopted the recommended Police Department Budget; including funding for a
COPS spending plan for the assignment of officers to additional duties including follow-up
investigation, community events, school safety programs and joint enforcement activities with
allied agencies.
NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of
Tiburon approves the proposed and recommended use of the COPS funds, and further, that the
action to assign and equip additional frontline personnel to additional duties shall be contingent
upon receipt and continuation of baseline funding in the amounts referred to above. This
Resolution, which approves the recommended plan for the expenditure of COPS monies, is to be
submitted to the County Supplemental Law Enforcement Oversight Committee.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of
Tiburon on , by the following vote:
AYES:
COUNCILMEMBERS:
NOES:
COUNCILMEMBERS:
ABSENT:
COUNCILMEMBERS:
JIM FRASER, MAYOR , TOWN OF TIBURON
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK
To:
From:
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
Mayor and Members of the Town Council
Community Development Department
Town Council Meeting
September 19, 2012
Agenda Item: C. C
Subject: 440 Ridge Road; Adoption of Resolutions Regarding Appeals of Site Plan
and Architectural Review Approval for the Construction of a New
Single-Family Dwelling, With Variances for Excess Lot Coverage and
Excess Fence Height, and a Floor Area Exception; Ridge Road, LLC,
Owner; Lynn and Mark Garay and Fani Hansen and Angela
Danadjieva, Appellants; File #21204; Assessor's Parcel No. 059-082-21
Reviewed By: 111.
BACKGROUND
At its meeting of September 5, 2012, the Town Council held a hearing on this item and directed
Staff to return with resolutions denying the two appeals. The draft resolutions are attached as
Exhibits 1 & 2.
RECOMMENDATION
Staff recommends that the Town Council:
Adopt the attached Resolutions denying the appeals.
EXHIBITS
1. Draft Resolution denying Lynn and Mark Garay appeal.
2. Draft Resolution denying Fani Hansen and Angela Danadjieva appeal
Prepared By: Daniel M. Watrous, Planning Manager
S:IAdministrationlTown CoarncillStaffReports120121September 19 drafts1440 Ridge Road report2.doc
TOWN OF TIBURON PAGE 1 OF 1
RESOLUTION NO. (Draft)-2012
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF
TIBURON DENYING AN APPEAL BY LYNN AND MARK GARAY
OF THE DESIGN REVIEW BOARD'S APPROVAL OF SITE PLAN AND
ARCHITECTURAL REVIEW APPROVAL FOR THE CONSTRUCTION
OF A NEW SINGLE-FAMILY DWELLING, WITH VARIANCES FOR
EXCESS LOT COVERAGE AND EXCESS FENCE HEIGHT, AND A
FLOOR AREA EXCEPTION,
ON PROPERTY LOCATED AT 440 RIDGE ROAD
(ASSESSOR PARCEL NO. 059-082-21)
WHEREAS, on April 19, 2012 the Design Review Board held a public meeting
on a Site Plan and Architectural Review application (File #21204) filed by Ridge Road, LLC
for the construction of a new single-family dwelling, with a variance for excess lot coverage,
on property at 440 Ridge Road; and
WHEREAS, at that meeting, the neighboring property owner at 430 Ridge Road
objected to the design of the proposed house when viewed from below and the location of the
proposed swimming pool close to the property line. The Design Review Board shared many
of these concerns and encouraged the applicants to redesign the two-story portion of the
building, relocate or shield the swimming pool and consider an overheight fence along the
property line shared with 430 Ridge Road. The Design Review Board continued the
application to the June 7, 2012 meeting; and
WHEREAS, on June 7, 2012, the Design Review Board reviewed revised plans
for the project which also included requests for a variance for excess fence height and a floor
area exception. The fence would have a height of 7 feet, 8 inches along a 22.5 foot long
portion of the shared property line with 430 Ridge Road. The Design Review Board
reviewed the revised house designs and determined that the house fit into the scale of the
property and the neighborhood. The Board determined that the proposed fence height was
adequate to address any potential privacy concerns from the home at 430 Ridge Road;
WHEREAS, the Design Review Board was able to make the findings necessary to
approve the requested variances and exception and in particular found that without the
variances, the surrounding development would unfairly limit the size of the home relative to
the surrounding development; that this constituted practical difficulty and hardship that was
not self-created and that the variances would not harm the public welfare or injure other
properties in the vicinity;
WHEREAS, the Design Review Board was able to make the findings necessary to
approve the requested exception and in particular found that the visual size and scale of the
proposed structure was compatible with the existing structures in the surrounding
neighborhood and with the physical characteristics of the site;
Town Council Resolution No. (Draft)-2012 09/19/2012 Page 1 of 3
WHEREAS, the Design Review Board voted 3-0 to conditionally approve the
project; and
WHEREAS, on July 18, 2012 Lynn and Mark Garay ("Appellants") filed a timely
appeal of the Design Review Board's decision; and
WHEREAS, the project application consists of File #21204, on file with the Town
of Tiburon Community Development Department. The official record for this project
application is hereby incorporated and made part of this resolution. The record includes,
without limitation, the Staff Reports, minutes, application materials, and all comments and
materials received at the public hearings, and
WHEREAS, on September 5, 2012, the Town Council held a duly-noticed public
hearing on the appeal, during which testimony was heard and considered regarding the
proposed project and the Design Review Board's review of the application; and
WHEREAS, the Town Council finds that the project is exempt from the
requirements of the California Environmental Quality Act per Section 15303 of the
CEQA Guidelines; and
WHEREAS, after hearing all testimony and receiving all documents in the
record, the Town Council agreed with the findings and conclusions of the Design Review
Board regarding this application. The Town Council determined that the Design Review
Board appropriately applied the guiding principles for Site Plan and Architectural
Review, the Hillside Design Guidelines and the California Environmental Quality Act in
its review of this project. The proposed house design would be compatible with the
surrounding neighborhood. The potential impacts of the proposed house from the
appellants' residence have been minimized by the revisions made to the house design.
The information presented by the applicant was adequate to make an informed decision
on the application.
WHEREAS, the appellants did not present any evidence that contradicted the
Design Review Board's findings in support of the variances and exceptions and the
Council agreed with said findings.
NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of
Tiburon hereby denies the appeal of Lynn and Mark Garay of the Design Review Board's
approval of the application (File #21204) for Site Plan and Architectural Review approval for
construction of a new single-family dwelling, with variances for excess lot coverage and
excess fence height, and a floor area exception, on property located at 440 Ridge Road.
Town Council Resolution No. (Draft)-2012 09/19/2012 Page 2 of 2
PASSED AND ADOPTED at a regular meeting of the Town Council on
September 19, 2012, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
JIM FRASER, MAYOR
TOWN OF TIBURON
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK
S: IAdministrationlTown CouncibResolutions120121440 Ridge Road Garay appeal denial resolution.doc
Town Council Resolution No. (Draft)-2012 09/19/2012 Page 3 of 2
RESOLUTION NO. (Draft)-2012
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF
TIBURON DENYING AN APPEAL BY FANI HANSEN AND ANGELA
DANADJIEVA OF THE DESIGN REVIEW BOARD'S APPROVAL OF
SITE PLAN AND ARCHITECTURAL REVIEW APPROVAL FOR THE
CONSTRUCTION OF A NEW SINGLE-FAMILY DWELLING, WITH
VARIANCES FOR EXCESS LOT COVERAGE AND EXCESS FENCE
HEIGHT, AND A FLOOR AREA EXCEPTION,
ON PROPERTY LOCATED AT 440 RIDGE ROAD
(ASSESSOR PARCEL NO. 059-082-21)
WHEREAS, on April 19, 2012 the Design Review Board held a public meeting
on a Site Plan and Architectural Review application (File #21204) filed by Ridge Road, LLC
for the construction of a new single-family dwelling, with a variance for excess lot coverage,
on property at 440 Ridge Road; and
WHEREAS, at that meeting, the neighboring property owners at 450 Ridge Road
raised concerns with the visual mass and potential view impacts that could be caused by the
two-story portion of the proposed house. The Design Review Board shared many of these
concerns and encouraged the applicants to redesign the two-story portion of the building. The
Design Review Board continued the application to the June 7, 2012 meeting; and
WHEREAS, on June 7, 2012, the Design Review Board reviewed revised plans
for the project which also included requests for a variance for excess fence height and a floor
area exception. The two-story portion of the building was moved back 21 feet, 10 inches
from the previous project design. The lower floor was reconfigured to place two bedrooms
and two bathrooms beneath the terrace to the rear of the main floor. The Design Review
Board reviewed the revised house designs and determined that the house fit into the scale of
the property and the neighborhood. The Board determined that that the house would not
result in substantial view or privacy issues for the home at 450 Ridge Road.
WHEREAS, the Design Review Board was able to make the findings necessary to
approve the requested variances and exception and in particular found that without the
variances, the surrounding development would unfairly limit the size of the home relative to
the surrounding development; that this constituted practical difficulty and hardship that was
not self-created and that the variances would not harm the public welfare or injure other
properties in the vicinity;
WHEREAS, the Design Review Board was able to make the findings necessary to
approve the requested exception and in particular found that the visual size and scale of the
proposed structure was compatible with the existing structures in the surrounding
neighborhood and with the physical characteristics of the site;
Town Council Resolution No. (Draft)-2012 09/19/2012 Page 1 of 3
WHEREAS, the Design Review Board voted 3-0 to conditionally approve the
proj ect; and
WHEREAS, on July 18, 2012 Fani Hansen and Angela Danadjieva
("Appellants") filed a timely appeal of the Design Review Board's decision; and
WHEREAS, the project application consists of File #21204, on file with the Town
of Tiburon Community Development Department. The official record for this project
application is hereby incorporated and made part of this resolution. The record includes,
without limitation, the Staff Reports, minutes, application materials, and all comments and
materials received at the public hearings, and
WHEREAS, on September 5, 2012, the Town Council held a duly-noticed public
hearing on the appeal, during which testimony was heard and considered regarding the
proposed project and the Design Review Board's review of the application; and
WHEREAS, the Town Council finds that the project is exempt from the
requirements of the California Environmental Quality Act per Section 15303 of the
CEQA Guidelines; and
WHEREAS, after hearing all testimony and receiving all documents in the
record, the Town Council agreed with the findings and conclusions of the Design Review
Board regarding this application. The Town Council determined that the Design Review
Board appropriately applied the guiding principles for Site Plan and Architectural
Review, the Hillside Design Guidelines and the California Environmental Quality Act in
its review of this project. The proposed house design would be compatible with the
surrounding neighborhood. The potential impacts of the proposed house from the
Appellants' residence have been minimized by the revisions made to the house design,
and by the applicant's stated willingness at the Council hearing to plant additional
screening landscaping to shield the view of the proposed house from the Appellants'
residence and rear yard. The information presented by the applicant was adequate to
make an informed decision on the application.
WHEREAS, the appellants did not present any evidence that contradicted the
Design Review Board's findings in support of the variances and exceptions and the
Council agreed with said findings.
NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of
Tiburon hereby denies the appeal of Fani Hansen and Angela Danadjieva of the Design
Review Board's approval of the application (File #21204) for Site Plan and Architectural
Review approval for construction of a new single-family dwelling, with variances for excess
lot coverage and excess fence height, and a floor area exception, on property located at 440
Ridge Road.
Town Council Resolution No. (Draft)-2012 09/19/2012 Page 2 of 2
PASSED AND ADOPTED at a regular meeting of the Town Council on
September 19, 2012, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
JIM FRASER, MAYOR
TOWN OF TIBURON
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK
S: IAdministrationlTown CouncihResolutions120121440 Ridge Road Hansen-Danadjieva appeal denial resolution.doc
Town Council Resolution No. (Draft)-2012 09/19/2012 Page 3 of 2
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
To:
From:
Subject:
Reviewed By:
BACKGROUND
Mayor and Members of the Town Council
Office of the Town Engineer
Town Council Meeting
September 19, 2012
Agenda Item: C c
Amendment of up to $290,065 to Del Mar Valley Utility Undergrounding
Project Budget
A6~)`U~
On September 7, 2011, the Town Council awarded the Del Mar Valley Utility Undergrounding
project to Bay Pacific Pipeline, Inc. in the amount of $1,986,899.70, plus 15 percent for
contingencies (or $298,035), for a total of $2,284,935. The project is fully funded through bond
proceeds from the Del Mar Assessment District.
Due largely to unforeseen site conditions, property owner requested field changes and variances
in design calculation assumptions, the project cost is anticipated to rise beyond the total awarded
amount. Since the project is not quite complete and staff continues to negotiate claims with the
contractor, the exact amount anticipated to be over is unknown at the moment. However, staff
and the construction management team estimate the maximum cost for the project to be
approximately $2,575,000. If negotiations are successful, the ultimate cost may be pared down to
$2,450,000. The Engineer's Estimate for the bid was $2,983,087, so the project remains well
under that mark even with this increase.
It is standard practice that while all major public works contracts are awarded according their
total bid price and prescribed contingency amount, the contracts are written such that the price
paid is based on the various actual construction bid items installed. This is done to account for the
assumptions that were made during the design phase in which the various construction bid items
were developed. As such, there are always variances in the final count of bid items, resulting in
typically small decreases or increases. Occasionally, more complex projects or those based on
less than ideal data result in greater variances or change orders. In this case, the project
encountered specific property owners' requests to change the design in the field (such as
relocating vaults from private to public property), differing site soil conditions, some changes
with integration of the utility companies' design plans and some engineering firm errors.
TOWN OF TIBURON PAGE 1 OF 2
f•
While staff hopes to negotiate substantial credits against these increases, including a potential
liquidated damage claim against the contractor, staff recommends that Council authorize an
additional $290,065 at this time to ensure completion of the project. Even if this full
expenditure is required, staff anticipates District remainder funds in excess of $1,000,000 which
will be refunded to property owners through reduced assessments once the project is complete.
FISCAL IMPACT
No Town funds are needed for this request. The project is paid through the Del Mar Assessment
District bond proceeds, which are more than adequate to cover this expense. District funds are
earmarked for not only construction, but engineering, construction management, contingencies,
and other administrative district expenses.
RECOMMENDATION
Staff recommends that the Town Council:
Move to amend the Del Mar Utility Undergrounding Project budget by up to
$290,065.
Prepared By: Nicholas T. Nguyen, Director of Public Works/Town Engineer
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
To:
From:
Subject:
Reviewed By.
BACKGROUND
Mayor and Members of the Town Council
Town Council Meeting
September 19, 2012
Agenda Item: R1
Town Manager & Community Development Department
Downtown Circulation and Parking Analysis - Hear presentation from
Consultants NelsonlNygaard Consulting Associates regarding the findings and
rmoi!9 ndations contained in their report to the Town dated August 2012
/ n `k_/
The Town Council appointed a Downtown Committee, Mayor Fraser and Councilmember
Collins, in January 2010. The Committee's initial efforts culminated in the Downtown Vibrancy
Report issued in May 2011. A key recommendation of the Vibrancy Report was to retain a
professional consulting firm to prepare a parking and circulation analysis of Downtown Tiburon.
This recommendation was based on a recurring theme, heard throughout the Vibrancy Report
interviews and public workshops, that parking and circulation were issues that needed to be
studied and addressed.
The Town subsequently retained the firm of Nelson\Nygaard to analyze the Downtown area's
parking and circulation and formulate recommendations for improvement. The purpose of this
item is to hear the findings and recommendations of the consultant and accept comments from the
public. The Town Council will not be asked to take any specific action at the meeting, but its
general reaction and direction is solicited.
RECOMMENDATION
Staff recommends that the Town Council:
1. Hear a presentation by Nelson/Nygaard of its report
2. Solicit comment from interested members of the public
3. Provide any initial feedback and direction to the Downtown Committee and staff as
appropriate.
EXHIBITS
1. Circulation and Parking Analysis dated August 2012 (previously distributed)
Prepared By: Peggy Curran, Town Manager
Scott Anderson, Director of Community Development
TOWN OF TIBURON PAGE 1 OF 1
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