HomeMy WebLinkAboutTC Minutes 2013-05-015TOWN COUNCIL
MINUTES
CALL TO ORDER
Mayor O'Donnell called the regular meeting of the Tiburon Town Council to order at 7:30 p.m.
on Wednesday, May 15, 2013, in Town Council Chambers, 1505 Tiburon Boulevard, Tiburon,
California.
ROLI, CALL
PRESENT: COUNCILMEMBERS:
PRESENT: EX OFFICIO:
Doyle, Fraser, Fredericks, O'Donnell
Town Manager Curran, Town Attorney Danforth,
Director of Administrative Services Bigall, Director
of Community Development Anderson, Building
Official Lustenberger, Police Chief Cronin, Police
Captain Hutton, Town Clerk Crane Iacopi
Prior to the regular meeting, the Council conducted interviews for vacancies on Town Boards and
Commissions:
INTERVIEWS
(Current and Pending Vacancies on Planning Commission and Library Agency Board)
7 p.m. — Jeff Foran
7:10 p.m. — Ali Kuhzarani
7:20 p.m. — Lawrence Drew
CLOSED SESSION ANNOUNCEMENT, IF ANY
Mayor O'Donnell said there was no closed session.
ORAL COMMUNICATIONS
Mayor O'Donnell started the meeting with an acknowledgement of Councilmember Dick
Collins' recent passing. He gave the Council, staff and public an opportunity to say a few words
about Dick after a moment of silence in his honor.
Recommendation to Add Urgency Item to Council Agenda and Select a Process to Fill
Council Vacancy
After the Council and staff had mourned the loss of the beloved Councilmember in their remarks,
Mayor O'Donnell asked if the Council to consider placing an urgency item on the agenda
regarding the Council vacancy.
Town Council Minutes #07- 2013 May 15, 2013 Page 1
Town Attorney Danforth said that state law required action by the Council within 60 days of the
vacancy. She said the short timeframe, combined with the fact that the matter had come to staff's
attention after the publication of the agenda, were reasons for Council to consider adding the
matter as an urgency item to the agenda for discussion.
Vice Mayor Fredericks moved and Councilmember Fraser seconded the motion and it was
unanimously passed.
Mayor O'Donnell asked if there were any additional oral communications.
Christopher Wand, speaking on behalf of The Reedlands, asked the Council to "harmonize" the
Town's hours of construction with surrounding communities by placing the issue on a Council
agenda as soon as possible.
Bob Dougherty said that Councilmember Fraser and his group "got it right" with the name, Old
Rail Trail. He said there were in fact just 2,000 such designated trails in the U.S. that could
claim that provenance. He said the remarks by Vice Mayor Fredericks had inspired him to write a
song about it to the tune of "In the Pines" (performed by Bill Monroe and others) which he
shared with the group.
PRESENTATIONS
Mayor's Commendation for MMWD Recognition of Pt. Tiburon Condominium
Association Landscape Project
Mayor O'Donnell read and presented the commendation to Pt. Tiburon Bayside Landscape
Committee members Pam Rice and Linda Robins [committee member Robert Liburdy was
absent] for their work on behalf of Condominium Association. He noted that the recognition by
MMWD was the first awarded to a residential complex in Marin for a drought tolerant and water
efficient landscaping plan. Ms. Rice thanked the Mayor on behalf of the committee. She said
that Pt. Tiburon Bayside was included in the MMWD garden tour scheduled for Saturday, May
18, 2013.
CONSENT CALENDAR
1. Town Council Minutes — Adopt minutes of May 1, 2013 meeting (Town
Clerk Crane Iacopi)
2. Town Investment Summary — Accept report for period ending April 2013
(Director of Administrative Services Bigall)
Town Council Minutes #07 -2013 May 15, 2013 Page 2
3. 110 Gilmartin Drive Building Permit Extension —Adopt resolution extending the
building permit for construction of a single family dwelling and appurtenant
structures at 110 Gilmartin Drive (Building Official Fred Lustenberger)
MOTION: To adopt Consent Calendar Item Nos. 1 -3, as written.
Moved: Fraser, seconded by Fredericks
Vote: AYES: Unanimous
ABSENT: 1 Vacant Seat
ACTION ITEMS
1. Art Festival Display Request — Consider request for art installation
along Tiburon Boulevard and Shoreline Park during annual Art Festival in
August 2013 (Town Manager Curran)
Town Manager Curran described the proposal in her staff report which addressed the issues of
precedent, traffic, security and insurance. Curran said "Art by the Bay ", as it is being called, is a
10 -day temporary installation along the Old Rail Trail and Shoreline Park, coinciding and
culminating with the Tiburon Art Festival. She said it could bring significant positive attention to
the Tiburon Peninsula, help the Tiburon Art Festival achieve greater prominence and success,
and boost the appeal of a private fundraiser at the Drever residence, in the process. She said the
potential traffic impacts were difficult to assess and that Council might consider, if the event was
approved, adding a condition to the approval that would require publicity surrounding the event
to encourage people to walk and bike to the event, come to Town via the ferry, or to park at
Blackie's Pasture and walk or bike the rest of the way into downtown.
Curran said that there were no direct costs associated with the proposal, due to the generosity of
the Drever Foundation. However, she noted that there may be indirect expenses associated with
the possible need for public works or police time; also, that the Town would need to oversee the
installation to ensure the sites were suitable from a public safety and convenience standpoint.
The Town Manager said that while the Town had no recent experience with an event of this scale
and hence could not draw upon historic comparisons, its unique quality and apparent benefits
make it a prospect worth considering. She said the organizers had gone to great lengths to speak
with residents about the proposal (including Point Tiburon Bayside property owners) and appear
to have developed a significant amount of support for the concept. She noted that the Chamber of
Commerce had endorsed the concept, as well.
Isabelle Drever, representing the Drever Family Foundation, gave a slide show presentation of
the two international artists and their work. She said the foundation would underwrite all the
costs associated with the installation and public display, including security and insurance. Ms.
Drever described how the artists install their work and the care they take to ensure that it is safely
and securely done. She said they would work closely with Town staff on the placement and other
details.
Town Council Minutes #07 -2013 May 15, 2013 Page 3
Ms. Drever noted that the Drever Family Foundation believed in supporting education and had
chosen the organization 10, 000 Degrees as the recipient of its fund- raising efforts for the event
that would take place at the Drever residence.
Patrick Sherwood, Marketing & Communications Task Force member, underscored the
comments made by the previous speakers. He said that Art by the Bay would broaden the appeal
of the Tiburon Art Festival and contribute to the revitalization of downtown Tiburon, all at no
cost to the Town, thanks to the Drever Family Foundation. Sherwood said the event would
appeal to visitors and residents alike; he said it would showcase Tiburon's natural beauty and
build on the Town's new positioning — Tiburon By the Bay. Near. Perfect.
The Council had some questions about the details of the project and installation of the artwork.
Vice Mayor Fredericks asked whether placement of the pieces at Blackie's could be done to
minimize view blockage for those people who wanted to simply walk and see the view along
path. Ms. Drever said that both artists had done numerous installations and that their clients
were happy with the results. She said they start with a thorough site survey and at the end of the
installation, they restore the landscape completely. She said that she was "on the same page" with
the Vice Mayor and her request.
Mayor O'Donnell opened the item to public comment.
Steve Sears spoke in favor of the installation. He said we should consider ourselves fortunate to
have something this big in our small town. He noted that the event was endorsed by the
Chamber, the Tiburon Peninsula Foundation, and other local groups. He thanked the Drever
family for its generosity.
Mayor O'Donnell closed the public comment period.
Councilmember Doyle said he loved the idea, which was fun and would draw people to town. He
agreed with a concept introduced by Patrick about showcasing the natural beauty of Tiburon with
an art installation along the shoreline. He also said it was a way to distinguish the Tiburon Art
Festival from other festivals in the county.
Vice Mayor Fredericks said it was a very exciting idea that linked the Town and the Art Festival
together in a new way. She expressed the Town's gratitude to the Drever Family Foundation for
its work on the proposal and its generosity in agreeing to underwrite the event. She said she
would support the proposal but recommended that Town staff be given the authority on behalf of
the Council to negotiate the site details and address any safety and security concerns.
Councilmember Fraser said it seemed like an idea whose time had come; that residents know
how special a place this is and it was an opportunity to showcase Tiburon in a broader way. He,
too, said that staff should have a back -up plan in place to address any potential impacts to traffic
on Tiburon Boulevard; perhaps to partner with a bike shop downtown to rent bikes for the event;
and to have a plan for any security and crowd control issues.
Town Council Minutes #07- 2013 May 15, 2013 Page 4
Mayor O'Donnell agreed that this would be a wonderful exhibition of artwork in a public space,
as well as a fabulous opportunity for the Town to showcase itself. He said he supported the
proposal 100 %.
MOTION: To approve the installation as presented, with oversight provided on behalf of the Town
by the Town Manager.
Moved: Fredericks, seconded by Fraser
Vote: AYES: Unanimous
ABSENT: 1 Vacant Seat
2. America's Cup Youth Team Sponsorship — Consider contract for Town
sponsorship of the Youth Team USA45 (Town Manager Curran)
In her report, Curran said that the Marketing & Communications (M &C) Task Force and the
Town's Marketing Director had identified an opportunity for the Town to be involved with the
upcoming America's Cup races scheduled for San Francisco Bay this summer. She said the
Council was being asked to consider a Cooperation and Sponsorship Agreement whereby the
Town would sponsor a team in a newly created race designed for young sailors, the "Youth
America's Cup ". Under the proposal, Curran said that Tiburon would become the "Official
Home of Youth America's Cup TEAM USA45 ".
The Town Manager said the contract itself was a work in progress but the benefits to the Town
would be, among other things, regional, national and international press. As such, she said it was
a "long game ". She said the contract details still needed to be finalized but that it was a "best
efforts" contract with no penalty to the Town. Curran said the Town would be obligated to
organize a fundraiser on behalf of the team but noted that both yacht clubs had already indicated
their interest and support of the Town in this effort. She said the fundraiser would not be a Town
event. Vice Mayor wondered about the distinction if it was part of the Town's contract.
Town Manager Curran said that M &C Task Force member Janice Anderson Gram had been
working closely with the sponsors of the team and could provide more details about the contract
and its details.
Janice Anderson Gram said she had been assigned to the project and was working with the
Town's Marketing Director, Jill Rodby. She said this opportunity would offer a tangible way to
leverage awareness about the Town of Tiburon to the target market identified by the Task Force,
that is, visitors and residents of San Francisco, bicyclists, and corporate meeting planners.
Anderson Gram said that for the Town of Tiburon to become the "official home" of this team
would give the Town bragging rights forever more (not to mention the "cool" factor). She also
said that it was a unique and fun way for the community to come together around a unique event.
Town Council Minutes #07-2013 May 15, 2013 Page 5
Anderson Gram also reported on the offers of support from both yacht clubs; she said that the
Commodore of the Corinthian Yacht Club had offered free usage of the ballroom for a
fundraising event, and the San Francisco Yacht Club had talked about ways their youth sailing
program could become involved in the process.
Mr. Tom Huston, representing AC45, also spoke briefly about the opportunities for the team and
the Town to work together.
Mayor O'Donnell opened the public hearing.
Steve Sears said that the downtown merchants had been contemplating how to connect with
opportunities surrounding the America's Cup, especially since the event itself would not be
visible from the Tiburon shoreline. He said this opportunity now seemed to simply "fall into our
lap" and should not be missed.
Mayor O'Donnell closed the public hearing.
Councilmember Fraser said he fully endorsed pursuing the opportunity and, in full disclosure,
said that he was the one who had been contacted by Mr. Huston initially and had invited him to
speak to the M &C Task Force.
Vice Mayor Fredericks said that she, too, supported the proposal. Councilmember Doyle
concurred.
Mayor O'Donnell asked staff to clarify whether there was a financial obligation to the Town.
Town Manager Curran said that there was no cost to the Town, per se, in the contract but that the
Town must still fulfill the contract terms. To this end, she said staff recommended Council
approve a $12,250 expenditure to cover the Marketing Director's additional time, and associated
costs such as creating banners and the like. She noted that the Town stood to gain from the
expenditure, as well.
Mayor O'Donnell agreed that it was a fantastic opportunity, that the youth race would be terrific,
and that it was consistent with the Town's history and orientation on San Francisco Bay.
MOTION: To approve the sponsorship and authorize the Town Manager to negotiate and execute
the contract on behalf of the Town.
Moved: Fraser, seconded by Fredericks
Vote: AYES: Unanimous
ABSENT: 1 Vacant Seat
Town Council Minutes #07 -2013 May 15, 2013 Page 6
3. Advisory Board for Tiburon Tourism Business Improvement District —
Consider approval of Advisory Board and make Town Council appointment to the
Board (Town Manager Curran)
Town Manager Curran gave a short report stating that the item had been carried forward from a
previous meeting and was primarily ministerial. She said the newly- appointed Advisory Board
would return to the Council with a report and proposal for the use of BID funds at a future
meeting.
Mayor O'Donnell asked for public comment, if any. There was none.
MOTION: To approve the formation of a BID Advisory Board and to appoint Councilmember Fraser
and Town Manager Curran to the Advisory Board.
Moved: Doyle, seconded by Fredericks
Vote: AYES: Unanimous
ABSENT: 1 Vacant Seat
4. Parking Bail Adjustments — Consider resolution modifying parking bail schedule
(Police Captain Dave Hutton)
Captain Hutton said that the Council had approved in increase in parking bail in September 2010,
the first increase in 19 years. At that meeting, Hutton said that staff was directed to review the
bail schedule on a more regular basis, and every three years was recommended.
Captain Hutton said that during its most recent review, staff discovered that the Town's parking
bail schedule for the Town's Code and the California Vehicle Code violations were (with one
exception) lower than other agencies in Marin. He said this discrepancy means that the Town is
out of compliance with the California Vehicle Code section which authorizes the Town to set
bail and penalties consistent with surrounding communities. He cited Section 40203.5 (a) which
states "...to the extent possible, issuing agencies within the same county shall standardize
parking penalties"
Hutton said that another consideration for modifying the parking fines is the steady erosion of
revenue attributable to the state legislature and county increasing processing fees which now total
$12.50 per citation, in addition to the charges (currently $1.50 per citation) the Town pays to a
outside firm for processing its citations. The net result, according to the Police Captain, is that
that expense of the town's parking enforcement is being increasingly borne by the general
population rather than by violators.
Captain Hutton presented a comparative chart showing the fines charged by other Marin
jurisdictions, noting that most all of the similarly sized jurisdictions had recently updated their
schedules. He recommended that the Council consider updating the Town's bail schedule which
would yield an increase of $27,242 (for a total of $74,826) in parking fine revenue for the year.
Town Council Minutes #07 -2013 May 15, 2013 Page 7
Mayor O'Donnell opened the matter for Council discussion.
Councilmember Fraser said that he held an alternative view of the proposed parking fine
increases and asked that the matter be continued. Fraser said that he and Councilmember Collins
had been working on parking issues in the downtown area for some time (on the downtown task
force). He said they had heard a lot of complaints about the perceived lack of parking downtown
and related issues. He said the Town had hired a consulting firm, Nelson Nygaard, to study the
problem. He said the study had revealed that the available parking downtown was not being
properly utilized, and the consultants had therefore recommended that the town implement a
parking management plan. Fraser said that he would defer making any changes to the bail
schedule until there was an overall parking strategy.
Vice Mayor Fredericks said that the action Council would take tonight would address the
violations of parking laws rather than an overall parking strategy, saying they are separate issues.
She also said that the Town was being told it was out of compliance with the Vehicle Code and
should consider that issue.
Mayor O'Donnell concurred. He asked how far below the average Tiburon was in its parking
fines. Captain Hutton said the proposed new fine levels would put theTown $1 below the [Mann]
average.
Councilmember Doyle said that parking in the downtown area was confusing. He said that while
he agreed with the recommendation to bring the Town's fines into compliance, and raise
revenues in the process, he also thought the timing might be a bit off, in the sense that people
were being encouraged to come downtown but would face increased parking fines.
Councilmember Fraser added that there was a perception that the powers that be had not done
anything to change or improve the parking situation downtown, after several public meetings and
a consultant's report.
Mayor O'Donnell said that he could see both sides of the issues being raised. He asked the Town
Manager when a parking plan would come to Council for its consideration.
Town Manager Curran was that the core recommendation in the consultant's report for a parking
program was to install parking meters downtown; she noted that the Council had expressed
mixed opinions about this, which would make developing a plan a slow process.
Curran also noted that the parking fine issue was more ministerial in nature and agreed with the
Vice Mayor that it was independent of the parking plan issue. She also said that the fines were
aimed at parkers who violated the law and that the increase in the fines would help pay for the
parking program. Mayor O'Donnell concurred with this assessment and said he would support
the amending resolution.
Town Council Minutes #07 -2013 May 15, 2013 Page 8
Councilmember Doyle said he agreed that the Town should have a parking plan, one that might
include residents being issued parking passes or permits. He also wondered whether the parking
enforcement program might be utilizing funds that Town did not have.
Chief of Police Cronin said that violators of the parking laws were the ones that paid for the
program, and that if fines did not keep up with enforcement costs then Town taxpayers would
end closing the gap. He also said that the vehicle code urged conformity in fines between
jurisdictions.
Cronin agreed that the fines should not be onerous and that on average, the Town's parking fines
were proposed to be $1 below the rest of the county. He said that two - thirds of the violations
were for overtime parking. He added that the Town was working on other approaches, such as
adding new parking spaces downtown.
Town Attorney Danforth said many fines target public safety violations. She also said that there
had to be disincentives for people to break the [parking] laws. She said that the Council could
pick and choose [to amend] certain line items in the bail schedule.
The Mayor noted that the issue was not about charging for parking downtown, but rather to fine
those parkers who violated the law. He pointed out that there was 2 -hour free parking in much of
the downtown area. Councilmember Fraser maintained that it simply was not a strategic move at
this time, in his opinion.
MOTION: To adopt the resolution, as written.
Moved: Fredericks, seconded by Doyle
Vote: AYES: Doyle, Fredericks, O'Donnell
NOES: Fraser
ABSENT: 1 Vacant Seat
5. Appointments to Boards, Commissions and Committees — Consider
appointments to fill a current and pending vacancy on the Tiburon Planning
Commission and the Belvedere - Tiburon Library Agency Board (Town Clerk
Crane Iacopi)
Town Clerk Crane lacopi noted that another candidate had applied for the Planning Commission
after publication of the agenda. She recommended that consideration of an appointment be
deferred to a subsequent meeting to allow the Council to interview the candidate, according to
Town policy.
Vice Mayor Fredericks said that while both candidates interviewed by the Council for the Library
vacancy were qualified, Mr. Foran had broad experience which could be a good fit for the
Library at this time.
Town Council Minutes #07 -2013 May 15, 2013 Page 9
Mayor O'Donnell said that Mr. Foran was previously interviewed by the Council for a vacancy
last year and was well received. Councilmember Doyle also noted that Foran was familiar with
and had stayed in touch with the Library's activities over the past several years.
MOTION: To appoint Jeff Foran to the Library Board.
Moved: Doyle, seconded by Fredericks
Vote: AYES: Unanimous
ABSENT: 1 Vacant Seat
PUBLIC HEARINGS
1. Appeal of Denial of Underground Waiver — Consider appeal of denial of
underground waiver for new construction at 12 Apollo Road (Building
Official Fred Lustenberger)
Property Owners: Jonathan Lacey and Kristina Wollan
Address: 12 Apollo Road
AP No.: 034 - 271 -06
Council heard the report and appeal and decided to grant the waiver because of
miscommunication.
Building Official Lustenberger reviewed the material contained in the written staff report,
summarized below. He said the Town had required undergrounding of utility extensions from
newly constructed buildings for nearly 40 years. He said this requirement also applies to remodel
projects where the main electrical service is being replaced or relocated.
The Building Official noted that the current "hardship exception" process has been in place in
Tiburon since 1998. He said the process grants the Building Official the authority to grant
hardship exceptions for remodel projects when certain criteria are met, including high cost,
unusually lengthy trenching, or trenching across streets. Lustenberger said that the hardship
exception was never intended to apply to construction of a new building, where undergrounding
costs constitute only a fraction of the project cost.
Lustenberger said that last September when the Building Inspector went out for a framing a shear
wall inspection at 12 Apollo Road, he saw that a new service panel had been installed and asked
why the power was not being undergrounded. The inspector reported that the owner said that it
was because they had received a waiver from the Town, however, when he later reviewed the
file, there was only a blank application form in the file.
Lustenberger said he visited the site one to two weeks later and reiterated to the property owner
that a waiver had not been granted and that the appropriate paperwork would be needed. He said
he also informed the owner that the waiver does not apply to rebuilds [as opposed to remodels].
Town Council Minutes #07- 2013 May, 15, 2013 Page 10
The Building Official noted in his report that a definition of a remodel project is not on the
waiver form but said that it clearly applies to smaller projects. He also noted that technology had
advanced such that it was much easier than before to trench across a street using horizontal
boring technology which would cut down on cost.
The Building Official then reviewed the grounds of the appeal, filed on April 25, 2013.
Ground No. 1 states that the DRB- approved building plans clearly showed the location of a new
electric meter and upgraded 200 -amp service panel. However, Lustenberger said the plans also
contained a notation stating that the "contractor [had] to provide and submit load calculations for
sizing of electric panels along with size to Building Department prior to installation."
Lustenberger said had this been followed, any potential confusion regarding undergrounding
requirements would have been resolved earlier in the process. As it was, he said the way the
electrical panel was installed was inconsistent with the approved permit drawings and without
undergrounding efforts of any sort.
Ground No. 2 discussed the missing stamp stating that "relocation or replacement of the main
electrical services requires that the service lateral be placed underground ". Lustenberger
acknowledged that the "red stamp" normally placed on final plans was inadvertently left off the
12 Apollo plans, but he maintained that the same information had been communicated by staff to
the applicants.
Ground No. 3 theorized that other recent "new construction" projects in the Belveron East
neighborhood were not required to underground their utilities. The appellants listed 48 Mercury
Avenue, 34 Mercury Avenue, 20 Juno Road, and 31 Juno Road as examples. Lustenberger said
that three out of 4 of these examples were not "new" construction.
With regard to 48 Mercury Avenue, Lustenberger noted that in 2005, a waiver was approved by
the Building Official because it exceeded 10% of the stated valuation of the project; however,
Lustenberger said that this was a mistake, under the Town's policy, because it did not meet the
other Town criteria and definitions.
In conclusion, Lustenberger said that undergrounding is a community standard. But he also noted
that the Belveron neighborhood would continue to have overhead utilities for several decades due
to recent patterns of [remodel] construction.
Lustenberger said that the hardship waiver for 12 Apollo Road did not meet the criteria of the
Town's policy. He said that the cost to underground had been estimated by the owners to be
under 10% of the project cost; he said that the trenching [across the street] was not more than 150
feet, and that even if the project were a remodel project [versus new construction] it would not
likely be granted a waiver by the Building Official. In addition, Lustenberger said that no
application for hardship exception was received by the Town until after the electrical service
panel had been installed.
Town Council Minutes #07 -2013 May 15, 2013 Page 11
Lustenberger said that even at this juncture, the property owners could perform the
undergrounding quickly and be allowed to move into their home without delay.
Mayor O'Donnell asked about the Building Official about the cost of trenching. Lustenberger
said that he had spoken with several contractors who said it could be done for between $2,000
and $4,000. The Mayor said he recalled that the cost of doing the lateral connections in the Del
Mar Undergrounding District ranged between $3,000 and $4,000, but also opined that they may
have been the beneficiaries of economies of scale due to the size of their project.
Mayor O'Donnell opened the hearing to the appellants.
Kristina Wollan, appellant, reviewed the grounds of the appeal in her report to the Council.
Ms. Wollan said they were unaware of the Town's undergrounding requirement until it was
brought to their attention by the Building Inspector and Building Official. She said that she was
never given a form, or stated or implied that they had submitted one. If she had, she said she
would have filed it immediately like they had done with every other document requested by the
Town.
Ms. Wollan said that she and her husband had not tried to game the system and that contrary to
staff's assertions, they had never truly received notice of the requirements until it was too late.
Nevertheless, she acknowledged that ignorance was not a valid excuse [for not complying with
regulations]. Once they were given the chance to file for a hardship waiver, she said it had been
denied by the Building Official [for the reasons he stated above].
Wollan said that undergrounding at this juncture in their project would truly constitute a
hardship. She had said she had received a letter from PG &E that said estimated the cost at
$20,000.
Wollan said the Town's definitions of new construction seem to differ in different parts of the
Town Code and also with the State Building Code. She said that application of the Town's
underground policy for new construction in her neighborhood had also differed widely. She cited
the case of 48 Mercury which she said was essentially new construction but had received a
waiver of the Town's undergrounding requirements from a previous Building Official.
In Ground No. 2, Ms. Wollan said that all four Belveron homes listed in the appeal would have
had to underground their utilities pursuant to Town policy. But she said they had asked for
hardship waivers and had been granted them. Additionally, she said the 48 Mercury had
originally been approved by the Town as a new single- family dwelling; she said this fact led her
to come to Town Hall to inquire about undergrounding requirements (since 48 Mercury had not,
in fact, been undergrounded). She said that staff could not find the file for her review. She said
that the Town's form was intended to deal with remodels, and smaller projects, as noted by staff.
She said that the question of precedent had been established in that the previous Building Official
had granted a waiver to the owners of 48 Mercury. She said that she and her husband had always
Town Council Minutes #07-2013 May 15, 2013 Page 12
been sensitive to the neighborhood with regard to their projects and had designed it according to
the standards of the neighborhood and the Town. She said they embraced our communities'
standards and wanted nothing more than to move back into their home.
Vice Mayor Fredericks asked Ms. Wollan what percentage of the cost of new construction did
the undergrounding represent? Wollan said that the total cost (both their contractor and PG &E)
to underground at this juncture was estimated to be close to $32,000, representing 8.3% of the
total project cost.
Mayor O'Donnell opened the hearing for public comment.
Courtney Whittaker, realtor, spoke in support of the appellants. She said that they had spent
$800,000 for a dilapidated bungalow in Belveron which they were upgrading at additional cost,
and now, at the 11 th hour, were being asked to spend more.
Ms. Whittaker said that no one else in the neighborhood had been required to underground their
utilities and that $32,000 was a huge amount of money. She said that no one wanted to point
fingers, but that the owners of 48 Mercury had "gotten away" with calling their project a remodel
when in fact it was new construction. She challenged the Town's application of its definition of
remodel in this [48 Mercury] case. She said it was "unfair" and not right. She said that mistakes
had been made in this application as well, but suggested that everyone should admit culpability
and move on. She asked the Council to uphold the appeal.
Mayor O'Donnell closed the public hearing.
Vice Mayor Fredericks asked about the significance of the stated discrepancies between the
Town Code, Design Review, and State Building Code.
Town Attorney Danforth said that definitions varied from one chapter to another because they
served different purposes. She said that the Town's policy imposed higher requirements on new
construction because it was easier to underground when the foundation was replaced.
Building Official Lustenberger said that Ms. Wollan was correct in that the State Building Code
did not have a hard and fast definition of what constituted new construction. He said she was also
correct that the definition had been given leeway in order to grant a hardship waiver for 48
Mercury. He said that his reading was different, in that his view of what "new" is means that the
structure is torn down and part of it is not reused. He said that an advantage to homeowners of
the definition of "new" construction was that a property could be listed by realtors as "new" in
date, whereas remodels kept the date of the original home and the property values were
established accordingly.
Lustenberger also said that waivers were granted based on project valuation and that in the case
of 48 Mercury, the hardship waiver was granted because the owner met the cost of hardship at
11 -12% of the project cost, in addition to other criteria.
Town Council Minutes #07- 2013 May 15, 2013 Page 13
Vice Mayor Fredericks also asked about the assertion that State law took precedent over local
law. Town Attorney Danforth said that yes, the State can preempt but in this case, preemption did
not apply because the source of the undergrounding requirement was the Town's Municipal
Code, not State law.
Danforth said that the Town Council could broaden or narrow or even get rid of its definition, if
it chose to do so; she said the Council had wide latitude in this case. Danforth suggested that the
Council might amend its policy in order to give more clear direction in implementation of the
policy if it chose to grant the waiver.
Councilmember Fraser asked staff if the Town's hardship policy required meeting just one or all
three hardship requirements. The Building Official said that only one was needed, if the pole was
on the other side of the street and trenching would be required.
Director Anderson agreed with the Town Attorney. He said there was a lot of mixing of
definitions going on. He said that Chapter 16 (Zoning) contained a specific definition of new
construction which was done for particular reasons unrelated to the undergrounding of utilities.
He said that the State Building Code was altogether different.
Vice Mayor Fredericks raised the question of how applicants for building permits received notice
of the Town's undergrounding requirements. She asked where they would go to receive this
notice.
Building Official Lustenberger said that there were several means: 1) during the plan check
process, he said plans were reviewed to see if there was is an overground panel, then it is flagged;
2) then a stamp in placed on the plans indicating the requirement for underground (which was
omitted in this case); and 3) when they obtain the pen-nit, staff usually goes over specific items
with the applicants, various regulations, such as work rules and the like, and does so in person for
clarity. He said there are several levels of oversight during the process.
Lustenberger noted that this project was originally approved as a remodel /addition then later
changed to a complete new structure; he said he did not know exactly when during the process
the discussion about undergrounding would have taken place.
Vice Mayor Fredericks wondered if some sort of checklist might help, or if there was a better
way of record keeping. Lustenberger acknowledged that while there was always room for
improvement, his preference would be to not have a situation like this come up again. He said
there were a dozen new homes under construction right now in Tiburon and that it was well
known that undergrounding is just part of what takes place in new construction, pursuant to
Town policy.
Mayor O'Donnell said he was inclined to grant the applicant's appeal; he said that the trenching
would constitute a hardship pursuant to the estimates received and that there did seem to be some
Town Council Minutes #07 -2013 Ma>> 15, 2013 Page 14
inconsistency in applying the Town's undergrounding requirements. He said that in any event,
there appeared to be some sort of miscommunication along the way rather than deliberate or
outright action to avoid the requirement.
Mayor O'Donnell said he supported the idea of undergrounding and its benefits for the
neighborhood and for the Town as a whole. He said he would love to see Belveron achieve this
some day. He said that the property was being improved, however, and the tax base was
increasing which also was a benefit to the Town.
Vice Mayor Fredericks agreed that there was an interest in a community upgrading its housing
stock. She said that she was troubled, however, by the [definitions] for undergrounding
requirements for remodels; she said there was not a good record that these applicants had been
put on notice that their project was required to be undergrounded.
Fredericks said that she was inclined to grant the appeal without changing the Town's policy, but
to find a way to establish a record of notice to applicants in a timely manner. She said the
deficiency seemed to lie in the process rather than the policy itself.
Councilmember Doyle agreed with the above comments. He said he had driven around the
neighborhood and that there were lots of homes there with overhead utilities that had undergone
construction. He said there were also sharp practices by contractors who understood the
definitions, but he said the applicants should not be penalized for this, and that trenching across
the street constituted a hardship.
Councilmember Fraser said that he agreed with his colleagues. He said that there were
communication issues and errors that were made inadvertently, such as the omission of a stamp
on the plans. But he said that the cost to underground this project came with an enormous cost at
this juncture. He said that other hardship waivers in that neighborhood had already been granted,
creating a precedent to do so.
Town Attorney Danforth asked Council to clarify its direction as to whether it wanted to change
the waiver application to include new construction projects, or whether it wanted to grant the
appeal based on the unfortunate history and that fact that undergrounding does not seem
imminent in this neighborhood.
Mayor O'Donnell said that he agreed with the Vice Mayor's comments that the policy should not
be changed. He said that the applicant /appellant had demonstrated economic hardship; also, the
pole was on the other side of the street.
Vice Mayor Fredericks reiterated that the appeal should be granted because there was no record
of notice, as well as miscommunication. She said the Town's policy should not be changed.
Town Manager Curran said that while the Town could review its processes and seek
improvement, it would not be possible to communicate every single aspect of the Town Code
Town Council Minutes #07-2013 May 15, 2013 Page 15
specifically to applicants and that the responsibility of meeting the code needed to remain with
them.
MOTION: To direct staff to return with a resolution granting the appeal.
Moved: Doyle, seconded by Fredericks
Vote: AYES: Unanimous
ABSENT: 1 Vacant Seat
URGENCY ITEM
jSelect a Process to Fill Council Vacancy]
Town Attorney Danforth gave the report that outlined the steps the Council could take to fill the
vacancy created by the untimely demise of Councilmember Collins. She said that state law
provided for filling the vacancy (that is, the remainder of Collins' term) through outright
appointment or by calling a special election which could be consolidated with the November
2013 election. Danforth said the statute allowed a third option whereby the Council could make
an interim appointment to fill the vacancy, as well as conduct a special election as outlined
above. Danforth said that, in any event, the Council had 60 days to make its decision, according
to law.
Mayor O'Donnell said his preference was to allow the voters to choose the successor in
November. Councilmember Fraser noted that the appointment process had been utilized to fill
vacancies in the past had also worked well for the Council. Mayor O'Donnell asked the Town
Manager for her opinion on the process.
Town Manager Curran said that due to the lengthy nature of Councilmember Collins' illness, the
Council had been without a, fifth member for some time. She said that if the Council chose to
wait until the November election to fill the vacancy, it would further delay filling the seat due to
the nature of the election process (it takes 30 days to certify the vote and a new councilmember
would not be sworn in until December 2013). Manager Curran said it was up to the Town
Council to determine how to fill the position, but she urged that it not be left vacant until the
election.
The Council thought it might be worth considering an interim appointment based on these facts.
Vice Mayor Fredericks commented that a previous councilmember might be willing to step in to
fill the vacancy on a short-term basis.
MOTION: To direct staff to come back with an ordinance calling a special election and allowing for
an interim appointment; and to immediately start advertising for the interim vacancy.
Moved: Doyle, seconded by Fredericks
Vote: AYES: Unanimous
ABSENT: 1 Vacant Seat
Town Council Minutes #07- 2013 May 15, 2013 Page 16
TOWN COUNCIL REPORTS
Mayor O'Donnell volunteered to step in to fill Dick's position on the RBRA. Councilmember
Fraser said he would be happy to continue to serve as alternate. The Mayor asked that a formal
appointment to be agendized at a subsequent meeting.
Councilmember Fraser gave a brief report on the activities of the CART committee which was
convened in 2011 and recently concluded its meetings and issued a Summary Report, which was
in the Digest. Councilmember Fraser noted that one of the conclusions of the Report regarded
the importance of public transit on the peninsula. lie thought the Town Manager might wish to
comment on this.
TOWN MANAGER'S REPORT
The Town Manager said that the Malin Transit District would consider approval of a new shuttle
bus service and route that would benefit the Tiburon Peninsula at its meeting next week. She
said that the proposed shuttle service was consistent with recommendations by the CART
committee to alleviate traffic on Tiburon Boulevard and was an important and essential service to
downtown Tiburon. However, she said the proposed route had very recently come under intense
criticism by a number of residents along Belvedere Drive in Strawberry. She referenced a draft
letter from the Mayor supporting the proposed service (which had been previously distributed)
but suggested that the Council as a whole consider endorsing the proposed shuttle service in a
letter to strengthen the endorsement.
Ark Reporter McCrohan called the request for action into question as the item was not listed on
the agenda. Manager Curran agreed the item was not on the agenda, and explained that even
though the hearing date of May 20 had been known for some time the fact that the proposed
transit service appeared to be in jeopardy was information that had only become manifest in
recent days and since the publication of the agenda packet.
Town Attorney Danforth said that the matter might be added as an urgency item, if the Council
desired to do so, since the threat to the service had not come to staff's attention until after posting
of the agenda and the fact that the Malin Transit District meeting was scheduled to take place
before the next Council meeting.
Vice Mayor Fredericks added her support to the adding the urgency item to the agenda for
Council's consideration. She, too, noted that new information had been received indicating that
organized opposition to the route would be brought to the May 20 Transit Board hearing.
MOTION: To add the item to the agenda on an urgency basis.
Moved: Doyle, seconded by Fredericks
Vote: AYES: Unanimous
ABSENT: 1 Vacant Seat
Town Council Minutes #07 -2013 May 15, 2013 Page 17
MOTION: To approve an amended letter to Marin Transit, voicing support for the proposed transit
route and shuttle service to Tiburon, on behalf of the entire Council.
Moved: Doyle, seconded by Fredericks
Vote: AYES: Unanimous
ABSENT: 1 Vacant Seat
Addressing another issue, Town Manager Curran noted that June 2014 would be the 50th
Anniversary of the Town's incorporation. She recommended formation of a committee to start
planning a celebration. Mayor O'Donnell and Vice Mayor Fredericks indicated an interest to
serve on the committee.
Finally, Town Manager Curran reported on the Annual Golf Tournament sponsored by the Jt.
Recreation Committee. She said this year's beneficiary would be the Belvedere - Tiburon
Landmarks Society. She said that, after consultation with the Mayor, the Town would sponsor a
foursome and also provide a $500 donation by the Town, noting that the City of Belvedere had
contributed the same amount.
WEEKLY DIGESTS
• Town Council Weekly Digest — May 3 & 10, 2013
ADJOURNMENT
There being no further business before the Town Council of the Town of Tiburon, Mayor
O'Donnell adjourned the meeting at 11:30 p.m. in memory of Councilmember Richard Collins.
EMMETT O'DONNELL, MAYOR
ATTES 1
DIANE CRANE 4_ COPI, TOWN CLERK
Town Council Minutes #07 -2013 May 1.5, 2013 Page 18