HomeMy WebLinkAboutTC Minutes 2013-11-06TOWN 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, November 6, 2013, in Town Council Chambers, 1505 Tiburon Boulevard,
Tiburon, California.
ROLL CALL
PRESENT: COUNCILMEMBERS
ABSENT: COUNCILMEMBERS
PRESENT: EX OFFICIO:
ORAL COMMUNICATIONS
None.
CONSENT CALENDAR
Doyle, Fraser, Fredericks, O'Donnell
Slavitz
Town Manager Curran, Town Attorney Danforth,
Director of Community Development Anderson,
Building Official Lustenberger, Town Clerk Crane
Iacopi
1. Town Council Minutes — Adopt minutes of October 16, 2013 regular meeting (Town
Clerk Crane Iacopi)
2. 2308 Mar East — Adopt resolution denying appeal of Magdalena Yesil /Jim Wickett 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)
3. General Plan Circulation Element Update — Approve consultant selection and budget
amendment for a comprehensive update of the General Plan Circulation Element;
authorize Town Manager to negotiate and execute the Service Agreement (Director of
Community Development)
4. Storm Drain Repairs — Award of contracts for 2013 stone drain repairs and flushing
(Director of Public Works /Town Engineer Nguyen)
Town Council Minutes #17 -2013 November 6, 2013 Page 1
MOTION: To adopt Consent Calendar Item No. 1 through 4, as written.
Moved: Fredericks, seconded by Fraser
Vote: AYES: Unanimous
ABSENT: Slavitz
PUBLIC HEARINGS
1. Uniform Construction Codes Updates — Consider amendments to Title IV, Chapter 13 of
Town Code to adopt by reference and with modifications the latest State - authorized
Construction Codes (Community Development Department) — Introduction and fir st
reading of ordinance
Director Anderson gave the report. He said that the State of California adopts updated unifonn
construction codes approximately every three years and that the new state codes will go into
effect on January 1, 2014.
Anderson said the ordinance before the Town Council at tonight's meeting contained the
proposed Town adoption of the most recent State of California- authorized construction codes,
with modifications for local conditions, and also ratifies the two local Fire Districts' adoption of
the 2013 California Fire Code and other fire- related codes adopted by those Districts. He said
that adoption of this ordinance is ministerially exempt from the requirements of CEQA per state
statutes.
In his analysis, the Director said there are few significant changes to the standardized
construction codes for this cycle. The primary change of which staff is aware is that the basic
201' ) California Green Code contains significant new water conservation provisions that will
require upgrading of plumbing components upon issuance of a building permit.
Anderson said that local building divisions in Marin County are studying alternative methods of
implementing the new water conservation requirements, including self - certification programs.
He said the Town was considering this approach as well.
Director Anderson said new provisions will almost certainly add cost to many permits and
involve additional plumbing work that is not currently required.
Also with respect to the Green Code, he noted that at the prior code adoption cycle in 2010, the
Town chose to defer adoption of Tier 1 provisions as set forth in the CalGreen Code, instead
opting for adoption of the basic CalGreen code. However, several Marin County cities and the
County of Marin either adopted Tier 1 or the similar Green BERST standards in 2010.
Anderson said that for the 2013 cycle, it appears that most Marin jurisdictions will be adopting
Tier 1 provisions of the CalGreen Code. He said Town staff supports the greatest amount of
consistency throughout the county with respect to CalGreen Code adoption, and supports
Town Council Minutes #17 -2013 November 6, 2013 Page 2
adoption of Tier 1 provisions by the Town on that basis. He added that the water conservation
requirements referenced above are part of the basic CalGreen Code and are not a separate
requirement created by Tier 1 provisions.
The Director said that that staff had provided the Council with a supplemental memo describing
the proposed CalGreen Tier 1 measures. He said the measures do not apply to additions and
remodels —only to new construction projects.
Anderson also said an article describing these new regulations appeared in [the October edition
of] the Town's electronic newsletter.
Council asked a number of questions.
Vice Mayor Fredericks asked how the new measures differed from current water efficiency
requirements. Building Official Lustenberger said there were two different types of requirements
– one set being contained in a civil code section adopted four years ago that requires low water
usage for plumbing, etc., as of January 1, 2014, and the second is each fire district's permitting
requirements. He said the Green Code is different and it is not integrated into the model codes;
he added that he brought this discrepancy up at the county -wide meeting of Building Officials to
try to work on a solution toward reasonable implementation.
Councilmember Fraser thanked staff for preparing the supplemental memo. He asked whether
Residential Resale Building Reports (RBRs) would be impacted with the new plumbing
checklist. Lustenberger said at this time they would not, but that at each cycle new requirements
come into being, so that during the next cycle, the Town might need to implement such
requirements. He added that the Town is not required to enforce the new water conservation
regulations unless a building permit must be pulled by the homeowner.
Fraser said that the more widely distributed this information was, the better. He asked the local
newspaper reporter who was present to consider writing something about this so that residents
would understand that these new requirements are coming from the State rather than their local
government.
Councilmember Doyle asked about the 20% permeable surface requirement for parking areas.
Lustenberger said that most new shopping centers have permeable asphalt and concrete now, so
the materials are readily available and will save money on permits pulled by homeowners since
they won't need to pay the Town's impervious surface fees for the permeable asphalt sections.
Doyle also asked about the regulation to preclude oversizing of beams or supports. The Building
Official said that this was a mandatory feature of the CalGreen Code; and that Tier 1 simply
enhances these requirements. To meet Tier 1 provisions, he said a homeowner could not have
oversized beams or supports. (He went on to explain how you can pick two electives off this
checklist to be compliant with Tier 1.)
Town Council Minutes #17 -2013 November 6, 2013 Page 3
Vice Mayor Fredericks asked why precluding oversizing was important. Lustenberger said that
using a 4 x 12 versus a 6 x 12 beam saves 10 board feet of lumber (resource management).
Mayor O'Donnell opened the hearing to public comment. There was no public comment. Mayor
O'Donnell closed the public hearing.
MOTION: To read the ordinance by title only.
Moved: Fredericks, seconded by Doyle
Vote: AYES: Unanimous
ABSENT: Slavitz
Mayor O'Donnell read, "An ordinance of the Town Council of the Town of Tiburon amending
Title IV, Chapter 13 of the Tiburon Municipal Code by adopting with amendments the most
recent standardized Construction Codes."
MOTION: To pass first reading of the ordinance, and waive second reading.
Moved: Fredericks, seconded by Doyle
Vote: AYES: Doyle, Fraser, Fredericks O'Donnell
ABSENT: Slavitz
ACTION ITEMS
1. Martha Property MOU — Recommendation to approve extension of Memorandum of
Understanding with the Martha Company (Town Attorney Danforth/Coinmunity
Development Department) — continued from October 2, 2013
Mayor O'Donnell said that he must recuse himself because he lived within 500 feet of the
Martha property. Prior to turning over the meeting over to Vice Mayor Fredericks, he asked for
Town Council and Town Manager reports (items moved up on agenda).
TOWN COUNCIL REPORTS
None.
TOWN MANAGER'S REPORT
Town Manager Curran said that the Chamber was planning its annual holiday festival for
Saturday, December 7, in downtown Tiburon. She said the forinat this year would be different,
in that it was not a Friday evening, and they were requesting street closure [of Main Street] for
the day. Because of the latter, Curran said her policy was to bring street closure requests directly
to the Council and, if all goes well, it could be incorporated into future event planning. There
was no negative continent from the Council.
Town Council Minutes #17 -2013 November 6, 2013 Page 4
Mayor O'Donnell recused himself and left the dais. Vice Mayor Fredericks took the gavel.
Town Attorney Danforth gave the report on the Martha Company MOU extension request and
answered Council questions. She said that at the October 2, 2013 meeting, the Town Council
had considered a request from the Martha Company ( "Martha ") to extend the expiration date of
the 2009 Memorandum of Understanding ( "MOU ") to December 31, 2014. She said that after
hearing considerable public testimony, the Council decided to delay action on the extension, due
in part to the fact that the Council did not believe the County's meeting schedule had given the
public enough time to consider and comment on the infonnation in the EIR. But she also said
the Council had concerns about various issues in the EIR. The Town Attorney said that Director
of Community Development had articulated these concerns in a letter to the Board of Supervisors
and had attended the October 22 hearing on the EIR. She said there had been a stay in the
certification of the EIR, as Council had desired, however the MOU expiration was still imminent.
Among the issues cited by the Council and expressed by the public was whether the MOU might
expose the Town to liability for any unsafe conditions in the MOU Project (the 32 -unit
development contemplated by the MOU). The Town Attorney addressed these concerns, which
arose from Section 5 of the MOU and Section 1.7 of Exhibit 1 to the MOU (draft Development
Agreement).
Town Attorney Danforth said that the MOU requires the Town to review the County EIR to
determine whether the MOU Project has any safety constraints and to conduct such further
studies as necessary to satisfy itself that the MOU Project would not create any conditions
dangerous to health and safety. She said that if after reviewing such studies, the Town concludes
that the project will not create such conditions the Town would sign a certification that the MOU
Project should not result in conditions dangerous to health and safety. If the Town cannot reach
this conclusion, she said, the MOU will terminate.
Danforth said that under statutory law, public agencies are not responsible for dangerous
conditions on private property, even where agency staff has inspected the property for such
conditions and were actually aware of their presence (Govermnient Code Section 818.6). She
added that even if the Town had conducted the required environmental review of the project, the
Town would not be liable for any injuries that resulted therefrom; that responsibility would lie
with the developer and their design team, contractors and so forth.
The Town Attorney explained that the provisions in question were not included in the MOU to
shift liability between parties. She said they are there because of the technical details of land use
law and because of the parties' respective interests in entering into the MOU.
Danforth said the Martha Company wanted to enter into a development agreement with the
County that will grant it vested rights to construct the MOU Project over a 10 -20 year period.
She added that the Town wanted the right, but not the obligation, to annex the property after the
subdivision was complete.
Town Council Minutes #17 -2013 November 6, 2013 Page 5
Under normal circumstances, she said the Town could avoid being bound by the development
agreement if the Town found that the MOU Project would result in conditions dangerous to
health and safety. The MOU requires the Town to address that question at an earlier stage. If the
Town cannot satisfy itself on the health and safety issue, it can decline to make the certification.
In that event, there will be no development agreement, the MOU will terminate and Martha will
be free to pursue the 43 -unit project.
Town Attorney Danforth said that although final certification of the EIR appears some months
away, staff continues to believe that the 32 -unit MOU project is preferable from the Town's
perspective to the 43 -unit Original Project. In the absence of the MOU, she said the Martha
Company is free to pursue the larger project.
She underscored that the MOU extension does not bind the Town to unconditional support of the
MOU Project. The MOU expressly allows the Town to withdraw from the agreement under the
following circumstances:
If the County imposes changes on the MOU Project that are unacceptable to either the
Town or the Martha Company and the parties and the County are unable to agree upon a
mutually acceptable resolution within 90 days after negotiating in good faith.
If the Town is unable to satisfy itself that the project will not result in dangerous
conditions.
Given the foregoing, Danforth said staff believes that the extension of the MOU is in the Town's
best interests. She said the Martha Company's attorney, Paul Smith, originally requested an
extension until June 30, 2014. However, this six -month extension may be insufficient to
accommodate the extended project processing that will be caused by the additional studies that
the Board of Supervisors requested on October 22. Accordingly, Mr. Smith now requests, and
staff supports, a one -year extension.
Council had the following questions:
Councilmember Fraser asked the Town Attorney to confirm his understanding that the Council
could extend the MOU for any period it chose, i.e., six months or a year. He also asked if the
Town could withdraw from the MOU at any time if it uncovered any health and safety concerns.
Town Attorney Danforth confirmed that the Town had discretion to extend the MOU for less
than one year. She noted that the Town should not make the determination regarding health and
safety until after the County acted; until that action, the Council does not have an actual project
to evaluate. After the County acts, the Town Council could [theoretically] say that it cannot
make the health and safety certification; this would terminate the MOU and Martha could seek to
develop the property according to the 43 -unit Original Project.
Town Council Minutes 417 -2013 November 6, 2013 Page 6
Councilmember Fraser asked for confirmation that the Town was not bound by the development
agreement because the County wasn't parry to the MOU. Town Attorney Danforth said the
MOU contemplates that the County will approve the 32 -unit project alternative and agree to enter
into the Development Agreement. If the County does not take those actions, the MOU
terminates and the health and safety certification will be moot. Danforth noted that the County is
not a party to the MOU and the Town would not be a party to the Development Agreement.
Vice Mayor Fredericks said that she'd been concerned that once they made the health and safety
certification (which would relate to the project- created issues, not pre - existing site conditions), it
would come back as legal argument for an "undertaking" of liability. But it was for the benefit of
the parties, not to create liabilities or defeat immunities. Danforth confirmed these statements
and Vice Mayor Fredericks said that she understood.
Vice Mayor Fredericks opened the matter to public comment. There was none.
MOTION: To approve the extension of the MOU to December 31, 2014.
Moved: Fraser, seconded by Doyle
Vote: AYES: Unanimous
ABSENT: Slavitz
WEEKLY DIGESTS
• Town Council Weekly Digests for October 18 & 25, 2013
ADJOURNMENT
There being no further business before the Town Council of the Town of Tiburon, acting Chair
Vice Mayor Fredericks adjourned the meeting at 7:52 p.m.
q ffA- �4
EMMETT O'DONNELL, MAYOR
ATTE .
DIANE CRANE IA PI, TOWN CLERK
Town Council Minutes #17 -2013 November 6, 2013 Page 7