APRIL 19, 2005 RANCHO PALOS VERDES CITY COUNCIL DRAFT M I N U T E S APRIL 19, 2005 RANCHO PALOS VERDES CITY COUNCIL DRAFT M I N U T E S APRIL 19, 2005 RANCHO PALOS VERDES CITY COUNCIL DRAFT M I N U T E S

DRAFT

M I N U T E S

RANCHO PALOS VERDES CITY COUNCIL

APRIL 19, 2005

The meeting was called to order at 7:11 p.m. by Mayor Clark at Fred Hesse Community Park, 29301 Hawthorne Boulevard, Rancho Palos Verdes.

Roll call was answered as follows:

PRESENT: Long, Stern, Gardiner, Wolowicz, Clark

ABSENT: None

Also present were City Manager Les Evans; Assistant City Manager/City Clerk Carolynn Petru; City Attorney Carol Lynch; Director of Finance and Information Technology Dennis McLean; Director of Planning, Building and Code Enforcement Joel Rojas; Director of Public Works Dean Allison; Assistant City Attorney Robin Harris; Senior Engineer Ron Dragoo; Accounting Manager Kathryn Downs; Senior Planner Ara Mihranian; Senior Administrative Analyst Gary Gyves; Associate Planner Eduardo Schonborn and Minutes Reporter Debra Presutti.

The Pledge of Allegiance was led by Director of Finance/Information Technology Dennis McLean.

RECYCLE DRAWING:

Mayor Clark announced Mary Barstow and Cleora Wellinger as recyclers of the month, congratulating them and thanking them for their recycling efforts.

CEREMONIAL MATTER:

Mayor Clark extended appreciation on behalf of the Council, City staff and the entire community to Bud Franklin, Ken Dyda, Paul Weber, Neva Drages, Jim Jones, Damon Willens, Bill Schurmer, and Libby Aubrey and presented those in attendance with a plaque commemorating their service to the City as View Mediators and members of the Traffic Committee.

MAYOR’S ANNOUNCEMENTS:

A five-minute video regarding the proposed Portuguese Bend Nature Preserve was presented as the Mayor’s "Did You Know Facts" segment. Mayor Clark declared that this was a tremendous and inspiring opportunity to transform this dream into a reality, saying that the process was rapidly moving forward and whatever support community members could contribute towards this effort would be very much appreciated.

APPROVAL OF AGENDA:

Mayor Pro Tem Wolowicz moved, seconded by Councilman Stern, to approve the Agenda.

Mayor Clark proposed reordering the Agenda by moving Item No. 12, Water Quality and Flood Protection Program - Proposed Storm Drain User Fee, immediately following the Consent Calendar.

Councilman Long suggested moving Item No. 11, City Advisory Boards, forward as well.

Mayor Pro Tem Wolowicz and Councilman Stern agreed to amend the motion on the floor to reorder the agenda. By acclamation, Mayor Clark so ordered.

The Agenda was reordered in the following order: Items 11, 12, 8, 9, 10 and 13.

PUBLIC COMMENTS:

Lenee Bilski, RPV, noted that, after being briefed in Closed Session regarding the on-going construction project at No. 2 Yacht Harbor Drive, Council denied the request to return the item to the Planning Commission and also reversed their directive to move the stone cutting operation off-site. She advised that the Sea View neighborhood was still being subjected to noise and significant view impairment while the City had moved on to other issues. She indicated that the dust was being controlled since the stone cutting operation was relocated to the garage but the noise had simply been redirected because the garage had no doors. She told Council that neighboring residents were anxiously waiting for the final grading do occur near the end of the project, saying that the area used to stockpile the stone continued to obstruct their views of Long Point and Sacred Cove. She noted that the stone cutting operation began in 2000, but the building permits for the new home were not issued until 2001 and 2002, leading her to question how the stone cutting operation could be considered part of permits that had not yet been issued. She further noted the December 4th staff report failed to mention that the residents’ complaints about dust dated back to that time and suggested that staff was giving preferential treatment to this particular applicant. She indicated that despite Council’s direction to place the stone cutting operation in the garage under the assumption it would mitigate the noise and control the dust, staff had not followed the Council’s directive and had accommodated the applicant’s convenience instead.

Councilman Long cautioned against discussing something affecting a property owner who had not been provided with notice of the meeting.

Mayor Clark agreed that this was a legitimate concern and noted that he would permit staff to respond only to Ms. Bilski’s comments, rather than to the substance of her allegations.

Director Rojas advised that staff had been monitoring the site and was aware of improvements that were made to minimize impacts to the neighbors, saying that staff believed these steps were sufficient to address their concerns. He indicated that, if there were other issues, staff would certainly look into them.

Mayor Pro Tem Wolowicz requested that at Council’s next meeting staff provide a status report that addressed the specific issues raised by Ms. Bilski, as well as a time line and projected sunset for this project.

Councilman Long indicated a copy of that report should be provided in advance to both the property owner and the Sea View neighbors.

Lois Larue, RPV, brought to staff’s attention some "for rent" signs on Palos Verdes Drive West. She commented on the construction at No. 2 Yacht Harbor Drive, saying that many people in the community were unhappy because that project was destroying their views.

CITY MANAGER REPORTS:

None.

OLD BUSINESS:

Assistant City Manager/City Clerk Petru reminded the audience that items previously discussed and continued to a future City Council meeting could be found on the City’s website at www.palosverdes.com/rpv.

NEW BUSINESS:

APPROVAL OF CONSENT CALENDAR:

Motion to waive full reading.

Adopted a motion to waive reading in full of all ordinances presented at this meeting with consent of the waiver of reading deemed to be given by all Council Members after the reading of the title.

Approval of the Minutes

Approved the minutes of January 24, 2005 adjourned regular meeting and March 15, 2005 adjourned regular meeting.

Repair of the Tarapaca Storm Drain

Reviewed and reconfirmed by a four/fifths (4/5) vote, the Council’s previous action on December 21, 2004 to authorize staff to conduct an informal bid process to repair the Tarapaca Storm Drain.

Crossing Guard Services for 2005-2006 School Year: Amendment No. 13 to All City Management Services Contract

Authorized the Mayor and the City Clerk to execute Amendment No. 13 to the agreement with All City Management Services, Inc. for an amount not to exceed $15,915.00 to provide crossing guard services at Miraleste Intermediate School and Silver Spur Elementary School for the 2005-2006 School Year.

Commercial Refuse and Collection Agreement with Avel Roll Off

Authorized the Mayor and the City Clerk to execute a Non-exclusive Franchise Agreement for Commercial Refuse Collection and Disposal Services with Avel Roll Off.

Future Agenda Items

Received and filed a list of future City Council agenda items prioritized by the City Council.

Register of Demands

ADOPTED RESOLUTION NO. 2005-37; A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES ALLOWING CERTAIN CLAIMS AND DEMANDS AND SPECIFYING FUNDS FROM WHICH THE SAME ARE TO BE PAID.

Councilman Stern moved, seconded by Councilman Gardiner, to approve the Consent Calendar.

The motion to approve the Consent Calendar carried on the following roll call vote:

AYES: Wolowicz, Long, Gardiner, Stern, Clark

NOES: None

# # # # # #

REGULAR NEW BUSINESS: (reordered)

City Advisory Boards

Mayor Clark recommended that Council appoint the three residents who volunteered and were interviewed by Council to serve on the Western Avenue Task Force and that the application period remain open to provide the opportunity to supplement RPV’s representation on the joint task force with the City of Los Angeles. He noted that Councilwoman Hahn had already named seven or eight members to represent the City of Los Angeles.

Councilman Gardiner confessed that he was still not entirely clear of the mission, the deliverable, and the time constraints of the Western Avenue Task Force and suggested that it might be prudent for Council to request that the new Traffic Safety Commission appoint a subcommittee to round out the membership on the Western Avenue Task Force.

Councilman Long suggested that the Council take the appointments in the order presented in the staff report, starting with the appointment to fill the vacancy on the Traffic Safety Commission and then appointing the Chair for this new Commission.

Mayor Clark agreed and asked the Assistant City Manager/City Clerk to distribute the ballots.

After balloting, Assistant City Manager/City Clerk Petru indicated that Stanislav Parfenov received three votes.

Mayor Clark announced that Mr. Parfenov had been appointed to the Traffic Safety Commission and thanked all three applicants for volunteering to serve the City.

Councilman Gardiner moved, seconded by Councilman Stern, to appoint Ava Jordan-Shepherd as Chair of the Traffic Safety Commission. Without objection, Mayor Clark so ordered.

Mayor Pro Tem Wolowicz moved, seconded by Councilman Stern, to appoint Mark Buczko, William Schurmer, and Don Shults, which were the three candidates Council interviewed earlier that evening, to serve on the Western Avenue Task Force.

Without objection, Mayor Clark so ordered.

Mayor Clark asked for further discussion of filling the City’s remaining seats on the Task Force, noting that although the City of Los Angeles already had eight members, he did not feel that Rancho Palos Verdes necessarily needed to match this number, but that more representation of City’s interests was needed.

Councilman Stern noted that, while he appreciated the City’s need to properly fill its seats of the Task Force, he agreed with Councilman Gardiner that it might be more appropriate for the Traffic Safety Commission to create a subcommittee to participate on the Task Force, rather than keeping the recruitment open for an undefined term, especially given the fact that the City of Los Angeles had already held the first meeting of the Task Force and was moving forward.

Mayor Clark indicated that he also like Councilman Gardiner’s idea.

Councilman Long agreed with Councilman Gardiner and Stern’s suggest, adding that Council should request that the existing Western Avenue Task Force consider re-scheduling the meetings to a more convenient time since the current schedule had been part of the trouble in recruiting applicants to represent the City.

Mayor Clark agreed with the proposal that the Traffic Safety Commission establish a subcommittee to augment the City’s membership on the Western Avenue Task Force; that staff should be given input to convey back to the staff of the City of Los Angeles regarding the way ahead, emphasizing the fact that this was a joint task force between the two cities; that the Chair selected for the City of Los Angeles should now become a Co-Chair along with a Co-Chair from RPV; and, that the first order of business with RPV’s members present at the next meeting should be to review and potentially modify the scope of work, schedule and end product for this effort.

Councilman Gardiner recommended that Mayor Clark hold a meeting with City of Los Angeles Councilwoman Hahn to clarify these issues rather than having RPV’s representatives join a task force that was already underway at full speed.

Mayor Clark indicated that he would be willing to do as Councilman Gardiner had suggested if it was the desire of the entire City Council.

Water Quality and Flood Protection Program – Proposed Storm Drain User Fee

City Manager Evans advised Council that a presentation on this topic was provided at the Community Leaders’ Breakfast held on April 16th, saying that the program was taped and could be seen on cable television Channel 3.

Director McLean introduced the members of City staff and consultants who assisted with preparation of this item and expressed his sincere appreciation for their cooperation, professionalism, and first-rate work. With the assistance of a PowerPoint presentation, he explained that staff was recommending a fee of $86 per equivalent residential unit (ERU) in response to the following facts: a telephone survey conducted prior to the winter storms indicated less than 50 percent support for a rate over $100; although support was substantially stronger in a mail survey conducted the end of March 2005, the City’s advisor Tim McLarney briefed the team on April 7th and clearly indicated that, while the recent winter storms had improved support, that support might fade by summer when the ballots would be mailed back to the City; additionally, the School District was conducting an opinion poll in contemplation of a ballot measure for another parcel tax or an extension of its existing one. Director McLean advised Council that these facts convinced the team to recommend the $86 fee versus anything higher.

Mayor Clark queried staff as to what would constitute a majority protest.

Assistant City Attorney Harris answered that written protest submitted by a majority of property owners of those parcels subject to the fee would be defined as a majority protest.

Councilman Gardiner inquired why a mail ballot was being considered during the height of summer when many people would be on vacation.

Assistant City Attorney Harris responded that the California Election Code provided only three possible dates on which the City could hold a mail ballot election and the proposed date complied with that law.

Mayor Clark asked what dates the Election Code authorized as acceptable for a ballot initiative.

Assistant City Attorney Harris advised Council that the allowable dates were 1) the first Tuesday following the first Monday in May of each year, 2) the first Monday in March of even-numbered years, and 3) the last Tuesday in August of each year.

Mayor Pro Tem Wolowicz said that his understanding of the rationale behind choosing this particular date was that it was the last date possible to ensure the measure would take effect during ‘06-’07 tax roll.

Assistant City Attorney Harris explained that the March ’06 election date would also allow the user fee, if it passed, to be placed on the ‘06-’07 tax roll.

Director McLean concurred, saying that his understanding was that a ballot election in March or May of 2006 would still enable the City to submit the tax rolls in August 2006 and collect the first installment of user fees on December 20th of that same year.

City Manager Evans noted that it would, however, put the public hearing process during the December 2005/January 2006 holiday period.

Councilman Stern said that his understanding was that the ballots could be returned any time during the six-week period from July 15th to the end of August 2005.

Assistant City Attorney Harris replied that Councilman Stern was correct, saying that, if the process went forward, the ballots would be mailed no later than July 15th with a return date no later than August 30th, and that the ballots could returned anytime within that time period.

Councilman Long asked if receiving the anticipated $86 fee and spending it according to the rehabilitation program developed by staff, which no longer included Priority 3 projects, would alleviate the City’s declining General fund reserve.

Director McLean responded that the revenue generated by the storm drain user fee would be deposited into a dedicated enterprise fund rather than going into the General fund. He stated that there was an assumption that in fiscal years ’06-’07 through ‘09-’10 about $1.5 million from the General fund would be dedicated to the City’s Pavement Management Program, noting that as Council proceeded through the budget process decisions would need to be made on how much to spend on capital projects and Council might decide to dip into the reserves rather than spending that $1.5 million.

Councilman Long requested an explanation of the City Council policy to maintain a General fund reserve equal to 50% of anticipated annual revenue.

Director McLean explained there were two considerations behind the Council policy: The first was to maintain adequate cash flow since the majority of the City revenues, i.e. property taxes, were received in December and the cash flow was lean in the fiscal months prior to that; and the second, perhaps more important reason, was that cities traditionally maintained reserves to address emergencies or other circumstances that might unexpectedly drain the City’s cash resources.

Mayor Clark noted that Councilman Gardiner raised an interesting point regarding the timing of the mail ballot initiative and queried if staff had additional input on why they feel it was best to proceed during the summer versus waiting until the following year.

City Manager Evans advised that staff had been working on this project for a couple years and had initially targeted the election to take place in May 2005, thereby placing the fee on the tax rolls an entire year earlier if the fee was passed by the voters. Although it would not have been staff’s first choice, because the timeline for a May 2005 election had come and gone, August 2005 was the next eligible date. He agreed that May would be a more desirable month but cautioned that shutting the election process down for six to eight months would not be cost effective because the momentum, the educational process, and the value of the opinion surveys would be lost and the effort would have to start over again if the Council decided to wait until May 2006.

Councilman Stern agreed that it would be a huge mistake to delay the process further simply because the timing of the election fell during the summer.

Councilman Long endorsed Councilman Stern’s comment and asked if it would be possible to mail the ballots a week earlier, perhaps right after July 4th.

Assistant City Attorney Harris indicated that the ballots could be mailed out as soon as the City held the public hearing, noting that the 45-day requirement was a minimum, therefore there was no problem providing the public with a longer period of time in which to return their ballots.

Councilman Gardiner remembered that the School District implemented a parcel tax in 2000 that included an exemption provision and that the District was quite surprised to discover the number of individuals that qualified for that exemption. He inquired if the City had explored those numbers as a type of safety check against the assistance program being suggested by staff.

Director McLean advised that the School District’s program was different because it allowed seniors over age 65 to be exempted from the parcel tax, regardless of income.

Councilman Long observed that State law did not allow an exemption for the type of user fee being proposed based on age alone. He mentioned that the $86/ERU was the projected average fee, noting that average and median were not the same since it appeared that 60 to 65 percent of parcels would be assessed below the $86 level, making the median lower.

City Manager Evans agreed with that calculation, noting that approximately two thirds of property owners would pay less than $86 per year.

Councilman Gardiner queried what the $86/ERU would become if inflated two percent a year for 30 years. He cautioned that these funds were intended to sustain the program so it was not trivial to ask at what rate the fee needed to be boosted to account for the rate of inflation and the subsequent rise in the cost of materials.

Mayor Pro Tem Wolowicz agreed that the rate of inflation would likely drive costs up. He explained that inflation would not be a concern if the entire project could be completed in five years but the fee per ERU in that scenario would, unfortunately, be quite high. He indicated that the balancing feature used to make this more palatable to the City’s residents had been to spread the projects out over a longer period of time, saying that he was fairly convinced the fee revenues generated by the user fee, even with ability to increase it the fee by 2% a year would not be adequate to fund the program within a couple decades.

Councilman Gardiner stated that it would be helpful to see a breakdown of the difference between the one-time repair costs and the ongoing maintenance costs that would be needed to sustain the drainage system over the long term.

City Manager Evans reminded Council that the program being presented was not the one staff originally envisioned, saying that staff initially proposed a 20-year program with a rate of $168/ERU. He noted that the City would indeed have to rely on future revenues, which staff believed would come from Transient Occupancy Tax (TOT), if the projects were going to be completed in a timely manner, keep up with the rate of inflation, and include some of the Priority 3 projects. He advised that, although this was not the optimal program staff had envisioned, it was a sustainable program and, in the event TOT revenues did not come in or were less than projected, there would still be a dedicated funding source to fall back on.

Councilman Long noted that the current program only encompassed about 40 percent of the ideal program, saying that, ultimately, this proposal was a workable compromise. He indicated that if the program were successful at the end of 30 years, the revenue generated at that time would be sufficient to deal with emergencies, maintenance, and ongoing issues, saying in that respect staff had articulated a thoughtful and well-crafted compromise.

Councilman Stern remarked that TOT was General fund revenue and could be used by any City Council however it chose, but that the user fee had the distinction of locking the money into this specific storm drain program.

Director McLean agreed with Councilman Stern’s statement, saying that the funds would be received and deposited into an enterprise fund specifically for this program.

City Manager Evans pointed out that, if the fee went into effect and other funds became available in the future, there would be no advantage in continuing to charge the fee and allowing the funds to accrue since the money cannot be diverted to any projects other than drainage and flood control.

Recess and Reconvene:

Mayor Clark recessed the meeting at 8:55 p.m. and reconvened the meeting at 9:08 p.m.

Councilman Gardiner inquired when the storm drain user fee would terminate.

City Manager Evans answered that the fee had been structured so there was no pre-determined cessation point. He explained that the assumption was that Council would set the fee at zero once all the storm drain matters had been addressed since the money could only be used for this specific purpose.

Councilman Stern asserted that there was tremendous value in the way the program had been designed, saying that, since the funds could not be used for anything else, he believed once all the work had bee completed, Council would not continue to charge a fee and accumulate money they could not spend. He further noted that the money collected from the user fee could be pledged as security and borrowed against which would place the City in position to be able to receive very attractive financing should there be a need to accelerate some of the projects.

Director McLean concurred, saying that the dedicated revenue stream provided an excellent collateral source to secure loans in the event Council elected to use debt financing to fund some of the projects as a group.

Councilman Stern queried if the City could similarly pledge General Fund revenue for such financing.

Assistant City Attorney Harris advised Council that General funds could not be pledged as collateral in the same manner as enterprise funds.

Councilman Stern commented that, if future City Councils were fortunate enough to see millions of dollars of TOT revenue or some other new sources of General Fund revenue, they would have the option of using a portion of that unrestricted revenue to reduce the storm drain user fee or eliminate it on a year-by-year basis.

Mayor Pro Tem Wolowicz, in response to Councilman Gardiner’s concern with the issue of having no finite end to the fee, explained that the Finance Advisory Committee decided not to recommend a sunset clause as part of the program because the sitting City Council at the beginning of any year can suspend the collection of the fee if it deemed it appropriate. He contended that this was a very unique and compelling argument in favor of not imposing a sunset. He noted that he had received several inquiries asking why the City had not chosen to use bond financing, indicating that this type of funding was not available without a dedicated stream of revenue to guarantee repayment.

Mayor Clark cautioned that this type of debt financing would also double or perhaps triple the cost of implementing the storm drain rehabilitation program.

Mayor Pro Tem Wolowicz agreed, saying that it was a significant consideration in adopting this type of "pay-as-you-go" plan.

Councilman Gardiner questioned if the estimated $150,000 per year for maintenance would be enough to provide ongoing support for the storm drain system.

Accounting Manager Downs explained that $130,000 per year in current dollars would provide for actual maintenance activities, noting that most of the initial storm drain renewal would involve reconstruction.

City Manager Evans advised Council that once all the identified projects had been completed and all the corrugated metal pipes had been replaced with reinforced concrete, staff envisioned that the system would only require occasional inspections and repairs, saying that the on-going maintenance costs should not equate to anywhere near the $86/ERU.

Mayor Clark noted that, although the City would have renewed its entire storm drain system once the 38 listed projects and those in the Priority 3 category had all been completed, the possibility remained that other storm drains currently assessed to be in good condition may not be in 30 years, saying that the idea that once everything had been addressed it automatically became a matter of maintenance was not entirely true.

Councilman Gardiner indicated that there should be no need to replace pipes if they had been properly maintained for 30 years.

City Manager Evans explained that the City was currently looking at 50 years of deferred maintenance on all its corrugated metal pipes (CMP). He indicated that staff was hopeful that once all the CMP’s had been replaced with reinforced concrete that they would last for a hundred years, but there was still some uncertainty as to how long the corrugated metal pipes that were simply lined were going to last and, as a result, staff was not sure if they could accurately project this over the next 20 or 30 years.

Councilman Gardiner declared that this program absolutely needed to be done right if it was going to be undertaken. He maintained that once all the work had been completed an estimate for future maintenance should be determined and a maintenance program implemented because proper maintenance would dramatically extend the life cycle of the system. He reminded his colleagues that the City was facing this problem now precisely because maintenance was deferred for the last 50 years. He stated he was still trying to determine what the ongoing funding requirement was anticipated to be.

Councilman Long explained that he was hesitant to include a sunset provision in the program because past experience suggested that predictions about what was going to happen were often wrong and additional, unanticipated things were likely to happen. He asserted that making a decision now with no knowledge of what was actually going to occur in the next 30 years could equate to a very bad decision. He upheld that subsequent Councils would have the power to sunset the fee at any time if they deemed it to be appropriate, based upon the circumstances and conditions at the time.

Councilman Gardiner indicated that once this user fee was in place, it would last forever, saying that Council would have to take deliberate action to set it to zero every year in which it thought the fee was unnecessary, which he felt was an unlikely scenario.

Councilman Long stated his prediction that between the present time and year 30 additional things would occur that cannot be predicted, saying that the absence of a sunset provided a safety valve so future Councils would not have to rely on this Council’s decision being perfect.

City Attorney Lynch advised Council that the proposed ordinance also authorized the Council in any year to completely repeal the fee.

Mayor Clark called for the first speaker on this item.

Rita Moyers, RPV, introduced herself as a resident since 1973 and stated that she did not support the proposed user fee or "tax", noting that if it was approved by Council and presented to property owners via a mail ballot a simple majority was all that would be required for its passage. She asked why she or anyone else would grant any City Council the annual authority to change the amount of a tax, saying that everyone knew that taxes never go down and this one would never go away. She indicated that, in an effort to persuade property owners to support this proposal, the claim had been made that the majority of residential properties would pay an annual fee less than $85 and the majority of condominium and townhouse owners would pay $24 or less; however, under the Frequently Asked Questions section of the City’s web page, the response to the question "How much would I have to pay?" indicated that the majority of residential properties would pay an annual fee of less than $134, with condo and townhouses paying $38 or less. She asked for verification of which of those two statements was actually correct.

Ms. Moyers declared that all things had life cycles and, noting that property owners had to plan and budget for high-cost repairs to their homes, she asked why the City had not been budgeting for these repairs all along. She stated that she was offended that statistics from the second highest recorded rainfall in years were being used as a scare tactic to promote and pass this fee. She reminded Council that the drains on Western Avenue were not RPV’s problem because that roadway was under the jurisdiction and was maintained by Caltrans. She asserted that the bottom line was that the City needed to budget for these repairs, claiming there was no emergency and an ample amount of time was therefore available to determine an equitable method to finance these repairs. She concluded by declaring that charging a user fee in perpetuity was definitely not the way to gain voter approval.

Tim Kelly, RPV, representing the Portuguese Bend Community Association, inquired if the proposed program intended to provide storm improvements in the Portuguese Bend area, saying that the recent heavy rains created significant runoff from adjacent areas causing major damage to their privately-owned infrastructure. He stated that residents of his community assumed they would be included in the assessment, but it was unclear if they would also be included in the projects to be built.

Senior Engineer Dragoo responded that the program included some Priority 3 projects in the Portuguese Bend landslide area, as well as one major drainage project in Alta Mira Canyon.

Barbara Sattler, RPV, applauded the Council for moving forward on this item, saying that the City absolutely needed funding for storm drain repairs. She stated that her home was very close to Western Avenue and the damage from the recent sinkholes certainly impacted the City and community as a whole, noting that it was extremely fortunate that no one was injured or killed and that none of the sewer lines collapsed. She maintained that this item was of major concern to RPV and needed to be addressed, saying that she was proud of this Council for stepping up to the task.

Councilman Gardiner explained that Council as a whole agreed that this was a problem that needed to be fixed and was in the process of deciding the most reasonable way to achieve that goal, although there were very different ideas about what was reasonable. He indicated his preference would be to approach this in terms of exactly how much money was needed to complete the program properly, and then discuss affordability and funding. He opined that the current tactic of asking the public for money, seeing how much can be obtained, then determining what can be achieved with that money did not strike him as the most reasonable approach. He noted that fixing the drainage system was different from maintaining it, saying that he would like to ascertain the repair costs for each individual project in addition to the projected ongoing maintenance costs. He reminded his colleagues that the initial cost estimate for repairing the sinkhole on Western Avenue was substantially lower than the final cost. He requested that staff provide a level of confidence for each of those project estimates provided to Council. Further, he suspected that there was a maximum rate at which the City could spend money regardless of how much was appropriated, saying that he did not believe the subject of the City’s ability to absorb new revenues and its ability to spend them in a timely manner had even been discussed.

Councilman Gardiner indicated that he had received the public opinion questionnaire in the mail, probably by accident, saying that, if he had not been on Council and had sufficient time to become familiar with the matter, he would not have had enough information to make a sound decision and his instinct would have been to vote no on the survey. He stated that the City’s residents were reasonable, and that $86 or $96 or $120 was really not that much money if they were convinced that the program was going to be implemented properly and that no other funding mechanism was truly available.

Councilman Stern noted that an outline of all the projects was provided to Council, although it was some time ago, as the first step in enabling the City to get a handle on how best to prioritize those projects. Addressing Councilman Gardiner’s comment regarding the rate of spending, he agreed that if the City received a check for $30 million the following day, that amount money could not be spent efficiently in one year, saying that he believed that was implicit in staff’s proposal to pace the projects consistent with their ability to schedule and manage them efficiently. He concurred with the idea that repairing the system was different from its ongoing maintenance, noting that he would be surprised if 30 years down the line there were not additional problems that needed to be addressed. He stated that he found it difficult to believe, given the fact that these funds could only be spent for this very specific purpose, that the Council sitting 30 years hence would not either repeal or suspend the fee if they received assurance from the Director of Public Works that all the storm drain problems in the City had been resolved.

Councilman Stern declared that the City was attempting to fund a very essential service for its residents. He recognized the value of determining what those residents would like to see and what they are willing to spend, saying that he believed the current proposal met that test in every sense by prioritizing the projects and funding them in a way that was economically palatable to the City’s residents. He stated that he believed the proposed fee would more than likely not be quite enough, saying that he was hopeful that TOT revenue would significantly increase in at some point in the future to essentially subsidize the funding of this project. He felt that the initial step of establishing the user fee, however, was critical in fulfilling Council’s role to meet the needs and desires of its constituents in the meantime.

Councilman Long advised his colleagues that this issue was initially studied by the FAC in March 2003, at which point the Committee could only estimate the magnitude of the problem. He remarked that despite the fact that a more precise understanding of the problem had been developed, the only future prediction that could be made with any certainty was that the amount of money indicated would not be the exact amount needed or spent and that the order of projects as outlined would not be the precise order in which the projects were built. He cautioned that this was only a best estimate but that the delay would be endless if the City waited for definitive answers.

Councilman Long indicated that he could not answer why this item was not budgeted for previously, but noted that from the moment he was elected this issue had been foremost on his mind, his highest priority and the primary reason that he ran for City Council. He declared that the neglect of the City’s infrastructure was inexcusable, saying that between $1.3 and $1.5 million needed to be devoted to solving this problem from an annual City budget of $14 million, where more money was already being spent than was being received in annual revenue. He observed that RPV had less than one third of the per capita revenue compared to the average California city, received only six cents out of every dollar paid in property taxes, and was a very low density City with a larger amount of infrastructure per capita than most other communities.

Councilman Long indicated that he originally favored a higher fee but believed the current proposal was a very sensible compromise. He maintained that he did not want the City to depend on revenue from Long Point to address its infrastructure needs, saying that TOT revenue would be relied on in part to supplement the General Fund deficit and to deal with low Priority 3 drainage projects, but not the high priority ones. He also noted that he wanted to include a contingency fund for emergencies, saying that this proposal did not contain such a fund, but did provide a dedicated revenue stream which allowed the City the flexibility to borrow against it and provided future Councils with better information on which to base its decisions. He advocated for Council to adopt staff’s recommendation and to proceed in placing the proposed user fee before the public in the hopes of gaining their approval.

Mayor Pro Tem Wolowicz noted that Ms. Moyers posed a very good question when she asked why these repairs were not budgeted for in the past, saying that he, too, was a resident who did not favor his taxes going up. He indicated that he understood numbers, but was not well versed in the mechanics of storm drains systems. Like many other residents, he began to learn about corrugated metal pipes and the damage done to them by years of neglect only as they began to fail and cause property damage. He indicated that her question had been transformed into what the City was going to do about it now and in the future. He explained that 1998 marked the first step in drafting a master plan for the City’s storm drains, noting that it took staff until 2001 to develop the current report which was reviewed in 2003 by the FAC. He indicated that in March 2003 the cost to address the problem was estimated at $26 to $27 million, noting that each time the master plan was refined, the costs had gone up and he was concern the numbers would continue to climb as time went on.

Mayor Pro Tem Wolowicz remarked that he was not happy about new taxes, but that the City was confronted with a very serious problem that needed to be addressed immediately. He stated that he was not convinced that $1.3 million a year in user fee revenue would leave enough money to address the next problem when it arose, noting that the City recently set aside $3 million for storm drain repairs, $1 million of which was set aside just to deal with the emergency issues created by the 2005 winter’s storms. He noted that other needs to increase the budget could be caused by anything, not necessarily the occurrence of another 50-year storm. He felt that issues like the recent trouble in McCarrell Canyon, a $4 million drainage project with an eroding bluff, had motivated him to embark on this path. He indicated that whenever it was determined the money was no longer needed, a future Council could repeal the fee, saying that until that happened, he remained unconvinced that enough dollars had been identified to address all of the high-priority projects.

Councilman Gardiner inquired if the City was currently using deficit spending.

City Manager Evans answered that the City was not deficit spending, adding that he would be proposing a budget for FY 05-06 that suggested that the City not perform the recommended pavement management plan in order to avoid such a situation.

Councilman Gardiner declared that he fundamentally objected to deficit spending. He stated that when he taught governmental decision-making he instructed his students to consider all the information available that was available and review it comprehensively. He recollected seeing the list of drainage projects in the past, saying that Council was now being asked to determine the appropriate method of financing them and noted the advantage to having all the pertinent information available now would be the ability to understand all the ramifications of the various alternatives and to make well-reasoned trade-offs, instead of the "yes or no" vote the Council was currently faced with.

Councilman Gardiner contended that a new tax should definitely be a last resort. He said that the City had already set aside $3 million in the draft FY 05-06 budget for storm drain repairs and had adequate General fund reserve to continue this for several more years. He believed there was adequate time to determine if the Long Point hotel project would begin to generate new revenue, rather than moving to approve a new assessment that may or may not get the job done. He asserted that there were questions that had not been asked such as whether the citizens might favor extending the construction schedule or if they would prefer completing the repairs in 20 years rather than 30 or exploring other options. He declared that the process was moving forward at full speed and the only choice given to the public was simply whether to vote this particular proposal up or down.

Councilman Stern noted his understanding of Councilman Gardiner’s position regarding waiting to receive and then using TOT revenue to fund the repairs. He agreed that the $86/ERU might be insufficient, saying that one of the compromises in the proposal was that, if the hotel at Long Point began to generate a substantial new revenue stream, any subsequent Council could use that money to supplement the program and accelerate the construction of drainage projects. He reiterated that this plan had the attribute of creating a dedicated funding source, provided borrowing capabilities, allowed the flexibility to use TOT in the future, and that the fee can be set at zero if it was determined that TOT revenues were sufficient to fund the entire program.

Councilman Stern concurred with prior comments that the City should have budgeted for this all along but did not. He remarked that eight years ago when staff embarked on developing this program and began to get a handle on the magnitude of the situation, the political forces were such that no Council member demanded General fund revenue be applied to this known but out-of-sight need. He cautioned that there would be many demands made on the TOT revenue and as soon as underground facilities were no longer a pressing issue and people began to focus on other things, he feared that it would be dropped from the budget. He reminded his colleagues that from 1997 to current time the only drainage projects that had been addressed had been emergencies, such as Bronco Drive, San Ramon Canyon and Western Avenue, saying that not one of those projects was in the budget or allocated for in a meaningful and timely manner.

Mayor Clark felt that, as the elected leaders of the City, it was the Council’s responsibility to be proactive in decision-making, rather than being reactive and dealing with issues on a case-by-case basis. He contended that infrastructure renewal had clearly been a top issue for several years, saying that the easiest way out would be to return to the reactive mode, dealing with failures on an occurrence basis and paying much more than if those drainage systems had been addressed in a proactive manner. He observed that the City operated on an annual budget of $14 million, saying that the San Ramon Canyon project cost the City $4 million and posed the question of how many similar situations the City could incur on a reactive basis without jeopardizing its financial vitality and very existence.

Mayor Clark avowed that he ran for City Council on a platform that the elected leadership needed to engage the community in the City’s important issues and problems; to seek the public’s input in the most comprehensive manner possible; and, to allow residents to participate collectively in the decision-making process. He declared that the process being considered was one in which the affected property owners would make the decision, saying that it was important to continue outreach efforts to educate those property owners and receive their feedback because, ultimately, they would have the opportunity and responsibility to make this decision.

Mayor Clark noted that the process could be improved by providing the maximum amount of time possible to return the ballots. He proposed that ballots be mailed out very shortly after the public hearing on June 21st if no majority protest was received. He indicated that another item that had been brought up was the likelihood that a new revenue stream such as TOT from the Long Point hotel or the Trump National Golf course would be needed in the future to supplement the user fee. He requested that language be added to the proposed ordinance that focused attention on additional revenue streams without tying the hands of future Councils.

City Attorney Lynch advised that a revised draft ordinance was distributed earlier in the meeting which included a new section regarding the fee, basically stating: "Each fiscal year commencing with 2007-2008 the City Council shall, following a public hearing, determine whether to collect the storm drain fee for that year and, if so, set the rate per ERU for that year. In making its determination, the Council shall take into account the current and projected revenues of the City for such fiscal year, including but not limited to property taxes, sales taxes, and transient occupancy taxes; the current and projected expenditures of the City for such fiscal year, including but not limited to proposed expenditures in connection with the City’s storm drain system, the balance, if any, in the Water Quality and Flood Protection Program Enterprise Fund and the current and projected General fund reserves. In no event shall the annual rate per ERU be set in excess of the maximum rate without approval by the majority of the property owners subject to the storm drain fee." She indicated that this additional language would task the Council each year as part of the annual budget public hearing process to look at the general fiscal condition of the City’s revenues and expenditures before deciding how to establish the rate for the storm drain user fee.

City Attorney Lynch also advised Council that the City’s consultant, Harris & Associates, should be authorized to prepare the ballots ahead of time, in the event that no majority protest was received on June 21, 2005 and the Council decided to proceed with the mailed ballot election, so that they could be mailed out immediately following the public hearing. She cautioned that this would involve some risk because the City would spend approximately $20,000 to prepare the ballots in advance, which would be of no purpose if a majority protest was received on June 21st.

Recess and Reconvene:

Mayor Clark recessed the meeting at 10:28 p.m. and reconvened the meeting at 10:37 p.m.

Councilman Long moved, seconded by Councilman Wolowicz, to 1) Accept and approve the Rate Analysis Report, dated April 13, 2005, prepared by Harris & Associates; 2) Approve establishment of the User Fee Assistance Program and direct Staff to develop procedures for the proposed Program for adoption by the City Council on or before June 21, 2005; 3) ADOPT RESOLUTION NO. 2005-38; A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DESIGNATING A TIME AND PLACE FOR HEARING PROTESTS IN CONNECTION WITH A PROPOSED ANNUAL STORM DRAIN USER FEE, APPROVING PROCEDURES IN CONNECTION THEREWITH AND TAKING CERTAIN OTHER ACTIONS; 4) INTRODUCE ORDINANCE NO. 417; AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES AUTHORIZING THE USE OF MAIL BALLOT ELECTIONS; 5) INTRODUCE ORDINANCE NO. 418; AS AMENDED, AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES ESTABLISHING AN ANNUAL STORM DRAIN USER FEE AND AMENDING THE RANCHO PALOS VERDES MUNICIPAL CODE; and 6) Authorize staff to prepare the mail ballots in advance of the June 21, 2005 public hearing in order to maximize the length of time available to property owners to return ballots to the City.

The motion carried on the following roll call vote:

AYES: Long, Stern, Wolowicz, Mayor Clark

NOES: Gardiner

ABSTAIN: None

ABSENT: None

Councilman Long advised the audience that a comment was made sometime ago that he would not be subject to the proposed user fee because his parcel did not drain into a City-owned storm drain. He indicated that he intended to donate $86 to the City before leaving the meeting that night and would request that in future years the City advise him what the hypothetical user fee for his parcel would be, saying that he intended to make that as a charitable donation to the City for as long as he resided in RPV, thereby removing any presumption that he supported a fee that he was not required to pay.

PUBLIC HEARINGS:

Height Variation Revision and Tract Map Amendment (ZON2004-00409), Subject Property: 6270 Ocean Terrace Drive, Applicant/Property Owner: Sal Ahamed (Continued from March 15th).

Associate Planner Schonborn provided the staff report with the assistance of a PowerPoint presentation.

Councilman Stern asked staff if the portion of the trail that extended down onto the Filiorum property resulted from construction of the subject home.

Director Rojas answered that to the best of staff’s knowledge there was a trail that cut across the building pad prior to development of the house, adding that when the structure was built, it required the trail to be realigned into the recorded easement; however, he noted that a portion of the easement along the back side of the house was fairly steep and, as a result of the topography, people using the trail tended to round the corner rather than traveling straight up the steep slope, which was why part of the existing trail was located outside of the dedicated easement and on the adjacent property.

Councilman Stern inquired if Mr. Ahamed was in any way responsible for creating that steep topography.

Director Rojas answered that he was not.

Council Stern noted that the proposed agreement allowed Mr. Ahamed to continue negotiations with Mr. York, the adjacent property owner, to acquire a portion of Upper Filiorum property so the easement could be transferred there and asked if staff knew why no successful resolution had been reached between the two property owners.

City Attorney Lynch noted that staff’s understanding was that the two property owners had not agreed on a price for the land.

Councilman Stern stated that he did not understand why it had taken so long for the parties to negotiate. Noting that Mr. Ahamed had blocked the City’s easement, he inquired whether the City’s condemnation of a portion of Upper Filiorum at Mr. Ahamed’s expense would be a practical solution if the City decided to reposition the trail to restore public use.

City Attorney Lynch replied that it would.

Mayor Pro Tem Wolowicz requested clarification of the dates involved to verify the chronology of events.

Councilman Long, noting that one of the findings to permit a height variation permit in the original application was made because the view impaired was below 16 feet, declared that under the City’s View Preservation Ordinance that portion of the structure could not be considered in rendering a decision.

Mayor Clark opened the Public Hearing.

Minaz Ahamed, RPV, used a slide show presentation to illustrate some of his comments and explained that prior to 1999 the recorded trail easement was not being used, saying that instead people were taking a short cut and trespassing across their property and a portion of the Upper Filiorum to access the trail. He informed Council that as part of the approval process in January 2000 their engineer performed a site survey, certifying the home was in the right location and it was not until the final inspection that it was discovered the home was, in fact, in the wrong location. He noted that the Ahameds had been working with City staff ever since, trying to find a solution to the problems this created. He indicated that currently the trail followed the easiest grade, which came around and finally into the recorded easement directly behind their property. He exhibited a slide depicting a portion of the recorded easement that was rendered virtually unusable due to a grade of approximately 40 percent with another portion almost completely blocked by improvements on the Butterworth’s property to the east of the Ahamed property.

Minaz Ahamed indicated that in concert with staff they had devised two possible solutions to address the trail’s location outside the recorded easement; depending on whether the City did or did not purchase the Upper Filiorum property for open space. He advised that in either situation the required 15-foot setback of the home from the trail would be established and the Ahameds would pay for the cost of improving and relocating the trail. He noted that the Butterworths objected to these solutions on the basis of view impairment, privacy, and consequent property devaluation issues. He countered that the view impairment concern was actually below the 16-foot height limit and that there was no greater privacy infringement on the Butterworths property whether the house was in the approved location or was in its current location. He stated that they would agree to comply with staff’s recommendation to add a roofing element to a portion of the balcony in order to mitigate the neighbor’s privacy concerns.

Councilman Stern asked for an explanation of why the Ahameds had been unable to conclude a purchase agreement with Mr. York.

Minaz Ahamed answered that the issue was price, saying that there was a large discrepancy between the size of the parcel being acquired and Mr. York’s estimation of its value.

Councilman Gardiner queried why the Ahameds believed the Planning Commission’s 4:1 decision was not appropriate.

Minaz Ahamed stated they did not believe it addressed all the concerns of the parties involved, including the City. He remarked that the trail issue was very complication and that the Planning Commission’s decision did not necessarily address what should be done with the trail and the fact that it was not within the recorded easement.

Councilman Gardiner noted his understanding was fundamentally that the Ahamed’s house was built in the wrong location and the Butterworth’s view problems would be resolved if the Planning Commission’s decision to remove ten feet of balcony was upheld. He questioned why that would not resolve all of the issues.

Minaz Ahamed answered that it would be inequitable for the City because the trail would remain outside the recorded easement and the Ahameds would not be assisting with relocation of the trail back into the easement.

Councilman Gardiner queried why removing the ten-foot section of balcony would not resolve the trail issue.

City Attorney Lynch advised that the balcony was not encroaching into the trail, saying that the problem was that the trail did not work well within the existing easement area due to the steep grade and because there was only approximately three feet between the Butterworth’s improvements and the outer edge of the trail easement on the eastern end of the Ahamed’s property. She indicated that if the existing vegetation were to be trimmed, people might be able to barely pass through the area, which was far from an ideal situation.

Councilman Gardiner noted that Council was addressing the issue of the Ahamed’s property, not the Butterworth’s, saying that the problem with the trail easement was actually a separate issue.

City Attorney Lynch indicated that the City was attempting to resolve the view impact and privacy issues, if any, saying that if Council approved any of the proposed agreement options, a vehicle would be provided for correcting the trail problem in the future.

Councilman Long indicated that he was reluctant to approve something which resulted from an error made by the applicant’s hired expert. He noted that it appeared the applicant was attempting to provide the City a workable trail in exchange for leaving their existing balcony undisturbed. He inquired if the agreement could be structured in such a way that would require removing a portion of the balcony to restore the usability of the trail in the event the City did not obtain a new usable trail easement.

City Attorney Lynch indicated that the trail was not rendered unusable by virtue of the balcony, saying that the issue of the location of the house had merely exacerbated the difficulty of using the trail. She noted that the alternate solution of locating the trail higher on the slope was devised because of the topography, not the location of the balcony, explaining that retaining the trail easement in its current position was not a good idea in the first place because of the steep grade. She reiterated that the problems with the trail were also exacerbated by the Butterworth’s improvements within the trail easement on their property.

Councilman Long commented that the tradeoff was that the applicant would, in essence, relocate the easement in exchange for the City’s forbearance on the issue of the balcony, since the easement had no value to them if the City still directed them to remove a portion of the balcony.

Mayor Clark inquired if the discussion regarding the unusable trail easement would be taking place if the Ahamed house had been built in the right location.

Director Rojas replied that he believed it would because, even if the house was built 15 feet further north, the easement would still include the steep portion and the situation of the trail veering onto the York property would still exist.

Councilman Gardiner inquired if the City would bear part of the financial responsibility under any of the contemplated scenarios.

City Attorney Lynch answered that Mr. Ahamed would reimburse the City, so that the City would not incur any out-of-pocket expenses.

Director Rojas explained that the agreements had been structured so that in either Option A or B, Mr. Ahamed would be responsible for re-constructing the trail.

City Attorney Lynch suggested that if Council decided to add an acquisition option, it too could require complete reimbursement by Mr. Ahamed.

Mayor Clark asked why there were private improvements located in the trail easement.

City Attorney Lynch replied that it appeared that a plot plan prepared in the 1980’s improperly reflected the location of the trail easement and, when staff granted the improvements based on this plot plan, they did not realize the improvements would be incorrectly located in the easement. She advised that staff devised the options in the agreement since the trail was flawed to begin with, saying that if the City purchased the Upper Filiorum property, the trail could be placed in a much more satisfactory location where the public could use it and avoid the improvements on the Butterworth’s property as well as the steep grade on the Ahamed’s property.

Recess and Reconvene:

Mayor Clark recessed the meeting at 11:25 p.m. and reconvened the meeting at 11:31 p.m.

Sultan Ahamed, RPV, introduced himself as the property owner and indicated his availability to answer questions.

Councilman Stern inquired if Mr. Ahamed would be agreeable to the City’s condemnation of a portion of the Upper Filiorum property at his expense.

Sultan Ahamed answered he was would more than likely to agree with that strategy since Mr. York was asking $100,000 for the 10 foot x 160 foot portion of land needed to relocate the trail easement.

Councilman Long reminded Mr. Ahamed that he would also be exposed to fair market value and the City’s condemnation fees, saying it is unknown whether the City can guarantee that the final cost would be less than $100,000.

Mayor Pro Tem Wolowicz noted that moving the trail closer to the Ahamed’s home so that the easement would be in better proximity to the path’s previous location might be a gentler approach, saying perhaps the City did not need to acquire so much property. Noting that it appeared to provide some benefit to both the City and Mr. Ahamed, he asked if that would be acceptable.

Sultan Ahamed indicated that this idea had been discussed with the City as an option for realigning the trail.

City Attorney Lynch agreed, saying that was why that option was developed as one of the alternatives.

Bill Butterworth, RPV, accompanied his comments with a slide show presentation to illustrate some of his concerns. He indicated that local real estate experts had confirmed that the Ahamed’s unapproved balcony created a significant view impact, saying it was also very close to their home, allowing direct visual access into their master bedroom, and could be seen and was visually imposing along their entire backyard. He informed Council that planting additional foliage to increase privacy adversely affected their view, saying that if they increased their privacy, they would loose more view, and vice versa, which ultimately resulted in a devaluation of their property. He indicated that a resolution to these problems was needed and suggested the solution be based on responsibility for creating the problem, as well as what was fair and equitable, noting that "equitable" should not mean "equal" since the Ahamed’s caused the problem.

Mr. Butterworth indicated that the proposed roof element over the balcony would not restore their view nor materially improve their privacy, that it was visually intrusive and that the concept was soundly rejected by both parties and the Planning Commission when it was first presented. He stated that the Planning Commission’s recommendation to cut back ten feet of the deck, leave the second story intact, and frost two upper level windows was a good recommendation, reducing somewhat the view and privacy issues and recognizing the adverse impacts to his property, as well as the Ahamed’s responsibility for creating the situation. He maintained that the fundamental problem was the relative placement of two houses, saying they remained concerned about the balcony and would prefer that it be removed entirely; that the second story remain; and that three windows be frosted. He stated he believed the frosting of three rather than two windows was inadvertently left out of the Planning Commission’s recommendation. He indicated this proposal still had some problems and was not as good as the originally approved plan, but noted that it was better than the Planning Commission’s plan and much better than the current unapproved one. He opined that, although the foliage was below 16 feet in height, it should not fall within the 16-foot limit because it would be unnecessary if the Ahamed’s house were built in the right place. He urged Council to seriously consider and adopt his proposal.

Mayor Clark inquired where staff determined the best and most important view was located in the Butterworth’s house.

Associate Planner Schonborn answered that the best and most important view was from a semicircular area that was an extension of the living room.

Councilman Long indicated that no one disputed the fact that what was being addressed as the view was all located below the 16-foot height limit, saying that, by definition of the City’s Ordinance, this was not considered to be a protected view because it could be blocked by construction that was 16 feet in height.

Mr. Butterworth explained that if the Ahamed’s home had been built correctly, the outer edge of the deck would be 15 feet further back, saying there would be a view if the balcony and the foliage planted for privacy were not there.

Councilman Long indicated that he believed staff was correct. He explained that even though the Butterworths were losing some of their view, the way the Ordinance had been interpreted and amended, it was not a protected view and therefore he was compelled to judge this application based on that Ordinance, notwithstanding his unhappiness with it.

Mr. Butterworth pleaded for equity. He advised Council that they had lost a significant amount of money because of the placement of the Ahamed’s house, saying what was proposed would further affect them and he would be in that position if the Ahamed’s house had been built in the proper location. He suggested that if the Council was inclined to provide some leniency to the Ahamed’s, that leniency should also be applied to their concern’s regarding view impairment.

Mayor Pro Tem Wolowicz inquired whether it had been determined if the portion of the balcony that the Ahamed’s proposed to place a roof over could be safely removed instead without creating any structural support issues.

Associate Planner Schonborn responded that the City’s Building Official had determined from the information available that the southeastern to the eastern portion of the balcony could safely be removed.

Mayor Pro Tem Wolowicz asked Mr. Butterworth if removal of that portion of the balcony would mitigate his concerns about privacy.

Mr. Butterworth explained that the inside of his living room could be viewed from the entire balcony, noting that removing the portion mentioned would certainly help, but it would not totally resolve the problem.

Mayor Clark noted that allowing some of the foliage to grow up and also supplementing it would create a screen so the neighboring property could not look into their residence.

Mr. Butterworth agreed that foliage would prevent viewing from the balcony, but noted that part of the existing foliage screen had taken five years to grow; and, that they were ficus trees that would have to be removed at some point in the future due to their extremely invasive root systems.

Mayor Clark asserted that the right type of screening foliage planted at a mature state would block the view from the deck, which Mr. Butterworth contends was causing the privacy issue.

Councilman Long suggested the possibility of including a condition to require the railing around the deck to be opaque.

Mr. Butterworth reminded Council that the railing was only three-and-a-half feet tall.

Councilman Stern remarked that most of Mr. Butterworth’s privacy complaints would still exist with the approved plans, since people standing at the balcony rail would still be able to look into the area where he contended that his privacy was being invaded.

Mr. Butterworth agreed, saying that they had tried to put foliage there, but this solution was less than optimal because the foliage blocked the view.

Mayor Pro Tem Wolowicz indicated that the sale date of the Butterworth’s residence was March 2000, the building permit was issued for the Ahamed home in October 1999 and the foundations were laid and visible in January 2000; so he presumed that when the Butterworths inspected their home, they could have seen the location of the footings for adjacent house under construction.

Mr. Butterworth agreed, but explained that it was very difficult to determine exactly where the house was supposed to be and, since Mr. Ahamed, his contractor, engineer, surveyor, and the City did not know that the house was in the wrong place, he believed it was unreasonable to expect that he should have realized it was in the wrong place. He indicated that in performing the due diligence before buying their home, they relied on the City since the neighboring structure was in a condition where he was unable to determine exactly what was going to be built and, if he had been able to figure it out, someone else would probably be standing in his place at this hearing.

Mayor Pro Tem Wolowicz observed that an error was made not only on the placement of the Ahamed’s house, but also on approval of the Butterworth’s rear deck and spa in an area that should have been part of the trail easement. He noted that Council was being confronted with two errors that occurred 20 years apart, resulting in existing structures that, in a perfect world, would not have been built.

Mr. Butterworth opined that there was a fundamental difference between the two structures, saying that his house was built in the early 1980’s and the backyard improvements were approved by the Planning Commission in December 1989 after completion of a thorough review process, including public hearings and site visits; so his structures were City-approved and had been that way for the last 15 years.

Councilman Gardiner agreed that it was probably unreasonable to expect someone moving into a home to know what the house next door would look like during the early stages of construction.

Councilman Long concurred that a resident should be able to rely on the City and, even more significantly, the City should be able to rely on professional engineers to provide accurate information, saying that this was not the first instance where a significant mistake had happened. He inquired if the City had a mechanism to keep track of engineers who made these kinds of mistakes.

Director Rojas indicated that this incident was such an unbelievably gross error that when staff discovered it they wrote to the State Licensing Board to report the individual, adding that he was not aware of this engineer certifying anything for the City since this incident.

Councilman Gardiner asked about what protection residents had from engineers that provided faulty reports and certifications.

Director Rojas indicated that Mr. Ahamed had apparently filed a lawsuit against the engineer, which resulted in a monetary settlement of some sort.

Councilman Gardiner expressed sympathy for the Butterworths who were living in a house, which, through no fault of theirs, was next door to one that was subsequently built in the wrong place. He noted that he also sympathized with the Ahameds because they were unable to move their house to its intended location, saying that this discussion would obviously not be taking place if the house had been built where it was meant to be. He stated his primary objective, however, was to make the Butterworths whole, saying that while he recognized the benefit of improving the trail, it was not as important to him as finding some redress for these neighbors. He remarked that whatever concerns the City could legitimately consider as a result of the erroneous placement of that house should be remedied.

Gary Weber, representing York/Long Point Associates, advised when they initially became aware of this situation they presumed there were two possible fixes: either to restore the illegal grading and place the trail back into the easement or for the landowner responsible for the illegal grading to purchase the impacted portion of the York property. He noted that although Mr. York and Mr. Ahamed entered into a purchase agreement and were in escrow for an agreed upon price, no sale had occurred. He indicated that they were concerned that the alternative being presented was somewhat flawed because the public had been trespassing on the property for four years, but advised Council that he believed York/Long Point could agree with the current arrangement if they were made a party to the agreement.

Councilman Stern inquired on the status of the escrow between Mr. York and Mr. Ahamed.

Mr. Weber answered he believes the escrow still existed, but that Mr. Ahamed had made a decision not to go through with it.

Kenneth Poole, legal counsel representing York/Long Point, noted the primary reason for his appearance was to address the two-year window and the statutory problem that it would create for York/Long Point. He provided the following history: that Mr. Weber became aware of the problem in mid 2001; that York/Long Point sent Mr. Ahamed a letter in November 2002 requesting remediation of the condition; that Mr. Ahamed offered to purchase the encroaching area where the physical trail currently existed in February 2003; that the offer was accepted and an escrow was opened June 2003 and remained open. He advised Council that the negotiated price was $100,800 for approximately 4,800 square feet of land, saying that he received a letter last month on behalf of Mr. Ahamed requesting to terminate the escrow but, because Mr. Ahamed wanted the $28,000 deposit returned, York/Long Point declined to close the escrow.

Mr. Poole reiterated that their primary concern was the statutory problem of the public using the existing trail, saying that if Council allowed Mr. Ahamed two more years to acquire the property and relocate the trail, York/Long Point would be forced beyond the five-year vesting period. He requested that some type of waiver of any vesting by all three entities if the City intended to provide Mr. Ahamed with the two-year window of opportunity.

Councilman Stern requested clarification, saying his understanding was that Mr. Poole was referring to some rights by prescription for the easement if the term goes beyond the five years. He noted that Mr. York was currently allowing people to use the property but the two-year window would allow Mr. Ahamed to purchase an interest from Mr. York, which, regardless of whether prescriptive rights come into play, he would still be required under the agreement to acquire the property.

City Attorney Lynch advised Council that Mr. Ahamed would be required to either acquire the interest or, if no agreement was reached, to make arrangements to relocate the trail onto Mr. Ahamed’s property so it no longer remained on Mr. York’s property.

Tom Alley, RPV, spoke on behalf of the McBride Trail, saying it was a magnificent public trail. He suggested that the most logical thing to do would be to maintain the trail and move it into the existing easement. He stated that portions of the trail might be a bit steep but that installing a series of steps could easily mitigate the problem.

Sultan Ahamed advised Council that one of the conditions of the agreement stated that he should first attempt to purchase a portion of the York property. He concurred there was an escrow open to purchase the land, explaining that Mr. York indicated the only way he would agree to a sale was if it included the entire 4,000 square feet of illegal grading that had taken place on his property. He noted that Mr. Poole neglected to mention that the escrow instructions stated that Mr. Ahamed would only buy the square footage the City would need to create the trail, which was only 1,600 square feet. He mentioned that he contacted Mr. Weber about a year earlier, indicating that if Mr. York would sell the 1,600 square feet as described in the escrow, he would be willing to purchase it for its market valued price, which according to the escrow was $21 per square foot. He advised Council that Mr. York indicated the price would remain the same regardless of the purchase being for 1,600 or 4,000 square feet.

Councilman Stern asked if the 1,600 square feet Mr. Ahamed was seeking to purchase included the area where the trail presently existed.

Sultan Ahamed answered that his intention was to purchase a 10 by 160 foot portion, which would be enough to relocate the 15-foot wide easement. Responding to Councilman Gardiner’s questions regarding the timing of events, he explained that construction began on their house in October 1999, with the grading of the pad and seven months worth of framing being completed by the time the Butterworths purchased their house on April 11, 2000. He clarified that the balcony was located in the setback, but did not encroach into the trail easement.

Councilman Gardiner asked if the balcony was included in that part of the framing that was completed when the Butterworths purchased their property.

Mr. Ahamed answered that the framing for the balcony was completed as part of the framing for first floor. He stated that he believed the proposed agreement was the best solution for everyone involved. He further indicated that the problems that made the trail unusable would have existed regardless of any changes he made to the balcony. He maintained that the problem with the easement had always existed and was not created by the building of his house, saying that no one paid any attention to that fact for the last 20 years because they were illegally crossing over his property onto the Upper Filiorum land.

Associate Planner Schonborn explained that the 1,600 square foot area referred to by Mr. Ahamed encompassed the area of illegal grading and was approximately 10 feet wide from the Ahamed’s rear property line to where it encroaches onto the Upper Filiorum property. He indicated that staff was attempting to create a two-fold solution by rectifying the illegal grading and devising a realignment of the trail so it was entirely located within a dedicated easement.

Councilman Stern favored the Planning Commission’s solution as it related to the issues of privacy and view but voiced concern with the proposed agreement regarding the trail easement, reminding his colleagues that Mr. Ahamed and Mr. York had been at loggerheads in negotiating that acquisition for quite some time. He agreed that the trail should be relocated closer to the western side of the Ahamed’s home to effectively deal with the grade issue and that acquiring some of Mr. York’s property would be necessary to accommodate that, saying that he would prefer to institute eminent domain for the appropriate area and proceed at Mr. Ahamed’s expense.

Councilman Long declared that he would prefer not to pursue eminent domain, saying that he did not believe it to be worth the risk. He opined that the Planning Commission appeared to have applied a solution out of frustration over the fact that what was built was not what was approved, saying that he did not see that they had actually resolved anything. He stated he was not inclined to remove sections of the balcony since there was clearly no view issue under the Ordinance nor was he persuaded there was a privacy issue. He indicated that he would prefer that a larger area be acquired on the York property so that the trail could remain in its current configuration.

Mayor Pro Tem Wolowicz remarked that the situation was a shame and his sympathy went out to both families. He said that he would defer to his colleagues who are more familiar with view issues, but wanted to see a concession regarding the privacy issue on the eastern end of the balcony. He noted that he would go along with the Planning Commission’s recommendation but would prefer to remove five feet from the balcony rather than ten, knowing that it would not solve everything but would at least be an attempt to address the privacy issue. He agreed with Councilman Long’s position regarding eminent domain but indicated he saw no alternative except telling Mr. Ahamed to purchase the property for $100,000, which would be a severely punitive action. He indicated that he wanted to ascertain whether the easement running through the Butterworth’s backyard was also worthy of pursuing because the easement through Mr. Ahamed’s backyard eventually connected with the easement on the Butterworth’s property, where their improvements blocked a significant portion of the easement.

City Attorney Lynch advised Council that a survey of the area needed to be performed because it was otherwise impossible to make a determination regarding the magnitude of the encroachments into the trail easement.

Councilman Stern suggested continuing the item until some of the questions and concerns raised could be clarified.

Councilman Gardiner agreed with Councilman Stern. He suggested that there was no urgent need to resolve these issues immediately, saying that perhaps the balcony issue could be addressed and the decision regarding eminent domain could be delayed until further information was obtained. He contended the issue of the illegal grading and acquisition of the affected property should be settled between Mr. Ahamed and Mr. York, saying that he did not believe the City should become entangled in that unless a decision was made to redesign the trail.

Councilman Long stated that he would prefer that any further discussion of eminent domain take place in closed session. He indicated that he understood that the concept behind staff’s recommendation was to restore privacy rather than view but noted he remained unconvinced that removing a portion of the balcony would restore privacy.

Councilman Gardiner asserted that the Planning Commission’s rationale was to restore the setback and not privacy.

Councilman Long inquired if the City could direct that the setback be restored regardless of any view or privacy issues.

City Attorney Lynch indicated that such an action would be valid because the property owner was obliged to comply with the established setback on the tract map.

Based on this information, Councilman Long noted that he would change his mind and endorse staff’s recommendation on the balcony, saying that, although he did not believe removing it restored privacy or view as defined by the Ordinance, he strongly disliked the idea of someone being allowed to build something that was unapproved.

Mayor Pro Tem Wolowicz asked Councilman Long if he were inclined to do anything to address the eastern edge of the balcony.

Councilman Long stated that he supported the rationale that Council was exercising its discretion to enforce the City’s setback rules. He asserted that, if the eastern portion of the balcony was removed, the goal then becomes addressing privacy issues and he would refrain from that decision until such time as he was able to visit the site to review those concerns.

City Attorney Lynch explained that the Planning Commission’s rationale appeared to center on the fact that the location of the balcony resulting in an unreasonable privacy infringement since the balcony and residence both encroach into the required setback.

In response, the Commission incorporated conditions that removed the portion of the balcony that encroached into the required15-foot setback and that two windows along the eastern facade be modified with frosted glazing.

Councilman Gardiner moved to adopt staff’s recommendation and uphold the Planning Commission’s decision.

Councilman Stern requested a summary of what that included.

City Attorney Lynch advised Council that it would require the removal of ten feet of the balcony; glazing two windows; and keeping the agreement between Mr. Ahamed and the City in place with the option that the property owner could either negotiate a purchase with Mr. York, joining with the City in the event the City purchased the Upper Filiorum property, or relocating the trail so it did not encroach onto the York property.

Councilman Stern seconded Councilman Gardiner’s motion.

Mayor Pro Tem Wolowicz indicated that Mr. York’s representatives had brought forward a valid request regarding concern over the five-year prescriptive rights vesting period.

City Attorney Lynch agreed, saying that perhaps the City could negotiate an additional component of the agreement wherein Mr. York would allow continued public access for a limited period and, if he agreed to that, no prescriptive rights would accrue during that agreed upon period of time.

Councilman Gardiner declared that he took no pleasure in this action and inquired if his colleagues believed there was any merit in continuing the matter to allow the parties an opportunity to arrive at a better solution.

Councilman Long voiced opposition to part of the motion and requested to split the question. He maintained that Council should decide the matter forthwith, saying a continuation would only result in another proposal coming forward that would need to be considered in a different way. He opined that a sensible solution had been reached and the parties still had the option to agree to something else later on.

Mayor Clark agreed with Councilman Gardiner, saying that he was not pleased by the prospect of tearing out a portion of someone’s home and did not believe it would solve any of the issues articulated other than bringing the structure back to the setback line.

Councilman Long suggested rejecting staff’s recommendation, leaving the balcony in place, and determining separately what might be done to resolve the trail issue, agreeing that it would be better to not remove part of the balcony if doing so would not resolve any of the problems.

Councilman Stern stated that he could support a continuance, noting that he agreed that there was not a compelling need to resolve the issue immediately and he, too, would prefer not to remove sections of people’s homes.

Mayor Clark recalled the parties for comment.

Sultan Ahamed mentioned that they would be in compliance with the setback in the event they were compelled to remove a section of the balcony and would therefore have no incentive to sign the agreement because the house would no longer be out of compliance with the City’s setback requirements.

Mayor Clark agreed that if Council pursued that solution, Mr. Ahamed would be whole in terms of his entitlements, but the City would not have a useable public trail.

Mr. Butterworth declared that it was fundamentally unfair to allow someone to build their house 15 feet from where it was supposed to be built, saying that they were adversely affected by that condition and did not believe they should lose something of value when they had no responsibility for causing the situation.

Councilman Long renewed his alternate motion to reject staff’s recommendation and determine if anything else might be done to improve the trail.

Mayor Clark noted that he would second the motion for discussion purposes and inquired if Councilman Long would consider including a requirement that the Ahameds pay to install and maintain foliage along the east property line to ensure from staff’s perspective that there were no privacy issues on the Butterworth’s property.

Councilman Long stated he would accept that as a friendly amendment.

Mr. Butterworth explained that the setbacks and easements are very confusing in this particular area but, fundamentally, the setbacks and easements on Mr. Ahamed’s property were essentially the same and his house would line up with the others if the rules had been followed. He noted that the Ahamed’s home now protrudes 15 feet beyond the line created by the other homes on the street; saying that he did not believe that was the City’s intention when the tract map was approved.

Mayor Clark reminded his colleagues that the Butterworth’s property contained improvements that were built into an easement that was supposed to be used for a public trail, and, despite the fact that they were not the property owners when that occurred, a mistake was made on their property also and they had been receiving some benefit from that error.

Councilman Gardiner declared that he objected to any solution that left the Butterworths in a worse situation than they currently were because of someone else’s mistake, saying that it was fundamentally unfair.

Director Rojas advised Council that staff reviewed the plans used to approve the improvements on the Butterworth’s property and that it did not indicate that the proposed improvements would encroach into the trail easement on the property.

Councilman Long commented that the difficulty was that no one really knew the rationale why the setback was established in this configuration, saying that he was not persuaded that removing ten feet of the Ahamed’s balcony would undo any damage to the Butterworths. Instead, he countered was persuaded that it would create a lose-lose situation for both the City and the Ahameds in the sense that it removed the Ahamed’s balcony and placed them in the position of having no incentive to cooperate with the City as far as the trail issues were concerned.

Councilman Gardiner noted that regardless of how one looked at the properties in the area, they all line up except the Ahamed’s because it was built in the wrong place and he did not believe others should bear the consequences of that mistake.

City Attorney Lynch suggested that if Mr. Ahamed was allowed to maintain the house in its current position and keep the balcony where it was, that he would be required to add and maintain screening foliage and also to purchase enough property from Mr. York to keep the trail in place and relocate the easement past the Butterworth’s existing improvements in order to protect the Butterworth’s privacy in that area in the event there was adequate room to position the trail there. She noted that it would improve the Butterworth’s situation because, while probably not getting quite the level of privacy they desired by removing the balcony, enough area would be provided to relocate the trail at a distance which would increase their privacy in that area.

Mayor Clark noted that the Butterworths would also gain increased privacy because the Ahameds would be required to add and maintain the screening foliage.

Mayor Pro Tem Wolowicz inquired if his colleagues could find any merit in truncating the eastern end of the balcony as a concession.

Mayor Clark, reminding his colleagues that the view issue could not be considered, explained that requiring Mr. Ahamed to place and maintain additional foliage along the east property line would eliminate the privacy issue and, if he was also required to acquire enough property to move the trail, the Butterworth’s proximity to the trail would be improved in the area where their backyard accessory structures were encroaching into the trail easement.

Councilman Gardiner, noting there were two motions on the floor, advised that he had previously moved to adopt staff’s recommendation.

Mayor Clark inquired if Councilman Stern maintained his second to that motion.

Councilman Stern voiced support for the last solution articulated, noting however that a loose end remained regarding the issue of how much time and when, if ever, there would be an agreement between Mr. Ahamed and Mr. York.

City Attorney Lynch noted that the agreement still needed to be revised, saying that, although there was some division on the matter, eminent domain remained an option.

Councilman Gardiner commented that it appeared there were basically two ways to proceed: one would benefit the City by providing a nicer trail and would benefit the Ahameds by allowing them to keep their balcony, but would penalize the Butterworths; the other would bring the Butterworths closer to becoming whole, penalize the Ahameds for putting their balcony in the wrong place and prevent the City from acquiring a usable trail.

Mayor Clark indicated that he did not appreciate that characterization, saying that the Butterworth’s improvements also blocked the trail easement.

Councilman Gardiner remarked that the Butterworth’s improvements were not the issue that was before Council.

Mayor Clark claimed that the issue could not be bifurcated. He stated that the Butterworth’s improvements into the easement were not permitted and the current proposal recognized that fact, moved the trail easement away from the encroachments, and provided increased privacy.

Councilman Gardiner opined that the Mayor was essentially saying the Butterworths were getting a good deal, noting that he disagreed with that assessment and would be interested to hear whether the Butterworths felt the same way.

Councilman Long requested the Mayor to call the substitute motion.

Councilman Long asked Mr. Butterworth if he believed the idea of allowing the Ahameds to maintain their house as built, including the balcony, and requiring them to provide and maintain additional screening foliage and reroute the portion of the trail in the Butterworth’s easement is fair.

Mr. Butterworth indicated that it was not in his opinion, saying that Mr. Ahamed had been opposed to foliage in the past and, even with the City’s requirement to maintain it, unless it was regularly monitored, he did not believe it would work. He remarked that this was the first time the City had ever brought up the issue of his trail easement; saying that it was either a separate issue or it was not.

Councilman Stern inquired if the City had the authority to take action to reclaim the easement on the Butterworth’s property.

City Attorney Lynch advised Council that there was a good argument for that being within the City’s right since there was a trail easement shown on the plan and that it showed that the improvements were located just outside the trail easement.

Councilman Stern noted that implicit in the proposal being suggested was that the new easement would replace the existing one and the City would in essence fully legalize the encroaching improvements and relinquish any right to that easement in the future.

Councilman Long recommended that since the City had the right to restore that easement, either the trail should be rerouted and both properties be allowed to maintain their encroachments or both should be eliminated to maintain consistency.

Mr. Butterworth reiterated that he did not believe it was fair to equate the two improvements.

Councilman Long moved, seconded by Mayor Clark, to reject staff’s recommendation and direct staff to return with a revised resolution and trail agreement that allows the house and balcony to remain in its current configuration; require the property owner to provide and maintain additional foliage along the side property line to screen the house and balcony from the adjacent property owner to the east; require the property owner to purchase additional property to realign the trail easement to bypass the rear yard building pads on both the subject property and the adjacent property to the east; provide that once the trail easement issues were resolved, the City would vacate the existing trail easement on the southern portion of the subject property and entirely on the adjacent property to the east; and, stipulate a time frame for the completion of the trail easement realignment.

The motion carried on the following roll call vote:

AYES: Long, Wolowicz, Clark, Stern

NOES: None

ABSTENTIONS: Gardiner

Long Point Resort Hotel Project: ZON2005-00151 (Revision ‘B’ to Conditional Use Permit No. 215, et. al.)

Mayor Clark opened the Public Hearing.

Mayor Pro Tem Wolowicz commented that, although this plan was presented two weeks ago with a request that Council be prepared to assist in moving things along in accordance with the applicant’s time schedule, the necessary information was not presented in time to for Council to vote on it this evening. He indicated that he was not placing blame but wanted it understood that Council was not trying to block progress and would like to maintain the project schedule as presented.

Timi Hallem, representing the property owner Lowe Enterprises, indicated that they had been working with staff to develop a complete application and did not blame the City in any way for this delay.

Mayor Clark indicated that the Lowes had presented a project schedule that was overly optimistic, saying that City staff cannot be expected to essentially jump through hoops in order to support an unrealistic schedule that the Lowes themselves cannot adhere to.

Keith Lamparter, representing Lowe Enterprises, indicated that they did complete all their commitments, saying that, while he appreciated the Mayor’s honesty, he did not believe it was a fair assessment. He noted that issues over which they had no control came up which caused the delay.

Mayor Clark indicated that Council would be looking at the proposed schedule very closely as this project moved forward.

Councilman Stern indicated that staff was charged with reviewing the project plans to ensure their correctness, saying that adequate time needed to be figured into the equation to ensure that adequate time was allotted for this effort.

Mr. Lamparter advised Council that when the schedule was initially discussed they had suggested a different public hearing date but staff requested to move it up and it became a collective decision to attempt to make that date. He reiterated that staff raised questions about the project at the eleventh hour, which did not allow the developer a reasonable opportunity to respond.

Councilman Stern moved, seconded by Councilman Gardiner, to ADOPT RESOLUTION NO. 2005-39; APPROVING REVISION ‘B’ TO CONDITIONAL USE PERMIT NO. 215, GRADING PERMIT NO 2229, COASTAL DEVELOPMENT PERMIT NO. 166 VARIANCE NO. 489 AND TENTATIVE PARCEL MAP NO. 26703 TO CLARIFY CONDITION NO. 40a IN ACCORDANCE TO THE REQUIREMENTS OF THE STATE SUBDIVISION MAP ACT FOR THE DIVISION OF THE VILLA UNITS, CASITA UNITS, BUNGALOW UNITS AND HOTEL SUITES THAT ARE TO BE SOLD TO PRIVATE INDIVIDUALS AND ENTITIES.

Recess and Reconvene:

Mayor Clark recessed the meeting at 1:31 a.m. and reconvened the meeting at 1:38 a.m.

An Urgency and a Non-Urgency Ordinance Relating to the Conservation and Management of Coastal Sage Scrub Habitat, Establishing Regulations and Procedures Applicable Thereto

City Clerk Petru advised that late correspondence on this item was received and distributed.

Councilman Long moved to waive the oral staff report.

Mayor Clark declared the Public Hearing open.

Gary Weber, representing York Long Point, advised Council that his client believed the existing ordinance and proposed urgency ordinance were seriously flawed. He noted that the California Government Code allowed for two time extensions, saying that the City had already extended the ordinance twice, so it was unclear why there was now a new urgency ordinance being considered. He opined that the ordinance as written specifically singled out York Long Point in its intent to not allow them to maintain their property and prevent potential brush fires, saying that they have observed evidence of various property owners, including the City, taking weed abatement actions in areas adjacent to and in some cases including coastal sage scrub plants and adjacent to areas where sensitive birds were known to exist.

Mayor Clark asked if Mr. Weber had any proof of that allegation.

Mr. Weber answered that in addition to photographs and personal witnesses he assumed there were contractors involved and if his client could gain access to the City’s invoices or contracts they might be able to show that these activities took place during the gnatcatcher breeding season adjacent to and including CSS, specifically in Abalone Cove Shoreline Park. He advised Council that they also recently observed the Salvation Army property undergoing weed abatement during the gnatcatcher breeding season, noting that they were not aware of any biological studies having been performed beforehand and, according to the City’s habitat inventory, this activity was immediately adjacent to cactus wren and gnatcatcher breeding areas.

Mr. Weber reiterated that their major concern was that the urgency ordinance singled out and specifically names York Long Point. He asserted that their original intent was to perform the weed abatement outside the gnatcatcher’s breeding season but due to the delays caused by appeals they were now being forced right to conduct it during the middle of that period which would entail additional requirements, including studies and field observers. He contended that CSS was not a protected habitat unless it was occupied, saying that they had studies showing that none of the CSS on the Point View property was occupied.

Councilman Stern noted that one of the exemptions in the ordinance was fire protection pursuant to written order by the Los Angeles County Fire Department and asked Mr. Weber to articulate why they perceived there was a problem if the ordinance allowed them to eliminate any identified fire hazards.

Mr. Weber answered that they believed the Fire Department’s regulations were very narrow and did not consider the interior of large properties, which can contain an enormous amount of fire fuel. He advised Council that their property contained large areas of tall mustard and fennel plants, which in two months would be tinder dry and they believed this fact combined with the upslope of the land and the upcoming dry weather conditions would create a serious fire hazard. He declared that they believe it was their right to maintain the property as they deemed fit and the City’s ordinance exceeded what the State and Federal laws permitted.

Councilman Stern asked Mr. Weber what harm they believed was caused by having this ordinance in place.

Mr. Weber indicated that there was potential liability to the owner if they did not act to prevent fires on the property, especially if a fire occurred that caused damage to other properties.

Mayor Pro Tem Wolowicz mentioned that he was troubled last year when Mr. York’s representative made assertions that the City had violated its own ordinance in the Abalone Cove area, reminding his colleagues that had staff indicated at that time that such weed abatement was exempt since it was an area that was mowed every year for public safety purposes and that no CSS habitat was present there. He indicated that those same assertions appear to be coming up again, saying that if, in fact, these were new assertions he would appreciate the evidence being brought forward because he found the accusations to be most disturbing. He requested that Mr. Weber cite any new findings and direct them immediately to staff, saying that this was a very serious issue.

Mr. Weber clarified that to his knowledge the City had not performed any weed abatement so far that year, although he believed that the weed growth at Abalone Cove Shoreline Park was certainly ready for that to take place. He noted that he might be mistaken, but he did not see any mention in the urgency ordinance regarding mitigation activity on the City’s property being done on a regular or annual basis.

Mayor Pro Tem Wolowicz declared that everyone was concerned with fire safety issues, saying that he would prefer to rely on the County fire inspectors to make those determinations. He inquired if the Fire Marshal had inspected the area and made any findings that were contrary to the ordinance.

Director Rojas indicated that staff had not received any concerns from the Fire Department.

City Manager Evans noted that York Long Point had probably received the same notices from the County that the City receives ordering weed abatement on open space properties it owns. He noted that the City allowed the County to perform the abatement and the City simply paid the cost of that effort.

Mr. Weber indicated that they had received such notices from the County, but reiterated that York Long Point believed the fire ordinance was too narrow and did not properly consider the interior of the property where the highest fire danger existed.

Mayor Pro Tem Wolowicz indicated that he would like to ascertain that the Fire Inspector’s reports were consistent with what was being asserted and that absolutely nothing had been overlooked.

Councilman Gardiner asked Mr. Weber to identify where York Long Point was specifically singled out in the proposed action.

Mr. Weber answered that it was in the current urgency ordinance.

City Attorney Lynch clarified that the current urgency ordinance included in Council’s packet made no specific reference to York property, adding that the York Long Point’s actions a couple years before, which was the genesis of the adoption of the original urgency ordinance, did specifically identify the property; however, the proposed ordinance in no way singled them out and was not so narrowly defined that it applied only to the York property but applied to any property that contained mapped CSS. She indicated that she was aware of at least two other property owners who had objected to how the ordinance might apply to their properties. She advised Council that there was a weed abatement process that must be followed pursuant to the NCCP if two or more acres contain mapped CSS were proposed to be cleared and there was a desire to do more weed abatement than was required by the Los Angeles County Fire Department.

Councilman Gardiner maintained that the proposed ordinance did not prohibit weed abatement but merely indicated that a procedure must be followed to ensure that habitat which was or might be occupied by sensitive species was not destroyed. He inquired if York Long Point objected to going through that process.

Mr. Weber answered that they objected to some of the requirements in the process. He explained that one of their objections was the requirement that the biologists and specialists performing the review must be included on the City’s official list and the potential of having to go through the review process twice.

Councilman Gardiner asked why they would object to using a biologist on the City’s approved list.

Mr. Weber indicated they did not necessarily object it, but believed that anyone who was qualified and certified by the appropriate resource agency should be able to perform the work whether or not they appeared on the City’s list. He noted that they found it quite puzzling that York Long Point was the only property owner in the City that had been required to make a request to perform weed abatement.

Director Rojas advised Council that York Long Point was the only property owner the City was aware of that was attempting to clear almost its entire property. He indicated that the only other parcel that went through this process was Long Point, saying that they submitted a formal request pursuant to the ordinance and were given clearance to perform the weed abatement once it was determined there would be no impact.

City Attorney Lynch clarified that the issue was not merely that it included the entire property, explaining that York Long Point would be exempt if they were simply complying with a fire order but since they were seeking to go beyond the purview of the fire order they were required to go through the City’s process.

Kenneth Poole, legal counsel representing York Long Point, stated that he viewed the proposed ordinance as an attempt to use the NCCP to control what the City suspected was going to be done on the York Long Point property. He commented on his understanding was that the NCCP was a voluntary plan, saying that his clients had never entered into any agreement with the City to adopt such a plan. He advised Council that the NCCP allowed for development and growth, which he believed the proposed ordinance actually restricted, and that it was a property owners’ right to cut and remove weeds from their land.

Councilman Stern asked Mr. Poole if he was referring to a constitutional right, saying that he was having difficulty understanding the concept of a property owners "right to cut weeds."

Mr. Poole advised Council that there were State and Federal laws that preempted the actions the City was attempting to take with this ordinance and indicated that neither weeds nor CSS were protected under the Endangered Species Act.

Councilman Stern asked for an explanation of how this proposed ordinance caused damage to York Long Point.

Mr. Poole answered that it took away some of the owner’s property rights to do with the property as they wished, provided no law was violated.

Councilman Gardiner queried if the City was required to comply with the Endangered Species Act (ESA).

City Attorney Lynch responded affirmatively, saying that under the ESA the City cannot take an action that threatened or harmed a protected species, i.e., the gnatcatcher. She agreed with the assertion that CSS was not a protected species, noting however, that it became protected when it was occupied by a protected species, such as the gnatcatcher.

Councilman Gardiner remarked that the proposed ordinance simply set forth the procedures to verify compliance with the ESA by requiring an biological inventory to ascertain whether the CSS is occupied or not.

Councilman Long suggested that this was not merely an issue of compliance with the ESA but appeared to be an effort to manipulate the upcoming CEQA processes that would be required to develop the property, saying that the best way to ensure success was to remove potentially significant impacts ahead of time. He declared that he was convinced that this was the only logical explanation of York Long Point’s efforts to clear the property of any vegetation, saying that he believed the ordinance was sensibly designed to address such ulterior motives.

Mr. Poole argued the ordinance as proposed did not distinguish between CSS and other vegetation; that it referred to "occupied" areas but provided no definition of that term; that it addressed "other vegetation" which was not endangered and did not provide habitat for the gnatcatcher and did not define that term either. He reiterated that a property owner had certain rights which were restricted by State and Federal law and which preempted the City’s proposed ordinance.

Barbara Sattler, representing the South Coast Chapter of the California Native Plant Society (CNPS), stated they were very pleased with the recommendation to approve the CEQA language in the ordinance but voiced concern that the sensitive species were not addressed as strongly as they would like and certainly not as strongly as the NCCP would recommend. She indicated that they would like to see those protections improved as soon as possible and urged Council to continue those protections by passing the urgency ordinance until an improved one could be drafted. She advised Council that protection must include any vegetation community that can support endangered or sensitive species, not just CSS, saying that some of the NCCP mapping was inadequate. Consequently, she felt that the ordinance provided minimal but extremely important protection to sensitive species.

Councilman Gardiner requested a better understanding of how it was determined that CSS was occupied if there were 300 acres in total and only one was occupied. In response to Mr. Poole’s comment, he also inquired if there was any definition of "weeds."

Director Rojas explained that a biologist certified by the State resource agency was required to perform the protocol surveys to determine whether habitat was occupied. He noted that the study included gnatcatcher nesting and foraging areas, which may be interspersed with non-CSS vegetation, saying that a definition of occupied area was then based on these observations.

City Attorney Lynch indicated that exotic woodland vegetation was defined as a category of non-native trees and shrubs, which was another exempt category, saying there was no definition of "weeds" per se.

Councilman Long moved, seconded by Councilman Stern for adoption of staff’s recommendation.

City Attorney Lynch advised Council that City Clerk Petru had distributed a revised version of the ordinance with a minor correction to circle pages 7 and 17 of each ordinance, removing a redundancy within the first sentence in 17.41.030, saying that the new section would read: "This chapter shall apply to all properties in the city that contain CSS habitat as depicted on the City’s most current NCCP map." She further advised that Section 7 on circle page 23 had been deleted.

Councilman Long agreed to include the changes noted by City Attorney Lynch as part of his motion.

Mayor Pro Tem Wolowicz requested that the fire marshal’s comments and inspection reports be made available before this matter was addressed again.

Ms. Sattler noted that the two-acre minimum was mentioned in some other sections in the ordinance and requested that the entire document be reviewed to make sure this reference was included where necessary.

City Attorney Lynch assured Ms. Sattler that staff had thoroughly reviewed the document and the two acres would continue to apply regarding weed abatement.

The motion to ADOPT URGENCY ORDINANCE NO. 419U, AS AMENDED, THEREBY ESTABLISHING AMENDED REGULATIONS AND PROCEDURES FOR THE CONSERVATION AND MANAGEMENT OF COASTAL SAGE SCRUB HABITAT AND INTRODUCE ORDINANCE NO. 420, AS AMENDED, A NON-URGENCY VERSION OF THE SAME URGENCY ORDINANCE carried on the following roll call vote:

AYES: Wolowicz, Long, Gardiner, Stern, Clark

NOES: None

CITY COUNCIL ORAL REPORTS:

Councilman Stern moved, seconded by Councilman Long, to dispense with Oral Reports.

REGULAR NEW BUSINESS:

City Advisory Boards

Discussed immediately following Consent Calendar. (See above.)

Water Quality and Flood Protection Program – Proposed Storm Drain User Fee

Discussed immediately following City Advisory Boards after the Consent Calendar. (See above.)

City Council Policies Regarding Programming on Channel 3 and DVDs of City Meetings

Assistant City Manager/City Clerk Petru noted that she had previously distributed a slight amendment to the first policy to Council.

Councilman Stern moved, seconded by Councilman Gardiner, to 1) Adopt City Council Policy No. 40, Programming on Cable Television Government Access Channel 3, as amended; and, 2) Adopt revisions to City Council Policy No. 1, Digital Video Disks (DVD) of City Council and Committee/Commission Meetings.

COUNCIL DISCUSSION OF FUTURE AGENDA ITEMS & SUGGESTION OF FUTURE AGENDA ITEMS:

None.

CLOSED SESSION REPORT:

City Attorney Lynch advised that: 1) the City Manager’s performance evaluation was conducted and no action was taken on the contract extension; 2) staff provided Council an update on the Kay v. City of Rancho Palos Verdes matter and no action was taken; and, 3) no discussion occurred on the City of Monrovia et al. v. Regional Water Quality Control Board - Los Angeles Region et al matter.

ADJOURNMENT:

Mayor Clark adjourned the meeting at 2:23 a.m.

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Mayor

Attest:

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City Clerk