1996-03-19 Regular CC Minutes„fg
MINUTES OF THE REGULAR MEETING OF THE ALAMEDA CITY COUNCIL
MARCH 19, 1996
The meeting convened at 7:29 p.m., with Mayor Appezzato presiding.
Councilman Arnerich led the Pledge of Allegiance. Pastor Broekema,
First Christian Reform Church, gave the invocation.
ROLL CALL
Present: Councilmembers Arnerich, DeWitt, Lucas, Mannix and
Mayor Appezzato - 5.
Absent: None.
PROCLAMATIONS AND SPECIAL ORDERS OF THE DAY
None.
CONSENT CALENDAR
President Appezzato stated that the following items were pulled for
discussion: 4-B (96-144) [Report from Acting Assistant City
Manager transmitting an Update on Transition of Services and
Funding Source of TDA 4.5 Grant from City of Alameda to East Bay
Paratransit Consortium.]; and 4-E (96-145) [Resolution No. 12749
Authorizing Open Market Purchase of a Modular Ambulance for the
Fire Department.]
Councilmember Lucas moved approval of the remainder of the Consent
Calendar. Vice Mayor Mannix seconded the motion, which carried by
unanimous voice vote - 5.
Items so enacted or adopted are indicated by an asterisk.
4-A. (*96-137) Minutes of the Special and Regular City Council
Meetings of March 5, 1996. Approved.
4-B. See Paragraph (96-144).
4-C. (*96-138) Report from Finance Director transmitting Investment
Report for period ending February 29, 1996. Accepted.
4-D. (*96-139) Report from Finance Director seeking authorization
to place on Property Tax Bill Delinquent Business License
Fees. Accepted.
4-E. See Paragraph (96-145).
Regular Alameda City Council Meeting
March 19, 1996
4-F. (*96-140) Report from Public Works Director recommending
acceptance of work of J. H. Fitzmaurice and Release of the
Retention for Lincoln Park Playground Improvements, No. P.W.
11-94-19. Accepted.
4-G. (*96-141) Resolution No. 12747 "Supporting Assembly Bill 2828
Requiring the Return of a Portion of Surplus State Revenues to
Cities and Counties to Repay for Property Tax Losses." (Mayor
Appezzato). Adopted.
4-H. (*96-142) Resolution No. 12748 "Adopting Penal Code Section
597.1 Relating to the Impounding of Neglected and Abandoned
Animals." Adopted.
4-1. (*96-143) Bills for ratification. Ratified.
4-B. (96-144) Report from Acting Assistant City Manager
transmitting an Update on Transition of Services and Funding
Source of TDA 4.5 Grant from the City of Alameda to East Bay
Paratransit Consortium.
Don Bergen, Alameda, stated that he would like staff to
explain the report.
The City Manager stated that the Americans with Disabilities
Act requires funding for the disabled first, rather than the
frail and elderly; and that the Metropolitan Transportation
Commission requested cities to handle ADA mandates through the
East Bay Paratransit Consortium.
Vice Mayor Mannix moved acceptance of the report.
Councilmember Lucas seconded the motion, which carried by
unanimous voice vote - 5.
4-E. (96-145) Resolution No. 12749 Authorizing Open Market Purchase
of a Modular Ambulance for the Fire Department. (Requires
four-fifths vote). Adopted.
Neil Patrick Sweeney, Alameda, encouraged the City Council to
support the Resolution.
Councilman Arnerich stated that the current ambulance could be
relocated to the Naval Air Station or sold to a small
community.
Vice Mayor Mannix moved adoption of the Resolution.
Councilmember Lucas seconded the motion, which carried by
unanimous voice vote - 5.
Regular Alameda City Council Meeting
March 19, 1996
2
5. REGULAR AGENDA ITEMS
5-A. (96-146) Appointment of Debra Paschke to the Mayor's Committee
for the Disabled.
Ms. Paschke was presented a Certificate of Appointment, and
the City Clerk administered the Oath of Office.
Ms. Paschke stated that she worked in the disabled community
for over ten years; she is a Director of Rehab Sales; and
looks forward to working with everyone.
5-B. (96-147) Public Hearing to consider GPA-96-2, City of Alameda
Chuck Corica Golf Course, northwest corner of Harbor Bay
Parkway and Maitland. Drive. General Plan Amendments to
correct Figure 5-1, Environmental Resources, regarding the
location of Burrowing Owl Habitat; to amend the General Plan
Diagram from Open Space/Habitat to Commercial Recreation in
the same location; and to amend the General Plan descriptive
language for the definition of Commercial Recreation; and a
related
Resolution No. 12750 "Approving GPA-96-2 amending the General
Plan Text and Diagram regarding 1) the location of Burrowing
Owl Habitat, 2) amending the General Plan Diagram for a
portion of the Chuck Corica Golf Course in the northwest
corner of Harbor Bay Parkway and Maitland Drive from Open
Space/Habitat to Commercial Recreation, and 3) amending the
General Plan descriptive language for the definition of
Commercial Recreation." Adopted.
President Appezzato stated that there were no speakers.
Councilmember DeWitt moved adoption of Resolution.
Councilmember Lucas seconded the motion, which carried
unanimous voice vote - 5.
5-C. (96-148) Public Hearing to consider an Appeal by Edward Murphy
of the Planning Board's decision to uphold the Planning
Director's determination that this submittal for construction
of a fourplex in the middle of the tennis court area of the
property located at 1514, 1516 and 1518 Broadway is
substantially identical to a 1986 proposal of a triplex on
this parcel and that no new decision would be made on this
proposal. The Planning Director in 1986 determined that a
multiple dwelling structure could not be permitted; and
Resolution No. 12751 "Upholding the.Planning Board's decision
that the submittal for construction of a fourplex in the
middle of the Tennis Court area located at 1514, 1516, and
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March 19, 1996
3
1518 Broadway is substantially identical to a 1986 proposal of
a triplex on this parcel and that no new decision will be made
on this proposal." Adopted.
Ms. Murphy stated that the [staff] report mentioned it [the
current proposal] was substantially identical to the 1986
proposal; that four units were being requested; in 1986, the
proposal was for three units; the [1986] proposal was to
demolish two units; the current proposal was to build on land
which is currently a Tennis Court; they [Murphys] were stuck
with the lot as one lot-of-record; the lot was on Broadway
Avenue; the other proposal was for Santa Clara Avenue; that
the lot [on Broadway Avenue] was put together as one lot-of-
record by the tax appraisers in the 1970s, because they did
not know what to do with two tennis courts in the middle of
the property; the appraisers had stated that there would be no
problem requesting the lots to be split again and sold
individually; and six months later, Sacramento passed a law
that would not allow splitting the lots, unless for a large
property subdivision.
Ms. Murphy further stated that the current proposal was not
substantially identical; three [units] were not four [units];
that blank land was not demolition; that Broadway Avenue was
not Santa Clara Avenue; and that the Planning Department took
the Murphys filing fee, although had not processed it
[application].
Joseph Wood, Esq., Mr. Murphy's representative, stated that
the Planning Director had refused to process the application
for a zoning compliance determination, even though Mr. Murphy
paid the fee; that the proposal was a whole different project,
did not involve demolition, and the only remote similarity of
the projects was that they were in apparent violation of the
terms of the Measure A; if that was the City's position, it
should be asserted, made clear, and tested; and that they
[Appellants] were asking the Planning Director to be ordered
to process this [application] and reach a decision.
In response to Councilmember Lucas, the Planning Director
stated that the properties were represented as a single parcel
on the Assessor's records; that she believed the parcel size
was several acres; that three criteria were used to state the
proposal was substantially the same application: 1) same
parcel of land, 2) same property owner, and 3) a proposal for
three or more units; that Mr. Murphy paid a fee for a Zoning
Compliance determination; that the Fact Circumstance for the
Zoning Compliance was the same as 1986; and that a written
determination was provided that the decision made in 1986 was
still valid and applied.
Regular Alameda City Council Meeting
March 19, 1996 4
In response to Councilmember DeWitt's inquiry regarding fees,
the Planning Director stated that Mr. Murphy made an
application for design review which was a specific development
entitlement; and that Planning Department could not process
the application and returned the fee.
In response to Councilman Arnerich's inquiry regarding the
City's position on the matter, the City Attorney stated that
the Planning Director was taking said position because a
decision was made on the parcel in 1986; that the City
believed it was not obligated to provide continuing decisions
on the same question; in terms of jeopardy of Measure A, there
was a clear statement that the purpose for applicant wanting
a decision was to file a subsequent lawsuit; the first lawsuit
was dismissed by the courts; and that Council was being asked
to uphold the Planning Board's decision.
In response to Vice Mayor Mannix's inquiry whether the
parcel had been established by the County Assessor's Office,
the Planning Director stated that, based upon Ms. Murphy's
description, there had been a number of individual parcels;
that the County Assessor combined them into a single parcel
because the parcels were in the same ownership; that this was
the first time the Murphys had raised the issue; and she had
not investigated how the current parcel had been estabished.
In response to Vice Mayor Mannix's inquiry regarding who had
jurisdiction over parcels, the Planning Director stated that,
generally, the creation of parcels lies with the City.
Mr. Wood stated that he would like an answer to the question:
Can Mr. Murphy build the proposed project or not?
In response to Councilmember Lucas's inquiry whether an answer
could be provided, the City Manager remarked that the City
Attorney stated that the City previously responded to a
similar application, and was not required to go through
separate determinations.
Councilman Arnerich moved that Council uphold the decision of
the Planning Board, as stated in the staff report. Vice Mayor
seconded the motion, which carried by unanimous voice vote -
5
5-D. (96-149) Public Hearing to consider an Appeal by Edward Murphy
of the Planning Board's decision to uphold the Planning
Director's determination that the demolition of an existing
fourplex and the proposed construction of a new fourplex is
not in compliance with the Alameda Municipal Code which
provides for reconstruction of multiple dwellings if damaged
or destroyed to more than seventy (70%) percent of its value;
and
Regular Alameda City Council Meeting
March 19, 1996 5
Resolution No. 12752 "Upholding the Planning Board's
determination that the demolition of an existing fourplex and
the proposed construction of a new fourplex is not in
compliance with the Alameda Municipal Code." Adopted.
Joseph Wood, Attorney for Applicant/Appellant, stated that
this situation was a little different; that Mr. Murphy
proposes to take an existing fourplex, knock it down, put up
an identical fourplex, and provide the highest seismic
standards to maximize the safety of the individuals living in
the building; that the application, although made by the same
owner of the same parcel of the 1986 project, and involving
the same problem--violation of Measure A, was processed; he
believes that it shows the "determination of substantially
identical" claim in the previous case is meaningless; that
Measure A, or any similar law which seeks to use the police
power of the City to foster the health, safety and welfare of
the community, has to meet certain legal requirements; under
California law, it has to meet the requirement that the
particular restrictive ordinance is necessary to meet the
health, safety and welfare goals of the City; that it defies
any form of common sense to state that to meet the density
requirements that are good for the health, safety and welfare
of the people of this City, you cannot replace a fourplex with
another fourplex; that the decision of the Planning Director,
that it cannot be done is contrary to the health, safety and
welfare of the citizens of this town; that there is no
justification for denying this project in terms of the
supposed goals of Measure A; there is an exception to the
requirements of Measure A with reference to a building knocked
down by an act of God; that that building can be replaced by
an identical building; there is no rational basis for
discriminating in favor of people who suffer an act of God,
and against people who for publically benefical purposes, like
increasing safety, want to knock a building down; neither
affects density or health, safety and welfare in a negative
way; that there is no rational basis for this [decision]; it
does not foster the goals of Measure A; and that the ruling
should be reversed, and Mr. Murphy allowed to build said
project.
Ed Murphy, Alameda, stated that he believed the Council was
going down a course, recommended by the City Attorney, that
violated their oaths to afford every citizen the rights of
citizenship; that he has every right to challenge Measure A;
and urged the City Council to reverse its course.
The Planning Director stated that Mr. Murphy wanted to replace
a fourplex with a new one; that Alameda distinguishes how
legal non-conforming properties are treated; there is a
limitation on voluntary repair; that under Alameda's Ordinance
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March 19, 1996
6
you may repair up to 100% of the fair market value of a
structure in a five year period; one reason Alameda treats
accidental destruction differently, is it makes it possible
for people to finance property and to insure property; there
is a public policy reason to treat voluntary demolition and
reconstruction differently than accidental destruction of
property; and that Mr. Murphy was provided a written
determination to explain those points of the Ordinance.
In response to Vice Mayor Mannix's inquiry regarding fees, the
Planning Director stated that Planning declined to process
design review; that she did not decline to process the request
for a written determination; that Mr. Murphy did receive a
written determination stating that the fact circumstances were
looked at and the 1986 Planning Director's decision applies;
Mr. Murphy made an application and written request for
information; and that he received a written response.
In response to Councilman Arnerich's inquiry regarding the
matter of fees, the Planning Director explained that citizens
are advised on applications and related fees, [including] that
fees are paid for services, not for specific answers.
The City Manager further explained that if someone wants the
City to perform a service, a specific fee is charged; if the
City advises a citizen that something has been processed
before and will not be processed again, no fee is charged.
Councilmember Lucas stated that not being able to reconstruct
an existing building may not be in the interest of the
community; however, at this point it was the law; and she
would uphold Measure A.
In response to Councilmember DeWitt's request for further
clarification, the Planning Director stated that the City's
Ordinance allows an investment up to 100% within a five-year
period for refurbishing a property; and a property owner,
after that period, could again invest up to 100% of the value
of the structure.
Councilmember Lucas stated that that may not always be the
best way to go; and perhaps future Councils, or this Council,
may wish to consider an amendment.
Councilman Arnerich stated that he agreed with Councilmember
Lucas that it was the law; Council would not be put in the
position of weakening said Measure; that there can be
something said for the argument on behalf of the plaintiffs;
and he would uphold the decision. of the Planning .Board,
although he had serious questions.
Regular Alameda City Council Meeting
March 19, 1996
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Mr. Wood stated that the first application made by Mr. Murphy
to construct a triplex on the edge of his property received a
written response form the Planning Director stating that
"this is substantially identical and we are not going to
process it, and here is your money back;" since we received
a written determination of "we're not going to process it," we
got something for our money; the last time we got a written
determination of"we are not going to process it," Mr. Murphy
was not charged; that it was false that the position of the
Planning Director has been if you get any written
determination, even if it was no decision, you have to pay
fees.
Vice Mayor Mannix moved adoption of the resolution.
Councilmember DeWitt seconded the motion, which carried by
unanimous voice vote - 5.
5-E. (96-150) Report from Public Works Director recommending
authorization to issue a Request for Proposals regarding
residential and yard waste recycling services in Alameda.
(Continued from the March 5, 1996, Council Meeting)
Don Roberts, Alameda, stated that it appeared to him that a
more reasonable approach would be to define townhouse/
condominiums in the area of multi-family dwellings, rather
than as single-family homes; that "those City residents who
are frail and 65 years of age or older," should be changed to
". . .frail or 65 years. . .;" that there was a direct
conflict in Item 3 of the document with aforementioned matter;
that Item 3 states ". .a definition for frail elderly is not
included on purpose so that it may be as broadly interpreted
as possible;" that on Page 2, second response from the top,
states "a one day response to missed collections is a
reasonable timeframe for the industry," should read "for the
customer;" under the RFP as written, "missed pick-ups will be
picked-up on the following work day;" that he had proposed
that for customers who have a Friday pick-up, that the next
day pick-up should be on Saturday; also, in the event that the
missed picked-up is not collected on the next working day, or
on Saturday for Friday customers, that the company should be
penalized by giving the customer a one month credit; and that
staff should have reviewed the RFP before going to the Council
with it.
Lynne Ashcraft, Alameda, District Manager for Browning-Ferris
Industry (BFI), stated that BFI is a large waste services and
recycling provider and would like to serve Alameda.
The City Manager explained the purpose for RFPs; stated that
he concurred with Mr. Roberts regarding proposed change ". .
.frail or 65 years...;" that he has no problem in requesting
Regular Alameda City Council Meeting
March 19, 1996 8
an add alternate so that the City would know of any additional
costs for having next day pick-up [for missed collections];
and that multi-family and single-family homes should be
considered on a case by case basis.
In response to Councilmember Lucas, the City Manager stated
that a telephone number for, and costs of, Saturday pick-ups
when Friday pick-ups are missed, could be included in the RFP
as an add alternate.
Councilman Arnerich stated that all multi-family complexes
should be informed of the availability of alternative bins.
In response to Councilman Arnerich, the Public Works Director
explained holiday pick-up schedules, and agreed that said
schedule be provided in customer bills.
Councilmember DeWitt expressed his appreciation to Mr. Roberts
for his volunteer work on the matter; and that the way
citizens' comments and suggestions are brought to the City
Council are important also.
Councilmember Lucas moved the recommendation with changes
discussed. Councilman Arnerich seconded the motion, which
carried by unanimous voice vote - 5.
5-F (96-151) Report from Public Works Director regarding
Underground Utility Districts No. 21 - 28 (Phase 4) and
feasibility of undergrounding the cross streets and Webster
between Atlantic Avenue and Central Avenue.
Earl Peacock, Alameda, complimented the Bureau of Electricity
for its work on Eighth Street.
Pat Bail, Alameda, inquired when her area would be
undergrounded.
The City Manager provided a brief overview of, and criteria
for undergrounding; and stated that he would provide the
status on undergrounding of Ms. Bail's block later.
Councilmember Lucas expressed appreciation and gratitude for
a well written staff report; and moved approval of staff
recommendation that Council accept report and direct staff to
implement the proposed policies and incorporate the streets
that cross Webster Street (except Buena Vista Avenue) into
Phase 5 of the City's underground program.
Vice Mayor Mannix seconded the motion.
Regular Alameda City Council Meeting
March 19, 1996
9
Under discussion, Vice Mayor Mannix stated that he concurred
with Ms. Lucas' statement, and expressed gratitude to the
Bureau and staff for the public awareness program.
Mayor Appezzato stated his appreciation to the Bureau of
Electricity for the informative guidelines and report.
The motion carried by unanimous voice vote - 5.
5-G. (96-152) Report from Public Works Director recommending
authorization for additional funding for the Hardball Facility
at the College of Alameda, No. P.W. 02-95-04.
Earl Peacock, Alameda, questioned what control the City.has
over the Gonsalves and Stronck Construction Company; stated
that the Contractor should not be allowed to go over the bid
amount; it appears no monies are available; and the Contractor
should be cut off.
The City Manager stated that Mr. Peacock is correct that the
Contractor has gone up to the amount of the bid price, plus
contingency; however, the Contractor has come to the City
Council stating that they cannot go any further with
additional work items believed needed, or with additional
items the Hardball Committee wants added to the project; and
that Council's approval is required to move forward.
Neil Patrick Sweeney, Alameda, suggested that, in the future,
the community be made aware of funding shortages.
Allen Derr, Alameda, stated that a cost overrun had occurred,
and he wanted to know who authorized it; that more money is
now needed: $113,000; that even with $1,033,243 the project
would still not be completed; that Peralta College was to
participate in the cost; and that it appears it may be time to
cut and run on this project; and give it to a new contractor
to finish up bare bones, then quit.
At the request of President Appezzato, the City Manager stated
that at the time staff determined the project was going over
contract, it was slightly 2 or 3% over; the intent was to stop
the project at the amount Council had approved; and that
Peralta College provided the land and the City provided
improvements.
Don Bergen, Alameda, stated that he would like the City to
file a claim against the architect; that the City has no
choice but to pay the $20,000 [cost.for additional work]; and
that private donations and alternate funding should be
pursued.
Regular Alameda City Council Meeting
March 19, 1996
10
Bill Leitz, Alameda, stated that the project has waited for
the correct site for ten and one-half years; a world
tournament is coming in August; and requested the project be
completed.
Pat Bail, Alameda, President of Alameda Babe Ruth, stated that
she concurs with Mr. Leitz; that government's function was to
provide a recreational facility for a group of its citizens;
and she requested that a quality field be provided.
Councilmember Lucas stated that Alameda's baseball program was
outstanding and provides direction for the young people; that
the whole City should be proud of the program; and moved
acceptance of the recommendation that Council authorize an
additional $113,543 from the Athletic Trust Fund, for the
project.
Vice Mayor Mannix seconded the motion.
Under discussion in response to Councilmember DeWitt's
inquiry, the City Manager remarked that State law requires
special testing on school property; that plans,
specifications, and inspections are provided by the State; and
related fees would be about $70,000.
Councilman Arnerich stated that the City would be looking into
the deficiencies of the architect; and that the overcharge
would be paid out of the Athletic Trust Fund.
At the request of Mayor .Appezzato, the City Manager stated
that the current fund balance of the Athletic Trust Fund was
$268,000; the balance would be $155,000 following this
request; and that said expenditure would not impair any other
athletic program.
President Appezzato stated that he would support the staff's
recommendation; and he believed it was prudent to move forward
and complete the project.
The motion carried by unanimous voice vote - 5.
5-H. (96-153) Final Passage of Ordinance No. 2720 "Amending the
Alameda Municipal Code by Repealing Chapter XXI (Garbage and
Refuse) in its Entirety and Adding a New Chapter XXI (Solid
Waste and Recycling); Article I (Definitions); Article II
(Solid Waste); and Article III (Recycling)."
Councilmember Lucas moved final passage of the Ordinance.
Vice Mayor Mannix seconded the motion, which carried by
unanimous voice vote - 5.
Regular Alameda City Council Meeting
March 19, 1996
11
6. ORAL COMMUNICATIONS, NON-AGENDA (Public Comment)
6-A. (96-154) Neil Patrick Sweeney, Alameda, announced certain
upcoming local events.
6-B. (96-155) Betty Williams, Alameda, stated that she was making
an appeal to the City of Alameda; that she wanted to know
where the City stood on her lawsuit; and that she and her
family were affected by it and need closure.
Mayor Appezzato stated that the City Attorney would draft a
response to her concerns.
6-C. (96-156) Carol Gottstein, Alameda, stated that she was not
officially representing the Alameda Historical Museum,
although she serves on its Board; that on February 28, Board
Member Robert Hohmann sent a Memorandum of Understanding to
the City Manager to clarify what had been discussed in
previous telephone conversations regarding City funding of the
Museum; that the Board received a reply, dated March 6, from
the City Manager which was copied to Don Roberts; that Mr.
Roberts was a signatory to the Argument Against Measure C,
therefore not an unbiased source; and that she questioned
whether it was appropriate for the City Manager to copy the
letter to Mr. Roberts.
Carol Gottstein further commented that the City Manager's
letter stated that the Museum should continue operating
autonomously, as in the past; and that she believed there had
always been either City or School Board [District] funding.
Carol Gottstein remarked that the Argument Against Measure C,
of which Councilmember Lucas was one of the signatories,
stated that the Museum was offered space by the sponsors of
the Alameda Naval Air Museum on the base, and turned it down;
that the statement was not true and misleading; and that she
questioned why it appeared in the Argument Against Measure C.
The Mayor responded that the City Manager would respond to Ms.
Gottstein's concerns.
6-D. (96-157) Don Bergen, Alameda, requested that the City Council
proclaim English the Official Language of Alameda.
6-E. (96-158) Earl Peacock, Alameda, stated that he resented
people from the outside telling Alameda how to run the Police
Department; that it was managed by a very well-organized and
dedicated group of men; and that he resented people indicating
that they were on the outside collecting money to defend
officers.
Regular Alameda City Council Meeting
March 19, 1996 12
6-F. (96-159) Don Roberts, Alameda, in response to Carol
Gottstein's comments under Oral Communications 6-C, stated
that he considered himself to be an investigative reporter;
that his [cable] programs were unbiased; that after obtaining
the Manager's letter to the Museum, he contacted him to
inquire if $50,000 would be provided to the Museum; and in
response to his request for information, the City Manager's
letter to the Museum was copied to him.
7. COUNCIL COMMUNICATIONS (Communications from Council)
7-A. (96-160) Councilman Arnerich requested that the City Manager
or Assistant City Manager see that the Disaster Preparedness
Plan be updated and made available.
7-B. (96-161) Councilmember Lucas advised that she sees no need
for a Workshop for Proclamations. Requested that at the next
Council Meeting this be presented.
8. ADJOURNMENT
8-A. (96-162) There being no further business before the City
Council, President Appezzato adjourned the meeting at 9:29
p.m.
* * *
ectfully submitted
D ANE B. FE SCH, CMC
City Clerk
The agenda for this meeting was posted in advance in accordance
with the Brown Act.
Regular Alameda City Council Meeting
March 19, 1996 13