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2004-07-06 Regular CC MinutesMINUTES OF THE REGULAR CITY COUNCIL MEETING TUESDAY - - JULY 6, 2004 - - 7:30 P.M. Mayor Johnson convened the regular meeting at 8:15 p.m. ROLL CALL - Present: Councilmembers Daysog, Gilmore, Kerr, Matarrese and Mayor Johnson - 5. Absent: None. AGENDA CHANGES (04 -326) Mayor Johnson announced that the resolution of Necessity to Acquire Property by Eminent Domain for Public Use (Library and Public Parking) [paragraph no. 04 -348] was removed from the agenda. PROCLAMATIONS, SPECIAL ORDERS OF THE DAY AND ANNOUNCEMENTS (04 -327) Proclamation announcing July as the Recreation and Parks month. Mayor Johnson read and presented the proclamation to Jay Ingram, Chair of the Recreation and Park Commission. (04 -328) Presentation by the Alameda Architectural Preservation Society (RAPS) of a Historic Preservation Award to the City of Alameda for the Structural Retrofit of the Carnegie Building. Janelle Spatz, President of AAPS and Christopher Buckley, AAPS presented a Historic Preservation Award to the Council. (04 -329) Presentation by Bay Area Water Transit Authority (BAWTA). Steve Castleberry, Chief Executive Officer of BAWTA gave a brief Power Point presentation on ferry services. (04 -330) New Main Library Project update. The Library Project Manager gave a brief presentation. CONSENT CALENDAR Councilmember Matarrese moved approval of the Consent Calendar. Vice Mayor Daysog seconded the motion, which carried by unanimous voice vote - 5. [Items so enacted or adopted are indicated by an asterisk preceding Regular Meeting 1 Alameda City Council July 6, 2004 the paragraph number.] ( *04 -331) Minutes of the Special City Council Meetings held on June 10, 2004 and the Special and Regular City Council Meeting held on June 15, 2004. Approved. ( *04 -332) Recommendation to accept the work of Linear Options, Inc. for the Traffic Striping Project, No. P.W. 12 -03 -19 and authorize the City Manager to extend the Agreement with Linear Options, Inc., for an additional year. Accepted. ( *04 -333) Recommendation to enter into a Joint Powers Agreement with the City of Fremont to provide plan review services to the City of Alameda. Accepted. ( *04 -334) Resolution No. 13737, "Calling for a General Municipal Election to be Consolidated with the Statewide General Election, to be Held in the City of Alameda on Tuesday, November 2, 2004 and Requesting the Alameda County Board of Supervisors to Permit the County Clerk /Registrar of Voters to Render Specified Services to the City Relating to the Conduct of Said Election." Adopted. ( *04 -335) Introduction of Ordinance Amending the Alameda Municipal Code by Amending Subsections 2 -8.2 (Membership; Term of Office; Removal) and 2 -8.3 (Qualifications; Quorum; Voting) of Section 2 -8 (Transportation) of Chapter II (Administration) to Reduce the Size of the Transportation Commission from Nine to Seven Members; Allow for Staggered Terms and to Reduce the Size of the Quorum from Five to Four Members. Introduced. ( *04 -336) Introduction of Ordinance Approving Master Plan Amendment MPA04 -0002 to the Catellus Master Plan and Catellus Site -Wide Landscape Development Plan to Allow for a Stormwater Treatment and Detention Pond, Pump Station and Force Main Along the Western Edge of the Proposed Business Park and a Stormwater Outfall into the Estuary at the Former FISC Site, North of Tinker Avenue, Tract 7179 for the Bayport Housing Development. Introduced. ( *04 -337) Ratified bills in the amount of $ 3,948,916.17. REGULAR AGENDA ITEMS (04 -338) Resolution No. 13738, "Reappointing Leslie Krongold as a Member of the City Library Board." Adopted. Councilmember Gilmore moved adoption of the resolution. Vice Mayor Daysog seconded the motion, which carried by unanimous Regular Meeting 2 Alameda City Council July 6, 2004 voice vote - 5. The City Clerk administered the Oath of Office and presented Ms. Krongold with a certificate of reappointment. (04 -339) Resolution No. 13739, "Reappointing Patrick Lynch as a Member of the City Planning Board." Adopted. Vice Mayor Daysog moved adoption of the resolution. Councilmember Gilmore seconded the motion, which carried by unanimous voice vote - 5. (04 -340) Resolution No. 13740, "Reappointing Robert A. Bonta as a Member of the Social Service Human Relations Board." Adopted. Councilmember Matarrese moved adoption of the resolution. Vice Mayor Daysog seconded the motion, which carried by unanimous voice vote - 5. The City Clerk administered the Oath of Office and presented Mr. Bonta with a certificate of reappointment. (04 -341) Resolution No. 13741, "Reappointing Jim C. Franz as a Member of the Social Service Human Relations Board." Adopted. Vice Mayor Daysog moved adoption of the resolution. Councilmember Matarrese seconded the motion, which carried by the following voice vote: Ayes: Councilmembers Daysog, Gilmore, Matarrese and Mayor Johnson - 4. Noes: Councilmember Kerr - 1. The City Clerk administered the Oath of Office and presented Mr. Franz with a certificate of reappointment. (04 -342) Resolution No. 13742, "Reappointing Karin Lucas as a Member of the City Public Utilities Board." Adopted. Vice Mayor Daysog moved adoption of the resolution. Councilmember Matarrese seconded the motion, which carried by unanimous voice vote - 5. The City Clerk administered the Oath of Office and presented Ms. Lucas with a certificate of reappointment. (04 -343) Recommendation to nominate Oakland Chinatown Advisory Regular Meeting 3 Alameda City Council July 6, 2004 Committee representatives. Continued to July 20, 2004. (04 -344) Recommendation to consider a City recognition honoring former Acting Mayor, Al DeWitt. The Recreation and Park Director stated that the Council initially discussed how to appropriately recognize former Councilmember Al DeWitt last year; a letter was received from Mosetta Rose London requesting that the Council consider renaming the Alameda Point Officer's Club in honor of former Councilmember DeWitt; the letter indicated that the club has sentimental value for the family; the Recreation and Park Commission considered the request on June 10; the Commission unanimously recommends that the City Council consider renaming the Officer's Club in honor of former Councilmember DeWitt; the City Manager recommends Commission's recommendation be considered as well as any other Council suggestions. Mosetta Rose London, Alameda stated that Mr. DeWitt was a great human being; that the club holds sentimental value for his widow. Vice Mayor Daysog stated Councilmember, Vice Mayor and Acting Mayor DeWitt stepped forward twice to serve Alameda at a trying time in its history; he did so with dignity and great courage; the City should express gratitude and thanks and recognize him in a way that is befitting; the Council should rename the Club in his honor; Mr. DeWitt stepped up to calm things down in the 1960's when there were difficult times regarding fair housing. Vice Mayor Daysog moved approval of staff recommendation. Councilmember Matarrese seconded the motion. Under discussion, Councilmember Matarrese stated that Al DeWitt had an officer's bearing to the very end; there should be a fitting marker and monument dedicated to him; requested that a plan for recognition be forwarded to the Council prior to implementation. The City Manager stated a plan would be presented to Council. Councilmember Gilmore stated that Al DeWitt was an officer and a gentleman; that she does not recall a single instance where someone was able to ruffle him; he was always calm, cool, collected and unfailingly polite; he was passionate about his beliefs; that she will always honor and admire him. Mayor Johnson stated that Mr. DeWitt was a role model and hero for the community; she is please to recognize him. Regular Meeting 4 Alameda City Council July 6, 2004 On the call for the question, the motion carried by unanimous voice vote - 5. (04 -345) Public Hearing to consider Introduction of Ordinance Amending the Alameda Municipal Code by Amending Section 21 -1 (Definitions) of Article I (Definitions) and Subsection 21 -20.4 (Charges for Service) of Section 21 -20 (Franchise Agreements) of Article III (Franchise Agreements); and Adding a New Subsection 21- 2.7 (Integrated Waste Collection Required) to Section 21 -2 (Collection and Removal) of Article II (General Regulations) of Chapter XXI (Solid Waste and Recycling). Introduced; and (04 -345A) Resolution No. 13743, "Establishing Integrated Waste (Solid Waste, Recycling and Organics) Collection Ceiling Rates and Fees for Rate Period 3 (July 2004 to June 2005)." Adopted. Mayor Johnson opened the public portion of the Hearing. Opponent: Bernard Chalip, Alameda. Proponent: Robb Ratto, Park Street Business Association. In response to Mr. Chalip's comments, Mayor Johnson requested the City Attorney to address the legality of the action. The City Attorney stated the action is Franchise Agreement with a waste hauler the contractual obligation was entered request for proposals; the amendment ac changes; the charge is a fee for garbage considered a tax. amendment of the existing for garbage and recycling; into as part of a public 1dresses requests for rate hauling service and is not There being no further speakers, Mayor Johnson closed the public portion of the Hearing. Vice Mayor Daysog stated the City would no longer have control over costs; the CPI rating for the Bay Area during the last twenty years has averaged 4.90, with 4.6% as the median; on average, a 50 increase can be expected, which is of concern; when the City works with a franchisee, predictability, quality service and a fair price are expected; that he understands ACI's frustration due to misinformation being provided during the bid process; however, ACI has been in the business for many years; that he is concerned about forcing residents to pay more to offset staff's or ACI's mistakes; encouraged finding a better solution; stated expecting a 50 increases every year is not fair. Regular Meeting 5 Alameda City Council July 6, 2004 Councilmember Kerr moved approval of the staff recommendation, including Option 2 [elimination of annual fall clean -up, implementation of residential rerouting and an earlier start time, prohibition of new ten - gallon solid waste customers, and elimination of compost giveback]. Councilmember Matarrese seconded the motion. Under discussion, Councilmember Matarrese stated Alameda is one of the most densely populated cities in the Bay Area; having trash picked up every week is a public health issue; the City has to provide a safe environment and must have contractors meet said goal; the rates are not being raised over 2001 rates; the issue could be reopened if the increases are untenable, such as for rate period 4; inquired whether the rates are set for rate period 3, not the life of the Contract. The Public Works Director responded adoption is for rates 4 and 5; the Franchise Agreement already guarantees ACI cost -of- living adjustments; ACI would have to agree to amend the Franchise Agreement to eliminate cost -of- living adjustments; ACI has agreed to limit the adjustment to 50. Mayor Johnson inquired whether the [50] cap is the new addition to the provision, to which the Public Works Director responded in the affirmative. On the call for the question, the motion carried by the following voice vote: Ayes: Councilmembers Gilmore, Kerr, Matarrese and Mayor Johnson - 4. Noes: Vice Mayor Daysog - 1. (04 -346) Public Hearing to consider a recommendation to amend the FY 2004 -05 Community Development Block Grant (CDBG) Action Plan and authorize the City Manager to execute related documents and agreements; (04 -346A) Resolution No. 13744, "Authorizing Submission of a Section 108 Loan Guarantee Application to the United States Department of Housing and Urban Development." Adopted. The Development Services Director stated the program acts upon the loan guarantee provision of Housing and Urban Development's (HUD's) Community Development Block Grant (CDBG) program and combines funding with Brownfield Economic Development Initiative (BEDI) , which is a grant component of the application that makes the application competitive; 60 days ago HUD put out a notice of funding availability for the program and indicated it would be the Regular Meeting 6 Alameda City Council July 6, 2004 last round for BEDI, which is not recommended for funding next year; it could be the last round for Section 108 funding as well; Council is being asked to consider using the funding as an alternative for financing for the downtown parking structure and theater project. Mayor Johnson inquired whether the funding would be used in place of tax increment. The Development Services Director responded it is possible; the theater project has a smaller project and larger project, which would include the Long's property; $20 million has been bonded, both taxable and non taxable, that would be used for a combination of rehabilitation of the theater and construction of brand new, first -run theaters and a parking structure; there is a possibility that additional funding could be needed as contingency to accomplish the entire project; there also might be a much larger project that could be accomplished with additional funding; there is an opportunity to potentially substitute bond funds and /or be able to accomplish the larger project; the timing of the funding availability requires the City to act now to be competitive; if funding is received, the City can choose whether to accept some or all money. Mayor Johnson inquired whether there is a potential for bond money to be freed up and made available for more projects, to which the Development Service Director responded in the affirmative; stated BEDI funds, combined with Section 108, are achieving lower rates than the rates currently achieved on the bonds; funding used in the recommended method of a permanent interim status can be prepaid and used in a financing strategy that could make bond money available for other projects; since the City has to meet the application deadline, she would recommend moving forward and a financing plan could be presented when the project is presented to Council. Councilmember Matarrese stated the report mentions the Community Improvement Commission would identify an alternative debt - service repayment source; inquired what the source might be. The Development Services Director responded the source could be lease revenues from the project, parking revenues from the project, rental revenues from the retail spaces in the project, tax increment dollars, or non -block grant dollars; the idea is to absolve the City of its first line of repayment and funds and substitute some other form of income; a financing plan would show the City has the resources and the performa to support repayment. Vice Mayor Daysog stated when the bonds were issued, $10.3 was set Regular Meeting 7 Alameda City Council July 6, 2004 aside for the parking structure; at the time, a clear report costing out the project was not provided; inquired whether the parking structure is still estimated to cost $10.3 million; inquired whether eleven underground storage tanks would effect the costing of the project. The Development Services Director responded the tanks are on the Video Maniacs site and would add to the cost of the project; if there is funding in the State's underground storage tank program, the private property owner should have the tanks removed before transferring the property to the City. Vice Mayor Daysog inquired whether staff knows how much tank removal would cost, to which the Development Services Director responded in the negative; stated staff has an estimate; the cost is marginal in the scheme of the project; the parking structure cost of $7 or $10 million, depending on the number of spaces, could be achieved; Council will be able to make decisions about how to proceed with the project; tank removal is not the largest ticket item for the project. Vice Mayor Daysog stated $10.3 million in bonds were issued for the parking structure; the bonds came in two series; inquired whether there are any rules about using the bonds for the purpose indicated at the time of issuance; now, only $3 million would be used from bonds for the parking structure, rather than using $10.3 million; inquired whether there are rules for the remaining $7 million originally intended for the parking structure. The Development Services Director responded the City has significant flexibility in the financing rules as long as money is used for eligible projects; there is a division of bonds funding the parking structure; one is taxable, which anticipated the private activity, and the other is tax - exempt issuance, which anticipates using a portion of the parking for public purposes; as long as the bond money is used for public purposes, private purposes, and economic development projects disclosed in the boundaries of how the money can be used, there is flexibility. Vice Mayor Daysog stated the Council needs to have clear reporting on how the projects are costed out, such as, costs for labor, material and remediation; the Council has not received any of the due diligence reporting which is generally received prior to issuing bonds; now, $7 million is being sought; a doubting citizen might question whether the additional $7 million is to cover cost overruns or unexpected costs. The City Manager stated a number of projects were identified in the Regular Meeting 8 Alameda City Council July 6, 2004 Economic Development Strategic Plan (EDSP), which formed the basis for issuing the tax allocation bonds; there is flexibility to decide how funds will be applied to each project; staff is looking at the $7 million as another opportunity to further leverage funds; there are more projects than the City has funds to complete; staff is looking for opportunities to acquire additional funds to complete projects for the community; if the additional funds are used for the project, $7 million could be freed up and the Council would decide how to apply said money. Vice Mayor Daysog stated Council has the responsibility to be accountable to residents; in order to be accountable, Council needs to know what projects cost; Council has not received a due diligence report; the EDPS was a vision statement; staff must go beyond the vision statement and come up with actual plans and costs to allow Council to track how the money is being spent. The City Manager stated staff completes the due diligence on a project -by- project basis; each project is brought to Council for approval before proceeding; there is a stream of accountability for each project as it relates to the available funding sources; substantial studies are not completed without a source of revenue. Vice Mayor Daysog inquired whether professionals have completed due diligence reporting on the parking structure and the theater and whether said information could be shared with Council. The Development Services Director stated staff has reviewed the configuration due to Long's interests changing; for the theater project, staff has very specific costs and is in the process of value engineering the costs; appraisal work and other estimating has also been completed; for the parking structure, there are two sets of costs which are as good as can be completed without designing the project. Vice Mayor Daysog inquired whether said information could be provided to Council. The Development Services Director stated staff is planning to present the information in August; redesign of the theater has caused some influx in cost; typically, requests would be brought to Council in a different order; the project would be more pinned down, based on bond financing and staff would ask Council to review a potentially better financing plan; the funding opportunity is going away and is competitive; staff is not sure the City will be awarded the funding. Vice Mayor Daysog stated that he agrees the product and cost should Regular Meeting 9 Alameda City Council July 6, 2004 be known before going after money. Mayor Johnson inquired whether the City could decline the money, to which the City Manager and Development Services Director responded in the affirmative. Mayor Johnson stated project costs cannot always be nailed down; the final decision has not been made on the options for the parking structure. Vice Mayor Daysog inquired why the City would get involved with funding if the cost is not known. The Development Services Director responded the money could be substituted out [with bond money] ; the rates being achieved cannot be beat in the market. Councilmember Matarrese stated the action is akin to being pre - qualified for real estate transactions; the ability to finance is sometimes needed prior to purchasing the property; the funding can always be declined; the City should go after the money, especially since the fund will be drying up. Councilmember Kerr stated that she would vote for the staff recommendation if the motion specifically included that the funding be brought back to Council to decide whether to accept or decline the funds, not that the funds be automatically accepted on a staff level; redevelopment funds are under attack in Sacramento; the City has to be prepared for a certain amount of uncertainty in redevelopment funds; if the funds are received, the matter should be placed on a City Council agenda. Mayor Johnson inquired whether Councilmember Kerr was making a motion. Councilmember Kerr responded that she would make said motion [moved approval of the staff recommendation with the requirement that the funding be placed on a Council agenda to decide whether to accept or decline the funds, rather than funds being automatically accepted on a staff level]. Councilmember Matarrese seconded the motion, which carried by the following voice vote: Councilmembers Gilmore, Kerr, Matarrese and Mayor Johnson - 4. Noes: Vice Mayor Daysog - 1. Councilmember Kerr stated that she respects Vice Mayor Daysog's comments; Council needs to take another look at the issue. Regular Meeting 10 Alameda City Council July 6, 2004 Vice Mayor Daysog stated it is a matter of principle; the Council needs to know the costs; contamination issues arose in the report and were not in previous reports, which shows costs are not being tracked and are not transparent to the Council. (04 -347) Recommendation to award Contract for operation of Alameda /Oakland Ferry Services to Blue & Gold Fleet, authorize the City Manager to negotiate and execute the Agreement for Alameda /Oakland Ferry Service and allocate $548,000 in Measure B funds for Alameda /Oakland Ferry service operations; award Contract for operation of Harbor Bay Maritime Ferry Service, authorize the City Manager to execute the sixth amended and restated Operating Agreement for the East -end ferry service and allocate $166,000 in Measure B funds and $186,000 in Transportation Improvement Funds for Alameda Harbor Bay Ferry operations; and authorize the City Manager to execute the Ferry Service Agreement between the City of Alameda and Port of Oakland. Councilmember Kerr moved approval of the staff recommendation. Councilmember Kerr stated that she is disappointed that the two ferry services could not be combined, but she is pleased that funding is available to continue the ferry services; that she would not want the City to rush into transferring the ferry service to the Bay Area Water Transit Authority because the City would have to compete for available funds with other more powerful cities in the Bay Area. Councilmember Matarrese seconded the motion, which carried by unanimous voice vote - 5. (04 -348) Adoption of Resolution of Necessity to Acquire Property by Eminent Domain for Public Use (Library and Public Parking); Authorizing Commencement of Litigation to Acquire Property and for Order of Possession; Finding and Determining that All Requirements Have Been Met for Consideration of Adoption of Resolution; Code of Civil Procedure Section 1245.235 et seq.; Adopting Findings and a Statement of Overriding Considerations, Mitigation Measures, and a Mitigation Monitoring Program (2320 -2322 Lincoln Avenue, Alameda). Not adopted. Mayor Johnson called a recess at 9:33 p.m. and reconvened the regular meeting at 9:47 p.m. (04 -349) Public hearing to consider appeals of the Planning Board approval of a Use Permit to allow the conversion of a 15,840 square Regular Meeting 1 1 Alameda City Council July 6, 2004 foot industrial building at 2515 Blanding Avenue into seven work /live studios with associated parking and landscaping. The site is located within the M -2, General Industrial Zoning District. Applicant: Janet Koike for Cal Vita LLC. Appellants: Ed Murphy and Pat Bail; and (04 -349A) Resolution No. 13745, "Denying the Appeal and Upholding the Planning Board's Approval of a Use Permit UP04 -0019 for the Conversion of an Existing Industrial Building to Work /Live Studios at 2515 Blanding Avenue." Adopted. Mayor Johnson opened the public portion of the hearing. Opponents (Opposed to appeal) : Flavia Krasilchic, Alameda; Helen Sause, Housing Opportunities Makes Economic Sense (HOMES); Moira Fossum, Alameda; Paul Fossum, Alameda; William Smith, Alameda; Stuart Flashman, Attorney for Janet Koike; Betsy Mathieson, Alameda; Jon Spangler, Alameda; Richard Neveln, Alameda; and Janet Koike, Applicant. Proponents (In favor of appeal): Ed Murphy, Appellant; Pat Bail, Appellant; and Jon Janes, Allied Engineering and Production. Neutral: Jeff Cambra, Alameda. Following Mr. Janes comments, the City Attorney noted that the Applicant's attorney agreed that as a condition of the project all leases would notify tenants of noise issues. There being no further speakers, Mayor Johnson closed the public portion of the Hearing. Mayor Johnson requested that the City Attorney explain why the project complies with Measure A. The City Attorney stated the issue has been addressed in the staff report and also in adoption of the work /live ordinance; the answer is that Measure A, Charter Article 26, only regulates dwelling units; a work /live unit is not considered to be a residential dwelling unit by the State legislature and City Council; the units are considered commercial in nature; the State requires that the zoning applied to the unit is commercial and cannot be residential; said premise was used for the adoption of the work /live ordinance. Mayor Johnson stated a comment was made that the ordinance would apply to very few buildings in the northern waterfront; inquired whether staff knew how many buildings would be eligible for work /live consideration. Regular Meeting 12 Alameda City Council July 6, 2004 The City Attorney responded the ordinance was adopted six years ago and the project being considered was the first application received; there might be two other possible applications. The Supervising Planner responded the City has one additional application for the Del Monte building, which includes a work /live component; staff had an inquiry for the building at the corner of Oak Street and Blanding Avenue, although the building might not be able to be converted due to lack of maintenance; relatively few buildings would meet the requirements under the work /live ordinance, such as parking, land for each unit, and developing industrial units; there have been very few applications or inquiries; the project is the first application which has been brought forward since the ordinance was adopted in 1998; there is only one other active application. Vice Mayor Daysog read Alameda Municipal Code (AMC) Section 30 -51.3 (c); stated the section does not allow anything [development] above two units; questioned whether anything [development] three units or above would contradict the Code section; stated the work /live ordinance created a new Code section; inquired whether there are two contradictory ordinances. The City Attorney responded the question goes back to the definition of dwelling unit; the State legislature determined that work /live units are commercial, not residential; the interpretation was adopted by the Council in 1998, is the City's current interpretation of dwelling units, and is the law on the books. Vice Mayor Daysog inquired whether Alameda could choose not to accept the State definition as a Charter City; inquired whether the definition was accepted by virtue of the November 1998 ordinance. The City Attorney responded in the affirmative; stated in order to change the City's interpretation, the Council would have to amend the work /live ordinance. Councilmember Matarrese stated that a 1973 ordinance adopting AMC Section 30 -51.1 defined a dwelling unit as a building or portion thereof designed exclusively for residential occupancy; inquired whether the units are not considered dwelling units based upon the ordinance adopted in 1973. The City Attorney responded the City adopted the definition in 1973 and also in 1998. Vice Mayor Daysog stated the Code Section states dwelling units Regular Meeting 13 Alameda City Council July 6, 2004 shall mean a building or portion thereof; in the case of work /live, "a portion thereof" could mean the dwelling unit within the work /live unit is a dwelling unit because it is a portion thereof; a dwelling unit does not have to be completely residential, but can be a building with a portion thereof [used for residential]. Councilmember Kerr stated that she voted for the 1998 ordinance; the Charter does not state two dwelling units, it states multiple dwelling units; the Charter itself does not restrict a building to two units; the Council quickly made up for the deficiency in the Charter language with an ordinance [in 1973]; if someone thinks work /live units are dwelling units, then there could be a conflict between the 1973 ordinance and the 1998 ordinance; there have been comments that the work /live ordinance permits a higher density than Measure A; in 1998, she added a requirement for a 2,000 square -foot lot area per work /live unit; work /live units lessens commute; that she voted for the ordinance for the same reason she supports Measure A, which is preservation; recently, she has been concerned about the trend in the City; people supporting the project have strong, personal political agendas to which they are entitled; however, they are leading the City in the wrong direction; one high- density housing advocate continually says the 2,000 square - foot requirement in the work /live ordinance should be removed; there are plans and activism to make the ordinance high- density; that she is concerned about the over 200 work /live units planned for the Del Monte building, which is overkill; putting work /live units into the corrugated, falling down mess at the corner of Oak Street and Clement Avenue would be abuse of the work /live ordinance; the ordinance has not stood the test of time and seems vulnerable to abuse; that she supported the ordinance for the preservation of industrial buildings in the northern waterfront; unfortunately, a developer is talking about getting rid of the western limitation of Sherman Street and moving the boundary west of Webster Street, which was not the intent of those who supported and helped write the ordinance in 1998. Vice Mayor Daysog stated the City Attorney provided information on the history of Measure A; prior to the 1973 election, the supporters understood that it would not apply to duplexes, which was in the literature they distributed; a memo from the City Manager at the time indicated that Measure A would allow duplexes, but nothing more; the ordinance that followed two months after the passage of Measure A defining multiple dwelling units did not establish definitions in vacuum; Measure A was not just about preservation of Victorians, it also addressed density issues, such as traffic and population growth management; said issues are contained in the literature. Regular Meeting 14 Alameda City Council July 6, 2004 Councilmember Gilmore stated Councilmember Kerr's concerns are well taken; the ordinance should not be required to do more than intended; if a developer wants to move the boundary in the ordinance, the decision rests with the Planning Board and City Council; other buildings that could fall under the purview of the ordinance, such as the building at Oak Street and Blanding Avenue, would have many hurdles to overcome in order to be deemed sufficient; the ordinance is for revitalization of existing structures and preservation of historic buildings; people want to stretch every ordinance to the limit; the Council and Planning Board are the watchdogs; rather than the ordinance failing, the problem might be the way some people seek to have it applied. Councilmember Kerr stated all ordinances are fragile and can be changed; that she supported the ordinance thinking of buildings in the northern waterfront; the ordinance was meant to save structures and enhance the historic character of the City; that she was over optimistic or trusting when she voted for the ordinance. Mayor Johnson stated the ordinance has been in place since 1998 and the challenge [lawsuit] was dismissed; inquired what the City's position would be if the project was not approved. The City Attorney responded the existing definition and interpretation of the City Council is embodied in the ordinance; the Applicant applied in good faith upon the definition that a [work /live] unit was not a residential structure; for future projects, the City Council could seek to amend the ordinance and change the definition to have work /live units considered residential in nature and within the scope of Measure A; however, presently, the Council is bound to the interpretation of the previous Council as embodied in valid legislation; the City will be sued either way; the Applicant's attorney has indicated that interpreting Measure A is not the question before Council; the current definition of a dwelling unit is set forth in the work /live ordinance; the current interpretation of the City is that the units are considered commercial in nature. Mayor Johnson stated the application for the project was made with the ordinance in place; the Applicant acted in good faith under the current ordinances; the [1998] lawsuit was dismissed; the ordinance was not challenged when it was adopted in 1998; that she is concerned about historic preservation of the northern waterfront; if something economically viable is not permitted, the buildings might as well be demolished to entice other types of development; that she would not want to see bulldozers and new development; something will occur in the area; Council should choose what it would like to see; if there are inconsistencies, the Charter would Regular Meeting 15 Alameda City Council July 6, 2004 trump the ordinance; there is not an easy answer; going along with the ordinance or rejecting the project based on Measure A does not solve the problem of what will happen with the historic structures in the northern waterfront area; a 1991 measure was placed on the ballot regarding the red brick building, which failed and resulted in demolition; there might not be a choice on the current project; the ordinance was in place and the City will be sued if the project is denied; in the interest of historic preservation, the Council should consider putting a measure on the ballot, limited to the subject of the work /live ordinance. Councilmember Matarrese requested clarification about what should be placed on the ballot. Mayor Johnson stated the ordinance should be placed on the ballot; some adjustments could be made to the language to have the ordinance refined; the voters could decide what should be done with the northern waterfront; there is no easy solution. Vice Mayor Daysog stated that he would want to hear community input on the Mayor's suggestion. Councilmember Gilmore inquired, as a matter of statutory construction, how to resolve two conflicting ordinances. The City Attorney responded there are a number of areas of statutory construction; the specific trumps the general; the more recent is sometimes taken into account because the legislative body is considered to have knowledge of that [prior ordinance]; basically, the law would strain to make the ordinances be deemed compatible in the interests of justice. Councilmember Gilmore stated Councilmember Kerr was clear that Measure A, the Charter Amendment, was not specific in the number of dwelling units; the clarifying language addressing duplexes came later in an ordinance. The City Attorney concurred; stated the Charter has general language; the Council has to interpret the general words of the Charter. Councilmember Gilmore stated the issue is the conflict between two ordinances; the Charter Amendment [Measure A, 1973] was not specific. Vice Mayor Daysog stated the people who promoted the Charter Amendment were clear as to what they meant by multiple dwelling units. Regular Meeting 16 Alameda City Council July 6, 2004 The City Attorney stated the work /live ordinance was adopted in conjunction with Health and Safety Code Section 17958.11, which was adopted by the State legislatures and authorized cities to permit conversion of commercial and industrial buildings to work /live quarters; the legislature indicated that these [units] are commercial in nature and that residential zoning cannot apply; the legislative determination that it [work /live unit] was commercial was considered in 1998 and the Council adopted and approved the legislative determination; the current Council is subject to the ordinance's interpretation; Council could change the ordinance or put it on the ballot; there are numerous options for future action; the particular interpretation can be changed. Vice Mayor Daysog inquired whether the project would be held in abeyance. The City Attorney responded the position communicated by the Applicant's attorney is that there is a valid, binding ordinance adopted in 1998, which defined work /live units not to be residential; therefore, not dwelling units and not within Measure A; that is the current interpretation as embodied in the legislation; however, if Council is inclined not to support that [interpretation], there are some findings that the Planning Department can present for consideration that address specifics of the projects, for example, the location is not compatible and Council could address other issues. Mayor Johnson stated avoiding litigation would be nice; inquired whether Council could make a decision on the project and put a moratorium on the ordinance and demolition of structures in the northern waterfront area until the Council has an opportunity to consider what should be done about historic preservation in the northern waterfront area. The City Attorney stated staff would need to review whether the moratorium would apply to the completed application for the Del Monte building, which includes 60 work /live units; staff would determine whether the [Del Monte] Applicant has a vested right to proceed based on the completed application. Mayor Johnson stated a moratorium could be put in place and who it applies to could be determined later. The City Attorney stated the ordinance could be rescinded; that she would have to research the state of the Del Monte application; the only possible exception to the moratorium would be the Del Monte application; any future projects in the City would be subject to Regular Meeting 17 Alameda City Council July 6, 2004 the moratorium. Councilmember Kerr inquired whether the Del Monte application was completed. The Supervising Planner responded the application is complete; stated the only outstanding issue is the location of the Clement Avenue extension; Planning and Public Works have been working on said issue. Councilmember Kerr outlined changes in the Del Monte project; stated that she has been following changes, which have been going on for many years. The Supervising Planner stated the actual application was for approximately 100,000 square feet of retail space, 60 work /live studios, an interior two -story garage, and some very small retail spaces along the northern and southern edge of the east side of the building. Mayor Johnson stated the moratorium does not need to be decided tonight. Councilmember Matarrese stated tonight the Council is addressing an appeal of the Planning Board's decision on a specific project; the Applicant has followed the existing ordinance and has gone through the Planning Board process; the ordinances have been in place for over 6 and 30 years and have not been successfully challenged. Councilmember Matarrese moved approval of upholding the Planning Board's decision [adoption of Resolution Denying the Appeal and Upholding the Planning Board's Approval of a Use Permit UP04 -0019 for the Conversion of an Existing Industrial Building to Work /Live Studios at 2515 Blanding Avenue]. Councilmember Matarrese stated the project meets all the intents of Measure A; it preserves a building and has a potential for reducing traffic, based on the previous use of the building; that he would hesitate to call the building historic; the issue is commercial; an abandoned, close to blighted commercial space is being put back into commercial, productive use; the people occupying the space are joining the industrial base of Alameda, not building a community; the area is a commercial industrial zone, not residential; Allied Engineers is correct in ensuring that the occupants realize that they are conducting businesses and not dwelling, which was in the 1973 ordinance and was used to approve the 1998 ordinance; the project does not clog neighborhoods and is good for Alameda's tax base. Regular Meeting 18 Alameda City Council July 6, 2004 Councilmember Gilmore seconded the motion. Under discussion, Vice Mayor Daysog stated that his concern about the work /live ordinance is that it gives ammunition to people who want to shoot up Measure A; if the project is approved, any discussion in the form of a community meeting is being precluded; the wiser course of action is to put the project on abeyance and have the discussion about how to proceed on the northern waterfront; approving the project ends the discussion. Mayor Johnson inquired how the Council could go forward either with a moratorium or with modifying or revoking the ordinance, along with a moratorium on demolition of buildings in the northern waterfront area; inquired whether the matter should be placed on an agenda or included in the motion. The City Attorney responded the motion could include direction to staff to bring back a moratorium. Mayor Johnson inquired whether Councilmembers Matarrese and Gilmore would amend the motion to include a moratorium until there is further Council discussion. Councilmember Matarrese inquired whether the moratorium would apply to the project being considered. Mayor Johnson responded in the negative; stated the moratorium would be on future projects. Councilmember Matarrese stated the moratorium should not apply if to someone who has read the ordinance, put in an application and the application has been accepted. Mayor Johnson stated that she is not clear on said issue; Councilmember Kerr is correct in questioning whether the future project [Del Monte] is complete; there have been many changes over time; that she would not assume that adopting a moratorium would violate the [Del Monte] project. Councilmember Matarrese stated for the purpose of getting the current project approved he would amend the motion to add a moratorium for future projects. The City Attorney stated staff is taking direction to bring back appropriate, legislative action; a moratorium would not be put in place tonight. Regular Meeting 19 Alameda City Council July 6, 2004 Mayor Johnson inquired whether the moratorium could return at the next meeting, to which the City Attorney responded in the affirmative. Councilmembers Matarrese and Gilmore agreed to amend the motion. Councilmember Gilmore stated that she does not agree that approving the project tonight would have a chilling effect on discussion, rather it would be the opposite; regardless of the Council action tonight, people supporting Measure A are not going to back down and will be advocates for discussion; there will be a full - fledged discussion; that she would vote to approve the project because the Applicant completed due diligence; Alameda has a reputation for not being friendly to businesses; the matter is primarily a commercial concern; the environment will be work /live; the business owner successfully completed an application under the ordinance; it is appropriate for the City to have a serious discussion. Mayor Johnson stated that she has talked to Measure A supporters who worked to pass the measure and believe the work /live ordinance does not violate Measure A; there is not a consensus on the matter. Councilmember Kerr stated that she voted for both versions of Measure A and has always been a Measure A supporter; the conflict is between two ordinance; firmer boundaries should be imposed by Charter amendment or by imposing a moratorium; many people are viewing the project as the hole in the dike. Mayor Johnson stated there could be an ordinance that identified specific buildings. The City Attorney stated the criteria in the ordinance could be changed or strengthened, for example, to address maintenance issues or other commercial requirements. Mayor Johnson stated the historic structures in the northern waterfront area should be identified along with how buildings will be preserved. The City Attorney stated the Supervising Planner confirmed the building is on the historic study list and is considered a historic resource; the ordinance can be readily changed to incorporate any additional protections, criteria and directions that Council chooses. On the call for the question, the motion carried by the following voice vote: Ayes: Councilmembers Gilmore, Matarrese and Mayor Johnson - 3. Noes: Councilmembers Daysog and Kerr - 2. Regular Meeting 2 0 Alameda City Council July 6, 2004 Councilmember Kerr stated preservation is a good goal, which would exclude certain buildings; that she would not support moving the boundary westward; that she would not want to preserve some of the old hangers. ORAL COMMUNICATIONS, NON- AGENDA (04 -350) Bernard Chalip, Alameda, submitted a letter to Council and addressed problems he has had with his request to be exempted from the recycling program. COUNCIL COMMUNICATIONS (04 -351) Discussion regarding Susie Q's bar on Lincoln Avenue. Councilmember Matarrese requested that the City Manager officially contact Alcohol Beverage Control (ABC) and ask for the revocation of Suzi Q's license; stated that their license was previously suspended; upon reinstatement, there was a major incident of violence involving the neighbors and patrons; the business should not be allowed to continue. Councilmember Kerr stated that taking action is important; there are a lot of residents in the area; the bar is making nighttime living untenable for the people who live in the C -1 district. Mayor Johnson stated that she has never received a complaint about the bar directly across the street from Suzi Q's; that she would support Councilmember Matarrese's request; inquired whether an ordinance could be established to give the City more leverage to take action; inquired whether the City had an adequate nuisance ordinance. The City Attorney responded that the City has nuisance ordinances that are embodied in specific code enforcement criteria; there is also an administrative citation process. Councilmember Gilmore inquired whether Suzi Q's could be shut down for code violation because permits were never obtained for the pool hall. The Chief Building Official responded that code enforcement action has been initiated; a letter is being sent to the property owner. Councilmember Matarrese stated that the Police Chief's report states that if any problems continue after the 30 -day suspension, the owner would seek a permanent license revocation. Regular Meeting 2 1 Alameda City Council July 6, 2004 The Police Chief stated that there have not been any incidents since the assault. Councilmember Matarrese stated that he received a call informing him that there were a number of calls made last night. The Police Chief stated many hours have been spent investigating the situation; the Police Department has been unable to uncover anything; Sergeant Joe Dwyer conducted a criminal investigation of the incident; the matter was referred to the District Attorney's office and the incident was determined to be a situation of mutual combat; no charges were filed; State law prohibits smoking inside an establishment; that people go outside to smoke and talk which may result in an increase in noise; that the Police Department will continue to give good service but will not harass. Mayor Johnson inquired whether there was enough evidence to go back to ABC, to which the Police Chief responded that there is nothing right now. The Police Chief stated that in the past, similar situations have been resolved through mediation. Mayor Johnson suggested implementing mediation, to which the Police Chief responded that mediation was floated without success; that he would try again. The City Manager stated that the Police Department could request mediation in writing. Mayor Johnson requested staff to review other tools to deal with this type of situation. Councilmember Kerr stated that noise is one of the basic problems; that the City has noise ordinances in residential areas; suggested the ordinance include specific time restrictions for commercial areas. The Police Chief stated that putting ABC on written notice is a good idea. The City Manager stated that the mediation request and letter to ABC would be initiated. Councilmember Kerr inquired whether there would be a continuance of the code enforcement, to which the City Manager responded in the affirmative. Regular Meeting 22 Alameda City Council July 6, 2004 Councilmember Matarrese stated that the letter should highlight that there was a license suspension and after reinstatement, there was a major incident involving violence; ABC could tell the City what should be done. The City Manager stated that he would follow up on the matter. (04 -352) Councilmember Kerr stated that fireworks were set off in the Windriver park on the Fourth of July; small children were in the area; inquired what could be done to enforce prohibiting illegal fireworks. The City Manager stated that he would follow up on the matter. Mayor Johnson stated that Oakland's campaign against illegal fireworks was unsuccessful. (04 -353) Vice Mayor Daysog stated that Dr. Sam Doctor with Advancing California Emerging Technology, has voiced concern regarding the potential loss of federal funding. The City Manager stated that the City would try to address the matter by July 14. ADJOURNMENT There being no further business, Mayor Johnson adjourned the Regular Meeting at 11:40 p.m. Respectfully submitted, Lara Weisiger City Clerk The agenda for this meeting was posted in accordance with the Brown Act. Regular Meeting 2 3 Alameda City Council July 6, 2004