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M I N U T E S
The meeting was called to order at 7:03 p.m. by Mayor Clark at Fred Hesse Community Park, 29301 Hawthorne Boulevard, Rancho Palos Verdes.
Roll call was answered as follows:
PRESENT: Stern, Long, Gardiner, Wolowicz, Mayor Clark
Also present were City Manager Evans; Assistant City Manager/City Clerk Petru; City Attorney Lynch; Director of Finance McLean; Director of Planning, Building and Code Enforcement Rojas; Director of Public Works Allison; Director of Recreation and Parks Rosenfeld; Deputy Planning Director Pfost; Associate Planner Schonborn; Senior Administrative Analyst Waters; and Minutes Reporter Presutti.
The Pledge of Allegiance was led jointly by Mayor Pro Tem Wolowicz and Councilman Gardiner.
Mayor Clark requested Councilman Gardiner’s assistance with the “Did You Know” presentation highlighting two upcoming special events.
Councilman Gardiner reported that the long-awaited inauguration of RPV’s Channel 33 television studio would take place on the morning of August 27, 2005 with a live broadcast of a portion of the City Council meeting followed by an opportunity at 11:00 a.m. for guests to mingle and tour the studio. He acknowledged Gabriella Holt and Ted Vegvari, thanking them for their guidance and assistance in realizing this momentous event.
Mayor Clark noted that, while there were many who worked to get the City’s first television station up and running, Councilman Gardiner was the real impetus behind the whole effort.
Mayor Clark advised the public that in the afternoon of August 27th the City would also dedicate the first new park in RPV since the 1980’s. He indicated that the five-acre park was located along the coastal bluffs, seaward of the clubhouse at Trump National Golf Club. He noted that many of the City’s founders who worked so diligently to save the coastline and incorporate the City of RPV 35 years ago would be present and he invited the community to join in honoring them and celebrating this beautiful new park.
Mayor Clark reminded everyone that August 30th marked the deadline for submitting ballots for the Storm Drain User Fee, noting that ballots must be received at City Hall by 8:00 p.m. that day and that postmarks would not be accepted.
Assistant City Manager/City Clerk Petru advised Council that the mail ballots would be tabulated in the Community Room at City Hall beginning at 8:00 a.m. on August 31st, saying staff that was hopeful to bring certification of the results to Council at the second meeting in September.
Mayor Clark announced Darrell and Mary Dudley and Faith Stapleton as recyclers of the month, congratulating them and encouraging other residents to participate in the City’s recycling program.
APPROVAL OF AGENDA:
Mayor Pro Tem moved, seconded by Councilman Gardiner, to approve the Agenda.
Lois Larue, Rancho Palos Verdes, commended Director of Public Works Allison for placing a fence along the roadside in the Portuguese Bend landslide area to prevent horses and cars from unlawfully accessing the area.
CITY MANAGER REPORTS:
Assistant City Manager/City Clerk Petru advised the audience that items previously discussed and continued to a future meeting were available for review on the City’s website at www.palosverdes.com/rpv.
APPROVAL OF CONSENT CALENDAR:
Councilman Long requested that Item No. 3, Claim Against the City by Michael Michigami; and Item No. 7, Founders Park Dedication and RPV TV Channel 33 First Live Telecast and Opening Ceremony, be removed from the Consent Calendar, noting that he did not want to discuss Item No.7, but preferred to vote on it separately.
Mayor Clark requested the removal of Item No. 4, Gifts for Parks.
City Manager Evans advised Council that Item No. 6, Grant Agreement with the California Wildlife Conservation Board (WCB) for Acquisition of Fee Interest, included some very minor language changes.
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.
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.
Claim Against the City by Michael Michigami
Removed and discussed immediately following approval of the Consent Calendar.
Gifts for Parks
Removed and discussed immediately following approval of the Consent Calendar.
Storm Drain Rehabilitation Update
Approved change order number one to a contract with SANCON Technologies, Inc., in the amount of $250,000, which would provide for lining an additional six to seven storm drain lines.
Grant Agreement with the California Wildlife Conservation Board (WCB) for Acquisition of Fee Interest
ADOPTED RESOLUTION NO. 2005-88, AS AMENDED, MEMORIALIZING THE DECISION MADE BY THE CITY COUNCIL ON JULY 13, 2005 TO APPROVE THE GRANT AGREEMENT BETWEEN THE CITY AND THE CALIFORNIA WILDLIFE CONSERVATION BOARD (WCB) AND ASSOCIATED DOCUMENTS RELATED TO THE GRANTING OF $10,000,000 BY THE WCB TO THE CITY FOR THE PURCHASE OF OPEN SPACE.
Founders Park Dedication and RPV TV Channel 33 First Live Telecast and Opening Ceremony
Removed and voted on following approval of the Consent Calendar.
City Acceptance of Certain Open Space Lots Within the Trump National Golf Club Project
ADOPTED RESOLUTION NO. 2005-89, ACCEPTING CERTAIN OPEN SPACE LOTS WITHIN THE TRUMP NATIONAL GOLF CLUB PROJECT.
Register of Demands
ADOPTED RESOLUTION NO. 2005-90, 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 Long moved, seconded by Councilman Stern, to approve the Consent Calendar with Item No. 6 as revised and the removal of Item Nos. 3, 4 and 7.
The motion to approve the Consent Calendar, as amended, carried on the following roll call vote:
AYES: Long, Wolowicz, Gardiner, Stern, Clark
ITEMS REMOVED FROM CONSENT CALENDAR:
Claim Against the City by Michael Michigami
Councilman Long remarked that this item was a classic example of the manner in which the CJPIA handled claims, noting that a claim was made that City maintenance workers caused a rock to fly up and damage this gentleman’s windshield; that the damages appeared to be well documented; that a claim was submitted to the City on June 8, 2005; and, that two months later the claims adjuster advised the City to reject the claim with absolutely no discussion of its merits or lack thereof. He stated that he was not certain whether or not the City was liable in this case, saying that it was certainly within the deductible amount and the City should have been able to resolve the matter in a timely fashion rather than denying it with no explanation.
Councilman Stern concurred, noting his understanding was that this proclivity for denying claims with no rationale was to be addressed with CJPIA.
City Manager Evans reminded Council that it had the authority not to deny the claim, saying that the insurance company was unlikely to change its procedures ways and perhaps the City should consider changing to a different insurance carrier.
Councilman Stern, noting the claims administrator had already tendered the claim to the City’s contractor, stated that if the City was to be indemnified and held harmless, that should be done.
Councilman Long indicated that it would be appropriate for the City to draft a letter or some type of resolution to address this ongoing problem.
Councilman Long moved, seconded by Councilman Stern, to Reject the claim and direct staff to notify the claimant. Without objection, Mayor Clark so ordered.
Gifts for Parks
Mayor Clark took the opportunity to highlight how generous both the local businesses and residents had been in supporting the City’s parks and recreation programs, saying that it was very much appreciated by Council and the City.
Councilman Gardiner suggested placing a page on the City’s website recognizing all those who contributed in a more official way, saying that it would be something quite impressive for the public to see.
Mayor Pro Tem Wolowicz agreed that was an excellent idea and would not only honor those who contributed so generously of their time and resources, but might also encourage others to make similar donations in the future.
Mayor Clark moved, seconded by Mayor Pro Tem Wolowicz, to accept the Gifts for Parks donations and directed staff to prepare letters for the Mayor’s signature expressing the Council’s thanks and appreciation.
Founders Park Dedication and RPV TV Channel 33 First Live Telecast and Opening Ceremony
ADOPTED RESOLUTION NO. 2005-91, AMENDING RESOLUTION NO. 2005-53, THE BUDGET APPROPRIATION FOR 2005-2006, AUTHORIZING A BUDGET INCREASE IN THE AMOUNT OF $13,500 FOR PROFESSIONAL SERVICES RELATING TO THE DEDICATION/NAMING OF THE CITY PARK AT TRUMP NATIONAL GOLF COURSE AND THE FIRST LIVE TELECAST/OPENING CEREMONY FOR RPV TV CHANNEL 33.
The motion carried on the following roll call vote:
AYES: Gardiner, Wolowicz, Stern, Mayor Clark
Case No. ZON2003-00520 (General Plan Amendment, Zone Change and Environmental Assessment); Applicant: City of Rancho Palos Verdes; Property Addresses: the upper portion of San Ramon Canyon, which encompasses the following properties: 30648, 30650, 30652, 30658, 30676, 30678, 30680, 30682 Palos Verdes Drive East; and 2803, 2809, 2817, 2823, 2829, 2837, 2845 San Ramon Drive [Continued from June 7, 2005]
Mayor Clark indicated that the Public Hearing had been continued and remained open.
Associate Planner Schonborn provided a summary staff report and PowerPoint presentation.
Mayor Clark inquired why staff was recommending approval of the land use zone change.
Associate Planner Schonborn advised Council that there were two primary reasons for staff’s recommendation: 1) the recently completed landslide stabilization and drainage improvement project in San Ramon Canyon; and, 2) the fact the existing zoning district boundary did not reflect actual site conditions.
Mayor Pro Tem Wolowicz, noting the presence of two of the City’s geotechnical consultants, Mark McLarty from AMEC and Jim Lancaster from Zeiser-Kling, queried if there was some mechanism to test for tension cracks on the foundation slabs under any of the homes in question and if such an investigation was performed either before or after the completion of the San Ramon Canyon project.
Mr. Lancaster replied that there were ways to test for foundation movement, but he was not aware if any such testing had been performed on the homes in this area.
Mr. McLarty advised Council that prior to construction, complete interior floor-level and exterior hardscape surveys were conducted on each of the four lots located at the head of San Ramon Canyon.
Mayor Pro Tem Wolowicz inquired if there had been any noticeable movement or deterioration since the completion of construction.
Mr. McLarty stated that he was not aware of any.
Mayor Pro Tem Wolowicz remarked that there were particular concerns because of the recent hillside failure in Laguna Niguel and assertions that the weight of some very large homes under construction on the hillside contributed to some or all of that failure. He inquired what, if any, provisions had been made in the geological studies for that type of additional weight.
Mr. McLarty advised Council that the weight of the buildings was inconsequential from a geologic stability standpoint because the size of the earth mass involved was so extensive. He explained that it would take an extremely large building on a very small footprint to cause enough stress to exceed the weight of the soil, noting that the structures in question were of simple wood frame construction and were very light.
Mayor Pro Tem Wolowicz questioned how long a project of the magnitude of the San Ramon Canyon stabilization project would take to “settle” or “cure”.
Mr. McLarty indicated that they were unable to remove the entire landslide, as a result, some of it was left in place and the future settlement of that material was taken into consideration when certain features, such as the storm drain system, were built. He remarked that he was quite impressed with the way the site had performed since completion, noting that there had been no recurrence of cracks in the roadway and that the entire hillside fared particularly well considering the extremely heavy rainfall experienced the previous winter.
Mayor Pro Tem Wolowicz requested clarification of the distinction between the type of work permitted in the OH and RS zones.
Director Rojas explained that a property owner in the RS Zone requesting a substantial addition or proposing a tear down/rebuild was required to submit geology and soils reports verifying the soils conditions before receiving approval; while residents in the OH Zone were prohibited from any new building or additions even if a geology report verified that the soil was stable and the building could be constructed safety.
Councilman Long queried if staff understood the reasons why the map was originally drawn the way it was.
Director Rojas responded that staff researched the matter and could find no specific explanation other than that the zoning code appeared to follow the contours of the natural canyon before it was filled in.
Councilman Long, noting the natural canyon appeared to be roughly the boundary between the slope and the flat area, inquired if staff was aware of other areas in the City where the OH zoning boundary encroached into flat building pad areas.
Director Rojas noted that the OH Zone encroached into flat building pad areas throughout the City. He commented that the four homes in question were approved by the County in 1973 and built after the City’s incorporation, saying one theory for the current OH designation was that the zoning map was subsequently drawn in 1975 when there was new information about the existence of a landslide in this area.
Mayor Clark inquired about the County’s zoning designation for the area in question.
Associate Planner Schonborn advised Council that prior to the City’s incorporation the entire area was zoned residential by the County of Los Angeles.
Councilman Gardiner questioned why the inclinometer that was installed as part of the San Ramon Canyon project had not been monitored since completion of the project.
Mr. McLarty explained that large excavations were made as part of that project that had the potential to destabilize the slope, saying that the inclinometer was installed to monitor the situation and make certain no problems were created as the construction progressed.
Councilman Gardiner asked why, since the inclinometer was still in place, it was no longer being monitored.
Mr. McLarty answered that it was no longer needed because the project was designed to be stable.
Councilman Gardiner remarked the people in Laguna Niguel believed the same was true of their project.
Mr. McLarty stated he was not sure that was true, noting that the residents may have erroneously believed that, but noted that area in Laguna Niguel being referred to had been known as an unstable area for quite some time.
Councilman Gardiner queried what area or areas were given a factor of safety of 1.5 and what instrumentation was used to make that determination.
Mr. McLarty utilized the pointer to illustrate the areas on the map, saying that the entire slope area had a 1.5 or greater factor of safety. He reported that the stability analysis was performed by taking boring samples, running soils tests on those samples, and installing an inclinometer on the slope; and, that sections were drawn through the entire slope and then analyzed for various environmental factors, including bedrock and fill conditions. He indicated that the cross sections extended beyond the top of the slope on either side of the canyon, included an analysis that went deep into the ground and then projected back onto the building pads above.
Councilman Gardiner stated that he would like to ascertain whether the same standard was being used in this area as in the Landslide Moratorium Area, noting in that area the underlying factor of stability of the entire region was given more importance than that of individual properties, and to maintain consistency there should be some assurance that the underlying factor of safety for the entire area was 1.5 or greater, rather than just on the lots themselves.
Mr. McLarty explained that the landslide in this area was a very small feature compared to a large regional landslide, such as Portuguese Bend, which may have multiple slip surfaces that continue extensively up and down the slope. He noted one major difference was that the San Ramon Canyon landslide occurred on the face of the slope and day-lighted in the bottom of a canyon and that the toe of the landslide was being eroded by the inadequate storm drain system. He explained that the stability analysis extended below the possible failure path until it began to exceed a factor of safety of 1.5, so that everything that projected to the ground surface beyond the top of the slope had a factor of safety that exceeded 1.5.
Mr. Lancaster noted that the lots in the Landslide Moratorium Area did not actually have a 1.5 factor of safety, saying what was being determined there was whether there would be any impact on the overall stability of the landslide if a property owner did some grading or put on a small addition to their home, not whether the area had a 1.5 factor of safety, because it did not. He stated that, with the work that had been performed in the area under consideration, it could safely be said that the lots, in addition to the slope, had a 1.5 or greater factor of safety.
Councilman Gardiner inquired whether Mr. Lancaster could see any merit to an outside party performing an independent study of the underlying factor of safety rather than relying on that determination being made by the company involved in the stabilization project.
Mr. Lancaster advised Council that he reviewed AMEC’s initial and subsequent reports and that he visited the site prior to and since completion of the stabilization project, saying that he was comfortable with their work but noted that if Council believed it would be prudent to have a third-party observation and report, he or another firm could perform that function.
Councilman Gardiner commented that his major concerns were what the residents in the area wanted; that the area was treated comparably to the Landslide Moratorium Area; and, that the information provided about the project could be relied upon.
Councilman Stern questioned the cause of the instability in San Ramon Canyon.
Mr. McLarty explained that the area had two instabilities. The first was initiated during the adjacent tract’s development in the late 1950’s that resulted in a landslide forming at the rear of the lots on the Palos Verdes Drive East frontage road, which failed into the canyon and, in response to that failure, the area on which the four properties now rest was filled in, thereby stabilizing the slide. He noted the resulting fill slope was approximately 90 feet high, which would not be allowed today under the City’s code. The second instability was caused by the storm drain system eroding the bottom of the canyon, resulting in another small slide which began to fail in 1997-98, causing a number of ground and roadway cracks to form around the four residences at the top of the canyon. He indicated that the solution used to address this newly recognized slide involved removing the majority of the landslide material, installing a new storm drain and buttressing the remaining area by essentially filling in the canyon.
Mayor Pro Tem Wolowicz queried why those particular fill lots were distinguished from the other lots in the area.
Mr. McLarty explained that the failure mechanisms and hence the methods of stability analysis were fundamentally different, saying that the four lots at the top of the canyon were far more stable now than at any time in the past with respect to the failure into the canyon.
Councilman Stern read the criteria for the Open Space Hazard zoning district from the City’s Development Code and inquired if any of the characteristics listed applied to the property under consideration for rezoning.
Director Rojas and Mr. McLarty responded that none of the characteristics apply to the property staff was requesting be rezoned.
Clara Duran Reed, Rancho Palos Verdes, distributed some photographs of her property to Council. She remarked that one of the definitions encompassed in the OH zoning classification dealt with the stability of the area and whether there was any danger in allowing development. She contended that Mr. McLarty mentioned in his earlier comments that, even if an area had a 1.5 factor of safety and was considered stable, an extremely large building on a small lot could cause problems, saying that was exactly what was proposed on the lot below her at 30650 PV Drive East, saying that the City needed to give this particular development proposal very serious consideration. She indicated her understanding was that only the flat areas would be changed to RS-2, not the areas on the slope, but that the staff report indicated the entire area would be rezoned. She expressed great concern that the same firm that performed the analysis of the adjacent stabilization project was also determining the factor of safety for this area, saying that an independent, third party review seemed far more prudent.
Ms. Duran Reed asserted that Mr. Wolf’s property (30650 PV Drive East) included a 35 percent slope and, as such, should not be considered RS-2 because it fell into one of the definitions included in the Open Space Hazard classification. She noted that her major concern was that construction on this property might cause a landslide like the one that occurred on the 18th hole at Trump National Golf Course, saying that she wanted reassurance that this was not going to happen. She suggested consideration be given to modifying the size of the home and requested that she be allowed to conduct a soils analysis of the neighbor’s property, independent of Council’s decision, to make certain that whatever was built there would present no safety hazards to her home and family.
Councilman Long inquired if the photographs Ms. Duran Reed presented were of the same house about which she had previously voiced concerns about view obstruction.
Ms. Duran Reed acknowledged that it was the same house, explaining that she distributed the pictures in response to Councilman Long’s previous request for proof of any problems with the home in question, noting that the photographs clearly illustrated that the roof had sunk by approximately eight inches across the ridgeline.
Councilman Long queried if these geological concerns were addressed at the time Mr. Wolf was seeking permits to remodel and expand the house.
Ms. Duran Reed stated she did not believe this was the case, adding that she was unaware at that time that the entire property was within the OH zone.
Councilman Stern asked whether any geological review, including analysis of the size of the house possibly creating a problem, had been performed in connection with Mr. Wolf’s permit process.
Associate Planner Schonborn advised Council that applicants were required to submit the appropriate geological and soils reports to the City’s geologist for review and approval prior to any planning approval being granted.
Director Rojas noted that Mr. Wolf had submitted those reports to the City and that the City geologist had subsequently approved them.
Mayor Clark requested an explanation of why the area was being considered for rezoning from Open Space Hazard for RS-2.
Director Rojas indicated that the City had spent a large sum of money to stabilize the upper canyon and subsequently determined that the OH zoning no longer applied to this area, saying that the idea to initiate the rezoning process was taken to Council two years earlier and Council authorized it to be reviewed by the Planning Commission.
Mayor Clark queried if there were other instances where the City had rezoned property from Open Space Hazard to Residential.
Director Rojas advised Council that zoning boundary lines had been adjusted in the past and that many residential lots have dual zoning on them. He stated that there were two such rezoning cases pending – one on Rockinghorse Road and one on a bluff top lot.
John Franklin, Rancho Palos Verdes, urged Council to authorize an independent study rather than accepting a report from the company that had performed the work on the stabilization project, saying that he would be far more comfortable if their input was verified by an outside party.
James Reed, Rancho Palos Verdes, voiced strong opposition to rezoning San Ramon Canyon from OH to residential, declaring that there was no good reason to place the community in jeopardy of future landslides and subsequent lawsuits. He stated that such rezoning would enable property owners to build oversized homes, creating the possibility of landslides similar to what had recently occurred in Laguna Beach. He showed clippings and read various local news headlines describing coastal land movement in Southern California and Rancho Palos Verdes, noting that the San Ramon area had been classified Open Space Hazard since the City’s incorporation in 1973 because the land was unstable and created a hazardous condition. He suggested that if owners in the OH Zone wanted their property rezoned they should be required to obtain the proper reports, documents, and approvals for their individual properties rather than the City’s granting a blanket rezoning for the entire area.
Mr. Reed remarked that two thirds of the people who would be directly affected by the rezoning expressed their opposition by signing a petition and asked why the City Council would go against the will of its citizens. He further noted the conflict of interest involved in allowing the company that was involved in the stabilization work on the lower part of the canyon to certify the quality of its own project, saying that a third-party evaluation was certainly warranted in this case. He advised Council that the report from AMEC indicated residential properties situated at the top of the reconstructed slope, Lots 43, 44, 3, and 4, all had a factor of safety greater than 1.5 with respect to potential failures within the portion of the canyon that was repaired, noting that “within” was a crucial term in that sentence; and, that AMEC’s scope of work did not include any determinations of the geotechnical stability of the existing residential properties affected by the proposed zone change or any future site improvements. He urged Council not to approve the rezoning and to stop wasting precious City money on a project that many residents were opposed to.
Councilman Stern requested clarification of Mr. Reed’s contention that City money was being wasted.
Mr. Reed opined that, although he realized AMEC’s work had helped to repair and stabilize the lower canyon, a great deal of time and money was being spent holding meetings and reviewing proposals for this zoning change which he did not believe was necessary because there was nothing wrong with the current OH designation.
Councilman Long inquired if Mr. Reed’s concerns would be satisfied if the City directed an independent review and that review confirmed the gross stability of the area.
Mr. Reed advised that such a step would make him much more comfortable and would most likely allay his fears although he would still be concerned about the size and mass of the building Mr. Wolf was proposing and what impacts it might have on his property.
Mayor Clark noted that mention was made of a petition, saying that staff had contacted several of the property owners who signed it who indicated their concern with the proposed zone change was that the rezoning would allow redevelopment of the canyon itself. He asked if Mr. Reed helped circulate that petition and if he had any comment about residents signing it under the premise that the entire canyon would be rezoned residential.
Mr. Reed indicated that his wife circulated the petition, saying that he believed residents signed it under the impression that if the area was zoned RS-2 it would open up the possibility of building into the canyon and that might impact land stability in the area.
Mayor Clark clarified that the intent was not to rezone the entire canyon.
Councilman Stern, noting that the title of the petition was “Petition To Stop San Ramon Canyon From Being Rezoned From Open Space Hazard To Residential,” shared the Mayor’s concern that many who signed the petition may have been misinformed.
Councilman Long agreed, saying that not only the title but also some of the items contained in the petition clearly created ambiguity.
Maria Dunlap, Rancho Palos Verdes, advised Council that when her family was first approached regarding this matter they made it clear they supported the zone change but Ms. Duran Reed’s analysis of the petition had consistently failed to mention that fact. She reported that one or more of the signatories to the petition were not property owners in the area and that several were not even residents of RPV. She suggested that the petition was irrelevant to the issue before Council and requested that, if this decision was going to be based on how many residents signed a petition, the City circulate its own petition to the property owners affected, clearly stating what was proposed, mentioning safety factors, and indicating that the area had no connection to the Tarapaca landslide. She noted that the landslide was not active so the area should not remain in an Open Space Hazard zone. She opined that the OH designation had been erroneously applied to this neighborhood resulting in residents not having the same rights as those living in an RS-2 Zone or even the Landslide Moratorium Area. She reiterated her support of the zoning change and urged Council’s approval.
Nagy Bakhoum, Torrance, introduced himself as Mr. Wolf’s architect, saying that he nonetheless believed his comments applied to all the landowners in the community. He indicated that Mr. Wolf’s project began as a small remodel which quickly grew and, as it got larger, the City required a geologic study of the property from which they discovered that the site was a cut/fill lot with significant foundation problems that would require the placement of caissons into bedrock for proper support. He stated that they had done much work over the last several years to mitigate concerns that a heavy house built in the area might cause a landslide and suggested that the last issue a particular neighbor whose view might be impacted by this building had to block the project was to convince the City to maintain the Open Space Hazard zoning. He opined that this specific location did not fit the OH criteria, as had been indicated by not only various residents, but by the City’s geologist. He maintained that the matter was not necessarily about what the residents wanted, saying that the City hired consultants for a reason and they had recommended what they believed was best for the entire community within the guidelines put forth by the City’s planners. In response to comments regarding an independent geologist’s report, he reminded Council that every property owner in the area was required to hire an independent geologist and soils engineer to perform studies, which were then reviewed by another independent party to verify that the criteria had been met. He indicated that their soils report indicated the property was stable and with proper design, the project should be allowed to move forward. He reiterated that the final hurdle was this specific zoning issue, adding that he did not believe there were any facts to support the area not being rezoned to RS-2.
Councilman Gardiner inquired why it was necessary to install caissons under the home if the area was stable.
Mr. Bakhoum explained that the top ten feet of the building pad consisted of fill, which was unsuitable for foundations and was the reason why the existing foundation was cracking. He noted that the ground below the fill was solid bedrock, saying that the proposed building caissons would anchor into this more stable material.
James Wolf, Ranch Palos Verdes, noted that Council members had received and responded to his correspondence on the matter, saying that he would not repeat that information but would instead focus on the soils situation. He indicated that the fill was not properly compacted when his house was built in 1963, resulting in some land settlement, which caused one end of the home to drop a few inches below the other. He noted that since this was an undesirable condition to maintain, he decided to start over and create a much more solid foundation when he remodeled the house. He reported that no lateral movement had occurred since the house was originally built and reminded Council that what caused the failure in the area was a poorly constructed storm drain in the canyon. He noted that this situation was different from other slide areas because it was fairly localized and was caused by a man-made drainage problem that was creating a mass land destabilization. He noted that the County originally zoned the neighborhood residential before it was incorporated by RPV, saying that he was simply an old-fashioned guy who would like to return to those days.
Gary Chaffin, Rancho Palos Verdes, stressed his support of the zone change recommendation. He stated that he and his wife purchased their home from his in-laws who had acquired it in 1960, noting that the real question was why the zoning was changed from residential to OH in 1973. He indicated his understanding was that Mr. Wolf would like to build a 3,200 square foot home, saying that his home across the their shared driveway was 3,100 square feet in size, that it had been this size since 1975, and had suffered no damage due to land movement. He stated that he had no concern regarding the stability of his property and urged Council to approve the zoning change.
Mayor Clark requested Ms. Duran Reed to respond to some of the comments regarding the petition.
Ms. Duran Reed stated that she found it interesting that everyone was trying to pick this matter apart to find a way to change the zoning. She acknowledged that she did make a mistake, that the properties at 2803 and 2845 San Ramon Drive should have been reversed, noting that she spoke to the gentleman at 2845 who was undecided and the owners of 2803 were out of town. She indicated that the gentleman at 2845 did not sign the petition but did not intend to send any letters in opposition, noting that his wife was not present during their discussion. She indicated that when she approached residents, she referenced the area above the stabilized area up to PV Drive East as the area being considered for rezoning by the City, using the same materials that had been sent to her by the Planning Department. She reported that people expressed concern about building close to the top of the fill slope, noting that there were active and ancient landslides in the area and it did not seem prudent to rezone to RS-2 in light of that fact. She explained that perhaps her terminology was incorrect, but it was never her intent to misrepresent anything to Council or anyone else.
Mayor Clark responded that no one was attempting to pick the matter apart; rather Council was attempting to gather the facts and understand all the aspects of the request.
Mayor Clark declared the Public Hearing closed.
Councilman Stern stated that the Open Space Hazard zone had substantial limiting factors for the properties that happened to fall within it, saying that it essentially eliminated a property owner’s ability to expand and upgrade their homes. He advised his colleagues that, even if the zoning was changed, anyone making an improvement would still be required to go through the normal permitting process, including geological analysis, and so forth; and, that large homes would be analyzed due to their size, in addition to other relevant factors, i.e., neighborhood compatibility. He noted that, despite whether all 70 people who signed the petition actually understood it, the properties of only a handful of people were impacted, saying that, in his opinion, the proper analysis was whether the property within the OH zone met the defined criteria. He maintained that it would be improper to include a property in the OH zone unless those defined characteristics existed, saying that he was convinced the area in question did not include those attributes; that it instead meet the 1.5 factor of safety; and, therefore, the correct action was to reclassify the area as RS-2. He declared that it was not a question of what the neighbors thought was appropriate, it was a matter of complying with the obligation under the City’s code to place properties in the correct zoning district. He stated that he did not believe the petition’s reference to San Ramon Canyon was accurate enough to be of any value, even if it were being considered in making this decision and contended that it would be improper to maintain the current zoning designation merely as a means to limit future development.
Mayor Pro Tem Wolowicz stated that he might agree with Councilman Stern ten years in the future after he had an opportunity to observe the area post construction, noting that this was a very unique repair project and that he was not comfortable with the short period of time that had elapsed since its completion. He opined that there was great merit in obtaining an independent study and suggested reconvening a session in the neighborhood after such a study was completed to explain everything and allow the residents an opportunity to voice opinions about their own neighborhood. He concurred that the City’s decision should not be based on a consensus of the neighbors but indicated that he believed their level of comfort wais a consideration and, while he understood the legal ramifications, this was a crucial decision that should not be made hastily. He declared that Council would have made the right decision if what had been presented was correct and the zoning was changed but, if something negative and unanticipated occurred, it would come back that this Council overrode the Open Space Hazard standard without requiring a third-party investigation. He recommended that an independent study be obtained; that a presentation of the findings be made to the neighborhood; and, that four more years be allowed to pass to observe the area post construction. He stated that he was most concerned about the six houses along the top of the slope where the stabilization work was performed.
Councilman Gardiner stated that he would never be so bold as to ignore the neighbors’ concerns, saying it was Council’s obligation to consider all their issues and concerns. He remarked that their primary concern seemed to be the stability of the area, noting that whether or not it fell into the OH zone also depended on that stability. He commented that he might be less cautious if the region were not on the California coast and in an area of previous instability but under the circumstances he, too, believed there was merit in obtaining an independent study. He reminded his colleagues of the Ocean Trails Golf Course and the hole that was considered to be stable before it slid into the ocean, saying that there were two types of errors Council could make – being too cautious or not being cautious enough. He maintained that he would prefer that an independent study concluded that the area was safe, noting that, otherwise, he would be reluctant to support the zoning change.
Councilman Long agreed with Councilman Stern, saying that the fact must govern in this case and whether the criteria for the Open Space Hazard zone had been met, and not people’s beliefs or fears. He noted that the petition purporting to represent the neighbors’ views was also somewhat ambiguous, leading him to believe that it did not conclusively convey what it was intended to. He stated that his analysis of the situation was that the area proposed to be rezoned was originally part of a canyon; that there were some previous failures; that it was zoned OH at some point in the mid 1970’s for reasons unknown; that development was allowed despite that zoning designation; and, that it was unclear why the zoning boundary lines were drawn exactly where they were. Noting that the City geologist’s conclusion that the area did not have the necessary characteristics to classify it as Open Space Hazard, even though those characteristics may have existed in the past, he stated that he would like something more than a secondary review by the City’s geologist to persuade him that the zoning change was the correct action in light of the critical nature of this decision and the added degree of comfort an independent review would provide.
Mayor Clark concurred that the matter warranted thorough review and consideration. Noting that the stability factor remained the central question, he stated that despite evidence being presented that in the professional opinion and calculations of one geotechnical specialist there was a safety factor of 1.5, he, too, believed an independent review would be highly prudent under the circumstances. He declared that he would support the rezoning, which he found to be equitable, fair and consistent with the City’s Code, if an independent geologic supported that decision.
Councilman Stern inquired if further analysis would consist of reviewing existing data or would require gathering new information and what the cost would be to complete such as study.
Director Rojas answered that a site visit would be necessary to determine if new data was needed, resulting in some minor additional cost. He indicated that staff would obtain some estimates and report back to Council whether a budget adjustment was required in order to proceed.
Councilman Long moved, seconded by Mayor Pro Tem Wolowicz, to reopen and continue the public hearing to September 20, 2005, with direction to staff to provide a cost proposal to perform a formal third-party review of the geology reports prepared by the City geologist for the subject area.
Recess and Reconvene: Mayor Clark recessed the meeting at 9:23 p.m. and reconvened the meeting at 9:31 p.m.
CITY COUNCIL ORAL REPORTS:
Councilman Stern reported that he had attended the First Responders Appreciation Pancake Breakfast at Del Cerro Park on August 13th honoring the firefighters and sheriff’s deputies who helped combat the recent wildfire.
Mayor Pro Tem Wolowicz reported that he attended the following events: Residential Standards Update Committee meeting on July 11th; a tour of the Port of Los Angeles conducted by the SBCCOG on July 18th; the PVP Transit Authority meeting on July 21st; a presentation at the Willenburg Special Education Center on July 22nd; the Residential Standards Committee meeting on July 25th; and, the Mayor’s Breakfast on August 12th.
Councilman Long reported that he attended the Los Angeles Current Affairs Forum on July 15th, noting he took the opportunity to thank Councilman Garcetti on behalf of the City for the support the City of Los Angeles provided in fighting the fire; the Residential Standards Development Committee on July 25th; and, the First Responders Appreciation Pancake Breakfast on August 6th. He reported that he met with Rolling Hills Estates Mayor Addleman, Councilman Zerunyan, and members of Rolling Hills Estates and Rancho Palos Verdes staff on August 9th to discuss the trash collection on various border streets including Browndeer Lane, noting that some points of consensus were developed which staff was exploring in an effort to coordinate trash pick-up service in the area.
Mayor Clark reported that he attended the L.A. Division of the League of California Cities Installation Dinner on August 4th along with Council members Long and Stern and City Manager Evans. He advised his colleagues that Rolling Hills Estates Council woman Susan Seamans was sworn in as the L.A. Division President. He complimented the residents from the communities of Del Cerro, Island View, and Burrell Lane who helped organize the First Responders Appreciation Pancake Breakfast on August 6th and also thanked Director of Parks and Recreation Rosenfeld and his staff for coordinating a wonderful event. He reported that he attended the Mayor’s Breakfast on August 12th, noting that there was a full complement of Commission and Committee Chairs in attendance and that it was a very fruitful meeting.
REGULAR NEW BUSINESS:
Improvements to the Palos Verdes Bay Club Storm Drain
Councilman Gardiner moved, seconded by Councilman Long, to waive the staff report.
Councilman Gardiner commented on the vast difference between the low and high bidders and inquired if they were all bidding on the same project with the same understanding and deliverable.
Director Allison stated that the City did not normally see such a dramatic variance in bids, noting that staff met with the bidders and speculated that that the two who provided the clustered price bids were more interested in securing the job than the others. He advised Council that the City had worked with the recommended contractor before and had been pleased with their performance.
Councilman Stern, noting that the Palos Verdes Bay Club had filed a claim against the City, inquired if it was a formal claim.
City Attorney Lynch answered affirmatively, saying that the claim was dated March 11, 2005, had been submitted to CJPIA, and that the City was awaiting CJPIA’s response.
Councilman Gardiner moved, seconded by Councilman Stern, to 1) Authorize the Mayor and City Clerk to execute an Agreement with the Palos Verdes Bay Club; 2) Award a contract for the rehabilitation of the Palos Verdes Bay Club storm drain to Southwest Pipeline and Trenchless Corp. for an amount not to exceed $157,520 and authorize staff to spend an additional $22,480 for potential change orders which may result from unforeseen conditions for a total authorization of $180,000; 3) Authorize the Mayor and City Clerk to execute a contract with Southwest Pipeline and Trenchless Corp.; 4) ADOPT RESOLUTION NO. 2005-92, A RESOLUTION OF THE CITY COUNCIL FOR THE CITY OF RANCHO PALOS VERDES, AUTHORIZING THE CITY MANAGER TO ACCEPT AND RECORD A GRANT DEED OF EASEMENT DEDICATING TO THE CITY REAL PROPERTY KNOWN AS THE “PALOS VERDES BAY CLUB STORM DRAIN EASEMENT" UNDER AND UPON THAT PROPERTY WITHIN TRACT 28905 AND DESCRIBED IN EXHIBIT “A” ATTACHED HERETO, FOR STORM DRAIN PURPOSES; 5) Authorize the expenditure of up to $10,000 for inspection services with KEC Engineers Inc. under their on-call services contract; and, 6) Authorize the expenditure of up to $6,000 for habitat installation services with Palos Verdes Peninsula Land Conservancy (PVPLC) for the re vegetation/erosion control of those areas of the bluff face that were eroded in the vicinity of the failed storm drain.
The motion carried on the following roll call vote:
AYES: Stern, Long, Gardiner, Wolowicz, Clark
Agreement with the Property Owners at 7460 Alida Place
Assistant City Manager/City Clerk Petru advised Council that late correspondence had been distributed on the item.
Councilman Long moved to waive the staff report.
City Attorney Lynch advised Council that late correspondence received from Mr. Simich’s attorney had requested some minor amendments to the agreement.
Mayor Pro Tem Wolowicz voiced concern that it was not uncommon for the City to be confronted with this type of after-the-fact correction and inquired how situations like this one occurred.
Director Allison explained that in this instance, it appeared that changes were made during construction, noting that the storm drain location was revised but the easement was not; hence the storm drain and easement did not line up and, when a home was subsequently built on the lot, the storm drain wound up beneath a patio and porch on the property.
Mayor Pro Tem Wolowicz inquired how many years ago this had occurred and if the City had any recourse against the developer.
Director Allison answered that staff believed the change occurred in approximately 1985 and his understanding was that the development company was no longer was existence.
Mayor Pro Tem Wolowicz asked what safeguards could be put in place to protect the City in the future, reiterating that it was not uncommon for the City to discover sometime after the fact that an inspection was improperly performed.
Director Allison responded that the City traditionally obtained bonds, noting that they were generally released one year after construction was completed, with the idea that by that time everyone had been paid and any construction defects would have become apparent by that time. He remarked that he did not believe the City had the ability to maintain a bond of this type for five or ten years to address the concern being raised by Mayor Pro Tem Wolowicz.
City Attorney Lynch concurred, saying that whether the City wanted to require secondary or more strenuous review of the certifications it received on public improvement built by developers was a fundamental policy question. She explained that currently when a subdivision was approved, the project engineers were required to certify that the project was properly drawn and that the easements were in the correct location, saying that the City generally accepted the professional stamps as verification that everything had been done correctly. She stated that when a licensed engineer made a mistake that was discovered in time the City’s recourse was to alert that individual and have them redesign the improvement, redraw the easement or take whatever action was deemed necessary to remedy the situation.
Councilman Stern remarked that layers of review could be added to help eliminate what amounted to professional negligence, saying that doing so would add tremendous expense, so it became questionable whether the added requirements would be justified. He suggested that the notion of requiring some additional review when it came to public improvements that would be accepted by the City seemed to have merit.
City Attorney Lynch outlined the revisions to the agreement proposed by Mr. Simich.
Councilman Long moved, seconded by Councilman Stern, to 1) Authorize the Mayor and City Clerk to execute the amended agreement with the Property Owners at 7460 Alida Place, and; 2) Authorize staff to prepare engineering plans for a new storm drain facility in Alida Place.
The motion carried on the following roll call vote:
AYES: Wolowicz, Gardiner, Long, Stern, Clark
In Lieu Affordable Housing Fund Program
Councilman Stern asked why the Council sitting at the time the in-lieu housing fee was adopted set the amount at half the rate suggested by staff.
City Manager Evans recalled that there was testimony from developers that Council was setting in-lieu fees too high, saying that Council agreed with that testimony and tasked staff with determining a lower fees, which it did.
Councilman Stern remarked that he was not persuaded by the developers’ contentions that the fee was too high if the City was required to make up the difference, saying that he could not understand why the fee was set to accommodate developers at the City’s expense.
Councilman Gardiner asked if the City had the authority to eliminate the in-lieu fee and require developer to build affordable housing instead.
City Attorney Lynch answered affirmatively, noting, however, that the City had an obligation to ascertain such a requirement did not render a project infeasible. She explained that, in the case of a lot split, requiring one of two properties to be an affordable unit was likely to make a project infeasible, saying that she would recommend that the City retain the option of requiring the fee because there might be circumstances where a developer could demonstrate that the City was rendering their project infeasible, especially small projects.
Mayor Clark noted that there were also non-residential projects to consider, noting that requiring affordable housing units to be built by a non-residential developer could be considered inequitable and inappropriate.
Mayor Pro Tem Wolowicz stated that he, too, could not understand why the City was assuming the burden for building or providing affordable housing units, opining that was inappropriate. He inquired if it might be possible to lower the minimum threshold for requiring affordable housing from the current five-unit project to three units.
Rather than lowering the minimum threshold, City Attorney Lynch urged Council to consider increasing the existing fee, explaining that accurately matching it to the actual cost to build an affordable unit would at least prompt the developer to make a considered decision between paying the fee and building the affordable units.
Mayor Pro Tem Wolowicz indicated that he would appreciate receiving a practical recommendation from staff, saying that he believed the fee needed to be increased and that he would look to staff to develop a solid recommendation that effectively placed the City on equitable grounds with the developers.
Councilman Long spoke in favor of changing the fee amount. He suggested determining what it would cost the City to in essence subsidize an affordable unit for the required period of time, discounting that amount at the present value, and using the amount derived from this calculation as the per unit amount to be charged to the developer.
Councilman Gardiner noted that it was not just the cost of building the affordable unit, but the cost of the land to put it on, saying that the City was rather short on developable land. He recommended that the default be to require the developer to build the affordable unit(s), but allow them to appeal to the City Council so that they would have an opportunity to persuade Council that this requirement was unreasonable.
Mayor Clark recalled that Council expressed a concern over the amount of the in-lieu fee being too low at the December 7, 2004 meeting, saying that nine months later the matter had come back to Council without any recommendation for a new formula or an alternative approach.
Councilman Stern concurred that the default should be on the developer to provide affordable housing units as part of the project. He indicated that, while small subdivisions presented a unique problem, the developer of the Ocean Front Estates projects, for example, which was likely to generate considerable need for service personnel, i.e., maids, gardeners, et cetera, could have devised a well thought out plan to provide living units for those people to reside in that neighborhood which would have fit in perfectly well; that would have satisfied the affordable housing requirements; and, that would not have placed the financial burden on the City. He reiterated that the default should be to build affordable units as part of the development, saying if the Point View project was approved, it should include affordable housing, if that was still a requirement. He agreed that the fee needed to be set at the proper level, noting that staff was requesting guidance on this very issue.
Mayor Clark, noting that the Ocean Trails development required four on-site and four off-site affordable units, remarked that the on-site units were not yet occupied and inquired when that was expected to happen.
Deputy Director Pfost reported that the on-site units were required to be occupied prior to the opening of the golf course, which was scheduled for October 2005.
Mayor Clark queried how the developer was planning to provide the off-site affordable housing units.
Deputy Director Pfost advised Council that in order to satisfy the condition of approval, the developer could either purchase units and sell them to low income individuals or subsidize existing units for a period of 30 years. He noted that the condition did not require the off-site units to be made available until Tract No. 50666 was developed.
City Attorney Lynch pointed out that because Council recently approved a reduction in the number of units in Tract No. 50666 with the approval of a new driving range for the golf course, as a result, the number of off-site affordable units would drop from four down to two.
Mayor Pro Tem Wolowicz stated that he would like to see the burden shifted to the developers, commenting that, while he believed the state legislation was well intended, it was poorly executed and, in this era of diminishing buildable spaces combined with increasing land and construction prices, the City was rapidly reaching the point of exhausting its alternatives for providing affordable housing and should be on record as stating its opposition to these state-imposed mandates.
Mayor Clark agreed, saying that the overall issue of housing in California was looming large on the horizon for the Governor and the legislature; that it was the League of California Cities’ number one priority; that it was being examined very carefully by a number of groups in Sacramento; and, that the City should contribute to that effort.
Mayor Pro Tem Wolowicz moved, seconded by Councilman Long, to continue the item to September 20, 2005 with direction to staff to: 1) provide input regarding the appropriate threshold for the in-lieu fee; 2) make a recommendation on the appropriate amount of the in-lieu fee; and, 3) prepare a draft letter to the state legislature for Council’s review regarding the inadequacy of the existing legislation in light of current land values and construction costs.
Casting of Ballots on Behalf of City-Owned Parcels and Agency-Owned Parcels Within the City Subject to the Proposed Storm Drain User Fee and Discussion of Concerns Raised by Council member Gardiner Regarding the Ballot Materials
Assistant City Manager/City Clerk Petru advised Council that late correspondence had been received and distributed on this item and noted that staff was recommending convening the Redevelopment Agency to hear the matter concurrently with Council.
Councilman Stern commented that while the two matters were related, it might be beneficial to address each one separately.
Mayor Clark called the Redevelopment Agency to order.
Roll call was answered as follows:
PRESENT: Stern, Wolowicz, Long, Gardiner, Chair Clark
Councilman Long moved, seconded by Councilman Stern, to waive the staff report.
Councilman Stern commented that the fundamental question was whether to cast the ballots to which the City was entitled as the owner of parcels in RPV, saying that the City’s residents had been asked whether they wished to have this fee imposed on their parcels and, in light of that, it seemed the best course for the City would be to abstain from casting its own ballots. He remarked that, if the residents favored the storm drain user fee, they would know that their vote was the deciding element; but if they did not favor the user fee, it would be regrettable in a close decision to know that Council’s vote passed the storm drain user fee. He opined that the most prudent action was to leave the decision to the affected residents.
Councilman Long stated that his normal inclination in any hotly contested issue was to cast every ballot to which there was an entitlement. He noted that Council had already made a policy decision and endorsed the storm drain user fee, saying that there were many circumstances where the day-to-day decisions of City government were delegated to the City Manager and that he would be inclined to entrust the City Manager with casting the City’s ballots.
City Manager Evans graciously declined Councilman Long’s suggestion.
Councilman Gardiner agreed with Councilman Stern’s suggestion.
Mayor Pro Tem Wolowicz reported that he had carefully considered whether not taking a position would be an abrogation of his responsibility, noting that in most instances he believed Council, as the elected representatives of its citizenry, owed it to its constituents to take a position. He echoed the sentiments of Council members Gardiner and Stern, saying that he believed Council had exercised its responsibility and taken a position by placing the matter on the ballot.
Mayor Clark concurred, noting that ultimately the property owners affected by the user fee should be the ones to make the decision, which was consistent with the City’s practice of involving the community in making key decisions.
Bob Nelson, Rancho Palos Verdes, urged Council to vote “yes” on the City’s ballots, reminding Council that many people put thousands of hours into studying the user fee and those individuals deserved to have their City’s properties included in the vote. He opined that, while abstaining from the vote might make sense, he believed Council would be abrogating its duty to the people who worked so diligently on this issue.
Councilman Stern commented that, while he appreciated Mr. Nelson’s position, he believed it was appropriate for Council to abstain. He explained that in a sense Council was voting by allowing the residents who would pay the fee the opportunity to make the decision. He reiterated that it would be quite regrettable if the majority of property owners voted against the measure and the City tipped the balance by casting its 61 votes in favor, saying that, as much as he would like to do everything possible to ensure the fee was passed, he would rather see it done by convincing the property owners to vote in favor of the fee.
Councilman Stern moved, seconded by Mayor Pro Tem Wolowicz, to abstain from voting on the 49 parcels owned by the City and the 12 parcels owned by the Redevelopment Agency.
Mayor Pro Tem Wolowicz remarked he appreciated Mr. Nelson’s perspective and agreed that he and many others devoted a great deal of time to the matter. He indicated that his decision in no way reflected how he felt about the issue, but he believed that it was appropriate to leave the decision to the property owners who would be required to pay the fee.
Councilman Long concurred that Mr. Nelson made a persuasive case. He reported that legislation was currently pending which may allow Council to make such decisions notwithstanding the vote of the majority of affected parcel owners, noting that he was cautiously optimistic in this case that the majority would vote in favor. He opined that the entire premise and structure of Proposition 218 was flawed in many respects including the way ballots were cast, the inability to include pro and con arguments, and the opportunity for the City itself to cast ballots. He stated that he understood the points made by his colleagues and appreciated that this did not change the courage of their convictions, saying that, if the outcome was that the user fee lost by less than 61 votes, he wondered if they would regret the consequences that outcome would have on the community. In conclusion, he indicated he would vote neither in favor nor against the motion.
The motion carried on the following roll call vote of the City Council:
AYES: Stern, Gardiner, Wolowicz, Mayor Clark
The motion carried on the following roll call vote of the Redevelopment Agency:
AYES: Stern, Wolowicz, Gardiner, Chair Clark
Councilman Stern moved, seconded by Councilman Long, to adjourn the Redevelopment Agency. Without objection, Chair Clark so ordered.
Recess and Reconvene: Mayor Clark recessed the meeting at 10:31 p.m. and reconvened the meeting at 10:38 p.m.
Councilman Long moved to table the issue regarding the ballot materials without further discussion.
The motion failed for lack of a second.
City Attorney Lynch presented a broad overview of the staff report regarding the legal requirements for what was required/allowed to be included in the ballot materials and described the process the City Infrastructure Financing Team went through in preparing and editing the materials to ensure compliance with the law. She indicated that the Team consisted of City staff and consultants, and that no City elected or appointed officials were involved in this process.
Mayor Clark asked who from City Attorney Lynch’s firm reviewed the ballot materials and inquired what their experience was with these types of initiatives.
City Attorney Lynch reported the partners in her firm involved in preparing and reviewing the ballot materials were Robin Harris, one of the Infrastructure Financing Team members; Craig Steel, an election expert who consulted regularly on a variety of election issues for local entities; and, Larry Weiner, City Attorney for the City of Beverly Hills.
Mayor Clark queried whether any of them saw reason for concern with respect to the content of the ballot materials.
City Attorney Lynch replied that the materials went through several levels of review; that some editing changes were made prior to Council conducting the majority protest hearing, as well prior to the ballot process; and, that everyone was satisfied with the final product that was sent out.
Councilman Long opined that this discussion would be irrelevant if the user fee were defeated in the election, and added that he believed it would be highly impractical for the City to halt the election at this point because the ballots had already been mailed out and many votes had already been cast.
City Attorney Lynch noted that this was a policy decision for Council, saying that in staff’s opinion the materials distributed were accurate; that Prop 218 required that a lot of information be provided to the voters about the proposed fee; and that she would prefer to face a challenge claiming that too much information was provided rather than not enough.
Councilman Long explained the intent behind his request to table the matter was not that the issues raised were not important enough to be addressed, but that it was not the right time.
Councilman Gardiner advised his colleagues that he had sent questions to the City Manager and City Attorney with the intent of obtaining their responses before deciding what, if anything, to do, saying that it was staff’s decision to agendize the matter and it would have been his preference to handle this issue off-line. He commented that it was probably too late for this particular election, but he believed a lesson had been learned in the process. He opined that Council was basically left out of many relevant decisions concerning the ballot measure, such as what was sent out and the wording of the ballot materials, et cetera and that staff apparently assumed Council would be incapable of addressing these matters or that it would be preferable to have the materials prepared by staff or consultants to ensure neutrality, saying that he was not certain he agreed with this approach. He inquired if the election was conducted in accordance with Section 3001 of the California Election Code, regarding mail out ballot proceedings.
City Attorney Lynch advised Council that staff attempted to comply with both the Election Code and Proposition 218 to the extent feasible, noting that when staff found an inconsistency between the two, they opted to comply with Proposition 218 because it was the more specific of the two laws.
Councilman Gardiner remarked that Prop 218 was silent on some of the issues concerning the ballot. He advised his colleagues that Prop 218 recommended a sample ballot that only contained the parcel the number, recorded owner, address, indication of approval or disapproval, and signature. He noted that the ballot sent out by the City included a statement that the information provided in the ballot materials was compiled and distributed at public expense by the City in compliance with Article 13-D, saying that, while the City Attorney’s analysis in the staff report contained some references to case law, he found no reference in Article 13-D specifying what was to be contained on the ballot.
City Attorney Lynch explained that with reference to assessments, Article 13-D, Section 4.C, indicated that written notice be provided regarding the proposed assessment; the amount chargeable; the duration of the assessment; reason for the assessment; the basis upon which the proposed assessment was calculated; and, a summary of the procedures applicable to the completion, return, and tabulation of the ballots including a disclosure statement. She noted that Paragraph D indicated that the ballot shall include the agency’s address for receipt, a place for the voter’s name, reasonable identification of the parcel, and a place to indicate the voter’s support or opposition.
Councilman Gardiner stated that Paragraph D applied to the ballot, whereas Paragraph C pertained to the information that could be mailed out. He indicated that the ballot requirements as he read them were very simple – it was only to contain the parcel number, record owner, address, yes/no, and signature.
City Attorney Lynch advised there was a requirement for the notice to include the other items she previously mentioned.
Councilman Gardiner inquired if the notice and the ballot were synonymous.
City Attorney Lynch explained that they were not the same, but that the notice was required to accompany the ballot.
Councilman Gardiner indicated that his questions to staff requested a citation of the authority for the information in question to be included on the ballot, saying that he did not believe that the information was in accordance with Article 13-D as staff purported it to be and, and as such, he felt the City was not following proper procedures by placing that information on the ballot itself. He indicated that the ballot materials indicated that the City did not have sufficient reserves or net revenues to fund the storm drain repair program, saying that this statement was not only made on the ballot but went on to say that if reserves were used to fund the program, they would be nearly depleted in approximately five years. He contended that this was a projection, not a fact, saying that this statement went beyond presenting the facts and took an advocacy position, which concerned him. He asserted that it would have been very simple to provide information that fairly portrayed the facts accompanied by a simple ballot like the one suggested in Prop 218. He voiced concern that these decisions were made by staff and that Council was never given an opportunity to provide input on their form and content.
Councilman Stern stated that, while he had tremendous respect for Councilman Gardiner, he did not consider many of his points worthy of discussion. He remarked that Proposition 218 was new to many people, saying that the prudent thing to do in an election was to follow the rules as closely as possible rather than deviating from the prescribed requirements. He commented that, while he may not like the election model provided by Prop 218, it was not his nor Council’s choice, but a voter-passed initiative that dictated how this type of election was to be conducted. He stated that any lawyer would advise against running the risk of an illegal election by deviating from the model provided. He opined that Councilman Gardiner had apparently taken issue with the fact the ballot materials stated that Council approved the measure rather than indicating it was a 4:1 vote, saying that he believed his colleague had repeatedly made his opposition patently clear. He further opined that his colleague disagreed with the statement that Council could terminate or reduce the fee to zero rather than indicating Council could decide not to terminate it.
Councilman Stern reasoned that Prop 218 required the City to provide among other things the rationale behind the fee, saying that he believed the information included with the ballot was an accurate and factual representation of the program and why Council had proposed it. He recoiled at the notion that elected officials should prepare the ballot, noting that he would prefer to charge staff with that obligation and would be vehemently opposed to Council taking on such a function. In conclusion, he declared that he believed the ballot was correct; that it complied with the letter and the spirit of the law; and, that the information contained therein was factual.
Mayor Pro Tem Wolowicz, indicated that he understood Councilman Gardiner’s comments about mentioning future revenues, and that he, too, would have appreciated an opportunity to expand on certain points presented in the ballot materials. He advised his colleagues that he would have included a sentence noting that some members of Council questioned the amount and timing of future Transient Occupancy Tax (TOT) revenues and included half a dozen other major expenditures in addition to some caveats warning about the depletion of the General fund reserves. He indicated that he had given a great deal of thought to disclosing TOT revenues, saying he was equally concerned with the other expenses and issues that were not included and, if he were tasked with writing the information, he would have insisted on a chapter outlining those issues. Noting his appreciation of Councilman Gardiner’s observations to the contrary, he stated that he believed the current issue was fairly and accurately stated in the ballot materials prepared by staff.
Councilman Long endorsed the comments of Councilman Stern and Mayor Pro Tem Wolowicz. He contended that the real issue was whether the voters were being informed in a fair and reasonable way, saying that he believed they were. He empathized with Councilman Gardiner’s position, reminding his colleagues that he, too, had been on the losing side of an issue that remained important to him. He expressed confidence in staff’s fair and accurate presentation of the issue as well as surprise at his colleague’s belief to the contrary and suggestion that the materials sent out by staff appeared to be an advocacy piece because the facts were stacked heavily in favor of the proposed user fee. He asserted that the criticisms being made were premature, pedantic, and not worthy of the time that even opponents of the fee would have put into them, saying that he was hopeful that the matter could move forward and, if there were concerns about the election procedure as a whole, Council should encourage the League of California Cities to sponsor legislation to address them. He reiterated that the issues had been fairly presented in the ballot materials and the matter was now in the hands of the voters.
Mayor Clark indicated that the questions raised caused him to reflect on the ballot itself, saying that his conclusions after doing so as objectively as possible were that it presented a fair, informational portrayal to the property owners affected and was in compliance and consistent with Prop 218.
Councilman Gardiner remarked that, while he appreciated the opportunity to discuss some of his concerns, he was not persuaded by anything that was said. He suggested that his colleagues might find it very illuminating to do some of the same research he had done on the subject, noting that the public would ultimately make a decision and, if the occasion warranted, there may be some questions regarding procedural issues. He advised his colleagues that his goal in raising this issue was to inspire thought and debate about how much reliance should be placed on consultants and staff and where Council should play a role, saying that, while Council does not draft things, it members were quite capable of providing comments and distinguishing facts from assertions and projections. He noted that it would be interesting to see the results of the election, saying that his points had been raised and he would await the voters’ decision.
Councilman Long moved, seconded by Councilman Stern, to receive and file the report regarding the concerns raised by Council member Gardiner about the ballot materials. There being no objection, Mayor Clark so ordered.
Adoption of Ordinance No. 418 – Annual Storm Drain User Fee
Councilman Stern moved, seconded by Mayor Pro Tem Wolowicz, to ADOPT ORDINANCE NO. 418, AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES ESTABLISHING AN ANNUAL STORM DRAIN USER FEE AND AMENDING THE RANCHO PALOS VERDES MUNICIPAL CODE (This Ordinance was introduced at the June 21, 2005 meeting).
The motion, which required a four-fifths vote, failed on the following roll call vote:
AYES: Stern, Long, Wolowicz
Councilman Gardiner inquired if there was any merit to waiting for the election returns before moving forward on the item.
City Manager Evans advised that, while that certainly could be done, the ordinance had no force or effect unless the measure passed.
Councilman Gardiner moved, seconded by Mayor Clark, to continue the item.
City Attorney Lynch recommended that, if the item was continued, that it be until after certification of the election results.
Mayor Pro Tem Wolowicz noted his belief that the second reading and adoption of the ordinance was a procedural requirement prior to final acceptance of the measure.
City Attorney Lynch explained it was required before the ordinance became effective, saying that, while it could occur afterwards, the ordinance was designed so that the second reading would take place first, subject to voter approval.
Mayor Pro Tem Wolowicz inquired if the four-fifths vote requirement would be applicable if less than five members were present.
City Attorney Lynch indicated that it would still be a requirement.
Mayor Clark, noting that Mayor Pro Tem Wolowicz raised a valid point, queried when the matter would come back to Council and what would happen if there were any anticipated absences.
City Manager Evans advised Council that the matter would come back September 20th.
Councilman Long stated he may be out of town in September and declared that delaying the decision for no reason would be imprudent.
Mayor Clark asked whether Council could take action if the matter was continued to September and there was not a full complement of members present at the meeting.
City Attorney Lynch explained that the ordinance could be adopted if four members were present and all voted in favor. However, she explained that if four were present and only three voted in favor, the ordinance would not pass.
Councilman Gardiner reported that he would vote to accept the ordinance if the voters had passed the measure.
Councilman Long reiterated that there was absolutely no reason to delay the item, saying that there were myriad things that could go wrong.
Councilman Stern agreed, saying that he could see no logical reason to delay. He maintained that the public knew that four Council members had adopted and urged acceptance of the storm drain user fee, saying that a necessary component of that was to put the ordinance in place and, since a full complement of Councilmen was present that evening, Council should take action on this item.
Councilman Long noted that Council could repeal the ordinance if the voters did not pass the user fee, saying that, while he appreciated his colleagues showing respect for the voters, delaying the item would create an unnecessary risk.
Mayor Clark stated that the potential of a full complement of Council members not being present in September was quite persuasive, thereby withdrawing his second to the previous motion and proposing a substitute.
Mayor Clark moved, seconded by Councilman Long, to reconsider a second reading and adoption of Ordinance No. 418, predicated on the uncertainty of Council members’ schedules in September.
The motion passed on the following roll call vote:
AYES: Stern, Gardiner, Wolowicz, Long, Mayor Clark
Councilman Stern moved, seconded by Councilman Long, to ADOPT ORDINANCE NO. 418, AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES ESTABLISHING AN ANNUAL STORM DRAIN USER FEE AND AMENDING THE RANCHO PALOS VERDES MUNICIPAL CODE (This Ordinance was introduced at the June 21, 2005 meeting).
The motion passed on the following roll call vote:
AYES: Long, Wolowicz, Stern, Mayor Clark
COUNCIL DISCUSSION OF FUTURE AGENDA ITEMS & SUGGESTION OF FUTURE AGENDA ITEMS:
Councilman Long requested that the following items be added to a future agenda: 1) a report on the issues regarding the private storm drain on Rockinghorse Road; 2) a Closed Session item regarding the procedures used by the California Joint Powers Insurance Authority in its handling of claims; and, 3) a draft resolution to the state legislature supporting the adoption of more uniform election procedures.
CLOSED SESSION REPORT:
City Attorney Lynch reported that Council unanimously authorized joint indemnification and defense of all City defendants regarding the existing litigation, including the City, City Council, Planning Commission, and all individual members of the City Council and Planning Commission; and, that no action was taken regarding the pending litigation
Mayor Clark adjourned the meeting at 11:28 p.m. to 10:00 a.m. on Saturday, August 27, 2005, at the RPV TV Channel 33 Cable TV Building located at 30940 Hawthorne Boulevard; that meeting to be adjourned to 1:30 p.m. on Saturday, August 27, 2005, at Founders Park at Trump National Golf Club located at One Ocean Trails Drive.