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HomeMy WebLinkAboutTC Minutes 2013-10-16TOWN 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, October 16, 2013, in Town Council Chambers, 1505 Tiburon Boulevard, Tiburon, California. ROLL CALL PRESENT: COUNCILMEMBERS: PRESENT: EX OFFICIO: Doyle, Fraser, Fredericks, O'Donnell, Slavitz Town Manager Curran, Town Attorney Danforth, Director of Community Development Anderson, Planning Manager Watrous, Director of Public Works /Town Engineer Nguyen, Police Chief Cronin, Town Clerk Crane Iacopi CLOSED SESSION ANNOUNCEMENT, IF ANY None. ORAL COMMUNICATIONS None. PRESENTATIONS Introduction of new Town Employees — Josh Ford, Police Department; Judd Corbin, Department of Public Works Chief Cronin introduced Officer Ford and Director of Public Work/Town Engineer Nguyen introduced Maintenance Worker Corbin. Both men said how much they looked forward to working with the community and were welcomed by the Council and staff. CONSENT CALENDAR 1. Town Council Minutes — Adopt minutes of October 2, 2013 regular meeting (Town Clerk Crane Iacopi) 2. Town Investment Summaries — Accept reports for August and September 2013 (Director of Administrative Services Bigall) Town Council Minutes #16 -2013 October 16, 2013 Page I Commendation — Adopt resolution commending Jim Wood upon his selection as the 2013 Business Citizen of the Year (Town Clerk Crane Iacopi) MOTION: To adopt Consent Calendar Item No. 1 -3, as written. Moved: Fredericks, seconded by Doyle Vote: AYES: Unanimous PUBLIC HEARINGS 1. 2308 Mar East — Appeal of Design Review Board Site Plan and Architectural Review approval for the construction of additions to an existing single- family dwelling, with a variance for excess lot coverage and a floor area exception (Planning Manager Watrous) Owner: Mar East Realty, LLC Applicant: Mohamad Sadrieh Appellants: Magdalena Yesil & Jim Wickett Assessor's Parcel No: 059 - 195 -01 Planning Manager Watrous said that the application dated back to 2011 and had been approved by the Design Review Board on June 7, 2012. He said this decision was then appealed to the Town Council by the neighbors on either side (2306 and 2310 Mar East). Watrous said that during the appeal hearing, the Council had agreed that privacy was the main issue and had directed the applicant to find ways to modify and lessen these impacts. Specifically, he said the Council gave direction to the applicant to not expand outside of the building footprint. The Planning Manager said that the application was then denied without prejudice and the applicant submitted a new application which was also approved by the Design Review Board after two hearings. Watrous said the revised project design represents substantial changes from both the project design reviewed by the Town Council in 2012 and the design first presented to the Design Review Board at the March 7, 2013 meeting. He noted that the minutes of the April 18, 2013 DRB meeting indicate that the Board concluded that the applicant had "bent over backwards" and "gone out of their way" to address the concerns of the neighbors. He also noted the extent of the project changes over time in response to the neighbors' concern and said they were consistent with the direction of the Town Council to work toward a compromise on the project. In conclusion, Planning Manager Watrous said the Design Review Board appropriately applied the guiding principles for Site Plan and Architectural Review, the Hillside Design Guidelines, and other relevant provisions of the Zoning Ordinance in its review of this project. He said the revised project design does not appear to create substantial noise or privacy impacts on the appellants and represents a considerable compromise from the project plans previously reviewed by the Town Council. Town Council Minutes #16 -2013 October 16, 2013 Page 2 He reviewed the public hearing appeal process and recommended that the Council deliberate and, if prepared to do so, indicate its intention to deny the appeal, and direct staff to return with a resolution denying the appeal for consideration at the next meeting. Mayor O'Donnell opened the public hearing to the appellants, Magdalena Yesil and Jiro Wickett. Ms. Yesil had a powerpoint presentation which she reviewed with the Council. In her powerpoint presentation, Ms. Yesil spoke of wishing to preserve the privacy of her bedroom and her hope for a "good acoustic design" from the applicants. She talked about recent problems with noise disturbance in the neighborhood which had led to a petition and the ultimate eviction of some tenants in a nearby residence. She said the applicant's "defective acoustic design" would be a burden on her family; also, that excess lot coverage was not valid because there was no hardship demonstrated to allow it, under the Town's guidelines. Ms. Yesil went on to say that while the Town's Hillside Guidelines stated that floor to ceiling windows were not desirable, she and her husband would "live with this" feature in the applicant's design if the applicant would strive to resolve the acoustic issues through a) screening of noise from the great room and b) mitigating noise from the walkway. To achieve this, Ms. Yesil proposed that the applicant be directed to move the Nana Walls to the middle of the great room, or, as her sated preference, be directed to have a completely enclosed great room (that could include a floor -to- ceiling corner window at the apex of the applicant's view toward the Golden Gate). She said the latter solution would eliminate her family's sleep disturbance and constant worry about noise emanating from activities inside the neighboring home (when the Nana Windows might be open). She also talked about noise disturbance from the proposed outdoor walkway downstairs. She introduced her noise consultant, Charles Salter, to describe the issue in more detail. Mr. Salter talked of his 45 years of experience and having performed thousands of environmental noise studies. He agreed that fixed glass would block noise but that the Nana Walls, when open, would allow a 10 -20 decibel increase which was significant. In experiential terms, he said this meant that the perceived noise level would be 2 — 4 times louder. Mr. Salter said that that in CEQA, noise is called out as an issue to be mitigated, and it is also referenced in other Town planning documents. He talked about the difference between intermittent noise and annualized noise. He noted that while the Design Review Board did not think that noise was a significant factor in the new design, the effect of watching a movie, for instance, over a three to four hour period in the great room with open windows would be troublesome. He said that fixed glass would not allow an increase in noise levels in the direction of his client's residence. He also said that a wooden walkway will add to the noise level and therefore, an interior walkway would be better. Councilmember Slavitz asked Mr. Salter about his understanding that "sound travels up." Salter described sound actually travelling outward in a hemispheric fashion, rather than "up." Town Council Minutes #16 -2013 October 16, 2013 Page 3 He also talked about how a voice, for instance, is perceived as more intense when you are face to face. Councilmember Slavitz said the applicant's bedroom was below the great room, next door. Mr. Salter said this was a "relatively direct angle" between the deck and the bedroom and at a slight angle down. Mayor O'Donnell opened the hearing to the applicant, Dr. Peter Wilton, who also had a prepared powerpoint presentation. He introduced his consultants, his attorney, and his life partner, with whom he said he hoped to build a family home where they could live in peace. Dr. Wilton recapped the last appeal hearing before the Council and the direction given by the Council. He said they had followed this direction and that the Design Review Board had once again unanimously voted to approve their [latest] application. But he said this was not without frustration and he commented how various changes they had made to their plans, in response to their neighbor's wishes (such as a deck above which was now removed, at the neighbor's behest) had been rejected. He said the only addition to the house in the current plans was the exterior walkway; that the rear deck, kitchen addition, and other features had all been eliminated. He said that everything now except the exterior walkway was within the existing footprint of the house. He said that the staff report to the DRB stated that these substantial changes would greatly reduce the impact on the neighbors; Wilton said they had even reduced the size of the Nana Walls, however, the neighbors had changed their minds again and opposed the application. He quoted the DRB members who had stated that the applicants had "bent over backwards" and said that one member (Kricensky) had stated that neighbors should not try to design projects and that the applicants had "done enough ". Wilton said that the visual impact analysis had shown that the impacts of the design were not significant nor was lighting an issue; he said that their sound analysis was based on daily use at 42 decibels, far lower than the Town's allowance of up to 60 decibels. He added that wild parties and home theaters were not contemplated by he and his family. Dr. Wilton summarized the changes made throughout the application process, and his attempts to engage the neighbors' support. He asked the Council to deny the appeal and allow the plans to move forward. He then turned over the remainder of his time to his noise consultant, Alan Rosen. Mr. Rosen said that he had worked for Mr. Salter's firm for a number of years, and that he had authored writings on environmental noise and had contributed to the Town's Noise Element. He said the Town's Noise Element described a compatibility standard. He described noises such as telephone, television, and talking as examples of 42 decibel level noise. He said that after measuring outside noise over two days, which ranged between 50 and 60 decibels, he had concluded that the estimated noise generated after the remodel would be well below current levels. He said that claiming CEQA standards of "significant" impacts was simply not accurate. Vice Mayor Fredericks said the measurements referenced by Mr. Rosen were generated for purposes of determining noise levels under CEQA and that they do not always measure a person's experience of noise. She went on to say that the audibility and nuisance of a particular Town Council Minutes #16 -2013 October 16, 2013 Page 4 decibel level was different depending on what background noise is, how long it lasts and how frequently it happens. Mr. Rosen agreed; he said this was true for a single event and that one single event would be significant. But he also said that averaging was not inaccurate and was used so that noise consultants did not snake false findings. He said that if a particular event happens hundreds of times, that's when averaging is useful. Ms. Fredericks again contended that this kind of data did not reflect a person's experience. Mr. Rosen countered that it tried to do so, but also noted that each situation is unique and that one could drill down deeper to analyze, with sleep disturbance as the issue, for instance, the affected persons and their particular sensitivities to noise. He said that what CEQA tried to do was to take a broad approach in order to assist us in creating standards. Mayor O'Donnell opened the hearing to members of the public. Barry Wilson, resident of Lyford's Cove /Old Tiburon, spoke in support of the appellants. He said they had a history of collaboration in the neighborhood. He noted that when they purchased their home in 2007, they had talked with the neighbors and after discovering various issues with their home redesign, had worked to get consensual agreement which resulted in the neighbors supporting their project. Wilson said that everyone in the neighborhood valued their views, so he understood why it was important for the applicant to want to emphasize the view in their project. But he said that the side opening [of the Nana Wall] created privacy and noise issues for the Yesil/Wickett family. Mik Flynn, resident of Lyford's Cove /Old Tiburon, echoed these remarks. She spoke first -hand of the detrimental impacts of noise through such a densely populated neighborhood. David Kulik, 2310 Mar East, noted his history with the project as one of the previous appellants. He said that this time, he had concluded that after all the review and vetting of the plans, he could ultimately live with the approved project. However, he said he would also support the request of the appellants, and offered to "take one for the team" and broker a compromise by stating it would be okay with him if the Nana Walls were closer to his property. Mayor O'Donnell opened the hearing to rebuttals from appellants and applicants. Mr. Salter said that CEQA used the terminology, "temporary increase in ambient noise," rather than averaging. He said the Town's planning and zoning documents acknowledged this terminology. Magdalena Yesil said that the applicant's suggestions of [their] lack of cooperation and reversals concerning the project were untruths. She said the 3 -foot walkway described by the applicant was 10 feet, then five feet, then three feet. She said with all the discussion of decibels, the fact Town Council Minutes #16 -2013 October 16, 2013 Page 5 remained that if the windows and doors are closed, it is quieter. She said than ambient noise varies greatly with the tides, the winds, and other factors in that location, so the bottom line is that they did not want open windows facing them. Attorney Elizabeth Brekhus, representing the applicant, said that the Town's ordinances and regulations seek to strike a balance; that change was looked at favorably by the Town because the Town wanted to see improvements in older homes over time. She said the Town also recognized that a reasonable balance must be struck between the rights of property owners to develop their properties and the neighbors' legitimate interests. She said the problem was that the appellants did not recognize this change even though her clients had tried to reach out to the affected neighbors. She also stated that the experience of distant neighbors should not rule. Ms. Brekhus asked the Council to continue to use reasonableness as its yardstick in zoning matters and she said that her clients had taken the advice of the Town Council in seeking approval of their plans. Mayor O'Donnell closed the hearing at 8:55 p.m. and opened the matter to Council deliberation. Vice Mayor Fredericks said that it was not her understanding that the appellants wanted to eliminate the Nana Walls or stairway, rather, that they sought a mitigation of noise from these two design features. She agreed that Dr. Wilton had made already many changes to the project but she said it was a matter of moving pieces around and that the collateral impact remained. She said the appellants were simply asking that the outside walkway be enclosed, if possible. She commented that in fact the walkway was much closer to the appellants' home than it looked on the drawings, and next to their bedroom. She said the walkway would require a variance, which in past practice would have required demonstration of hardship for approval. She said the fourth DRB finding [regarding whether the project would be injurious to the neighbors] was harder to make so she suggested, therefore, it would be easier to simply remove the issue. With regard to the Nana Walls, the Vice Mayor disputed Dr. Wilton's stated need to position the windows in a particular place for the circulation of air. She said that she, too, had a west - facing home and that she was able to circulate air by opening the north- facing windows. She said there were also other ways to frame the views in the great room. She said she agreed with the appellant's concern about noise and the resultant recommendation to move the Nana Walls more toward the center. She said that the glass railings would not mitigate the noise from the great room. She said that the Town did not want to perpetuate the historical mistakes of conflicting buildings. Councilmember Fraser thanked both parties for their well- thought -out presentations. He agreed that it is possible to have different points of view; to "see" things differently and still make reasonable decisions on that basis. He said that he, too, had lived near the water and agreed that noise reflects off the water; also, that living in close proximity was a fact of life for that neighborhood. However, Fraser said he felt there still might be room to compromise on the part of the applicant. Specifically, he agreed with Vice Mayor Fredericks' comments about the Town Council Minutes #16 -2013 October 16, 2013 Page 6 walkway and commended David Kulik for offering a compromise /agreement with moving the Nana Walls as a solution. He said that the project would result in noise from the side of the house that would be injurious to the neighbors' privacy. Councilmember Doyle agreed on the need for compromise but said that the property owner had already compromised a lot. He said it did not seem fair for one neighbor to be able to build an outdoor living space and deny the other neighbor the right to do so. He said that the walkway would only be used occasionally therefore, it would not have such a great effect on the neighbors at 2306 Mar East. He also pointed out that in reality, the walkway was actually near the [2306] outdoor living space rather than the appellant's bedroom; also, that it was not the main entryway to the house. Councilmember Doyle thought there might be something to the suggestion of moving the Nana Walls toward the center so that the sound would go out the front of the building, and preserve or highlight the great corner view previously mentioned. He noted that the opening above the guardrails would only be about 4 to 5 feet and he did not think that there were any light issues. Councilmember Slavitz echoed Councilmember Fraser's remarks and thanked the parties and their consultants for their cordiality. He noted that he had not been on the Council when it had heard the previous appeal, however, he said he had read the minutes and had visited the properties. Slavitz said that the applicant had done what was requested of him by the Council - -the removal of the deck to mitigate noise and the installation of glass railing to help snake it less significant (an assertion disputed by Councilmember Fredericks during her comments). He said the question that remained for him was what was the reasonable expectation for [peace and] quiet in this neighborhood. He said that there were different expectations, obviously for commercial and residential areas. He said that he heard, for instance, children playing and making noise in an adjacent property in his neighborhood, sometimes early in the morning. He said he thought the intermittent noise generated from homes in this neighborhood would not be severe; also, that other neighbors had not been held to the standard being requested [by the appellants]. Councilmember Slavitz said that the application as presented was acceptable; had received extensive review; and that there was nothing that had been presented that, in his estimation, would cause him to want to overturn the Design Review Board decision. Mayor O'Donnell agreed with Councilmember Slavitz. He said he had thought about the noise issue and had concluded that it was all about behavior rather than decibels. He said that both noise consultants had presented their findings on behalf of their clients but that the Council could not condition behavior like asking for the removal of a design feature like a deck. O'Donnell said that he would support the project, as presented, with no more need to compromise because the applicant had already compromised, for instance, by shifting the kitchen to protect the privacy at 2310 Mar East, and other examples. Town Council Minutes #16 -2013 October 16, 2013 Page 7 Mayor O'Donnell said there were three specific grounds of the appeal that he would vote to deny: privacy, variance, and consistence with Town Council direction. Vice Mayor Fredericks asked staff some questions about the requirements to uphold the variance findings for the outdoor walkway. Planning Manager Watrous said the house, as it exists, is in excess of the lot coverage and floor area ratio requirements, but only needs a variance for the lower level walkway and enclosed entiyway (as shown on page 5 of the plans). Vice Mayor Fredericks said the appellants had stated that the plans were not accurate. Watrous said that the plans indicated that this was a survey of existing conditions. Councilmember Doyle said that they looked consistent with what was shown on Google Maps, as well. Planning Manager Watrous also responded the Councilmember Doyle's comment about the location of the walkway (and Vice Mayor Fredericks' question about it) stating that more of the walkway was opposite the [appellant's] outdoor living space than their bedroom. Vice Mayor Fredericks also rebutted a comment made by the applicant that the appellants had many features requiring variances on their property; she said she understood that that appellant's property actually included two parcels. Finally, Vice Mayor Fredericks said that no one was suggesting that the Nana Walls should not somehow open onto the applicant's view. Councilmember Fraser circled back to the walkway. He wondered whether there might be some way to soften the noise as a condition of approval, through the selection of different materials. He also said that in his experience, it was important to listen to the concerns of neighbors when it came to design features, such as windows, that could help mitigate noise. He said that he supported finding a way to buffer noise on that [2306 Mar East] side of the house without changing the deck or view. Mayor O'Donnell said that he could go only with this if the Nana Wall was on the same level as the adjacent neighbor; however, he said it was 12 feet above the room the neighbor was concerned about. Councilmember Slavitz agreed; he said the lower deck off the bedroom had no view and would not be used that much. He said perhaps it could be made a different material, but only if it were abnonnal or atypical to not hear any sound. Again, Slavitz said that this would be holding the applicant to a different standard which in his mind, pushed the reasoning over the edge. Vice Mayor Fredericks pointed out that during the hearing, the appellant had mentioned that all the houses along the water had windows that opened out onto the Bay; she said that asking the applicant to center his Nana Walls, then, would not be atypical for the neighborhood. Also, that she and Councilmember Fraser felt that an enclosed corner window would help frame the view. Town Council Minutes #16 -2013 October 16, 2013 Page 8 Councilmember Doyle said that he had seen that treatment look great, and that it had the effect of making you feel like you are outside; he said he might be okay with that recommendation. Vice Mayor Fredericks asked Dr. Wilton if he were willing to entertain any of these recommendations. Dr. Wilton replied that they had given up the core idea of the design of their home, that is, a deck, a feature that everyone else had. He asked that the Council at least allow them to have something that had the "feel" of a deck [the opening Nana Wall]. Dr. Wilton also said that there was a letter attached (to his presentation materials) from the current tenant that talked about how warm the room got now and there was no way to vent it without opening windows in that corner. MOTION: To deny the appeal and uphold the decision of the Design Review Board, and direct staff to return with a resolution of findings. Moved: Slavitz, seconded by Doyle Vote: AYES: Doyle, Slavitz, O'Donnell NOES: Fraser, Fredericks TOWN COUNCIL REPORTS Councilmember Fraser said a vote on whether the fund CCMC had been put over. Meantime, he noted CCMC provides a service to municipalities who request it to upgrade their Council and meeting facilities to make them audio /visual ready. He said several cities were already in the queue; he asked his colleagues if that was something the Town might want to do, as well. Town Manager Curran said that she and Councilmember Fraser would put together some sort of proposal to be brought back to the Council for its consideration in two parts -- one being the cost to upgrade, and the other, ongoing costs. She said the Council could then determine whether it would be a funding priority for the Town. Councilmember Slavitz said that at the very least it would be worth exploring making an audio broadcast of meetings available. Vice Mayor Fredericks said she would also like to look at funds to make records more accessible on the website. Mayor O'Donnell concurred, noting that this was part of making government more transparent. On a separate matter, Mayor O'Donnell commended his colleagues (Doyle and Slavitz) who had participated in the inaugural "bike train" event on October 9. Councilmember Doyle also commended the organizers and members of the Marin County Bicycle Coalition. Town Manager Curran said that she hoped the momentum would continue. Town Council Minutes #16 -2013 October 16, 2013 Page 9 TOWN MANAGER'S REPORT Town Manager Curran distributed an agenda for the Community Forum on October 22 and asked for any final comments. WEEKLY DIGESTS • Town Council Weekly Digest October 4 & 11, 2013 ADJOURNMENT There being no further business before the Town Council of the Town of Tiburon, Mayor O'Donnell adjourned the meeting at 9:45 p.m. in memory of Mayor Karen Nygren and Town Engineer Stan Bala*. EMMETT O'DONNELL, MAYOR ATTEST: Z DIANE CRANE OPI, TOWN CLERK *Vice Mayor Fredericks provided the following written statement, for the record: Karen Nygren was a former Mayor of the Town of Tiburon (February to November of 1994) and unceasingly proud of her service to the town, her involvement in minimizing development and saving open space, her campaign back in the 80s after the Loma Prieta earthquake to increase awareness and energize the community to create earthquake kits. After her term of service on the council, she expanded her advocacy role to countywide issues. She was unrelenting even in the past few months in her efforts to educate the public and elected officials to her point of view. Her last posts and emails are dated the second week of Sept, still forwarding relevant news articles and agency reports. She believed that easier car travel would result in unacceptable population densities in Marin and a concommitant degradation in the enviroiunental resources we treasure and protect on the one hand, but snake Marin such a desirable place to live on the other. She fought with incredible energy to implement what she believed in, and she fought her terminal disease for 4 years. She lived to see the birth of her grandson, posting pictures of herself in her new role, and her handsome baby grandson to her friends and on Facebook in May. Town Council Minutes #16 -2013 October 16, 2013 Page 10 Those images of Karen, terminally ill and radiantly happy, looking at a future, are ones to be treasured. Our condolences to her family. » » » » » » »» Stan Bala, our Town Engineer from 1971 to 1994, passed away in September. His contributions to the community, mostly in the fonm of drainage improvements and road/highway improvements, had a major positive impact on Tiburon, but in ways that most people never realize. It is often hard to track the accomplishments of engineers, but we enjoy benefits of their invisible projects every day. Condolences to his family and his colleagues, especially here in Town Hall. Town Council Minutes #16 -2013 October 16, 2013 Page 11