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TC Digest 2013-05-10
Tiburon 1. Letter - Marden N. Plant - Suggestion to Reduce Volume of Cigarette Butts Left on our Streets 2. Monthly Report - Design Review - April 2013 3. Yearly Recap - Design Review Submittals - April 2013 Agendas & Minutes 4. Minutes - Planning Commission - March 13, 2013 5. Minutes - Design Review Board - April 18, 2013 6. Action Minutes - Design Review Board - May 2, 2013 7. Action Minutes - Planning Commission - May 8, 2013 8. Agenda - Design Review Board - May 16, 2013 Regional a) Letter - Marin County Grand Jury Report: Holding the Bag - May 1, 2013 b) Notice - Deadline Extension for the 2012 Draft Marin County Housing Element Final Supplement to the 2007 Countywide Plan Final EIR c) Letter - Office of Marin County Counsel - Verizon California Inc v. State Board of Equalization et al d) Announcement - LCC - Designation of Voting Delegates and Alternates - September 18-20, 2013 - Sacramento e) Marin Conservation League News - May/June 2013 Agendas & Minutes f) None Council Only DIGEST ' Marden N Plant 62 Alcatraz Avenue Belvedere, CA 94920 MAY-72013 TOWN MANAGERS OFFS - TOWN OF TIBURON May 3, 2013 Town of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94920 Town of Belvedere 450 San Rafael Avenue Belvedere, CA 94920 To Whom It May Concern: As a resident of Belvedere and Tiburon, I am very concerned about the amount of cigarette butts left on our streets and sidewalks. I walk my dogs on Belvedere Island and through the downtown area of Tiburon and the amount of discarded cigarette butts I see is staggering. Due to new laws that have been passed preventing people from smoking in restaurants and public buildings, the people who do smoke are outdoors on the sidewalks and streets (where smoking is permitted) smoking their cigarettes. When they are through, they stamp them out and leave them on the streets for the rest of us to look at. Those cigarette butts are eventually swept into the bay to contaminate the water and all of us. A solution might be to provide permanent ash trays in the downtown area, or maybe signs requesting that people pick up after themselves. We live in one of the most beautiful areas of Marin. Let's do our best to keep it that way. SincerE Mar de TOWN OF TIBURON COMMUNITY DEVELOPMENT DEPARTMENT DESIGN REVIEW MONTHLY REPORT APRIL 2013 LTIGEST a. DESIGN REVIEW BOARD APPLICATIONS: NUMBER SUBMITTED 2012 ■ NEW SINGLE FAMILY RESIDENCES 1 1 ■ MAJOR ADDITIONS/ALTERATIONS 2 0 ■ MINOR ADDITIONS/ALTERATIONS 1 1 ■ (not eligible for Staff Review) ■ SIGN PERMITS 1 0 ■ TREE PERMITS 3 5 ■ VARIANCE REQUESTS 4 3 ■ FAR EXCEPTIONS REQUESTS 1 2 ■ EXTENSION OF TIME 0 0 STAFF REVIEW APPLICATIONS: Review of minor exterior alterations and additions of less than 500 square feet. 10 14 APPEALS OF DESIGN REVIEW BOARD DECISIONS TO TOWN COUNCIL 2 0 Jiro Wickett and Magdalena Yesil appeal from Design Review Board approval of additions to an existing single-family dwelling at 2308 Mar East. Rick and Lalita Waterman appeal from Design Review Board approval of demolition and construction of a new single family dwelling at 4 Southridge East REPORT PREPARED BY: Connie Cashman, Planning Secretary DATE OF REPORT: May 6, 2013 I- N ~ N M M r 07 00 CV7 o CLf) O C') O N M O M N N 'IT M N 0) W a 0 z M r Q I- (1) N O J Q a w E.,. U) F- ~ 0 Ln D D Q J W _ D ` w w z z ~ V Cf) w o Q a J* Q W Q N o LO M N CD , LL J Q N r r M N N W Q N O U-) M M (D O W L.L. r C) r O Un co O O i N z O N r- O M CD O It O i C I i - L CO w z F- a Q a ~ O z w a z o cn H w IL w t- N w z a Q > IL w L x w ¢ LL w w LL H cn l) ¢ a Q N -j Q F-. r uiCEST 3 PLANNING COMMISSION MINUTES MINUTES NO. 1030 March 13, 2013 Regular Meeting Town of Tiburon Council Chambers 1505 Tiburon Boulevard, Tiburon, California ONGEST Yr CALL TO ORDER AND ROLL CALL: Chair Tollini called the meeting to order at 7:30 p.m. Present: ~ Chair Tollini, Vice Chair Weller and Commissioners Corcoran and Welner Absent: None Staff Present: Director of Community Development Anderson and Minutes Clerk Rusting ORAL COMMUNICATIONS: None COMMISSION AND STAFF BRIEFING: Director Anderson stated no items are currently scheduled for the March 27, 2013 meeting, and the meeting will likely be cancelled. PUBLIC HEARINGS: 1. 2344/2346 MAR EAST STREET: CONDITIONAL USE PERMIT APPLICATION TO CONVERT AN EXISTING ATTACHED TWO-FAMILY DWELLING INTO TWO CONDOMINIUM UNITS; FILE #11301; Bruce Thompson, Angelina Umanski, Lawrence Bradford, Owners and Applicants; Assessor's Parcel Number 059-195-11 Director Anderson said the application is virtually identical to an application for condominium conversion for this site as approved by the Planning Commission in 2008. The approval expired after one year without being followed up with tentative subdivision map approval or having the use permit approval extended. The initial use permit approval appears to have been a victim of the recession at that time. The project is a conditional use permit application to convert to condominium ownership of two units located in the existing attached, two-family dwelling located at 2344 and 2346 Mar East Street. Proposed Unit A would comprise the upper two floor levels of the existing building, while proposed Unit B would comprise the lower two floors of the existing building. The units would have two parking spaces each in the existing 4-car garage on the site. Proposed interior floor areas for the two units would be approximately 2,630 square feet for Unit A and approximately 2,100 square feet for Unit B. TIBURON PLANNING COMMISSION MINUTES - MARCH 13, 2013 MINUTES NO. 1030 PAGE 1 Director Anderson stated the residential building was built in 1957 and the four-car garage was added in 1964. Both were approved by the County before the Town of Tiburon incorporated and they therefore do not meet today's setback requirements, but are both legal non-conforming structures and the two-family residential use is a conforming use. Staff determined the property is in a Coastal High Hazard zone on FEMA maps, and the project must comply with the Town's flood damage prevention regulations. Miles Berger, architect, said it is rare for his office to work on a condominium conversion. The building will be brought up to contemporary code and the owners have made it available to the current tenants who are interested in purchasing the units. The last time he worked on a condominium conversion was nearly 30 years ago and it was his own house. He said some members of the Planning Commission at that time tried to stop him from doing the conversion, but he did the conversion and ended up staying in the house and raising his family there. He did not have to defend himself to the Planning Commission at the time because there was a brilliant staff report written by Scott Anderson that clarified what the Commission could and could not do. He thanked Mr. Anderson for his high quality work and his many years of service. Commissioner Corcoran asked about the flood hazard protection ordinance. Mr. Berger said the finished floor level of their building is 23 feet above the mean high tide level and they are well above the required 11 feet above the mean high tide level. There were no public comments. Vice Chair Weller said he has a good deal of condominium conversion experience and understands the law well. He thinks this is a non-controversial application and it was approved once before unanimously. He applauded the applicant for a design that brings the building up to code. Commissioner Corcoran agreed and said there will not be much of a different impact on the community than the current occupancy of the building. Commissioner Welner and Chair Tollini both said they support the project. ACTION: It was M/S (Tollini/Weller) to adopt the attached Resolution finding the project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301(k), and to conditionally approve the application for the project at 2344/2346 Mar East Street. Motion carried: 4-0. TIBURON PLANNING COMMISSION MINUTES - MARCH 13, 2013 MINUTES NO. 1030 PAGE 2 M><NTTTI C 2. PLANNING COMMISSION MINUTES - Regular Meeting of February 13, 2013 Chair Tollini requested the following changes: Page 7, paragraph 2, line 4: Remove "...for a grocery store..." Page 7, paragraph 2, line 5: After "...operate" add "...as long as deliveries occur within reasonable hours." Commissioner Welner requested the following change: Page 9, paragraph 2, line 1: "Vice Chair Weiner..." should be changed to "Vice Chair Weller..." ACTION: It was M/S (Tollini/Corcoran) to approve the minutes of the February 13, 2013 meeting, as amended. Motion carried: 4-0. ADJOURNMENT: The Planning Commission adjourned the meeting at 7:45 p.m. ERIN TOLLINI, CHAIR ATTEST: SCOTT ANDERSON, SECRETARY (ACTING) TIBURON PLANNING COMMISSION MINUTES - MARCH 13, 2013 MINUTES NO. 1030 PAGE 3 +r MINUTES #7 TIBURON DESIGN REVEW BOARD MEETING OF APRIL 18, 2013 The meeting was opened at 7:00 p.m. by Chair Emberson. A. ROLL CALL Present: Chair Emberson, Vice Chair Chong, Boardmembers Kricensky and Tollini Absent: None Ex-Officio: Planning Manager Watrous and Minutes Clerk Rusting B. PUBLIC COMMENTS - None C. STAFF BRIEFING Planning Manager Watrous announced Gordon Cousins has been appointed by the Town Council to fill the vacancy on the Design Review Board and he will be attending the next meeting. He also announced Kyra O'Malley will be the Town's new Assistant Planner. D. OLD BUSINESS 2308 MAR EAST STREET: File No. 21220; Mar East Realty LLC, Owner; Site Plan and Architectural Review for construction of additions to an existing single-family dwelling, with a Variance for excess lot coverage and a Floor Area Exception. The applicants propose to construct several additions and expand existing decks to the side and rear of the existing building. The additions would cover 71.1 % of the dry land area of the lot, in lieu of the maximum 35.0% lot coverage pennitted in the R-2 zone. The project would result in a total floor area of 2,809 square feet, which would exceed the floor area ratio of 615 square feet for a lot of this size. Assessor's Parcel No. 059-195-01. The applicant is proposing to construct additions to an existing single-family dwelling, located at 2308 Mar East Street, with a variance for excess lot coverage and a floor area exception. Currently the property is unproved with a two-story dwelling which overlooks Raccoon Strait. This application was first reviewed at the March 7, 2013 Design Review Board meeting. At that meeting, the adjacent property owners at 2306 and 2310 Mar East Street raised concerns about potential acoustic privacy impacts that could be caused by the proposed upper level deck and the Nana Walls proposed at the rear of the house for both levels. The Design Review Board shared some of these concerns, but was unable to form a consensus on the merits of or potential modifications to the application. The Board continued the application to the April 4, 2013 meeting and encouraged the applicant and neighbors to attempt to meet to address these concerns. TIBURON D.R.B. MINUTES #7 4/18/13 Since that meeting, the applicant has met with the owners of 2306 Mar East Street and with Town staff to discuss possible modifications to the project design. The applicant has now submitted revised project plans. The revised project design eliminates the previously proposed main level deck on the right side of the house. Nana Walls would be installed on two corners of the living room. The rear dining room windows would not be fully operable. The lower level deck is no longer proposed to be raised to the floor level of the adjacent bedroom. Other improvements proposed by the previous project design remain unchanged, including the conversion of the entry walkway into an enclosed stairwell, window changes to the side of the building, and construction of connecting walkways to the lower level deck. The lot coverage and floor area of the revised project design has not changed. The proposal would result in lot coverage of 1,434 square feet (71.1%) which greatly exceeds the maximum permitted lot coverage in the R-2 zoning district (35.0%). Therefore, a variance has been requested for excess lot coverage. The current dwelling has an existing gross floor area of 2,569 square feet. The proposal would increase the floor area by approximately 240 square feet, resulting in a total gross floor area of 2,809 square feet. As the maximum permitted gross floor area ratio for the property is 706 square feet, the proposal would exceed the maximum by 2,103 square feet. Therefore, a floor area exception has also been requested. Sono Zhang played a recording of her partner, Peter Wilton, who could not attend the meeting. He said that they made amendments and compromises to the plan and felt that any more significant changes to the design would render the design too unattractive to proceed. He said that they removed the upper deck and felt that that was a major compromise; however, he said that they would like to be able revisit the issue of the deck on a future application. He stated that they further modified the design to create a feeling of an open-air space in the primary living area. He said that they were asked to have no opening glazing along the entire upper wall of their home and but they felt that that was unreasonable. He said that the revised design would allow their living room to serve as a substitute deck but would not allow overhead sunshine or other aspects of an outdoor environment. He felt strongly that any further reductions to the living room would eliminate their enjoyment of the environment. Mr. Wilton addressed the issue of noise intrusion and noted that many neighbors have unrestricted access to open-air decks and patios that are immediately adjacent to their property. He said that any regular noise from their house would be interior noise and they expect this noise to be much less than noise emanating from an open-air outdoor space. He said that they consulted extensively with neighbors for 20 months and made many revisions to their plan and that the current plan was far different from their original concept, and they were frustrated by the instability of the process. He felt that the consultation process led to a progressive narrowing in scope and functionality of the project. Boardmember Tollini asked about the chimney. Mohamad Sadrieh, architect, said that the chimney is an existing structure and was not being added. Planning Manager Watrous said that the chimney was shown in one location in the floor plans and a different location on the elevations. Mr. Sadrieh said that the chimney stack would be kept in place even though it would no longer connect to a fireplace. TIBURON D.R.B. MINUTES #7 4/18/13 Boardmember Tollini asked for the rationale for keeping the chimney. Mr. Sadrieh said that it would be additional expense to remove it and they hope to avoid doing work on the roof. Boardmember Tollini asked if there is a functional reason to keep the chimney stack, and Mr. Sadrieh said that it could be used to vent an oven in the kitchen. The public hearing was opened. Magdalena Yesil requested that the Board not take away their ability to sleep in their bedrooms. She said that the plans concentrated all of the major improvements on the side of the building that is next to their bedrooms. She said that their only bedroom windows are on the wall facing the subject property. She said that she also continued to have an issue with the variance request. Ms. Yesil asked for three specific changes to the plan to preserve their ability to sleep: 1) replace the side Nana Walls facing her house with nonoperational windows in keeping in size and location with existing picture windows, 2) place the Nana Walls in the rear of the building in the center of the living room and not at the corner closest to her house, possibly dividing the operable rear windows into thirds to shield neighbors from the noise, and 3) eliminate the rear walkway, because it would create noise near their bedrooms and eliminate an acacia tree that provides privacy. She said that the applicants told them that the entry glass windows would be turned into clerestory windows and she requested that the plans incorporate these changes. David Kulik said that the chimney and the side window discussed at the last meeting both remain in the plans. He said that one of the ambiguities of the previous discussion of the sliding window was how far it would open and that is not reflected in the plan. He said that the stairs shown on the plans were also not addressed. He said that certain windows were supposed to be reduced in size facing his house and he expected those windows to be smaller than currently depicted. Mik Flynn stated that it is exceedingly different to live over the water with respect to noise. She said that one can hear conversations much more clearly than in other homes that are not over the water and the more homes are open on the side, the more the noise in the homes affects neighboring properties. She asked the Board to take those issues into account. Mr. Sadrieh asked the Boardmembers to visualize what it would be like to be mandated to live in a home with no access to the outside, as this is what is being asked of the applicant. He said that they were being asked to not have any outdoor openings on three sides of the house. He asked the Board to honestly and fairly think about that issue in their decision. Boardmember Tollini asked about the clerestory windows. Mr. Sadrieh said he was not party to all of the negotiations but he believed that no overarching agreement had been reached regarding those windows. Boardmember Tollini asked about the need for the outdoor walkway and the need to turn left to circulate back to the deck. Mr. Sadrieh said that this was the only way to get down to the deck from the living room area. He said that they were as anxious as the neighbors to keep the acacia tree and have incorporated a hole in the deck plans to keep it. Vice Chair Chong asked about the opening at the corner of the living room. Mr. Sadrieh said that that portion of the house faces out toward the view, and the operable windows would provide TIBURON D.R.B. MINUTES #7 4/18/13 some cross-ventilation. He said that the neighboring bedroom is down below and would also be separated by a solid glass railing at the opening, which would help mitigate noise. The public hearing was closed. Boardmember Tollini said that the applicant had bent over backwards to address the concerns of the neighbors as best as possible and he had reached the point where the applicant had done enough for him to support the application. He thought that perhaps the chimney should be removed. He said that he visited the neighbors at 2306 Mar East Street and that side of their house includes a master bedroom, master bath, and another bedroom and the only window with significant exposure is the large window of the master bedroom. He believed that the only time the Nana Wall would be open was during the day, as it is too cold at night for it to be open, and not during the times when the neighboring residents would be in their bedroom and need privacy. He characterized the waterfront during the day as loud. He did not think that it was necessary to install clerestory windows only on the sides. He said that he could not see the sliding door from anywhere on the property at 2306 Mar East. He said that with the deck removed he had no problem with the application. He said that he could make the findings for the variance based on the currently substandard access to the property. Regarding the proposed lower deck walkway, he noted that there was currently no way to access the outside from upstairs without going through the bedroom. Vice Chair Chong said that he agreed with Boardmember Tollini on most points. He said that he visited 2306 Mar East Street and found the acoustic issue to be a pre-existing condition making the Nana Walls solid would not change that condition. He pointed out that these homes are very close together and therefore, an element of noise and hearing neighbors will exist. He stated that neighbors are not supposed to be designing their neighbors' homes but rather bringing up issues and allowing the applicant to address those issues. He said that the applicant had gone out of their way to revise the plans to address concerns and he voiced support for the project. Boardmember Kricensky agreed with Boardmembers Tollini and Chong and said that a house on the water should be able to enjoy the outside. He said that the walkway and stairs made sense for safety and convenience. He felt that the applicant had tried to answer everything and that it would be unfair to wall up his views. He noted that the neighbors on both sides have plenty of outdoor space and he thought that the applicant had done what they could to address concerns. Chair Emberson agreed that the applicant had bent over backwards to address concerns. She said that the applicant had to have a better way to get to the lower deck. She said that the Nana Walls would have glass railings and carpets that would mitigate noise. She pointed out that the acacia tree would not be removed. She supported the plan and did not see anything more that could be done other than closing up every window. ACTION: It was M/S (Tollini/Chong) that the request for 2308 Mar East Street is exempt from the California Environmental Quality Act and approving the request, subject to the attached conditions of approval. Vote: 4-0. TIBURON D.R.B. MINUTES #7 4 4/18/13 E. PUBLIC HEARINGS AND NEW BUSINESS 2. 2235 CENTRO EAST STREET: File No. 712127; Lucy Zhang, Owner; Site Plan and Architectural Review for construction of additions to an existing single-family dwelling. The applicant proposes to expand the existing ground floor living room toward the front with additions to the western side of the house. A new master bedroom suite, deck and vaulted ceiling over the ground level living room would be added to the second floor of the house. The existing flat roofs would be replaced by pitched roofs. The project would increase the floor area by 499 square feet to a total of 3,171 square feet of living space. The lot coverage would increase to 23.8%, which is less than the 35.0% maximum lot coverage permitted in the R-2 zone. Assessor's Parcel No. 059-141-13. The applicant is requesting Design Review approval for the construction of additions to an existing two-story single-family dwelling on property located at 2235 Centro East Street. The existing ground floor living room would be expanded toward the front and new closets and a bathroom would be added to the western (left) side of the house. A new master bedroom suite, deck and vaulted ceiling over the ground level living room would be added to the second floor of the house. The existing flat roofs would be replaced by pitched roofs, increasing the height of the house by approximately 4 feet, 10 inches to a maximum height of 24 feet, 2 inches. The wood siding of the house would be replaced by stucco siding. The floor area of the house would be increased by 499 square feet to a calculated total of 3,171 square feet, which would be 28 square feet less than the 3,199 square foot floor area ratio for a lot of this size. The additions would increase the lot coverage on the site by 524 square feet to a total of 2,848 square feet (23.8%) of the site, which would be less than the 35.0% maximum lot coverage permitted in the R-2 zone. Kevin Chiang, architect, said they have talked with neighbors and addressed concerns regarding the project. He said that the property owner has lived in this location for 60 years, is over 100 years old, and the project is being handled by the trustee. He said that the existing roof leaks and the owners also want to change the color and improve the master bedroom. He said that this is not a fancy project and the improvements were based on need. He presented PowerPoint slides showing photographs of the property. He stated that the project was revised to change the orientation of the roof slope and lower the high point of the roof by 2 feet. He stated that a new house will be constructed on the vacant lot in front which would affect the view from the owner's house. He said that the house needs a lot of work and one of the major components of the project would be to provide a master bedroom on the second story. He showed a photo taken from the Petersons' house, a drawing showing the impact on their view, and a drawing with a potentially lower roof pitch which would only intrude a little bit on the view. He said that currently the house is an eyesore and with the new roof it would have more appeal. He asked the DRB for their input and said that they are trying to compromise and are open to suggestions. Boardmember Tollini asked if they looked at ways to preserve the existing flat roof. Mr. Chiang said that some slope is needed because the only material allowed for a flat roof is tar and a slope is needed for a composition roof. TIBURON D.R.B. MINUTES #7 4/18/13 Boardmember K icensky pointed out that gravel can be used on a flat roof. Mr. Chiang agreed, but said that a 2% grade would still be needed. Chair Emberson asked if stucco was necessary since most of the other homes in the area have wood or shingle siding. Mr. Chiang said that the siding has rotted and stucco is more sustainable and can also better reflect the "earthy" feeling of the color. The public hearing was opened. David Peterson said that he is the immediate upslope neighbor and had submitted two sets of comments on the plans, one in November and one in February. He appreciated that the Boardmembers came to see the project first hand. He said that his issues related to views and privacy; as ,the additions would be visible from nine of ten main areas and rooms of his home. He said that they do not have a panoramic view and the roof would be in the dead center of their view. He said that the project would block their view of Raccoon Strait, their clear views to Lyford Tower, their views of Angel Island and the streets of San Francisco from their lower rooms. He said that the windows would create light pollution at night and also create privacy issues because the windows would look directly into their bedrooms. He noted that the views of his neighbors were protected by the DRB in the construction on his own home, and the applicant at that time was required to make changes to his plans to preserve neighbors' views. He believed that there was a project design that could work here and asked for the present plan to be revised. Lawrence Stotter said that he built his home in the mid- 1960s and everyone along the street has a wonderful view. He did not see the need to block anyone's view. He found the idea of raising the roof to be bothersome, did not understand the need for these changes, and commented that the owner was not going to enjoy the changes in the home. He said that guests in his home comment on the view from the lower floors and he felt that it would be a terrible loss to not preserve those views. He said that he was dedicated to preserving the beauty of the area and the right of people to enjoy it, but he did not want to see a precedent set to block any views. Sean Pau Lawrence said that this project would conflict with his view of Raccoon Strait from the upper level. He said that the previous fights to preserve views should trickle down the hill. Milton Diaz said that he is the immediate neighbor on the east side and that the design would have minimal impact on his own home. However, he said that he has known the owner for a long time and she is a kind, generous person and an excellent neighbor. He hoped that an accommodation could be reached between all of the parties. Jodie Upjohn hoped that the Board will be forward thinking when dealing with issues around rooflines to encourage applicants to change rooflines in a way that would be beneficial for solar panels and solar power. Lucy Zhang, trustee for owner, said that she has lived in the house for 35 years and there is a need for the addition, as the owner is still in good health. She said that the leaks are terrible and the house conditions are very bad. She said that they were asking for basic living space and nothing fancy or luxurious. TIBURON D.R.B. MINUTES #7 4/18/13 The public hearing was closed. Boardmember Kricensky said that this project was the poster child for not complying with the Hillside Design Guidelines. He said that the view from the neighboring house is not panoramic and the roofline would take up the majority of the view. He stated that flat roofs can be constructed that work, noting that many had been reviewed by the DRB. He pointed out that the proposed roof slope would actually be higher than what was shown in the PowerPoint presentation. He characterized the effect on the view as extreme, stating that the project would completely obliterate the view from the downstairs area. He noted that the Petersons' house had to be changed to preserve neighbors' views and this one should be held to the same standards. He believed that the applicants can design a very nice living space and still have a flat roof. He added that the design would not step back into the hillside and stated that he could not support the application. Boardmember Tollini agreed with Boardmember Kricensky and said that in neighborhoods like this with little elevation change between properties the views across roofs are sacrosanct. He said that there was not a good reason to change from the flat roof to the pitched roof, and he could only support a minor roof change because of the huge impacts on the neighbors' views. He thought that he could possibly support the master bedroom blocking the view of Lyford Tower from the sitting area of the Peterson property because only one small space would be affected, but only with no other roof height modifications. He stated that the proposed roof adjustments were totally unacceptable. Vice Chair Chong described his experience with roof leaks on his own home, which was replaced a new flat roof and he has not had a problem with leaking since then. He said that the applicants' problem can be fixed without a design that blocks the neighbor's views. He said that the project would definitely block views from the major areas of the neighbor's home and would have a huge impact. He said that views of Lyford Tower are enjoyable and it is an important object. He said that if the application comes back and would still block Lyford Tower, he would need to see that every possibility was explored before considering it, but extending roofs into the views was a non-starter. He said that it did not make sense to force a neighbor to lower their house for the views of others and then block their views. Boardmember Kricensky said that he was not sure whether the master bedroom would block views. He said that the neighbors' view also includes water and not just Lyford Tower and if there is an alternative it should be explored. Boardmember Tollini said that the glazing on the bedroom expansion was massive and unacceptable and would be in the view of the city lights. Chair Emberson said that she had nothing to add but the Board had made it clear that they were not in favor of anything that would block views. She felt that there are ways to solve the leak problem by putting on a new flat roof that would not block views. She said that she could not support the project as currently presented. She agreed that the uphill facing windows did not TIBURON D.R.B. MINUTES #7 7 4/18/13 make sense. She appreciated the view of Lyford Tower and would only support blocking that view if there was no other way to design the project. ACTION: It was M/S (Chong/Kricensky) to continue the application for 2235 Centro East Street to the May 16, 2013 meeting. Vote: 4-0. 3. 31 NORTH TERRACE: File No. 21306; Vince and Lindy De Quattro, Owners; Site Plan and Architectural Review construct of additions to an existing single-family dwelling, with Variances for reduced front and side yard setbacks and excess lot coverage. The applicant proposes to add a new two-car garage to the front of the house, convert an existing bedroom into a family room and reconfigure the entry to the house. The project would increase the floor area 437 square feet to a total of 2,816 square feet. The,lot coverage would increase to 35.3%, which is greater than the 15.0% maximum lot coverage pennitted in the RO-2 zone. The addition would extend to within 8 feet of the front property line and 6 feet, 8 inches of the left side property line, which are less than the 30 foot front yard setback and 15 foot side yard setback required in the RO-2 zone. Assessor's Parcel No. 034-221-01. The applicant is requesting Design Review approval for the construction of additions to an existing one-story single-family dwelling on property located at 31 North Terrace. A new two- car garage would be added to the front of the house. An existing bedroom would be converted into a family room and the entry to the house would be reconfigured. Several portions of the roofline at the front of the house would be modified. The calculated floor area of the house would not be increased by the proposed 437 square foot garage and would still be 2,816 square feet of living space, which is less than the 2,921 square foot floor area ratio for this site. The proposal would increase the lot coverage on the site by 437 square feet to a total of 3,253 square feet (35.3%), which exceeds the maximum permitted lot coverage in the RO-2 zone (15.0%). The applicant has therefore requested a variance for excess lot coverage. The proposed garage expansion would extend to within 8 feet of the front property line and to within 6 feet, 8 inches of the southern (left) side property line. As a 30 foot front yard setback and a 15 foot side yard setback are required in the RO-2 zone, variances are also requested for reduced front and side yard setbacks. John Hood, architect, said they have been talking with neighbors since submitting their proposal and reached a compromise to modify the height of the garage. He said that the ridge of the garage would be lowered approximately 18 inches; they would verify the location of the project relative to the property line; and the new ridge for the family room would increase no more than 15 inches above the existing ridgeline. He stated that the old garage was converted to living space some time ago, and they are therefore building a new garage in front and a new gable roof over the kitchen. Boardmember Tollim asked why the south wall of the garage would be closer to the property line than the existing wall, as he could not see any compelling reason why it could not be shifted to TIBURON D.R.B. MINUTES #7 4/18/13 line up with the wall and brought to the north to reduce the amount of the variance. Mr. Hood said that the new gable roof for the family room and the garage would line up and they could push the garage further into the property but the gable would no longer be nested into the other rooflines. The public hearing was opened. Kirk Beales said that he lives across the street and the project would have no impact on his property. He noted that the property had a previously approved garage addition which expired and the currently proposed garage would be closer to the street than the previous one. He noted that he has a utility easement at the edge of his property and at some point someone needed to verify if such an easement existing on the subject property to avoid any problems. Plarming Manager Watrous stated the specific changes to the plans need to be attached as conditions of approval. The public hearing was closed. Boardmember Tollini asked what the standard parking space dimensions are, and Watrous answered that the minimum depth is 18 feet. Boardmember Tollini asked if that was part of the reason for bringing the garage out further, and Mr. Hood answered yes. Vice Chair Chong said that he visited the site and felt that this was a reasonable addition and cannot be much shorter and still accommodate cars. He said that it was nice to see the applicant work with the neighbors and come to an agreement. He voiced support of the project with the changes agreed upon by the neighbors. Boardmember Tollini agreed with Vice Chair Chong and discussed the issue around length of the driveway and parking. He said that he would like to see the Town Council take up the issue because it has to do with policy and not design, and this is an area that should be less sensitive to the concerns about parking space. Vice Chair Chong said that when he visited the property there was ample street parking and the issue did not bother him. Boardmember Kricensky said there were a lot of cars parked in front of garage doors in that neighborhood. He understood the interior stairs need to be there but, combined with the family room, it seemed like something could have been better worked out. He said that the project would provide two off-street parking spaces and it is not up to the DRB to require a third off- street space. Chair Emberson said that it seemed like there may be a way to allow for better parking, but it was not within the DRB's purview. She agreed with Boardmember Tollini that this might be an issue for the Town Council to address. Planning Manager Watrous said there is usually a workshop with the DRB and Town Council and this would be a good discussion item. TIBURON D.R.B. MINUTES #7 9 4/18/13 Chair Emberson said that she also supported the project and was glad to see the last minute agreement between neighbors on the height of the garage. ACTION: It was M/S (Chong/Tollini) that the request for 31 North Terrace is exempt from the California Environmental Quality Act and approving the request, subject to the attached conditions of approval, and the additional conditions of approval that the plate height of the garage will be lowered approximately 18 inches, the new ridge on family room will be increased no more than 15 inches above the existing ridgeline, and the distance from the building to the property line will be verified. Vote: 4-0. 4. 4 SOUTHRIDGE EAST: File No. 21307; Maureen and George Sandison, Owners; Site Plan and Architectural Review construct a new single-family dwelling, with Variances for reduced front yard setback and excess lot coverage. The new dwelling would result in a total floor area of 3,813 square feet. The lot coverage of 19.9% would exceed the maximum 15.0% lot coverage permitted in the RO-2 zone. The house would extend to within 12 feet of the front property line, which is less than the 30 foot front yard setback required in the RO-2 zone. Assessor's Parcel No. 034-243-03. The applicant is requesting Design Review approval for the construction of a new two-story single-family dwelling on property located at 4 Southridge East. The existing residence on the site would be demolished. The main level of the house would include a living room, dining room, kitchen, breakfast room, a master bedroom suite, three additional bedrooms, two more bathrooms, a powder room, a laundry room and storage. The entry level above the main level would include a two-car garage, entry foyer, guest/study room and one bathroom. An elevator would connect both levels. Five skylights would be installed. A new 6 foot tall wood and wire fence would surround most of the site. The floor area of the house would be 3,813 square feet, which would be 1 square foot less than the floor area ratio for a lot of this size. The lot coverage on the site would be 3,617 square feet (19.9%) of the site, which would be greater than the 15.0% maximum lot coverage permitted in the RO-2 zone. A variance is therefore requested for excess lot coverage. The proposed house would extend to within 12 feet of the front property line. As a 30 foot front yard setback is required in the RO-2 zone, a variance is also requested for reduced front yard setback. Jared Polsky, architect, said that the owners gave very clear directions to design a contemporary home that would not disturb the neighbors. He said that the owner met with all of the neighbors and they would not block any of the neighbors' views. He said that he agreed with and appreciated the staff report. George Sandison, owner, said that this is intended to be their long-term home. He noted that there was an objection to the project blocking views from the home at 36 Southridge West which is significantly far away and above his property. He said that there would be no view blockage TIBURON D.R.B. MINUTES #7 10 4/18/13 because of trees on Caltrans property behind his property. He showed a photo of the very large trees blocking views of the property at 36 Southridge West and pointed out the corner of the deck at that house, and said that his property can be seen from that corner of that deck. He also stated that the roof could not be seen because of the house next door and the existing trees. Mr. Sandison addressed the issue of an oak tree proposed to be removed, stating that the oak is not a heritage tree and would block the view of San Francisco from the front of the new master bedroom. He showed a photo from the location of the oak showing the view of the rest of San Francisco and Angel Island. He said that there would be no privacy concerns if the tree was removed because it is at the end of the property, but if there was a real concern about privacy then he would be glad to extend the fence. He said that that area was designed to be a rock and flower garden and no one would be standing in that area and therefore it would not be a privacy issue. Planning Manager Watrous clarified that the oak tree is not defined as a heritage tree, but an oak tree of this size is a protected tree that either requires a tree permit to be removed or could be approved as part of this application. He also noted that the staff report was prepared a week ago, prior to receipt of the letter from the Watennans and the report therefore did not reflect any of the concerns noted in that letter. The public hearing was opened. Planning Manager Watrous read a statement by Ed Middendorf into the record, which stated he that found the proposed design to very attractive and that it would not impact his view. The letter stated Mr. Middendorf s support of the project and his request to maintain the Town's required construction hours for this project. Moe Nobari said that there have been issues regarding the fence and privacy. He said that the fencing should be stepped up and trees kept for privacy reasons. He said that both parties have agreed to incorporate those changes into the plans. He said that there are actually two oak trees on the south part of the property and that part of the view Mr. Polsky showed was covered by an existing fence. He said that they do not object to removal of the 6 inch oak, but the 9 inch oak sits on the property line and gives them privacy. He requested trimming the 9 inch oak tree but not to remove it. He submitted photos showing the stepped up fence and trees in the area. He said that they would be exposed if the other trees are removed and have therefore agreed that many of the trees would be kept. Vice Chair Chong asked for clarification of the trees in the photos, and Mr. Nobari pointed out the location of the 9 inch oak and the 6 inch oak. Vice-Chair Chong wondered what the privacy issue would be. Mr. Nobari said that there would be a wire mesh fence and there may be children playing in the yard, but it would also affect the bedrooms of his house. Lalita Watennan thanked Planning Manager Watrous for clarifying that her objections were filed within the prescribed time limit. She objected to the substantial variance that was requested for the front setback and stated that while they do not look directly onto the house, they are concerned about preserving values of properties in the neighborhood. She said that she was TIBURON D.R.B. MINUTES #7 11 4/18/13 unable to find any newer home in the area with that type of variance and could not see where the story poles were with respect to the driveway. Boardmember Tollini said that the current setback is 12 feet and the proposal would actually increase the setback. Ms. Waterman said that she misunderstood that aspect. She voiced disappointment with the story poles, stating that average citizens need to understand clearly what the new structure will be and she could not tell what was proposed because of the overgrowth of the vegetation. She requested something be done to provide greater clarity. She said that she does not mind noise after 9:00 am and would be amenable to extending the deadline of construction to prevent noise from starting before 9:00 am. Jodie Upjohn, President of the Reedlands Homeowners Association, said that it is customary to begin construction by 8:00 a.m. in other cities. She asked if Tiburon allows construction to begin at 7:00 am and Planning Manager Watrous confirmed that that is the case. Boardmember Tollini clarified that heavy construction cannot begin until 8:00 a.m. Ms. Upjohn said that 7:00 a.m. is too early and asked what could be done about that. Boardmember Tollini said that the DRB cannot change that because it is under the Building Division's purview and is set by Town ordinance. Planning Manager Watrous said that the Town Council would have to review such a change. Ms. Upjohn said that when there is major construction gravel and dirt is left on the road as the large trucks are going down Reed Ranch Road. Planning Manager Watrous noted that construction is supposed to be done in a way that does not affect the public right of way and the Building Division should be contacted if there is an issue. Planning Manager Watrous read the portion of the code stating that heavy equipment cannot be used before 8:00 a.m. He said that if the Town Council determined in the future to change the hours, the Town Council would have to determine how to address the hours for projects already underway. Boardmember Tollini stated that he did not see anything unique about the location and therefore the neighbors would need to convince the Town Council to change the hours. David Ehsan said that this is a very quiet street and it is important to look at these projects and how they will impact the neighbors who plan to live there a long time. He said that it is also important to have privacy and trees. Christopher Wand, former President of the Reedlands Homeowners Association, said that the timing of work beginning would be a good topic for a workshop. He stated that Tiburon Boulevard is packed with school traffic at 8:00 a.m. and suggested that the construction hours add too much construction equipment to the traffic patterns. He said that it was very convenient that the story poles were not visible and he suggested removing the trees around therm now so that they could be seen. Chair Emberson asked Mr. Sandison to clarify the agreement with the neighbor regarding the fence and trees. Mr. Sandison said that the fence would be solid, tiered, and double-sided and six feet tall up to six feet past the end of the house. He said that the fence would include six foot high pressure-treated wood posts and wire fencing from that point to the end of the property. He said that the large tree with red berries would be kept, but the tree with yellow leaves appears TIBURON D.R.B. MINUTES #7 12 4/18/13 unhealthy and if it dies they would replace it with trees that would be ten feet tall to block the view of the house. He said that they requested the 6 and 9 inch oak trees be removed and Mr. Nobari objected to the removal of the 9 inch oak. The public hearing was closed. Vice Chair Chong said that this was a beautiful design and would be a nice addition to the neighborhood. He said that some people cannot see the story poles because the site is at the end of a cul-de-sac and the house would not have a lot of impact. He said that when he visited the home and neighboring homes he did not see the impacts stated in the letters because the neighbors at 36 Southridge West are very far away, with trees in the way. He said that the applicants have done a good job of working with the neighbors that would be the most affected by the project. He was unsure how much privacy the oak trees provide. He agreed with staff's findings regarding the variances. Boardmember Kricensky agreed with Vice Chair Chong. He liked the design and the amount of building access from the street level would be very modest. He said that it was simple to make the findings and the house would have minimal impact on neighbors. He said that it was hard to tell if it was possible to prune the 9 inch oak to allow some views, and thought that it was a perceived privacy issue for the neighbor. Boardmember Tollini agreed with everything that had been said and noted that sometimes a new house is difficult to envision because they do not involve substantial changes from the existing building. He said that he visited 36 Southridge West and the house would have very little impact on anyone in the neighborhood. He did not understand the privacy concern with the 9 inch oak because the tree is in the very back of the property. He said that the tree does not shield any view from one neighbor to the other and there is a lot of other brush in the vicinity. He said that removing the tree would potentially enhance the view from both properties and would only be a perceived loss of privacy. He noted that the Town usually needs a good reason not to allow removal of a tree. Chair Emberson said she shares Boardmember Tollini's perspective on the tree, particularly as it is an oak. She said that the tree is way in the corner of the property and removing the tree might actually enhance the view, and she supported removing it. She said that the design follows the Hillside Guidelines and steps down the site, and she could support the variance for excess lot coverage, which may be why the house cannot be seen. Boardmember Tollini noted that the driveway depth was not a concern due to the location at the end of a cul-de-sac. ACTION: It was M/S (Chong/Tollini) that the request for 4 Southridge East is exempt from the California Environmental Quality Act and approving the request, subject to the attached conditions of approval, and the additional condition of approval that the fence along the eastern side property line shall be double sided wood, 6 feet tall, to end to 6 feet past the end of the house, and past that point wire mesh with 6 foot high pressure treated wood posts to the end of the property. Vote: 4-0. TIBURON D.R.B. MINUTES #7 13 4/18/13 F. APPROVAL OF MINUTES #6 OF THE APRIL 4, 2013 DESIGN REVIEW BOARD MEETING ACTION: It was M/S (Toll ini/Kri censky) to approve the minutes of the April 4, 2013 meeting, as written. Vote: 4-0. G. ADJOURNMENT The meeting was adjourned at 9:50 p.m. TIBURON D.R.B. MINUTES #7 14 4/18/13 TOWN OF TIBURON Tiburon Town Hall 1505 Tiburon Boulevard Tiburon, CA 94920 aR iGEsr Action Minutes - Regular Meeting Design Review Board May 2, 2013 7:00 P.M. ACTION MINUTES #8 TIBURON DESIGN REVIEW BOARD CALL TO ORDER AND ROLL CALL At 7:00 PM i Present: Chair Emberson, Vice Chair Chong, Boardmembers Cousins and Kricensky Absent: Boardmember Tollini Ex-Officio: Planning Manager Watrous, Assistant Planner O'Malley and Minutes Clerk Rusting ORAL COMMUNICATIONS None STAFF BRIEFING (if an OLD BUSINESS 280 ROUND HILL ROAD: File No. 712131; Alexander and Yami Anolik, Owners; Site Plan and Architectural Review for construction of a detached parking structure. The applicants propose to construct a new 1,444 square foot parking garage that would occupy a portion of an existing tennis court. The project would increase the lot coverage on the site by 1,444 square feet to 9,881 square feet (12.7%). The project would increase the floor area of the property by 1,444 square feet to 7,964 square feet. Assessor's Parcel No. 039-171-20. Approved 4-0 PUBLIC HEARINGS AND NEW BUSINESS 2. 4 VENUS COURT: File No. 712123; Central Capital Group, Owners; Site Plan and Architectural Review for construction of a new single-family dwelling. More than 50% of the existing dwelling would be demolished, resulting in a new one-story dwelling. The project would increase the floor area by 1,148 square feet to a total of 2,153 square feet of living space. The lot coverage would increase to 1,956 square feet (26.1 of the site. Assessor's Parcel No. 034-281-08. Approved 4-0 Design Review Board Action Minutes May 2, 2013 Page 1 1co 3. 18 CLAIRE WAY: File No. 21302; Monique and Emmet Devlin, Owners; Site Plan and Architectural Review construct a new single-family dwelling, with Variances for reduced front yard setback and excess lot coverage. More than 50% of the existing dwelling would be demolished, resulting in a new one-story dwelling. The new dwelling would result in a total floor area of 2,528 square feet. The lot coverage of 39.8% would exceed the maximum 30.0% lot coverage permitted in the R-1-BA zone. The house would extend to within 15 feet, 1 inch of the front property line, which is less than the 20 foot front yard setback required in the R-1-BA zone. Assessor's Parcel No. 034-112-14. Continued to 5116113 MINUTES 4. Regular Meeting of April 18, 2013 ADJOURNMENT At 8:50 P.M. Adopted 3-0-1 (Cousins abstained) Design Review Board Action Minutes May 2, 2013 Page 2 in-, F e% L~ TOWN OF TIBURON Action Minutes - Regular Meeting • Tiburon Town Hall Tiburon Planning Commission 1505 Tiburon Boulevard May 8, 2013 - 7:30 PM Tiburon, CA 94920 ACTION MINUTES TIBURON PLANNING COMMISSION CALL TO ORDER AND ROLL CALL At 7:30 PM Present: Chair Tollini, Commissioner Corcoran, Commissioner Welner Absent: Vice Chair Weller ORAL COMMUNICATIONS There were none Persons wishing to address the Planning Commission on any subject not on the agenda may do-so under this portion of the agenda. Please note that the Planning Commission is not able to undertake extended discussion, or take action on, items that do not appear on this agenda. Matters requiring action will be referred to Town Staff for consideration and/or placed on a future Planning Commission agenda. Please limit your comments to no more than three (3) minutes. Testimony regarding matters not on the agenda will not be considered part of the administrative record. COMMISSION AND STAFF BRIEFING Commission and Committee Reports Director's Report PUBLIC HEARINGS 1. 1505 TIBURON BOULEVARD: RENEWAL OF A CONDITIONAL USE PERMIT TO OPERATE A WIRELESS COMMUNICATIONS FACILITY; FILE #19705; Town of Tiburon, Owner; Sprint Nextel, Applicant; Assessor's Parcel No. 058-172-92 [DW] Approved 3-0 2. 1630-1632 TIBURON BOULEVARD: CONDITIONAL USE PERMIT TO ESTABLISH A DRY CLEANING & CLOTHING ALTERATIONS USE IN THE NEIGHBORHOOD COMMERCIAL (NC) ZONE; FILE #11302; ACV Argo Tiburon LP, Owner; Maria French Cleaners, Applicant; Assessor's Parcel Number: 059-101-03 [SA] Approved 3-0 Tiburon Planning Commission Action Minutes May 8, 2013 Page 1 3. 215 BLACKFIELD DRIVE: REVIEW OF CONDITIONAL USE PERMIT FOR KOL SHOFAR SYNAGOGUE AND APPURTENANT DAY SCHOOL; FILE #10404; Congregation Kol Shofar, Owner and Applicant; Assessor's Parcel No. 038-351-34 [DW] Found in Substantial Compliance 3-0 MINUTES 4. PLANNING COMMISSIION MINUTES -Regular Meeting of March 13, 2013 Approved 3-0 ADJOURNMENT At 8:25 PM a050813 Tiburon Planning Commission Agenda May 8, 2013 Page 2 TOWN OF TIBURON Tiburon Town Hall 1505 Tiburon Boulevard Tiburon, CA 94920 AGENDA TIBURON DESIGN REVIEW BOARD CALL TO ORDER AND ROLL CALL Regular Meeting Design Review Board May 16, 2013 7:00 P.M. Chair Emberson, Vice Chair Chong, Boardrnembers Cousins, Kricensky and Tollini ORAL COMMUNICATIONS Persons wishing to address the Design Review Board on any subject not on the agenda may do so under this portion of the agenda. Please note that the Design Review Board is not able to undertake extended discussion, or take action on, items that do not appear on this agenda. Matters requiring action will be referred to Town Staff for consideration and/or placed on a future Design Review Board agenda. Please limit your comments to no more than three (3) minutes. Any communications regarding an item not on the agenda will not be considered part of the administrative record for that item. STAFF BRIEFING (if any) OLD BUSINESS 1. 2235 CENTRO EAST STREET: File No. 712127; Lucy Zhang, Owner; Site Plan and Architectural Review for construction of additions to an existing single-family dwelling. The applicant proposes to expand the existing ground floor living room toward the front with additions to the western side of the house. A new master bedroom suite, deck and vaulted ceiling over the ground level living room would be added to the second floor of the house. The existing flat roofs would be replaced by pitched roofs. The project would increase the floor area by 499 square feet to a total of 3,171 square feet of living space. The lot coverage would increase to 23.8%, which is less than the 35.0% maximum lot coverage permitted in the R-2 zone. Assessor's Parcel No. 059-141-13. [DW] CONTINUED TO 6/6/13 PUBLIC HEARINGS AND NEW BUSINESS 2. 5 TARA HILL ROAD: File No. 21312; Jan and Anette Bratteberg, Owners; Site Plan and Architectural Review for construction of additions to an existing single-family dwelling, with a Variance for excess lot coverage. Minor additions would be constructed to the existing house and a new pool house and swimming pool would be constructed at the rear of the lot. The project would increase the floor area to a total of 4,360 square feet of living space. The lot coverage would increase to 3,948 square feet (16.7%) of the site, which is greater than the 15.0% maximum lot coverage permitted in the RO-2 zone. Assessor's Parcel No. 034-281-08. [KO] Design Review Board May 16, 2013 Page 1 3. 1940 STRAITS VIEW DRIVE: File No. 21 310; North Sol Invest LLC, Owner; Site Plan and Architectural Review construct a new single-family dwelling, with a Variance for reduced front yard setback and a Floor Area Exception. The new four-level dwelling would result in a lot coverage of 14.6% and a total floor area of 4,475 square feet, which is 302 square feet greater than the 4,173 square foot floor area ratio for this lot. The house would extend to within 4 feet of the front property line, which is less than the 30 foot front yard setback required in the RO-2 zone. Assessor's Parcel No. 059-091-1S. [DW] MINUTES 4. Regular Meeting of May 2, 2013 ADJOURNMENT Design Review Board May 16. 2013 Page 2 DIGEST i Date: May 1, 2013 Marin County CM1 Grand Jury Q) Margaret A. Curran, Tiburon Town Manager 1505 Tiburon Boulevard Tiburon, CA 94920 Re: Grand Jury Report: Holding the Bag Report Date: May 1, 2013 Dear Margaret Curran, Enclosed please find an advance copy of the above report. Please note that Penal Code Section 933.05(f) specifically prohibits any disclosure of the contents of this report by a public agency or its officers or governing body prior to its release to the public, which will occur on May 7, 2013. The Grand Jury requests that you respond in writingto the Findings and Recommendations contained in the report pursuant to Penal Code Section 933.05 (copy enclosed). The Penal Code is specific as to the format of responses. The enclosed Response to Grand Jury Report Form should be used. Governing bodies should be aware that the comment or response from the governing body must be conducted in accordance with Penal Code section 933 (c) and subject to the notice, agenda, and open meeting requirements of the Ralph M. Brown Act. The Brown Act requires that any action of a public entity governing board occur only at a noticed and agendized meeting. The Penal Code is also specific about the deadline for responses. You are required to submit your response to the Grand Jury within 60 days of the report date: 1 hard copy to: The Honorable Judge James Ritchie Marin County Superior Court P.O. Box 4988 San Rafael, CA 94913-4988 1 hard copy to: Rich Treadgold, Foreperson Marin County Grand Jury 3501 Civic Center Drive, Room #275 San Rafael, CA 94903 Responses are public records. The clerk of the public agency affected must maintain a copy of your response. Should you have any questions, please contact me at 415-286-6494 or at the above address. Sincerely, Rich Treadgold, Foreperson 201212013 Morin County Civil Grand Jury Enclosures: Summary of Penal Code sec. 933.5; Penal Code Sec. 933.05; Response Form 3501 Civic CenterDilvc, Room 275, San Rafael CA 94903 Tel 4L5-499-6132 RESPONSE TO GRAND JURY REPORT FORM Report Title: Holding the Bag Report Date: May 1, 2013 Public Release Date: May 7, 2013 Response by: August 7, 2013 FINDINGS ■ I (we) agree with the findings numbered: ■ 1 (we) disagree wholly or partially with the findings numbered: (Attach a statement specifying any portions of the findings that are disputed; include an explanation of the reasons therefor.) RECOMMENDATIONS ■ Recommendations numbered have been implemented. (Attach a summary describing the implemented actions.) ■ Recommendations numbered have not yet been implemented, but will be implemented in the future. (Attach a timeframe for the implementation.) ■ Recommendations numbered require further analysis. (Attach an explanation and the scope and parameters of an analysis or study, and a timeframe for the matter to be prepared for discussion by the officer or director of the agency or department being investigated or reviewed, including the governing body of the public agency when applicable. This timeframe shall not exceed six months from the date of publication of the grand jury report.) ■ Recommendations numbered will not be implemented because they are not warranted or are not reasonable. (Attach an explanation.) Date: Signed: Number of pages attached Response Form RESPONSES TO GRAND JURY REPORTS SUMMARY OF PENAL CODE 933.05 Penal Code 933.05(F) states the grand jury shall provide to the affected agency a copy of the portion of the grand jury report relating to that person or entity two (2) working days prior to its public release and after the approval of the presiding judge. Penal Code 933.05 also provides for only two (2) acceptable responses with which agencies and/or departments (respondents) may respond with respect to the findings of a Grand jury report: 1. The respondent agrees with the finding. 2. The respondent disagrees wholly or partially with the findings, in which case the respondent shall specific the portion of the finding that is disputed and shall include an explanation of the reasons therefore. Penal Code 933.05 provides for only four (4) acceptable responses with which agencies and/or departments (respondents) may respond with in respect to the recommendations of the Grand Jury. 1. The recommendation has been implemented, with a summary regarding the implemented action. 2. The recommendation has not yet been implemented, but will be in the future with a timeframe for implementation. 3. The recommendation requires further analysis, with an explanation and the scope and parameters of an analysis, with a timeframe for the matter to be prepared for discussion by the officer or head of the agency/ department being investigated or reviewed, including the governing body of the public agency when applicable. This timeframe shall not exceed six (6) months from the date of publication of the Grand Jury Report 4. The recommendation will not be implemented because it is not warranted or is not reasonable, with a detailed explanation therefore. However, if a finding and/or recommendation of the Grand Jury addresses budgetary or personnel matters of a county agency/department head and the Board of Supervisors shall respond if requested by the Grand Jury, but the response of the Board of Supervisors shall address only those budgetary or personnel matters over which it has some decision making authority. The response of the elected agency or department heal shall address all aspects of the findings or recommendations affecting his or her agency/department Penal Code. 933 states that the governing body of the public agency shall respond to the presiding judge within 90 days, and that an elected county officer or agency head shall respond to the presiding judge within 60 days. California Penal Code Sections Penal Code 933 No later than 90 days after the grand jury submits a final report on the operations of any public agency subject to its reviewing authority, the governing body of the public agency shall comment to the presiding judge of the superior court on the findings and recommendations pertaining to matters under the control of the governing body, and every elected county officer or agency head for which the grand jury has responsibility pursuant to Section 914.1 shall comment within 60 days to the presiding judge of the superior court, with an information copy sent to the board of supervisors, on the findings and recommendations pertaining to matters under the control of that county officer or agency head and any agency or agencies which that officer or agency head supervises or controls. Penal Code 933.05 (a) For purposes of subdivision (b) of Section 933, as to each grand jury finding, the responding person or entity shall indicate one of the following: Cl) The respondent agrees with the finding. (2) The respondent disagrees wholly or partially with the finding, in which case the response shall specify the portion of the finding that is disputed and shall include an explanation of the reasons therefore. (b) For purposes of subdivision (b) of Section 933, as to each grand jury recommendation, the responding person or entity shall report one of the following actions: (1) The recommendation has been implemented, with a summary regarding the implemented action. (2) The recommendation has not yet been implemented, but will be implemented in the future, with a timeframe for implementation. (3) The recommendation requires further analysis, with an explanation and the scope and parameters of an analysis or study, and a timeframe for the matter to be prepared for discussion by the officer or head of the agency or department being investigated or reviewed, including the governing body of the public agency when applicable. This timeframe shall not exceed six months from the date of publication of the grand jury report (4) The recommendation will not be implemented because it is not warranted or is not reasonable, with an explanation therefore. (c) However, if a finding or recommendation of the grand jury addresses budgetary or personnel matters of a county agency or department headed by an elected officer, both the agency or department head and the board of supervisors shall respond if requested by the grand jury, but the response of the board of supervisors shall address only those budgetary or personnel matters over which it has some decision making authority. The response of the elected agency or department head shall address all aspects of the findings or recommendations affecting his or her agency or department (d) A grand jury may request a subject person or entity to come before the grand jury for the purpose of reading and discussing the findings of the grand jury report that relates to that person or entity in order to verify the accuracy of the findings prior to their release. (e) During an investigation, the grand jury shall meet with the subject of that investigation regarding the investigation, unless the court, either on its own determination or upon request of the foreperson of the grand jury, determines that such a meeting would be detrimental. (f) A grand jury shall provide to the affected agency a copy of the portion of the grand jury report relating to that person or entity two (2) working days prior to its public release and after the approval of the presiding judge. No officer, agency, department, or governing'body of a public agency shall disclose any contents of the report prior to the public release of the final report. 2012/2013 11AR111 COUATY CIVIL GRfa/1G JURY Holding the bag Report Date -May 1, 2013: Public Release Date -May 7, 2013 =g ~cn a ,„ate G3/ jh o: As, Sh, • • • • COUNTY OF MARIN f Marin County Civil Grand Jury HOLDING THE BAG SU MMARY As the garbage truck tipped its load, hundreds of plastic bags wafted from the opeiung and sailed across the flat plains of the dump. There is so much incoming plastic,,waste_, that many landfills set up trash nets and employ a fulltime person just to catch ethe -sailing bags and papers before they escape into the surrounding environment. rPlastic bags adrift at the Redwood Landfill A global movement tokban or,discourage the use of plastic bags is growing and many communities are startirig-to take action. Plastic bags use up natural resources, consume energy to manufacture, create litter, choice marine life and add to landfill waste. Since plastic bags essenfially_never break down, once they are littered, they become a permanent environmental problem. Scientifictresults from a voyage led by a group of graduate students from Scripps Institute of Oceanography at UC San Diego reveal the infiltration of human pollution in an area o the ocean -commonly referred to as the "Great Pacific Garbage Patch." During their 2009 voyage aboard the Scripps research vessel, New Horizon, the students collected fish specimens, water samples and marine debris at depths ranging from the sea surface to thousands of feet depth. "About nine percent of examined fishes contained plastic in their stomach. That is an underestimate of the true ingestion rate because a fish may regurgitate or pass a plastic item, or even die from eating it. We didn't measure those May 1, 2013 Marin County Civil Grand Jury Page 1 of 20 Holding the Bag rates, so our nine percent figure is too low by an unknown ainouni, " saki Davison, 011c,- of the main Scripps researchers.) Members of the Marin County Civil Grand Jury were aware of the potential for Redwood Landfill, environmental damage from plastics, but during our field trip the sight of plastic bags blowing in the wind really brought the message home. We wondered what Marin County was doing to stem the tide of plastic bags, and how serious a problem they pose. Trash-catching net in action i We found that although the problems posed b plastic bags are only part of a much larger of worldwide waste and thefonseq ent''environmental damage, they are problem problems that we can address at our local level. result of our research, we found a 104 . of local interest in banning not just plastic As a carry-out bags, but all single-us,ags2. The Town of Fairfax, citing its "duty to protect the natural environmed the economy, and the health of its citizens,' was the first town in California to enact a fas o bag ban through a community effort ballot measure. The Fairfax ordinance became :effective May 2009 and amended the town code to. (1) require the use of recyclable papei and/or reusable checkout bags by all shops, stores, eating places, food vendo --and retail food vendors located in the Town of Fairf~ Coed (2) provide penaliesor 'Na violations." For Marin's unincorporated areas, Mar County banned plastic,'carry-out bags at grocery stores, pharmacies and convenience stores of at leasf M 0-90 square feet and imposed a 5-cent fee on paper bags in January 2012. We have learned that most of the remaining towns and cities in Marin plan to adopt their version off a single-use bag ordinance in the near future. Scripps Institute of Oceanography, Scripps News, June 30, 2011 htt ://scri snews.ucsd.edufReleases/?releaselD=1174 Single-use bags are bags of any material that are designed to be used only once and are typically not brought back to the store for re-use. 3 The Town of Fairfax Code, Chapter 8.18.0 10 FINDINGS (u) May 1, 2013 Marin County Civil Grand Jury Page 2 of 20 Holding the Bag The Grand Jury strongly advocates the. adoption of ordinances throughout lviariil LOLUIi.y to eliminate all single-use plastic carry-out bags. In addition, the Grand Jury recornmends extending the ban as far as realistically possible to all commercial establishments regardless of size. BACKGROUND California, through the Integrated Waste Management Act of 1989, mandated a goal of 50% diversion of its disposed waste stream by 2000 for each city and county in California. The Marin Hazardous and Solid Waste Joint Powers Authority (JPA (-,.w, as formed in 1996 to ensure Marin's compliance with the California Integrated'as~te Management Act and its waste reduction mandates. The JPA is compnsed% 2YMember Agencies: Belvedere, Corte Madera, Fairfax, Larkspur, Mill Valley : ot~o,,. Ross, San Anselmo, San Rafael, Sausalito, Tiburon and unincorporated Man--n unnty. The Regional Agency status of the JPA allows Member Agencies to repo o the State as one political body instead of 12. 'M it CJW In 2006, the JPA began an initiative called Z E R O W S T E MA R I N with the goal of 2025. Zero waste i efine~d as a 94% diversion rate reaching zero waste disposal by tee., with only 6% remaining waste.) The JPA prepared~tl e,' Zero Waste Feasibility Studyi4 to establish programs and policies to strengthen tl e,.countywide framework for meeting its Zero Waste Goal. Efforts to reduce or eliminate single use bags, plastic or otherwise, will help the JPA meet that goal. <n According to Californians Against Was e;(.CAW), Californians use approximately 14 billion plastic bags every year ,5'liich equates to about 400 bags per second. Plastic bags are a primary source of litter because, they are light and aerodynamic. Plastics, including plastic bags, essentially ne ver2'B od grade; instead, they break down into tiny particles that become part of they soil and.,water. Only about 3% of the plastic bags used in California are recycled. There has been extensive news coverage lately about plastic bags and waste reduction. Due to a:gro . >_ng concern over litter and marine debris, many communities are taking a stand aanmst' ijUj~-use plastic carry-out bags. To date, 72 California cities or counties have-adoptedordinances to ban or restrict the use of plastic carry-out bags. The City and County,,of San Francisco became the first in the nation to adopt a ban on plastic shopping bags in April 2007, and in February 2012, voted to expand the ordinance to include all 4 The full study can be found on JPA ZERO WASTE MARIN website page: http://zerowastemarin.org/zero-waste- 10 I/zero-waste-feasibility-studv/ 5 Californians Against Waste website http:/hvww.cawrecvcles.orL,/issues/plasticbaocampaign 6 CalRecycle, At-Store Recycling Program 2009 Statewide Recycling Rate for Plastic Carryout Bags Calrecycle.ca.eov/plastics,/atstore/default.htm May 1, 2013 Marin County Civil Grand Jury Page 3 of 20 Holding the Bag retailers citywide. More recently, several cities, including Half Moon Bay, bdtlilo Park and Mountain View, have adopted ordinances, effective 4/22/13, to prohibit stores from using single-use plastic carry-out bags and allow stores to charge a small fee for paper or reusable bags. The following CAW website lists each California jurisdiction along with the synopsis of its action as every new ordinance is passed: htm //www cawrecycles orJissues/plastic campai~n/plastic bans/local The Grand Jury was interested to learn what has been done and what is being considered to reduce plastic bag litter in Marin County. We wanted to know the extent of the problem and what options are available at the local level to reverse the effects of p astic bag pollution. Although we found reason for environmental concern over the littering of Al-types of =rf plastic bags and containers, this investigation is primarily concerne&'MIR~:the effects of 2%1 4. llwte single-use plastic carry-out bags. We believe that the elimination ,of ese types of bags s;r.. may open the door to broader bans in the future. t4 APPROACH The Grand Jury: .1 r ■ Interviewed members of the JPA to determine not only what Marin County is 6 ing duce waste, but also to determine the JPA's interest and position on the ,--,,,.issue 4,of plastic single use carry-out shopping bags. ■ Contacted the administrative body of each City and Town in Marin County to determine what, if anything, each plans to do to reduce the use of single use carry- out plastic bags. ■ Researched various websites, papers, and agencies for the history and extent of problems caused by single use bags in the world, in California, and in Marin. ■ Compared the properties of various types of shopping bags. May 1, 2013 Marin County Civil Grand Jury Page 4 of 20 Holding the Bag DISCUSGiON In 2008, California undertook a Statewide Waste Characterization Study'to determine the types and amounts of waste entering California's waste stream. Plastics make up approximately 9.6% of California's overall disposed waste stream, as indicated in Exhibit 1 below. The 9.6% plastic waste stream was further broken down into types of plastic. Plastic bags compose approximately 1.2 % of California's total waste stream. This could be ft~. considered a small amount when compared to the overall quantity of waste. However, many properties of plastic bags snake them especially harmful for the environmerit. t Exhibit 1 Figure from California 2008 Statewide Waste Charactdrizat►on Study Figure 5: Overview of California's Overall Disposed Waste Stream Special Waste Mixed Residue 3.9% 0.8% paper Est HHW 17 3% Material Class Percent 0.3% . Glass Paper 17.3% Inerts and 4 4% Glass 1.4% Other ; 29.1% . " Metal Metal 4.6% 4.6% Electronics 0.5% - Plastic 9.6% Electronics Other Organic f 32.4% 0 0.5 /o i Inerts and Other 29.1% Plastic HHW 0.3% 0 9.6 o Special Waste 3.9% Mixed Residue 0.8% Other Organic Total I 100% 32.4% Numbers may not total exactly due to rounding. X Note: HHW under,Material Class in the t►gure anove stands Tor nousenuro rnazaruuua VVa,4c Plastic.bags can be recycled for other uses, such as plastic lumber, but only a small percentage is actually recycled. Estimates of the recycle rate range from 3% (per CAW) to 9% from the US Environmental Protection Agency (EPA) of the 14 billion plastic bags distributed annually in California. The rest end up in landfills or as litter on land or in the ocean. 7 California 2008 Statewide Waste Characterization Study http•/hv%vu calrecvcie ca.t,ov/Publications/Documents/General%5C2009023.pdf May 1, 2013 Marin County Civil Grand Jury Page 5 of 20 Holding the Bag The concerns most often cited by local goveriunents as reasons to restrict or ban plastic bags are discussed below. Reasons given by governmental bodies for adopting restrictions: ■ Harm to wildlife Plastic bags are now ubiquitous in our environment, and strangle, choke and kill animals both on land and in water. Plastic bags are one of the most common debris item found on beaches, according to the Ocean Conservancy. Durirfgthe 2009 International Coastal Cleanup Day, 1,126,774 plastic bags were pied p on ocean beaches worldwide. Planet Ark, an international environmental group, estimated of wdwide, 100,000 whales, seals, turtles and other marine animals are fled each year by consuming plastic garbage. Plastic bags still containing foo~ swill attract animals, and many will eat the plastic along with the waste foods Plastics cannot be broken down by the stomach, so they can build up insicTe the~animl al and give a false sense of fullness, leading to malnutrition and' deathj"b arvation. Animals can also choke to death if the plastic blocks their aM. ow, ^ In 2011, the death of a whale in PuertoAic'o;- was blamed on plastic bag un of plastic in the whale's stomach pollution8. Biologists found over l o V and believed the plastic caused R e anunal to die of starvation or malnutrition. j., Plastic bags are the fifth most common debris item found. on beaches. 8 News Review article dated 5/26/2011 http://w,.vw.newsreN,ie%N,.com/chico/plastic-baes-threaten- whales/content?oid=2148890 May 1, 2013 Marin County Civil Grand Jury Page 6 of 20 Holding the Bag w Litter of i land and in the ocean Marine litter poses environmental, economic, health, and aesthetic problems globally. Most marine litter has a very slow rate of decomposition, leading to a gradual, but significant accumulation in the coastal and marine environment. "Marine litter is symptomatic of a wider malaise: namely, the wasteful use and persistent poor- management of natural resources. The plastic bags, bottles, and other debris piling up in the oceans and seas could be dramatically reduced by improved waste reduction, waste management and recycling initiatives, " said Achim Steiner, Executive Director of the United Nations Environment ~oProgramme. "Some of the litter, like thin film single-use plastic bags;--which choke marine life, should be banned or phased out rapidly everywheYe-thee re ` s simply zero justification for manufacturing them anymore, anywhere.} % . According to infonnation provided by the National Oceanic; an&A'tmospheric Administration (NOAA), plastic comprises the vast mason Hof marine debris. Scientists have collected up to 1.9 million bits of pla ~jt c'v per-square mile of the Great Pacific Garbage Patch. (The Great Pacific,, "age Patch, also known as • 5tiE Ww, the North Pacific Gyre, is a swirling sea of plastic ba'Ygs, bottles and other debris that is trapped in the central North Pacf c ,Ocea by the vortex of ocean currents.) 1 100 times over environmental ice of plastic waste scientific voyage to 9 Scripps Institute of Oceanography, Scripps News, June 30, 2011 http1iscrippsnews.ucsd.edu/Releases/?releaseID=1174 10 For information about the North Pacific Gyre, see Charles Moore article titled "Trashed -Across the Pacific Ocean, Plastics, Plastics, Everywhere" in Natural History v.112, n.9, Nov03 http://ww« mindfully orp-/Plastic/Ocean/Moore-Trashed- PacificNov03.htm May 1, 2013 Marin County Civil Grand Jury Page 7 of 20 Holding the Bag lit a November 2008 report,' l the California Ocean ProtecLion Council (OPC) stated that 80% of the ocean litter problem comes from land based sources and that the majority of ocean litter is composed of plastic. OPC calls for actions to prevent and control ocean litter. One of the four Priority Actions in the report, Priority Action #2, calls for a fee on or the prohibition of single-use products such as single-use plastic bags and other packaging where a more feasible and less damaging alternative is available. Plastic bag use is now so prolific around the world that the bags have become a major source of litter. Plastic bags blowing around streets in China were so '.,Qgs 12 Ad* ithe a common they earned the name "white pollution. And in South A littering the countryside are called national flowers." In some African eas, people are even "harvesting" the plastic bags to make bags, hasand-wother crafts. n♦ nr , SPlas1l bags have been one of the top F iibms collected on California Coastal ACieanup Day. t~. { Lt-,West Coast cities spend $13 per resident to combat and f which would otherwise end up as marine debris .13 For cost to protect our waters from litter is over $412 million 11 An lmplementation Strategy for the California Ocean Protection Council Resolution to Reduce and Prevent Ocean Litter h p iw.vw opc ca gov/webmast /ftP/Pdf/opc ocean litter final strateey,pdf 12 China banned free plastic shopping bags and called for a return to cloth bags two months before the 2008 Beijing Summer Olympic Games. According to a government official with the China's National Development and Reform Commission, after four years of the ban, the nation had saved 4.8 million tons of oil. 13 11 The Cost to West Coast Communities of Dealing with Trash, Reducing Marine Debris," prepared for the US EPA, September 2012 14 CAW, The Problem of Plastic Bags http:/iwww.cawrecvcles.org/issues/plastic campaigrUplastic bags/problem Page 8 Of 20 May 1, 2013 Marin County Civil Grand Jury Holding the Bag Between 8% and 25% of the litter is attributable to plastic baby alulic, acculuitl~ to clean up data from San Jose and Los Angeles County. Based on this information, an estimated $33 million to $103 million is spent each year to manage plastic bag litter in our state. Moreover, cities and other recyclers spend an exorbitant amount of time and money removing plastic bags from their recyclables stream. Plastic bags often jam recycling machinery, thus adding to the manual labor costs of recycling. After estimated losses of $1 million each year for plastic-bag related repairs to machinery in their recycling facility, the City of San Jose no longer collects- single-use plastic bags at curbside. And in early 2013, it was reported that workers in Sacramento's waste transfer station shut down their machinery multiple times a day to remove bags clogging the conveyors.l50 a. Depletion of natural resources The most common plastic bags are made from polyethylenL_-oThis material is made from chide oil and natural gas, both non-renewable.. esources. The on of diminishing manufacture of plastic bags contributes to our.con`~um.Dr natural resources and to ongoing damage to the,envi ornment from petroleum N.f extraction. It takes the equivalent of 12 million bafrYels-offoil to produce the estimated 100 6 billion plastic shopping bags the US"uses per year.' Reducing plastic bag production means reducing our dependence on petroleum. C ; J The free rider problem A free rider is a party w-ho enjoys a benefit earned from a collective effort, but who contributes little or nothing to =the effort. A ban enacted by one local government but not enacted by surrounding areas can attract lawsuits and negative publicity to that community. And.'i surrounding areas keep a stream of plastic flowing, a free-rider -Y. r problem is created in _which the community enacting the ban pays for the environmental benefits-while other neighboring communities enjoy the benefits at no cost. The California Grocers Association cautions that some cities with bans have experience a loss ofgrocery business when neighboring communities do not have bans. "When we do see stores that are close to these jurisdictional lines, we are seeing consumers flock to the non-regulated stores, " said Tim James, the association's manager of local government relations. The president and chief executive of the California Grocers Association, Ron 15 The Sacramento Bee article, "Plastic bag ban could be in Sacramento's future," dated February 9, 2013 16 These figures are widely quoted and can be found on many websites. Two examples are: (1) Facts About the Plastic Bag Pandemic at http•/hvw-%v reuseit.com/learn-more/top-facts/plastic-bae-facts and (2) The Energy Consumed to Use Paper and Plastic Bags at http•//ezinearticles com/?The-Fnergv-Consumed-to-Use-Paper-and-Plastic-BaLs&id=1601578 May 1, 2013 Marin County Civil Grand Jury Page 9 of 20 Holding the Bag Fong, was quoted in a 2/22/13 Los Angeles 'fiines article as supporting statewide regulation of carry-out bags. "Our industry supports efforts to achieve a statewide solution to single-use carry-out bag regulation in California, " Fong said. "With a patchwork of more than 60 local ordinances, compliance becomes a challenge for grocery retailers, and consumers become confused about their options at the check stand. " Many local governments would like a unified regulation of plastic carry-out bags that applies the same rules to all of California. However, attempts to ban or reduce plastic bags on a statewide level have been met with opposition from the Save the Plastic' a Coalition and the American Chemistry Council (ACC). Despairing of a solutiomany local communities are acting independently. Comparison of bag alternatives There are alternatives to single-use plastic bags. This section of the,re~gort compares the pros and cons of single-use plastic bags with these alternativeg ~t 14 Y Single-use plastic bags are made from nonrenewa e~res~o .urces such as petroleum and natural gas, and provide an inexpensive, lightweight, andconvenient way to carry goods. Plastic bags do not biodegrade, but photodegrfade Mint Microscopic granules when exposed to ultraviolet radiation from the sun. Scienfists are not sure if these granules ever degrade fully into carbon dioxide Water=d inorganic molecules (a process called mineralization). Based on research- ti date, plastic bags do not mineralize in the ocean but instead break down into smaller an'Ismaller pieces. Some scientists fear that the buildup of such particles in marine and terrestrials environments will lead to an infiltration of toxic plastic partic Mies into every step of the food chain. Plastic bags can be redycleaj,and!materials from post-consumer plastic bags and product t. Many plastic bags become litter. Their light weight makes them often land in trees or waterways. May 1, 2013 Marin County Civil Grand Jury Page 10 of 20 Holding the Bag wi-aps are used to make lumb.-Ii- 161- backyard diCChs and tenc(~5, idWil ~tlldl aaIuL~11 PIULtl.1L~Lb, pallets, crates, containers, piping, automotive applications and new plastic bags. The recycling process mandates the exclusive use of dry, clean, and empty bags, and any bag exposed to food cannot be recycled. Some plastic bags are recycled, but most ultimately end up in landfills or as litter on land and waterways. The ACC, one of the major proponents of plastic bag manufacture and use, recently reported an increase in plastic bag recycling of 27% in 2010 over 2009.17 But this figure is dwarfed by the EPA's reported 220 million pound growth in plastic bag generation during the same period.' g Exhibit 2 RATE OF PLASTICS GENERATION EXCEEDS RATE OF RECOVERY< 4 Frorn Municipal Solid Waste Generation;.Recycling, and Disposal in the United States (Tables and Figures for 2090 The cost of energy,lto recycle plastic bags is more than the value of the recycled bag and is also more than the-cost of making new bags. It costs roughly $4,000 to process and recycle one ton ofq)lastic bags, which can then be sold for only $32 on the commodities market.'19 Also a -plastic bags are melted down for re-casting, the polymer chains often bred eadi . to a lower quality plastic. When high cost and low quality outcomes are 17 2010 National Postconsumer Plastic Bag and Film Recycling Report, prepared by Moore Recycling Associates Inc. for the American Chemistry Council January 2012. 18 EPA Municipal Solid Waste Generation, Recycling, and Disposal in the United States, Tables and Figures for 2010 Office of Resource Conservation and Recovery, November 2011 19 Clean Air Council, Waste and Recycling Facts http•//w.vw.cieanair.orJWaste/wasteFacts.litmi May 1, 2013 Marin County Civil Grand Jury Page 11 of 20 Holding the Bag added to other problems associated with the recycling process, -such as the teridency oI- plastic bags to jam machinery, recycling plastic bags becomes even less desirable. Biodegradable plastic bags are often made from farm products like cornstarch, which will break down relatively quickly under the right conditions,. To meet international standards, bags must compost within 12 weeks and fully biodegrade within 6 months. According to the Biodegradable Plastics Society, when these plastics are composted, they break down into water and carbon dioxide. However, independent research is needed to confirm whether this is true under all environmental conditions. It is possible that biodegradable plastics do not break down fully, especially unde conditions that are not ideal for composting and leave non-degradable constituents, ome of which may be equally, if not more, hazardous.20 And, as noted in study s onsored by the United Nations Environment Programme (UNEP), developing " Ilitteendly" materials will send the wrong signal to people, and go against effortsohange behaviors. "If contaminating the environment with 'litter friendly rite is considered acceptable, it will be difficult to draw the line and accomplish anyl,consistent change in attitude and behavior. i21 Biodegradable bags are costl' to produce and are not suitable n for recycling. x• Compostable bags are very similar to biodegradh '6.,b gs but "greener." For plastic to be considered compostable, it must be able to brown into carbon dioxide, water and biomass at the same rate as paper. It should oohke compost, should not produce any toxic material and should be lani life. Compostable plastic (also called able to support p ` " " bioplastic) is made from plant materials such as corn, potato, cellulose, soy and sugar. Vla One of the problems involved with creatingbioplastics is the amount of energy needed in production, which is more than Wat is necessary to create an equivalent petroleum based plastic product. Compostable b s,~three to six time more than "traditional" plastic bags. Three times the awma~]tenals are used to produce a truly compostable bag (one " 22 t that biodegrades in compost)? Also, the rate at which bioplastics break down is too fast to be included with the plastics sold to the recycling market, and too slow to be considered suitabl`for composting. Reusable bags are made from renewable materials, and conserve resources by rte. replacing paperzand plastic bags. Such reusable bags are convenient and come in a van- 6ty~ofsrzes, styles and materials. The average reusable bag has a lifespan equivalent to using seven hundred disposable plastic bags. Over an average lifetime, use of reusable bags by dust one person would save over 22,000 plastic bags. 20 Plastic Debris in the World's Oceans GREENPEACE 21 Page 8 Marine Litter An Analytical Overview, 2005 2005 United Nations Environment Programme 22 Biodegradable Bags Confuse the Public, February 2008 at http /hvww icis com/Articles/2008/02/1 1/9099296/biodeeradable-plastics-confuse-the-pubiic.html May 1, 2013 Marin County Civil Grand Jury Page 12 of 20 Holding the Bag Paper bags, which many people consider a better alterilativc to plastic uab~, rcbull i11 their own set of environmental problems. For example, according to the American Forest & Paper Association, the U.S. alone uses around 10 billion paper grocery bags each year, representing a lot of trees. 23 The plastic industry maintains that plastic bags are better for the environment than paper bags. And this appears to be partly true. We are no better off (and may actually be worse off) using paper bags rather than plastic ones. According to the EPA, (1) paper bags are more likely to be recycled (nationwide, about 20% of paper bags are recycled, compared to about 9% of plastic bags24), and (2) the trees from which paper bags are made, are a renewable resource, whereas plastic bags are made from non-renewable resources w. However, 4 ■ Paper bags take up more landfill space (2,000 plastic bagsweig`h.:ust 30 pounds, whereas 2,000 paper bags weight 280 pounds) Paper bags in landfills do not break down much faster,~t ih~olastic bags (because they're not exposed to water, light, }oxygen and'other elements that they need to biodegrade) .25 :a,4 ■ It takes more than 4 times as much energy to manufacture a paper bag as it f . does a plastic bag 26 ■ It takes 98 percent less energy to recycle pound of plastic than it takes to recycle a pound of paper. 27 The manufacture and distributiori,:of paper bags generate 70 percent more air pollution and 50 times more water pollutants than plastic bags.28 Therefore, it is not necessarily better to switch from plastic bags to ~a paper ones. Paper bags ~still ;accoNt1for a huge amount of wasted energy and excess refu`se., ,s 23 77 This figui e is`att bated to the American Forest & Paper Association (AF&PA). Current data from the AF&PA is difficult to find, as the`AF&PA is interested in promoting its recycling success to the public over its production figures. _f 24 EPA data Ifrom article "Paper Grocery Bags Require More Energy Than Plastic Bags", The Reason Foundation 2008 25 Paper or Plastic? More than Meets the Eye, Washington Post 2007 26 Ibid 21 Ibid 2E Comparison of the Effects on the Environment of Polyethylene and Paper Carrier Bags," Federal Office of the Environment, August 1988 May 1, 2013 Marin County Civil Grand Jury Page 13 of 20 Holding the Bag Neither paper nor plastic Is it better to use paper or plastic? The best answer is neither. Both paper and plastic bags come at a cost to the environment. The production, shipping and disposal of both kinds of bags contribute to resource depletion and the pollution of land and water. Both paper and plastic bags use up a lot of energy and a lot of natural resources. Proper recycling of both requires attention and diligence from consumers, waste collectors, and recycling companies. The potential for lack of interest, knowledge, or attention by any party along the recycling route, creates many potential barriers that can lead to low recycling rates. In our opinion, the best alternative is the combination of reusable bags6)and Eeduca~tion. Many organizations have created educational materials about the problems created by plastic bags as well as possible solutions. Just a few examples are web'sitekand publications by the Smithsonian,29 UNEP,30 and JPA.31 Marin goxerrn-mental agencies can find solid, reliable information to assist them to educate anoden ourage the public to stop using carry-out plastic bags and start using cloth or oth er reusable bags. Most of the recent bag ban ordinances in California ban carry-out ~p"lastlc'ibags and charge a fee for paper bags. This encourages reusable bags and reduces otal number of single-use carry-out bags provided. By choosing reusable. bags „consumers can save thousands of plastic or paper bags. Education is vital. In 20`7:City of San Rafael conducted a survey of local merchants to obtain feedback on-a potential citywide ban on single-use carry-out bags. Opinions were mixed hfslgh~y more in support than in opposition toward the idea of the ban. Some ob -e tlions against a ban were actually objections against governmental regulations. Too`much `Big Brother'. " "...How can the city tell you what to charge for?" "Too much government intervention on trivial things.' Fix A part of the solution to arglobal problem Plastic bags are dust one`$a kb a larger problem. A very low percentage of the products s we buy are still in use 6 pm--onths after purchase. Even though California's local governments haveamade extensive recycling efforts to reach our current 58% )version rate, state residents still sent about the same amount of waste to the landfill in 2009 as they di19.90 -`40 million tons. 29 Smithsonian National Museum of Natural History http://occan.si.edu/conservaLion/pollution 30 United Nations Environment Programme h //-,vww unep org/regionalseas/mar-inelitter/publications/default.a p 31 Marin JPA, ZEROWASTEMARIN http://zerowastemarin.org/take-a-challeniEe/ 32 City of San Rafael Staff Report for March 5, 2012 Study Session on Single-Use Plastics: Analysis of Alterative Approaches to Eliminating Single-use Plastics May 1, 2013 Marin County Civil Grand Jury Page 14 of 20 Holding the Bag T11e Grand Jury recognizes tllat action is reduircd at the local lcvei tilroubh Lilt auop-Lloij of a Zero Waste Strategy that aims to progressively reduce all waste streams. The ultimate end goal of such a strategy is to have no material discarded. Fundamental components would include a program of waste reduction, reuse and recycling as well as a call for producer responsibility. The best solution is to prevent waste from being generated in the first place unless it can be reused or recycled. Widespread adoption of the Zero Waste Strategy would contribute to ongoing reductions of all garbage, including plastics. Hawaii is the first state in the nation to have a statewide ban on plastic bags at ch~ckout. When the Honolulu County Council approved a ban in 2011, it joined its neighborsland counties, and made Hawaii the only state where every county has plastic balegfslation. Supporters of the Hawaiian ban believe that Hawaii may be more directly exposed to the impacts of plastic pollution and the damage it does to the environment; as~the islands are in an accumulation area for marine debris from sources across the,.greRerPacific Ocean. ing in California? is What is happen Virtually every California municipality adopting a bag bawassued or threatened with litigation by groups related to the plastic bag >ndustry'(prlmanly, the Save the Plastic Bag Coalition). The lawsuits were brought by the groupsin the "public interest" - arguing that the municipality is required to complete an EIRqNund_er the California Environmental Quality Act (CEQA) before a plastic bag ban canbe enacted. These suits delayed the enactment of bans as well as intimidaated~o al~municipalities. Because EIRs are often prohibitively expensive, the suits effectively eliminated many local plastic bag bans. San Francisco In 2007, San Francisco enacted the Plastic Bag Reduction Ordinance ~t (Ordinance), which became the°nation's first ban on non-compostable carry-out plastic bags in large supermarkets dM` ' harlmacies.33 The Ordinance was expanded in October 2012 to ban plastic bags at `all.retail stores and impose a 10-cent fee for each bag provided to customers." (Restaurants, bakeries, and take-out establishments are included in the Ordinance,beginningOctober 2013.) The Ordinance is citywide and covers any retail establishmeritlocated within the geographical limits of the City and County o an Francisco. Adoption_of~~theOrdinance expansion followed close on the heels of a September 2012 ruling .by Superior Court Judge Ten Jackson upholding it. Judge Jackson rejected the Save the:Plastic Bag Coalition's argument that a full EIR was required prior to adoption of the Ordinance. There are ongoing issues concerning the Ordinance, including a lack of uniformity with the law due to permissible exceptions such as packaging for dry cleaning, bulk candy and "doggy bags" used to take home leftover food at restaurants. State California state law preempts municipalities from charging a fee for plastic bags at checkout, leaving local governments attempting to stop the overflow of plastic bags no 33 San Francisco Environment Code, Chapter 17: Plastic Bag Reduction Ordinance, Sections 1701-1709 May 1, 2013 Marin County Civil Grand Jury Page 15 of 20 Holding the Bag alternative other than to ban the bags outright. Most govermuental agencies within California express a preference for a statewide ban over enacting separate local legislation. California has backed away from taking the lead in this issue, but there are several current proposals before the legislature that may help lead to a statewide reduction in plastic bag use. In January 2013, Assemblyman .Marc Levine, D-San Rafael, announced a proposal to ban all single-use plastic bags in California grocery stores. Levine's proposal, AB 158, revives a similar proposal that passed the Assembly in 2010 but failed in the Senate. State Senator Alex Padilla, D-Pacoima, has introduced legislation that would prohlbt large retail stores throughout California from providing single-use carry-out bagstto ~r customers, starting in 2015. Starting in July 2016, the ban would extend to con enience food stores, food marts and other smaller businesses under SB 405. SB 529, introduced in February 2013 byoS~tateSenator Mark Another legislative proposal, Leno, D-San Francisco, would prohibit fast food facilities from dist~nbut ng disposable food packaging or single-use bags to customers on and after July X201;6. What is happening in Marin?t' Both Fairfax and the unincorporated area of Marinty, have approved plastic bag ptio p bans. Other cities and towns are exploring the iI V, Fairfax The Town of Fairfax adopted a plasfag ban in August 2007. A group that called itself the North Bay Coalition toWSupp rtPlastic Bag Recycling (NBCSPR) sued the town. Fairfax circumvented CEQA: requirements by adopting a ban via voter initiative in November 2008. Nor/ Marin County On January 254_20, the Board of Supervisors (BOS) approved an ordinance banning plastic bag`di~stribution in the unincorporated areas of the County. The ban applies to most gr0,cery stores, pharmacies and convenience stores and requires a fee of five cents for paper bags.r,The County's ordinance was adopted with a categorical exemption underQEQA, finding that it would have no environmental impact. Litigation was filed against theounty's action, with the County prevailing in Superior Court, but the case s curr"ren ly under appeal. the Joint Powers Agency (JPA) is JP,AI.n lanyeffort to promote consistency countywide d e oiling a model ordinance for single use bags that can be used (and modified to fit, if desired)by each city and town in Marin. The current schedule indicates that the Ordinance will be available in late 2013. Adoption of the Ordinance opens the possibility for the entire County to be on the same playing field. The JPA will also prepare a California Environmental Quality Act (CEQA) document to address the impacts of the Ordinance. The JPA anticipates that the Ordinance will: ■ Apply to all retail establishments, including grocery stores, department stores, retail businesses and convenience stores, but not to restaurants. May 1, 2013 Marin County Civil Grand Jury Page 16 of 20 Holding the Bag Prohibit the distribution of single-use carry-out plastic bags. ■ Place a fee on carry-out paper bags to be charged to the customer. ■ Allow for some variation in local interpretation, since each member agency may wish to customize the Ordinance for its community. ■ Be considered by 10 of the 12 members of the JPA (excluding Marin County and the City of Fairfax as these members have existing bag ordinances in effect). Other Marin Cities and Towns The Grand Jury contacted all JPA members to`firid out what each was doing or planned to do regarding reduction of waste due to single use"or throw-away bags. A majority responded that they will consider and pfobaby `enact a A, 'jk single-use bag ordinance based on the JPA Ordinance. Exhibit 3 below"'lsts each Marin County agency and briefly shows what action each plans for adoption Hof aan on single- 1v'Y. use carry-out bag. Exhibit 3 CURRENT AND FUTURE BAG ORDINANCES IN'MARIN'COUNTY AGENCY ORDINANCE FUTURE PLANS REGARDING SINGLE-USE BAGS IN PLACE? Unincorporated YES Helping fund the JPA Ordinance MAR/Iv-COUNTY ; - - was. hadplasticbaog~ban since January 2012 FAIRFAX YES Has had:Piastic%ag ban:smce May 2009 ~ BELVEDERE NO None CORTE NO JPA model=once completed 5 MADERA Staff "anticipate presenting an ordinance to the Larkspur Council that is similar LARKSPUR NO . to the one, adopted b the.County"- Ban"AFTER lawsuit is resolved; working with JPA on model; watching Levine's MILL VALLEY i NO) 4~Staie efforts NOVATO NO,' -Wlllparticipate`in JPA Model Ban. ROSS NO` . N~ Has only one store in Ross and plans no plastic bags policy SAN ANSELMO NO Expects to participate in,JPA's model single use bag project * Will adopt ordinance similar or same as JPA Ordinance SAN RAFAEL -!TNO WOULD LIKE A STATEWIDE SOLUTION i SAUSALI.TO NO Expects to participate in the JPA,Ordinance,:- TIB URON NO Town Council may revisit the issue once JPA Ordinance is available The Grand Jury strongly supports the adoption of an ordinance to ban single-use plastic carry-out bags that will apply to all establishments of all sizes across all areas of Marin County. May 1. 2013 Marin County Civil Grand Jury Page 17 of 20 Holding the Bag FINDINGS Fl. Single-use plastic carry-out bags cause harm to the environment and wildlife. F2. Reduction or ban of single-use plastic carry-out bags will help Marin County reach its zero waste goal. F3. Reduction or ban of single-use plastic carry-out bags will help keep the land and waters of the County cleaner. F4. Most Marin County governments do not currently have bans against single-u~sef* plastic carry-out bags. However, most are responsive to enacting policies against.. { single-use plastic carry-out bags. ` RECOMMENDATIONS= The Grand Jury recommends that: The Marin Hazardous and Solid Waste Joint Powers Auhon" (JPA) prepare the Rl. Model Single-Use Bag Ordinance to implemeiit.th stric'es rules possible and encourage all agencies to adopt the Ordinance with minimal changes. A ban on single-use plastic carry-out bags should b~` p posedM., all grocery stores, convenience stores, pharmacies and restaurants within the County and apply to all establishments, no matter how large or mall. v R2. Marin County and The Marin Hazardous=and Solid Waste Joint Powers Authority (JPA) Members educate the pubxlc' on the benefits of reusable bags. Marin County and Marin County and The ~Marin Hazardous and Solid Waste Joint Powers Authority (JPA) Membersdevelop standardized educational guides for all public schools showing the n- onmental harm done by plastic single-use carry-out bags. i.A . Marin County aA Thr Manni YHazardous and Solid Waste Joint Powers Authority (JPA) Members (I VelopAucational materials and distribute them at public events such as farmers' markefs and street fairs. R3. Marin Townsand Cities adopt an ordinance to ban all single-use plastic carry-out " bags using the Model Single-Use Bag Ordinance with minimal, or no, changes, in order, toc,,reale a true County-wide ordinance. , REQUEST FOR RESPONSES Pursuant to Penal code section 933.05, the grand jury requests responses as follows: From the following individuals: ■ Deputy Director, Department of Public Works-Waste Management Division to All Findings and Recommendations May 1, 2013 Marin County Civil Grand Jury Page 18 of 20 Holding the Bag W progra111 Manaoel Depa1'Lrneni of f'ubl1G iiSlC iviU11~1gC111L11L Div1s1U1l LU All Findings and Recommendations From the following governing bodies: ■ Marin County Environmental Health Services to all Findings and Recommendations ■ Marin County Board of Supervisors to all Findings and Recommendations ■ The Marin Hazardous and Solid Waste Joint Powers Authority (JPA) to all Findings and Recommendations f~y? ■ City of San Rafael to all Findings and Recommendations ■ Town of Ross to all Findings and Recommendations ■ City of Larkspur to all Findings and Recommendations }-t ■ City of Sausalito to all Findings and Recommendations ■ Town of Tiburon to all Findings and Recorninendationi" ■ City of Belvedere to all Findings and Recommendatio s*- ■ City of Novato to all Findings and Recommendations ■ Town of Corte Madera to all Findings and Recommendations ■ City of Mill Valley to all Findings and Recommendations ■ Town of San Anselmo to all_Finduigs and Recommendations The governing bodies indicatedial3ove should be aware that the comment or response of the governing body must be conducted subject to the notice, agenda and open meeting requirements of the Bro n Act. 44 BIBLIOGRAPHY aste (CAW) Californians Agams- t"W http://wW,w.cawrecvcles.org/ California Coastal Commission h~. California 2008 Statewide Waste Characterization Study Produced by Cascadia Consulting Group under contract with CA Integrated Waste Management Board http://www calrecycle ca gov/Publications/Documents/General%5C2009023.-odf http://www.calrecycle.ca.c,ov/ Cons of Using Plastic Bags June 5, 2010 by A,L, Kennedy, LivestrontD com May 1, 2013 Marin County Civil Grand Jury Page 19 of 20 Holding the Bag Earth Resource Foundation http://earthresource.org/ EPA Municipal Solid Waste Generation, Recycling, and Disposal in the United States Tables and Figures for 2010, U.S. Environmental Protection Agency, Office of Resource Conservation and Recovery November 2011 An Implementation Strategy for the California Ocean Protection Council Resolution to Reduce and Prevent Ocean Litter, Prepared by: California Ocean Protection Council in consultation with California Marine Debris Steering Committee and Gordon Environmental Consulting, November 20, 2008= ` http`.//www.opc.ca.Qov/webmaster/ftp/pdf/opc ocean litter final stratc-Q-y.pdf ' JPA website and Final Draft Zero Waste Feasibility Study, Marin Couen~tyMazardous and Solid Waste Management JPA, Presented by R3 Consulting Group;December 2009 http //www marinrecycles.orrg/ 1:y Marine Litter, A Global Challenge, UNEP April 2009 ,•j~. h ://www.une .ors/re ionalseas/marinelitt er/ ublcations/docs/Marine Litter A Glob; 1 ChallenQe.pdf h, UNEP(200 Marie Litter, An Analytical Overview, df http://www.cobsea.oriz/doc muents/Ma tier%20Analvtical%200verview. 1nn 2010 National Postconsumer Plastic Bag-and Film Recycling Report Prepared by Moore Recycling Associate s`f "c. for the American Chemistry Council January 2012 w Plastic Debris in the orlds Oceans GREENPEACE m. Authors: Michelle Allso Adam-Oalters, David Santillo, and Paul Johnston http://www.unep.org/re ionalseas/marinelitter/publications/docs/plastic ocean report.p f Preliminary Study,'Wdst Coast Communities' Cost of Managing Marine Debris, EPA httn://wa,w.e rc3,/reaion9/marine-debris/pdf/WestCoastCommsCost- A Sea'Change to Change the Sea: Stopping the Spread of the Pacific Garbage Patch wit Small-Scale Environmental Legislation, William and Mary Law Review 51 (April 2010) htty://wmlawreview ora/files/CoulterNote final.pdf SEAPLEX. Scripps Institution of Oceanography at University of California, San Diego May 1, 2013 Marin County Civil Grand Jury Page 20 of 20 Holding the Bag Rcpuris issued by the Civil Lil-alld Jury du not identify indi\'iduals iiitcrvicwod. Penal Ludic 5UC11U11 i~--t.iwh L,i.l , reports of the Grand Jury not contain the name of any person or facts leading to the identity of any person who provides information to the Civil Grand Jury. f~. f1 t ~Vayr'.1 r y May 1, 2013 Marin County Civil Grand Jury Page 21 of 20 j RECEI~~. DIGEST MAY-72013- TOWN MANAGERS OFFICE COMMUNITY DEVELOPMENT AGENCY TOWN OF TIBURON ...................P.~A.N..N.I..N.G....Q.JY.1.$.I.O.N............................ COUNTY OF ARIN ,i1A NOTICE OF COMMENT DEADLINE EXTENSION FOR THE 2012.DRAFT MARIN COUNTY HOUSING ELEMENT FINAL SUPPLEMENT TO THE 2007 COUNTYWIDE PLAN FINAL ENVIRONMENTAL IMPACT REPORT NOTICE IS HEREBY GIVEN that the comment period deadline for the Final Supplement to an Environmental Impact Report (Final SEIR) for the 2012 Draft Housing Element has been extended to Friday, May 17, 2013. To maximize public involvement and accommodate interested parties who requested more time to review and comment, the County has extended the Final SEIR comment period deadline. Written comments on the Final SEIR may be hand-delivered to the Community Development Agency, NO LATER THAN 4 p.m., Thursday, May 16, 2013; however comments will be accepted until 5 p.m., Friday May 17, 2013 by email, fax or post mark. Comments should be directed to the attention of Jeremy Tejirian, Planning Manager via email to envplanning@marincounty.org, or faxed to (415) 473-7880, or mailed to 3501 Civic Center Drive, Suite 308, San Rafael, CA 94903. A hearing will be held by the Planning Commission on June 24, 2013 at the Planning Commission Chambers (Suite #328 - Administration Building) Civic Center, San Rafael, California. The subject of the hearing will be the Final Supplement to the 2007 Countywide Plan Environmental Impact Report for the 2012 Draft Marin County Housing Element (Final SEIR), project merits of the 2012 Draft Marin County Housing Element, amendments to the Countywide Plan related to housing, Zoning Map amendments and Development Code amendments related to housing, definitions, and development. The recommended Planning Commission action will be to recommend adoption of the documents to the Board of Supervisors. In lieu of hard copies, the staff reports and attachments will be available after June 14, 2013 online at www.marincounty.org/hous/nge/ement. A paper copy will also available for public review at the Community Development Agency, Planning Division Suite 308, from 8:00 am to 4:00 pm, Monday-Thursday (closed Fridays). Oral and written comments may be presented to the Planning Commission at the hearing. Written material for the Planning Commissioners should be submitted to the Community Development Agency at least ten working days prior to the meeting date. Any written material submitted after this date will be distributed to the Planning Commission prior to or at the meeting. Public comments may be directed to the Planning Commission, by email to housingelement@marincounty.org, by fax to (415) 473-7880, or mailed to the Community Development Agency at the address below. More information may be found on the County's Housing Element (www.marincounty.org/housinge/ement) or Planning Commission (http://www.marincounty.org/Planning Commission) websites. Written material should not be mailed or delivered directly to Planning Commissioners because it will not be accepted or considered as part of the administrative record for the project. There will be additional opportunities to comment on the Final SEIR, the 2012 Draft Housing Element, Marin Countywide Plan Amendments, Zoning Map Amendments and Marin County Development Code Amendments. Following the Planning Commission's recommendation, the Board of Supervisors will consider the adoption of these documents on a date to be noticed in the future. Subscribe to the Marin County Housing Element web page to receive email notices and updates by visiting www.marincounty. org/housingelement. 5/6/2013 Jere ejirian, Planning Manager WE 7 - W I Ph Late agenda material can be inspected in the Community Development Agency between the hours of 8:00 a.m. to 4:00 p.m. Monday through Thursday. The Community Development Agency is located in Suite 308 Marin County Civic Center, 3501 Civic Center Drive, San Rafael. The Planning Commission Chambers is accessible to persons with disabilities. If you require American Sign Language interpreters, assistive listening devices, or if you require this document in an alternate format (example: Braille, Large Print, Audiotape, CD-ROM), or if you require other accommodations to participate in this meeting, you may request them by calling (415) 473-2255 (voice/TTY) or 711 for the California Relay Service or e-mailing disabilitvaccess(a)marincountv.org at least four working days in advance of the event. 3501 Civic Center Drve • Suite 308 • Son Rafoel, CA 94403.4157.415 473 6269 T . 415 473 7880 F . 415 473 2255 TTY . www.marincouny.org/plan Steven M. Woodside INTERIM COUNTY COUNSEL Jack F. Govi ASSISTANT COUNTY COUNSEL Mari-Ann G. Rivers Renee Giacomini Brewer David L. Zaltsman Michele Keno Nancy Stuart Grisham Jennifer M. W. Vuillermet Patrick M. K. Richardson Thomas F. Lyons Stephen R. Raab Steven M. Perl Sheila Shah Lichtblau Edward J. Kiernan Jessica Mills Sutherland Brian C. Case DEPUTIES Jeanine Michaels ADMINISTRATIVE ASSISTANT Marin County Civic Center 3501 Civic Center Drive Suite 275 San Rafael, CA 94903 415 473 61 17T 415 473 3796 F 415 473 2226 TTY www.marincounty.org/cl RECEIVED D,T • C .L- OFFICE OF THE COUNTY N T.Y... C.O.U..N.S.E. L. w ~ I 013 April 30, 2013 TOWN n1ANAGEl-' OFFICEP, TOWN OF T IBURON Town of Tiburon Margaret Curran, Town Manager 1505 Tiburon Blvd. Tiburon, CA 94920 Re: Verizon California, Inc. v. State Board of Equalization et al. Sacramento Superior Court Case No. 34-2013-00138191 Dear Ms. Curran: I am writing to notify you that a lawsuit has been filed by Verizon California, Inc. against the State Board of Equalization and 38 counties, including the County of Marin, pursuant to Revenue and Taxation Code section 5148. Section 5148 requires that the County provide written notice of the action to the cities on whose behalf it collects taxes, and allows for a city to intervene in the action if it so chooses. The original complaint was served on the State Board of Equalization on April 8, 2013 by Notice and Acknowledgment of Receipt. A copy of the amended complaint is enclosed. I will be handling the case for the County. Should you have any questions about this matter, please contact me at (415) 473-6117 Yours truly, STEVEN M. WOODSIDE INTERIM COUNTY COUNSEL By: 4 ~ Sheila . ichtblau, Deputy Enclosure(s): Complaint 56236.doc SUM-100 SUMMONS FOR COURT USE ONL Y (CI TA CION JUDICIAL) (SOLO PARA USO OE LA CORRE) I NOTICE TO DEFENDANT: (AVfSO AL DEMANDADO): CALIFORNIA STATE BOARD OF EQUALIZATION; COUNTY OF ALPINE; COUNTY OF CALAVERAS; COUNTY OF DEL NORTE; COUNTY OF FRESNO; [Additional Parties Attachment form is attached]. YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTE): VERIZON CALIFORNIA INC., a Califomia corporation, NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help Center (wwv.courtinfo_cagov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the fling fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifornia.org), the California Courts Online Self-Help Center (www.coudinf6.ca.gov/seffhe1p), or by contacting your local court or county bar association. NOTE: The court has a statutory Gen for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. iAV1SO! Lo han dernandado. Si no responde dentro de 30 dias, la torte puede decidir en su contra sin escuchar su version. Lea la information a continuation. Tiene 30 DiAS DE CALENDARiO despues de que le enlreguen esta citation y papeles legates para presentar Una respuesta por escrito en esta toile y hacer que se, entregue una copia al demandante. Una Carta o una llamada telefonica no la protegen. Su respuesta por escrito tene que estar en formato legal correcto si desea que procesen su caso en la come. Es posible que haya un formulario que usted pueda usar pares su respuesta. Puede encontrar estos formutarios de la torte y mess information en et Centro de Ayuda de las Cones de California (www.sucorte.ca.gov), en la biblioteca de leyes de su condado o en la corle que le quede mess cerca. Si no puede pagar la cuota de presentation, pida al secretario de la Corte que le de un formulario de exencion de pago de cuotas. Si no presenta su respuesta a tiempo, puede perder el caso por incumplimiento y la Corte le podrJ quitar su sueldo, dinero y bienes sin mess advertencia. Hay otros requisitos legates. Es recomendable que !lame a un abogado inmediatamente. Si no conoce a un abogado, puede l/amar a un servicio de rernision a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisitos para obtener servicios legales gratuitos de un programa de servicios legales sin fines de lucre. Puede encontrar estos grouos sin fines de lucro en el sitio web de California Legal Services, (www.lawhelpealifomia.org), en el Centro de Ayuda de tas Cories de California, (www.sucorte.ca.gov) o poniendose en contacto con la Corte o e1 colegio de abogados locales. A VISO: Por ley, la Corte tiene derecho a reclamar las cuotas y los costos exentos por imponer un gravamen sobre cualquier recuperation de $10,000 o mos de valor recibida mediante un acuerdo o una concesion de arbitraje en un caso de derecho civil. Tiene que pagar el gravamen de la torte antes de que la torte pueda desechar el caso. The name and address of the court is: CASE NUMBER: (El nombre y direction de la carte es): (Numero del caso): Sacramento County Superior Court 720 9°' Street Sacramento, California 95814 (915) 874-5744 The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (El riombre, la direction y el n6mero de telefono del abogado del demandante, a del demandante que no terse abogado, es): Carla Christofferson, SB# 161111, O'Melveny & Myers LLP (213) 430-6000 400 S. Hope Street Los Angeles, California 90071-2899 ~CA~~ DATE: 2013 Clerk, by Deputy (Fecha) FEB D (Secretario) (Adjunto) (For proof of service of this summons, use Proof of Service of Summons (form POS-010).) (Para prueba de entrega de esta citation use el formulario Proof of Service of Summons 1POS-010)) [SEAL) NOTICE TO THE PERSON SERVED: You are served 1. ❑ as an individual defendant. 2. ❑ as the person sued under the fictitious name of (specify): ❑ on behalf of (specify): under: ❑ CCP 416.10 (corporation) EJ CCP 416.60 (minor) ❑ CCP 416.20 (defunct corporation) ❑ CCP 416.70 (conservatee) ❑ CCP 416.40 (association or partnership) ❑ CCP 416.90 (authorized person) ❑ other (specify): ❑ by personal delivery on (date): Pa e1of1 Form Adopted for Fof Califoforyrnia Use Judicial Council of Cal SUMMONS Code of Civil Procedure 412.20, 465 ~=efican LegalNet, Inc. SUM-100 [Rev. July 1. 2009) w.FormsWorkPow.com -w-courFinlo.ca.gov SUM-200(A) SHORT TITLE: CASE NUMBER: Verizon California v State Board of Equalization, et al. INSTRUCTIONS FOR USE This form may be used as an attachment to any summons if space does not permit the listing of all parties on the summons. If this attachment is used, insert the following statement in the plaintiff or defendant box on the summons: "Additional Parties Attachment form is attached." List additional parties (Check only one box. Use a separate page for each type of party.): ❑ Plaintiff ® Defendant ❑ Cross-Complainant ❑ Cross-Defendant COUNTY OF HUMBOLDT; COUNTY OF IMPERIAL; COUNTY OF INYO; COUNTY OF KERN; COUNTY OF KINGS; COUNTY OF LAKE; COUNTY OF LOS ANGELES; COUNTY OF MADERA- COUNTY OF MARIN; COUNTY OF MENDOCINO; COUNTY OF MERCED; COUNTY OF MONO, COUNTY OF MONTEREY; COUNTY OF NEVADA; COUNTY OF ORANGE; COUNTY OF PLACER; COUNTY OF RIVERSIDE; COUNTY OF SACRAMENTO; COUNTY OF SAN BENItO; COUNTY OF SAN BERNARDINO; COUNTY OF SAN DIEGO; COUNTY OF SAN FRANCISCO; COUNTY OF SAN JOAQUIN; COUNTY OF SAN LUIS OBISPO, COUNTY OF SANTA BARBARA; COUNTY OF SANTA CLARA; COUNTY OF SANTA CRUZ; COUNTY OF SONOMA; COUNTY OF STANISLAUS; COUNTY OF SUTTER; COUNTY OF TRINITY; COUNTY OF TULARE; COUNTY OF VENTURA; COUNTY OF YOLO, Page 2 of 2 Page 1ofI Form Adopted for Mandatory Use ADDITIONAL PARTIES ATTACHMENT Judicial Council of California SUM-200(A) [Rev. January 1, 2007] Attachment to Summons American LegalNet, Inc. v Forms Workflow. com 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 -)0 21 22 24 25 26 27 28 Case No.: CONVLAINT FOR REFUND OF STATE ASSESSED PROPERTY TAXES IREV., & TAX. CODE § 5143] Action Filed: January 9,201-3) Trial Date: TBD RLEE) 8upe.fior Caurt California, CARLA CI-IRISTOFFERSON (S.B. 4 161111) savamentz cchristofferson,c omm.corn M109121113 KATIIARINE 5. MERCER (S.B. i`i267006) arilib"nu kmercera!omm.com O'MELVENY & MYERS LLP '-puty 400 South Elope Street fCarw Nutubar: Los Angeles, California 90071-2899 Telephone: (213) 430-6000 34-2013-001391131 f=acsimile: (213) 430-6407 CARL A. ROBERTS(S.B. #20422_5) carlev.roberts,(~sutlierland.com DOUGLAS MO (S.B. 95614) douglas.mo( ~sutherland.com SUTHERLAND ASBILL & BRFNNAN LLP 500 Capitol Mall. Suite 1950 Sacramento. California 95814 Telephone: (916)'-)41-0500 DEPARTMENT Facsimile: (916) 241-0501 ASSIGNMENTS Case Management 39 Attornevs for Plaintiff Law and Motion 53 VERIZON CALIFORNIA INC. Minors Compromise 43 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO VERIZON CALIFORNIA INC.. a Califomia corporation. V. Plaintiff. CALIFORNIA STATE BOARD OF EQUALIZATION; COUNTY OF ALPINE: COUNTY OF CAL.AVER.A S; COUNTY OF DEL NORTE, COUNTY OF FRESNO: COUNTY OF HUMBOLDT; COUNTY OF IMPERIAL; COUNTY OF INYO, COUNTY OF KERN; COUNTY OF KINGS; COUNTY OF LAKE; COUNTY OF LOS ANGELES; COUNTY OF MADERA: COUNTY OF MAR1N: COUNTY OF MENDOCINO; CAPTION CONTINUED. t; C ONIPL.AINTFOR RC UND of s"r;tTE ASSF.S~1-n PRUPF.R TY TA\FS 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 COUNTY OF MERCED; COUNTY OF MONO; COUNTY OF MONTEREY; COUNTY OF NEVADA; COUNTY OF ORANGE; COUNTY OF PLACER; COUNTY OF RIVERSIDE; COUNTY OF SACRAMENTO; COUNTY OF SAN BENITO; COUNTY OF SAN BERNARDINO, COUNTY OF SAN DIEGO; COUNTY OF SAN FRANCISCO; COUNTY OF SAN JOAQUIN; COUNTY OF SAN LUIS OBISPO; COUNTY OF SANTA BARBARA; COUNTY OF SANTA CLARA; COUNTY OF SANTA CRUZ; COUNTY OF SONOMA; COUNTY OF STANISLAUS; COUNTY OF S UTTER; COUNTY OF TRIN ITY; COUNTY OF TULARE; COUNTY OF VENTURA; COUNTY OF YOLO, Defendants. STATEMENT OF THE CASE 1. Verizon California Inc. ("Verizon") paid taxes to California counties for tax year 2008-09 based on a valuation of Verizon's landline telecommunications property by defendant California State Board of Equalization ("Board"). In this case, Verizon seeks a partial refund of those taxes, as well as interest thereon. As Verizon explained to the Board, the valuation adopted does not adequately account for the diminishment in value caused by several factors, including competitive market forces that have impacted Verizon's revenue, resulting in sharp declines in revenues per access line and net operating income per access line and diminishing the income- producing. ability of Verizon's property. The adverse impact of these factors means that Verizon's property is less valuable than the Board calculated and that, therefore, Verizon is owed the refund sought in this action. PARTIES 2. Plaintiff'VERiZON CALIFORNIA INC. ("Plaintiff' or "Verizon") at all times relevant hereto, was and is a California corporation, authorized to do business, and doing COMPL:\INT FUR REFt1ND OF STATE ASSESSED PROPERTY TAXES 1 L 3 4 5 6 7 8 9 10 11 12 l3 14 15 16 17 18 19 20 21 23 ?4 25 26 27 28 business, in California as owner and operator of a telephone company. 3. Defendant CALIFORNIA STAVE BOARD of EQUALIZATION (the `Board") is a named party to this action pursuant to California Revenue and Taxation Code (the "Code" or "Rev. Tax Code") § 5148 (b). The Board asserted assessment jurisdiction over Verizon, as of January 1, 2008, in accordance with California Constitution, Article XIII, § 19. Verizon was designated as State Board of Equalization Assessee No. 0201. 4. Defendant counties are political subdivisions of the State of California that collected property tax paid by Verizon, based on the Board-adopted unitary value for Verizon's property, as of January 1, 2008, and are the COUNTY OF ALPINE; COUNTY OF CALAVERAS; COUNTY OF DEL NORTE; COUNTY OF FRESNO; COUNTY OF HUMBOLDT; COUNTY OF IMPERIAL; COUNTY OF INYO; COUNTY OF KERN; COUNTY OF KINGS; COUNTY OF LAKE; COUNTY OF LOS ANGELES; COUNTY OF MADERA; COUNTY OF MARIN; COUNTY OF MENDOCINO; COUNTY OF MERCED; COUNTY OF MONO; COUNTY OF MONTEREY; COUNTY OF NEVADA; COUNTY OF ORANGE; COUNTY OF PLACER; COUNTY OF RIVERSIDE; COUNTY OF SACRAMENTO, COUNTY OF SAN BENITO; COUNTY OF SAN BERNARDINO; COUNTY OF SAN DIEGO; COUNTY OF SAN FRANCISCO; COUNTY OF SAN JOAQUIN; COUNTY OF SAN LUIS OBISPO; COUNTY OF SANTA BARBARA; COUNTY OF SANTA CLARA; COUNTY OF SANTA CRUZ; COUNTY OF SONOMA; COUNTY OF STANISLAUS; COUNTY OF SUTTER; COUNTY OF TRINITY; COUNTY OF TULARE; COUNTY OF VENTURA; COUNTY OF YOLO (collectively, "Defendant Counties" and each independently "Defendant County"). Defendant Counties are named parties to this action pursuant to Code 5 5148 (b). JURISDICTION AND VENUE 5. The court has jurisdiction to hear and determine this suit for refund of property taxes tinder Code § 5148. 1 COMPLAINT 1, OR REFUND C)F S"fA"I E ASSFSS1-D PROPERTY TAXES 6. The Attorney General of California has an office in the County of Sacramento. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II Venue appropriately lies in Sacramento County pursuant to Code § 5148 (d). STATE ASSESSMENT AND COUNTY TAXATION OF PROPERTY 7. Although property tales are levied and paid at the county level, it is the Board that is tasked with annually assessing the full market value of all taxable property in the state, except franchises, owned or used by regulated telephone companies. Once the Board has adopted a unitary value of the property, it transmits the value to each county through a "roll" and each county taxes the telephone company according to the Board-adopted value of the,property that is in that county. (Cal. Const. Art. XIII, § 19; Rev. & Tax. Code 108, 109, 721, 722, 756, 2152, 2601, 2602). Thus, the Board's assessment of the value of property dictates the amount of taxes levied by each county, and it is that assessment that lies at the heart of this case. DEFENDANT BOARD'S 2008 STATE ASSESSMENT OF VERIZON'S PROPERTY 8. On May 30, 2008, the Board, relying on a "Replacement Cost New Less Depreciation" model, adopted a January 1, 2008 unitary assessed value of $3,920,700,000 for Verizon's landline telephone network in California. 9. On July 20, 2008, Verizon objected to the Board-assessed value by filing a Petition for Unitary Property Reassessment, designated by the Board as Appeal No. SAU 08-038 and Case 1D No. 458200 ("Petition for Reassessment"). Verizon asserted that, as a matter of law, the Board's unitary value exceeded the full value of the property and that the Board had incorrectly calculated the fair market value of Verizon's unitary property. For example, Verizon contended that the Board's "Replacement Cost New I-ess Depreciation" model, as applied to Verizon as of January 1, 2008, failed to properly recognize the frill impact of obsolescence that affected the value of its property. Verizon explained that it operates in an "intensely competitive" environment and that these "marketplace forces have diminished the income-producing ability of Verizon's property." This Petition for Reassessment timely exhausted Verizon administrative COMPLAINT FOR REFUND OF STATE ASSESSED PROPERTY TAXES 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 ~g remedies, in accordance with Code 731 and 741, and was constituted as a refund claim under Code § 5148 (t). 10. On December 16, 2008, the Board acted on Verizon's 2008 Petition for Reassessment of Unitary Value ("Notice of Decision"). The Board granted in part Verizon's Petition for Reassessment and lowered its valuation from $3,920,700,000 to $3,595,900.000. 11. Verizon made property tax payments to the 38 (thirty-eight) Defendant Counties, as shown in the chart below. These payments were made based upon the Board's May 30, 2008 valuation of $3,920,700,000. COUNTY INSTALLMENT AMOUNT' DATE OF PAYMENT ALPINE First 9,333.74 11/20/2008 CALAVERAS First 384.10 11 /21/2008 DEL NORTE First 53.38 11/21/2008 FRESNO First 216,699.22 12/10/2008 FRESNO Second 216,699.22 4/3/2009 HUMBOLDT First 45,031.59 12/10/2008 HUMBOLDT Second 45,031.59 4/3/2009 IMPERIAL First 33,279.96 12/1/2008 IMPERIAL Second 33,279.96 4/3/2009 INYO First 66,579.78 11/25/2008 INYO Second 66,579.78 4/3/2009 KERN First 282,807.42 12/10/2008 KERN Second 282,807.40 4/3/2009 KINGS First 16,096.63 11/21/2008 KINGS Second 16,096.63 4/3/2009 LAKE First 33.00 11/21/2008 3 CO-MPLA1N r FUR REFUND OF STATE ASSESSED PROPERTY "FAXES 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ?4 25 26 27 28 COUNTY INSTALLMENT LOS ANGELES First LOS ANGELES Second MADERA First MARIN First ,MARIN Second MENDOCINO First MENDOCINO Second MERCED First MERCED Second MONO First MONO Second MONTEREY First NEVADA First ORANGE First ORANGE Second PLACER First PLACER Second RIVERSIDE First RIVERSIDE Second SACRAMENTO First SAN BENITO First SAN BERNARDINO First SAN BERNARDINO Second SAN DIEGO First SAN FRANCISCO First AMOUNT DATE OF PAYMENT 11,498,473.82 12/10/2008 5,972,897.00 4/3/2009 284.84 11/21/2008 168,342.10 1.2/3/2008 168,342.10 4/3/2009 25,811.62 11/21/2008 25,811.62 4/3/2009 20,635.99 12/1/2008 20,635.99 4/3/2009 80,931.44 12/4/2008 80,931.44 4/3/2009 13,351.78 11/18/2008 4,682.66 11/18/2008 i 1,216,135.06 12/10/2008 1,216,135.06 4/3/2009 28,963.98 11/18/2008 28,963.98 4/3/2009 5,487,459.08 12/3/2008 5,487,459.08 4/3/2009 20,134.76 12/8/2008 15.16 12/5/2008 4,123,063.07 12/3/2008 4,123,062.40 4/3/2009 7,556.46 11/21/2008 38.56 12/8/2008 4 COMPLAINT FOR RFFUND OF STATE ASSESSED PROPERTY TAXES COUNTY INSTALLMENT AMOUNT DATE OF PAYMENT SAT JOAQUIN First 219,504.24 12/3/2008 SAN JOAQUIN Second 219,504.24 4/3/2009 SAN LUIS OBISPO First 26,359.77 11/21/2008 SAN LUIS OBISPO Second 26,359.77 4/3/2009 ,SANTA BARBARA First 1,208,902.08 12/3/2008 SANTA BARBARA Second 1,208,902.10 4/2/2009 SANTA CLARA First 758,174.50 12/3/2008 SANTA CLARA Second 758,174.50 4/2/2009 SANTA CRUZ First 27,023.54 11/21/2008 SONOMA First 292.00 11/21/2008 SONOMA Second 50,373.93 11/21/2008 SONOMA Third 50,665.93 4/3/2009 STANISLAUS First 1,586.56 11/21/2008 SUTTER First 4,533.74 11/21/2008 TRINITY First 47,317.06 11/21/2008 TRINITY Second 47,317.06 4/2/2009 TULARE First 97,158.58 12/4/2008 TULARE Second 97,158.58 4/2/2009 VENTURA First 1,380,701.74 12/10/2008 VENTURA Second 1,380,701.74 4/3/2009 YOLO First 5,805.46 11/21/2008 TOTAL 48,767,429.57 2-6 12. In accordance with Code § 5148 (a), this action was commenced after payment of 27 the taxes in issue and within four years of the date that the Board mailed its Notice of Decision. 1 L 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 5 COMPLAINT FOR REFUND OF STATE ASSESSED PROPFR"T'Y TAXES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 -20 21 23 24 25 ?6 27 L8 FIRST CAUSE OF ACTION (Refund of State Assessed Property Taxes) [Rev. & Tax. Code § 51481 13. Verizon incorporates by reference each and every allegation in the foregoing paragraphs as though frilly set forth herein. 14. In this action, Verizon disputes the valuation of its property by the Board, as of January 1, 2008, and seeks to recover associated taxes excessively levied on its State-assessed property and paid to Defendant Counties. 15. Verizon contends that (i) the Board-adopted value exceeds the fair market value of Verizon's taxable property as of January 1, 2008, and (ii) such Board-adopted value was not determined in accordance with statutes and rules governing the assessment of telephone companies, including, without limitation, a failure to follow Code 1 I 0(d)(2), 110(d)(3), 212 and Property Tax Rule 6 (18 Cal. Code Regs. S 6(e)) in making the subject assessment. 16. Verizon timely filed its Petition for Reassessment, which was also constituted as a claim for refund, under Code S 741. Verizon alleges that property taxes attributable to the Board's excessive assessment, and paid by Verizon to Defendant Counties; are illegal and erroneous, including, without limitation, a failure of the Board to properly follow Code 1 10(d)(2), 110(d)(3), 212 and Property Tax Rule 6 (18 Cal. Code Regs. § 6(e)) in making the subject assessment. 17. Verizon's Petition for Reassessment included the Board's form BOE-529-A, showing "Yes" checked in a box alongside the statement, "This is a request for refund according to Revenue and Taxation Code section 5148(f)." The "No" box was not checked. Verizon intended its administrative appeal to serve as a claim for refund as provided in Code § 5148(o. 18. Verizon has fully exhausted its administrative remedies, paid all property tax required by law, and has otherwise satisfied all procedural prerequisites to commencing and maintaininey this refund action. 6 C010PL.AINT FOR REFUND OF STATE ASSESSED I'ROPF.RT~," TAXES 1 2 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 19. Pursuant to Code § s 148 (1), Verizon now seeks a refund of property tax overpayments, and any interest thereon, remitted to Defendant Counties for the 2008-09 tax year. 20. Verizon is entitled to recover overpayments of taxes previously levied and collected by each Defendant County, together with any interest thereon. WHEREFORE, Verizon prays for relief as set forth below: 1. For judgment ordering the reassessment by the Board of Verizon's unitary property, as of January 1, 2008, according to the law and the proof; 2. For judgment in the exact amount this court determines Verizon has overpaid each Defendant County for the 2008-09 tax yeas 3. For judgment ordering each Defendant County to refund statutory prejudgment interest on overpayments of taxes ordered refunded; 4. For judgment ordering Defendants to pay Verizon's costs associated with this action; s. For judgment ordering Defendants to pay Verizon's attorneys' fees in this action, according to statute and proof; 6. For judgment ordering such other and fiu-ther relief as the Court may deem proper. CARLA CHRISTOFFERSON Dated: January 9, 2013 KATHARI-NE S. MERCER O'MELVENY & MYERS LLP CARLEY A. ROBERTS DOUGLAS MO SUTHERLAND ASB(LL 8 BRENNAN LLP Carla Christof er Attornevs for Plaintif VERIZON CALIFORNIA INC. 7 COMPLAINT FOR REFUND OF STATE ASSESSED PROPERTY TAXES ATTORNEY OR PARIY VATHOi11 ATTORNEY ;Name, Slarc- 8a., numlwr and adz essl Carla Christofferson (S.B #161111) Katharine S. Mercer (S_B. #267006) O'Melveny & Myers LLP, 400 S. Hope Street, Los Angefes, CA 90071 Carley A. Roberts (S. B. #204225), Douglas Mo (S. B. #95614), Sutherland Asbil & Brennan LLP, 500 Capitol Mali, Suite 1950, Sacramento, California 95814 rELEPHONE Fro (21-3)4306000 rAx NO. (213) 430 6407 LA11ORNEY VOR (Name;- Verizon California Inc. SUPERIOR COURT OF CALIFORNIA, COUNTY of SACRAMENTO STREET ADDRESS 720 9th Street MAIL ING ADDRESS 720 9th Street f;frY A.ND LIP couE Sacramento, CA 95814 BRANCH NAME CASE NAME. Verizon California Inc. v. California State Board of Equalization, et al. CIVIL CASE COVER SHEET M Unlimited ❑ Limited (Amount (Amount demanded demanded is exceeds $25,000 $25,000 or less Complex Case Designation ❑ Counter ❑ Joinder FOR COURT USE OHLY CM-010 RLEI I I Sup odor COUTt Of Calif `mia, r Casa Number 34"20 iJ-omv8 161 CASE NUMBER= Filed with first a LIUOPGTE: ppearance by defendant (Cal. Rules of Court, rule 3.402) r,Cnra r-o ueruvv musr De com terea see instructions on a e 2). 1. Check one box below for the case type that best describes this case: Auto Tort ❑ Con tract Provisionally Complex Civil Litigation Auto (22) ❑ Breach of contract/warranty (06) (Car . Rules of Court; rules 3.400-3.403) ❑ Uninsured motorist (46) ❑ Rule 3.740 collections (09) ❑ AntArust/Trade regulation (03) 1 Other PdPD/WD (Personal Injury/Property ❑ Other cotlections (09) ❑ Construction defect (10) Dam ❑ ageNVrongful Death) Tort A b t 04 ❑ Insurance coverage (18) ❑ Mass tort (40) ❑ s es os ( P d t li bili ❑ Other contract {37} ❑ Securities litigation (28) ❑ ro uc a ty (24) M di l l Real Property ❑ Environmenta6rToxic tort (30) ❑ e ma ca practice (45) Oth PI/PD WD 23 ❑ Eminent domain/Inverse ❑ Insurance coverage claims arising from the er l ( ) condemnation (14) above listed provisionally complex case Non-P(IPD/WD (Other) Tort ❑ Wrongful eviction (33) types (41) ❑ Business tort/unfair business practice (07) ❑ Other real property (26) Enforcement of Judgment ❑ Civir rights (08) Unla wful Detainer ❑ Enforcement of judgment (20) ❑ Defamation (13) ❑ Commercial (31) Misc ellaneous Civil Complaint ❑ Fraud (16) ❑ Residential (32) ❑ RICO (27) , ' ❑ Intellectual property (19) ❑ Drugs (38) ® Other complaint (roof specified above) (42) ❑ Professional negligence (25) Judicial Review Miscellaneous Civil Petition ❑ Other non-PIIPD/WD tort (35) ❑ Asset forfeiture (05) ❑ Partnership and corporate governance (21) Empl oyment ❑ Petition re: arbitration award (11) ❑ Other petition (not specified above) (43) Q wrongful termination (36) ❑ Writ of mandate (02) Other employment (15) ❑ Other judicial review (39) z. I nis case U Is JZJ is not complex under rule 3.400 of the California Rules of Court. if the case is complex, mark the factors requiring exceptional judicial management: ❑ Large number of separately represented parties d. El Large number of witnesses b. ❑ Extensive motion practice raising difficult or novel e.' ❑ Coordination with related actions pending in one or more courts issues that will be time-consuming to resolve in other counties, states, or countries, or it) a federal court c. ❑ Substantial amount of documentary evidence f. ❑ Substantial postjudgment judicial supervision 3. Remedies sought (check all that apply): a. ® monetary b. ❑ nonmonetary; declaratory or injunctive relief c. ❑ punitive 4. Number of causes of action (specify): One 5. This case ❑ is ® is not a class action suit. 6. If there are any known related cases, file and serve a notice of related case. (You may use form C -0 5.) Date: January 9, 2013 Y Carla Christofferson ► OR PRINT E OF PAATY.OF ATTbRNEY FOR NOTICE (/G/ • Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result in sanctions. • File this cover sheet in addition to any cover sheet required by local court rule. • If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. • Unless this is a collections case under rule 3.740 or a complex case. this cover sheet will be used for statistical purposes only. Page 1 of 2 G'~o tom,. 1> ~I t t7rt! AQ0r4c•] tot Manoaloty Use CIVIL CASE COVER SHEET -14-010 Cai Rules or Cour., rules 230.3 220.3 401--3 003.3 74C Jue oar Council ul f'a'atom Cal Standat Us o! Judicial Administration, std 3 7'? (Rev. July ? (k 7; mvw.ceuarr./o ca jov INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET cm-01 a To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1. This information will be used to compile statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1, you must check one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1, check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action. To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court. To Parties in Rule 3.740 Collections Cases. A "collections case" under rule 3.740 is defined as an action for recovery of money owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in which property, services, or money was acquired on credit- A collections case does not include an action seeking the following: (1) tort damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections case will be subject to the requirements for service and obtaining a judgment in rule 3.740. To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the plaintiffs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that the case is complex. CASE TYPES AND EXAMPLES Auto Tort Contract Provisionally Complex Civil Litigation (Cal. Auto (22)-Personal Injury/Property Breach of Contract/Warranty (06) Rules of Court Rules 3.400-3.403) Damage/Wrongful Death Breach of Rental/Lease Antitrust/Trade Regulation (03) Uninsured Motorist (46) (if the Contract (not unlawful detainer Construction Defect (10) case involves an uninsured or wrongful eviction) Claims Involving Mass Tort (40) motorist claim subject to Contract/Warranty Breach-Seller Securities Litigation (28) arbitration, check this item Plaintiff (not fraud or negligence) Environmental/Toxic Tort (30) instead of Auto) Negligent Breach of Contract/ Insurance Coverage Claims Other PI/PD/WD (Personal Injury/ Warranty (arising from provisionally complex Property Damage/Wrongful Death) Other Breach of Contract/Warranty case type listed above) (41) Tort Collections (e.g., money owed, open Enforcement of Judgment Asbestos (04) book accounts) (09) Enforcement of Judgment (20) Asbestos Property Damage Collection Case-Seller Plaintiff Abstract of Judgment (Out of Asbestos Personal Injury/ Other Promissory Note/Collections County) Wrongful Death Case Confession of Judgment (non- Product Liability (not asbestos or Insurance Coverage (not provisionally domestic relations) toxiclenvironmental) (24) complex) (18) Sister State Judgment Medical Malpractice (45) Auto Subrogation Administrative Agency Award Medical Malpractice- Other Coverage (not unpaid taxes) Physicians & Surgeons Other Contract (37) Petition/Certification of Entry of Other Professional Health Care Contractual Fraud Judgment on Unpaid Taxes Malpractice Other Contract Dispute Other Enforcement of Judgment Other PI/PDiWD (23) Real Property Case Premises Liability (e.g., slip Eminent Domain/Inverse Miscellaneous Civil Complaint and fall) Condemnation (14) RICO (27) Intentional Bodily Injury/PD/WD Wrongful Eviction (33) Other Complaint (not specified (e.g., assault, vandalism) Other Real Property (e.g., quiet title) (26) above) (42) Intentional Infliction of Writ of Possession of Real Property Declaratory Relief Only Emotional Distress Mortgage Foreclosure Injunctive Relief Only (non- Negligent Infliction of Quiet Title harassment) Emotional Distress Other Real Property (not eminent Mechanics Lien Other PI/PD/wD domain, landlord/tenant, or Other Commercial Complaint Non-PI/PD/WD (Other) Tort foreclosure) Case (non-tort/non-complex) Business Tort/Unfair Business Unlawful Detainer Other Civil Complaint Practice (07) Commercial (31) (non-tort/non-complex) Civil Rights (e.g., discrimination, Residential (32) Miscellaneous Civil Petition false arrest) (not civil Drugs (38) (if the case involves illegal Partnership and Corporate harassment) (08) drugs, check this item; otherwise, Governance (21) Defamation (e.g., slander, libel) report as Commercial or Residential) Other Petition (not specified (13) Judicial Review above) (43) Fraud (16) Asset Forfeiture (05) Civil Harassment Intellectual Property (19) Petition Re: Arbitration Award (11) Workplace Violence Professional Negligence (25) Writ of Mandate (02) Elder/Dependent Adult Legal Malpractice Writ-Administrative Mandamus Abuse Other Professional Malpractice Writ-Mandamus on Limited Court Election Contest (not medical or legal) Case Matter Petition for Name Change Other Non-PI/PD/WD Tort (35) Writ-Other Limited Court Case Petition for Relief From Late Employment Review Claim Wrongful Termination (36) Other Other Judicial Review (39) Other Civil Petition Employment (15) Review of Health Officer Order Notice of Appeal-Labor Commissioner Appeals CM-ololRev July 1. 20071 CIVIL CASE COVER SHEET Page 2of2 FAmerican LegalNet, Inc. Formswb,k,; w.com ATTORNEY OR PARTe WITHOUI ATTORNEY (Name. Stale Bar ruattY. ano acUress): C T Ur;E 01,LY Carla Christofferson SB #161111 O'Melveny & Myers LLP -%upeTi©T Court Of C 400 S. Hope Street ~~lz I Los Angeles, California 90071 „ 1 TELEPHC,1E NO: (213) 430-6000 FAX NO (Gptonglt (213) 430-6407 E-MAIL ADDRESS,Optiona): cchhstofferson@omm.com ATTORNEY FOR (1Varnw) Verizon California Inc. SUPERIOR COURT OF CALIFORNIA. COUNTY OF SACRAMENTO n C=H Number: STREETAOJfZESS. 720 9 Street in t+ I AILINGADDRESS: 720 S Street CITY AND ZIP CODE: Sacramento, California 95814 ERANCH NkME: PlAINTIFF(PETITIONER: Verizon California Inc., a California corporation CASE MMSER DEFENDANT/RESPONDENT: California State Board of Equalization: et al. JUDiCIAL OFFICER DEPT- NOTICE OF RELATED CASE ifornia, ~l U y 191 Identify, in chronological order according to date of filing, all cases related to the case referenced above. 1. a. Title: Verizon California Inc. V. California State Board of Equalization; County of Kern; et al b. Case number: 34-2011-00116029 C. Court: ® same as above ❑ other state or federal court (name and address): d. Department: 53 e. Case type: ❑ limited civil ® unlimited civil ❑ probate ❑ family law ❑ other (specify): f. Filing date: December 21, 2012 g. Has this case been designated or determined as "complex?" ❑ Yes 21 No h. Relationship of this case to the case referenced above (check all that apply): ® involves the same parties and is based on the same or similar claims- El arises from the same or substantially. identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact. ❑ involves claims against, title to, possession of, or damages to the same property. • ❑ is likely for other reasons to require substantial duplication of judicial resources if heard by different judges. V9 ❑ Additional explanation is attached in attachment 1 h > i. Status of case: °f ® pending ❑ dismissed ❑ with E] without prejudice ❑ disposed of by judgment 2. a. Title: b. Case number: c. Court: ❑ same as above ❑ other state or federal court (name and address): d. Department: PageIof3 l-ormApprovedfor opbond Use Cat Rues of Coa rt. rule 3200 ; ,dal C.ouodl of Cateorna NOTICE OF RELATED CASE uww counin t) ca . v cry.0 151Rzv July 1. 2'kM 71 'me-vcan Leg2INrL Inc. ,w. F ctR~s'vl0rkftpsv.ctvl;