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1994-10-18 Regular CC Minutes32 MINUTES OF REGULAR MEETING OF ALAMEDA CITY COUNCIL. OCTOBER 18, 1994 The meeting was convened at 8:33 p.m., with President Withrow presiding. The Pledge of Allegiance was led by Councilmember Lucas. Reverend Roger Bauer, Immanuel Lutheran Church, gave the invocation. ROLL CALL - Present: Councilmembers Appezzato, Arnerich, Lucas, Roth and President Withrow - 5. Absent: None. PROCLAMATIONS AND SPECIAL ORDERS OF THE DAY 94-596 Proclamation declaring October 15, 1994, as "White Cane Safety Day." President Withrow read the proclamation and presented it to Barbara Baack, of the National Federation of the Blind of California, who thanked Mayor and Council, noted recent death of Federation member in a crosswalk with white cane, and commented on Federation's program concerning pedestrian safety. Councilman Arnerich stated Alameda is investigating a new approach the City of Santa Rosa is instituting, utilizing strobe lights; and Council is sensitive to pedestrian safety. Mayor Withrow requested that a verbatim of her comments be transmitted to the local newspapers. Shirley Cummins, Alameda, commended proclamations and Mayor's request to send verbatim of Ms. Baack to newspapers; and stated she would like to see Ms. Baack's picture in the newspapers. Mayor Withrow commented [the picture] is a good idea. 94-597 Proclamation declaring October 24, 1994, as "United Nations Day." President Withrow read the proclamation and presented it to Mr. Clement Burnap, Chair of UN50 in Alameda. Mr. Burnap invited everyone to attend the activities on Saturday in Jack London Square, Oakland, celebrating the 50th Anniversary of the UN. CONSENT CALENDAR At the request of the public, reports (94-604) transmitting Investment Portfolio, (94-605) regarding acquisition of capital equipment and [ordinance] (94-606) were removed from the Consent Calendar for discussion. Regular Meeting, Alameda City Council October 18, 1994 3 Vice Mayor Richard Roth moved approval of the remainder of the Consent Calendar. Councilman Arnerich seconded the motion which carried by unanimous voice vote - 5. Items so enacted or adopted are indicated by an asterisk. *94-598 Minutes of the Regular Council Meeting of October 4, 1994, and Special Council Meetings of September 26, and October 4, 1994. Approved. *94-599 Report from Public Works Director recommending extension of time of two years, to November 8, 1996, in which to complete the improvements for Tract 6111 (Harbor Bay Isle Village 5, Neighborhood B). Accepted. *94-600 Report from Public Works Director regarding authorization to perform a Pilot Program for Yard Waste Collection Systems. Accepted. *94-601 Report from Finance Director requesting authorization for the City Manager to enter into a Lease Purchase Agreement for the acquisition of Fire Apparatus, Public Safety Computer, and miscellaneous capital equipment from Alameda First National Bank. Accepted. *94-602 Resolution No. 12576 "Declaring sources of infiltration and inflow from storm water on private property located in Sanitary Sewer Basins LA1A and 91D a Public Nuisance; setting time and place for a Public Hearing, and ordering the Public Works Director to give formal notice to property owners where problems are known to exist." Adopted. *94-603 Bills, certified by the City Manager to be true and correct were ratified in the amount of $1,522,038.29. 94-604 Report from Finance Director transmitting Investment Portfolio for period ending September 30, 1994. Accepted. In response to inquiry from Shirley Cummins, Alameda, the City Manager explained the types of financial information provided in the Investment Portfolio. Vice Mayor Roth moved acceptance of the report. Councilman Arnerich seconded the motion which carried by unanimous voice vote - 5. 94-605 Report from Police Chief regarding Public Safety Computer System Request for Proposal (RFP). Accepted. Neil Patrick Sweeney, Alameda, urged Council to approve recommendation. Regular Meeting, Alameda City Council October 18, 1994 ,4 Councilmember Lucas moved approval of the report and recommendation. Vice Mayor Roth seconded the motion which carried by unanimous voice vote - 5. 94-606 Ordinance No. . N.S. "Amending the Alameda Municipal Code by Repealing Section 6-20 (Fortunetelling, Clairvoyance, Hypnotism, Etc.) and Subsection 6-20.1 (Prohibition), of Article V (Amusement and Recreational Places), Chapter VI (Businesses, Occupations and Industries), Thereof." Introduced. In response to inquiry from Shirley Cummins, Alameda, the City Attorney explained the purpose for amendments. Councilmember Lucas noted businesses that provide services such as fortunetelling, will not be allowed on Webster nor Park Streets. Councilmember Lucas moved introduction of the ordinance. Councilman Arnerich seconded the motion which carried by unanimous voice vote - 5. AGENDA ITEMS 94-607 Resolution No. 12577 "Appointing Connie R. Wendling as a Member of the City Golf Commission." Adopted. Vice Mayor Roth moved adoption of the resolution. Councilmember Lucas seconded the motion which carried by unanimous voice vote - 5. The Oath of Office was administered by the Deputy City Clerk. 94-608 Resolution No. 12578 "Appointing Stephen E. Post as a Member of the City Recreation Commission." Adopted. Councilmember Lucas moved adoption of the resolution. Vice Mayor Roth seconded the motion which carried by unanimous voice vote - 5. The Oath of Office was administered by the Deputy City Clerk. 94-609 Resolution No. 12579 "Reappointing Bernard F. Roberts as a Member of the City Recreation Commission." Adopted. Vice Mayor Roth moved adoption of the resolution. Councilman Arnerich seconded the motion which carried by unanimous voice vote - 5. Mayor Withrow noted Dr. Roberts could not be present and the City Clerk would handle the matter administratively. 94-610 Resolution No. 12580 "Reappointing David Sillers as a Member of the City Recreation Commission. Adopted. Regular Meeting, Alameda City Council October 18, 1994 5 Councilmember Lucas moved adoption of the resolution. Councilman Arnerich seconded the motion which carried by unanimous voice vote - 5. The Oath of Office was administered by the Deputy City Clerk. * * * * 94-611 Councilman Arnerich noted many persons are present for a subject they would like to present under Oral Communications; therefore, he will request a recess and, upon return, the Appeal, and subsequently, Oral Communications, Non-Agenda, be moved forward on the agenda; and so moved. Councilmember Appezzato seconded the motion. Vice Mayor Roth stated that is what he attempted to do in Staff Information Meeting. The motion was carried by unanimous voice vote - 5. * * * * Council recessed and reconvened at 9:06 p.m. * * * * 94-612a Appeal of the Planning Board's Approval of a Development Plan Amendment, PDA-94-7, for a 3,200 square-foot mechanical yard addition to a 26,720 square-foot building on a 15.02-acre portion of the Marina Village Property located east of Challenger Drive and south of Independence Drive. Applicant: Alameda Real Estate Investments, (Somatix); Appellant: Martha Martin. 94-612b Resolution No. 12581 "Denying the Appeal and Upholding the Planning Board's Approval of Planned Development Amendment PDA-94-7 for 2060 Challenger Drive (Somatix)." Adopted. The Planning Director explained the background of the Appeal; commented the other building discussed in staff report [dated October 11, 1994] is Insite Vision, 865 Atlantic Avenue, which is not in compliance with the Noise Ordinance, and the Department is working with Marina Village to bring [Insite] into compliance. The Planning Director stated the nature of the Appeal is the noise impacts of the proposed mechanical yard; Charles M. Salter Associates Inc. measured existing noise levels and determined project could comply; the Planning Board, in taking action to approve the Planned Development Amendment [PDA] imposed a condition that compliance must be achieved before equipment can be used; the Board concluded the amendment was consistent with Marina Village Master Plan and the Development Plan, given conditions of approval; and took action to approve. Martha Martin, Alameda, Appellant, stated she appealed Planning Board decision because noise control and cumulative effects of Regular Meeting, Alameda City Council October 18, 1994 noise were not substantially addressed; and recommended that Council obtain accurate measurements of equipment being installed, level of sound output, nature of noise, factors regarding intermittency, and reexamine proposed building and if sufficient to dampen sound to noise level of 10dB below the Municipal Code standard, at the nearest residence; consider concerns of Mr. Wetherill, acoustical engineer, who consulted with her; and stated she chose 10dB less than Code requirement because of, for example, sleep disturbance; and requested Council seriously consider her Appeal. Councilmember Lucas noted the Salter Report mentions that ambient noise includes aircraft and freeway noise; she would like to see noise reduction; perhaps noise ordinance needs to be addressed, but Council cannot have an impact on freeway nor airplane noise. Appellant Martin stated she agrees, but as a community, we must start somewhere and the addition contributes to the problem. Rheem Henning, Alameda, submitted two letters; supported Appeal; requested Council consider that the noise will drive people away, which is unfair as they have invested in their homes; she and her husband do not intend to move and would like Council's consideration. Michael McGlynn, M.D., Alameda, stated he resides across from proposed addition, would like Council to consider changing the [noise] ordinance regulations to 40dB [Section 4-10 of the Alameda Municipal Code], and require a sound wall across the back of the property as has been required along freeways; or, not allow [the addition]. William Jarvis, Alameda, stated existing noise was tape recorded across Independence Drive; he played tape for Council; and stated neighbors are not opposed to industry or business but are opposed to noise that pollutes environment; and requested Council's help. Councilmember Appezzato inquired if that noise heard on tape recording is present 24 hours a day. Mr. Jarvis replied affirmatively, stating he lives on Regulus Court in the end unit toward the water, and can hear the noise. Councilmember Lucas inquired if noise is such an interference, why homeowners did not bring up issue earlier. Mr. Jarvis replied the neighbors had thought the noise level was legal. Councilmember Appezzato inquired what the noise level [of tape] is and if the level is correct. Regular Meeting, Alameda City Council October 18, 1994 37 Joan Lamphier, Consultant to Planning Department, stated she would need more information concerning distance at which the recording was made, and loudness of the playback; noted sound is attenuated by residential buildings; stated [taped] sound depends on where volume is adjusted; and the characterization may not be accurate. Mr. Jarvis stated the tape recorder volume is set between 2 and 3 and is close to 50dB; the demonstration is primitive but provides an example of the abrasive noise. Councilman Arnerich stated whether or not neighbors thought the noise level was legal, if the noise is bothersome, citizens have rights; also, a determination must be made concerning where [tape recording] was made, and time of day; and also noted noise can be an irritant. Franklin Metz, Alameda, submitted a letter, stated he is against proposed mechanical yard, as it will add significantly to the already unacceptable noise level in the area; alternate locations can be found in Marina Village; he is hearing impaired, however, he is awakened by current ambient noise of the fan, from Independence Drive [Insite Vision], not from Challenger Drive; Challenger will be an additional noise; and other ways to house equipment could be considered. Councilmember Appezzato inquired if the noise was present when Mr. Metz moved in three years ago. Mr. Metz replied he believes the noise did not continue 24 hours a day; he did not initially notice the noise at night but has noticed the noise for at least the past 18 months. Frank Brittain, Ph.D., Alameda, stated he lives in Marina Village, far enough from the noise that he does not hear it; he is present as a technical expert; noted his qualifications; presented technical information on e.g., background noise non-distinctive and distinctive, and resulting impacts; stated 50dBA is not adequate to protect residents in the area; relatively simple inexpensive controls can be added to significantly reduce levels; a form of lower criteria approaching 40-45dBA is needed. Responding to Vice Mayor Roth's question concerning inexpensive controls, Dr. Brittain replied that, on the barrier wall's inside face, at least four inches of sound-absorbing material to provide attenuation at sufficiently low frequencies would be effective in this case; a spray-on or thin board would not suffice. Replying to Councilmember Lucas, Dr. Brittain estimated the sound- absorbing material probably should not cost more than $2000, and he would use fiberglass covered with a layer of perforated metal, either aluminum or steel. Regular Meeting, Alameda City Council October 18, 1994 el Councilmember Lucas questioned if Dr. Brittain opines that under City's current ordinance, the noise level should be lowered to 45dBA and he replied affirmatively, and added, because of the distinctive nature and the pure tones in the noise. Ewart Wetherill, AIA, Alameda stated he opposes approval of Planning Board decision; current noise control regulations are an effective way to simplify a complicated subject; however, when a new development threatens the welfare of residents, augmentation is needed; the City should require the developer to present a complete design with enough information to demonstrate, in advance, that the noise regulations have been complied with; he recommends Council request a full and clear statement of the situation in advance of approval, and consider seriously the fee placed on the Appellant. Jim Kroyer, Operations Manager, Somatix Therapy, stated Somatix is a biotechnology company working on development of treatments for cancer, neurological diseases and hemophilia; employs 125 people; has a clinical trial, approved by Food & Drug Administration [FDA]., for cancer vaccine and as trials have progressed, has worked on increasing capability to manufacture the product; the design process is complex and regulated by the FDA, and is a timely process; because of company's concern about noise, Charles Salter was consulted; and Somatix is committed to comply with the noise ordinance and reduce sound accordingly. Robert Baum, Architect, described the physical structure, including areas where trees will be added for visual purposes; the location of the mechanical yard and chillers; the wall where sound attenuation material is placed; and the enclosure. Charles Salter, Charles Salter Associates Inc., Acoustical Engineer, discussed article on Noise and Hearing Loss in The Lancet, July '91, attached to Ms. Martin's letter, and noted the sound level under consideration is below what the article states is a disturbance; submitted list of noise ordinance requirements for projects in other cities, noting Alameda's 50dBA limit is in line with the other communities and the Model Noise Ordinance from the State which recommends 50dBA; in his professional opinion, Alameda has excellent acoustical protection for residents, and the additional proviso that the project cannot be brought on line until it is proven that under worst-case conditions, the sound level is not exceeded. Responding to President Withrow, Mr. Salter defined certain noise requirements in cities on the list he submitted; and noted he clocked decibels of 60 to 70 from passing cars. Replying to Councilmember Lucas, Mr. Salter commented the tape was an uncontrolled demonstration; and concerning Dr. Brittain's reference to distinctive noise, stated the quality of noise, will Regular Meeting, Alameda City Council October 18, 1994 be more unobtrusive than Dr. Brittain hypothesized; the 50dBA, with a 5db penalty for pure-tone noise, he believes, is exactly what should be; and the 4-inch thick material is being used that Dr. Brittain spoke about; there is no roof on the mechanical yard because there must be exhaust air; whether a roof exists or not, the issue of sound emissions would still remain; he would characterize the Insite Vision mechanical enclosure as having no noise control, and he believes reducing their noise would be very easy. Responding to Vice Mayor Roth, Mr. Salter stated, he would expect noise level to be less than 45dB under typical conditions, and 45dB for worst-case conditions; and concerning active acoustics, someone on his staff is one of the world's experts and he is working with many equipment manufacturers to utilize the new technology where sound cancels other sound; that [technology] works very well on low-frequency tonal noise, which Somatix does not have. Councilmember Appezzato questioned impact to the Somatix company if final approval is withheld until potential for disturbance is further investigated. Edward Lanphier, Executive Vice President, Somatix Therapy Corp., replied the FDA Bureau of Biologics requires the product produced for pivotal clinical trials be manufactured in the same facility in which the product is commercialized so, if the company is unable to move forward under current timelines, the company would experience delay with those trials and subsequently, commercialization, and can speak later to the impact that would have on capital and financing; and company representatives have said the company's intent is to comply with all noise ordinances of Alameda. To Councilman Arnerich's question if the company would do more than required in order to mitigate noise in the area, Mr. Lanphier expressed commitment to being good citizens in Alameda and good neighbors in Marina Village; stated all their actions tonight have been based on those two basic issues, and they will continue to manage the company in a way that is consistent to those objectives. Responding to Councilmember Appezzato's inquiry concerning why the mechanical yard cannot be enclosed, Mr. Salter replied that is a mechanical question and the mechanical engineer should answer, and noted the current design is believed to be adequate. Councilmember Appezzato stated he is looking for some kind of a compromise so that the speakers who have come, can leave with some commitment that if there is a problem, it can be resolved. Councilmember Lucas reiterated, for clarification, that the company is committing to the noise level of 45dB; and Mr. Salter replied that is what their calculations indicate, and is [the goal] to Regular Meeting. Alameda City Council October 18, 1994 3 which they are designing, to have a factor of safety. Dr. Brittain further commented on indoor and outdoor noise; whether or not a noise is annoying; distinctive noises, use of baffles on an enclosure; stated a compromise is needed, and suggested a limit of 45dBA at the nearest residence be set. Responding to Councilmember Appezzato, Dr. Brittain stated if there is a project criteria, and he believes the 45dB is justifiable under the current noise ordinance, he believes that would be a basis for allowing the project to proceed; and he would add an additional suggestion, that Mr. Salter and Somatix produce a design to be reviewed by the community. Councilmember Appezzato stated he does not believe that would be a problem; he would like to hear Somatix's comment on a 45dB noise level. Mr. Lanphier stated the company has been based in Alameda for about ten years, has four buildings in Marina Village Parkway area, has invested about $10,000,000 in facilities, is committed to Alameda; noted their major areas of research, and that the facility is a fundamental part of the trial process; a great deal of time and expense has been spent looking at alternatives for evaluating where the noise and equipment can be placed and how noise can be mitigated, and company is committed to continuing to do that; they [representatives] respect the concerns of citizens, want to work with them and make sure the company is in full compliance with the noise ordinance; and hopes the information is sufficient for Council to deny the Appeal and allow the company to move forward with its facility. Councilmember Lucas stated Mr. Salter's statement for the design is for 45dB, and she believes the matter could be settled if there is a firm commitment to that limit; and if after completion, for some reason the decibel level is higher than that, there is a commitment to reduce noise level to 45dB; the residents could agree to that; and the matter could be resolved. Mr. Lanphier stated they are interested in finding a situation that is mutually acceptable, it is a constructive suggestion and one the company should consider; his concern is: is it reasonable and legal that the company be held to a different level of diligence and criteria than is the law of the City; the law in place is very reasonable, and is it a reasonable suggestion to be asked to comply with something that is well below the ordinance. Councilmember Lucas stated, as she understands, 45dB might be compliance with the ordinance depending on the type of tone. Mr. Lanphier stated, to that extent, he reiterates his fundamental Regular Meeting, Alameda City Council October 18, 1994 premise that the company is prepared to comply with the noise ordinance of Alameda. The City Attorney stated the point is a good one and can be troubling to some because the general noise standard applies throughout the City; however, in this particular situation Alameda Municipal Code subsection 30-4.13, allows the Planning Board to impose conditions to eliminate or mitigate various problem(s), such as: the "design or type of improvements is likely to cause a serious public health problem" and is the specific distinction between this matter and other situations in the City. The Planning Board determined that compliance with the standard noise regulations represented satisfactory mitigation of noise impact. In order to deviate from the standard City policy, the Council would have to make some specific findings indicating that the design or type of improvements is likely to cause serious health problems; "if you can do that, then you can legally make the change." In response to Vice Mayor Roth, the City Attorney defined "serious" as significant, major; and the law does allow for interpretation, and gives the governing body discretion. In response to President Withrow's inquiry, the City Attorney stated that his [Withrow's] understanding that a general city-wide standard has been adopted is correct; however, when a development- combining district exists, Council has the ability to impose additional restrictions, and serious public health problems is an additional restriction. The City Manager stated he believes that the City Attorney has stated Council has the latitude to make the Applicant go below what is usually required of an area that does not have a Planned Development overlay; Council may employ a greater standard on Somatix if there is a serious public health finding; and Somatix's question is whether it is fair to them when Insite Vision is really causing the complaints. In response to Mayor Withrow's inquiry, the City Manager stated the City's ordinance does provide the ability to require reduction by 5dB for a "simple-tone noise, noise consisting primarily of speech or music or reoccurring impulsive noises;" and if determination is made upon measurement, reduction by 5dB could be required. Councilmember Appezzato stated perhaps the problem is not Somatix but the next door neighbor; and questioned when City will take care of the next door neighbor. The City Manager stated people testified they thought it was alright for the building next door, Insite Vision; they thought it was operating under legal requirements and when the City had Salter Regular Meeting, Alameda City Council October 18, 1994 3 - 2 Associates measure it, City found Insite was above what ordinance requires and staff has been working with Marina Village Property Assoc. and equipment has been ordered to baffle noise; installation is planned to be done by November first; City first heard about Insite when this issue came up last month; no complaints were made prior to that; staff started working with the owner of the project who was completely agreeable. Councilmember Appezzato clarified the noise levels at Somatix will be at least the same and possibly lower, at 45dB, than current level next door. Councilman Arnerich discussed term "serious public health problems" with City Attorney; he will look seriously at whether Somatix is being asked to do anything more than is required of any other company; he will look seriously at the issue; if Somatix can operate within that 50dB framework and work it down if there is a problem, then we will make a decision at that point; concerning the word "serious," he does not believe the company is a "serious" threat. Councilmember Appezzato confirmed with the City Manager and Planning Director that Insite Vision needs to meet noise requirements by November 1. The Planning Director noted the baffling kit is to be delivered by November 1 and will be installed as soon as possible. Councilmember Appezzato inquired if Somatix would be willing to work with Messrs. Brittain and Wetherill as plans are produced, to combine expertise. Mr. Lanphier replied we [Somatix] want to be good neighbors and are willing to sit down with any groups that have concerns about the design. Upon Councilmember Appezzato's query on whether that would be acceptable to Messrs. Wetherill and Brittain, Mr. Wetherill agreed. Dr. Brittain stated he would like to work with Somatix but would like to see a specific limit of 45dB built in, on the basis of pure tone. Councilmember Lucas inquired of Dr. Brittain concerning Insite Vision's tones. He believes under the definition of the ordinance that may be applicable but he would need to make measurements to determine applicability. The Planning Director clarified that there is a definition contained in the noise regulations that defines what the simple clear tone is that would require the more-restrictive 5dBA and that is what City would look at upon completion of the installation of Regular Meeting, Alaincela City Council October 18, 1994 the equipment to ensure that the operation is in compliance. Replying to Councilmember Lucas, the Planning Director confirmed that [procedure] would also be used in evaluating Insite Vision. * * * Councilman Arnerich moved to continue the meeting past 11:00 p.m. Vice Mayor Roth seconded the motion which carried by unanimous voice vote - 5. * * * William Garvine, Alameda, stated he has not heard a complaint about the Applicant, has heard complaints about neighboring businesses; believes Council is treading on dangerous ground when suggesting that regulations should be different for one business from another when it has not been demonstrated that there is a serious public health hazard; believes the proposal is from a responsible company that complies with Code requirements in place; encouraged Council to pursue bringing Insite into compliance without penalizing the Somatix firm; and perhaps people in Alameda who are depending upon the kind of research Somatix does, should be considered. Rahn Verhaeghe, Alameda, Director of Property Management, Marina Village, stated he believes Insite [noise] is what has bothered the residents; the equipment is ordered for Insite; the Planning Board Meeting was the first time he heard about the problem; the sound level was discovered through the investigation of Charles Salter for the Somatix design; Somatix has done a good job; when everything is done there will be a testing and he cannot think of a better guarantee. Bruce McGregor, President, Planning Board, stated he is appearing to support decision to grant Somatix application and to urge Council do the same; reviewed mixed use development of Marina Village and the balance that must be reached; explained his investigation into the matter, and Planning Board action; requested Council think carefully about setting a moving standard for any applicant in this City; a level playing field is needed, otherwise, a bad message is sent to applicants; appellants and applicants working together is good but the Applicants should make the final decisions as they are charged with the engineering solution; inserted in the approval of Planning Board is the requirement that "prior to issuance of the occupancy permit or commencement of use, an acoustical consultant to be retained by the City shall conduct noise measurements; operation and mechanical commitment shall be permitted only when the operation complies with the standards of the community noise ordinance;" he believes that is a good guarantee and urged Council to support the application. Mr. Metz stated there are means of directing noise, and suggested other location be found, cumulative effect be considered, and alternative approaches to the problem. Regular Meeting. Alameda City Council October 18, 1994 34 Mr. Wetherill stated he has faith in the ability of Charles Salter to design and build an enclosure that will result in 40dBA, and he would like to see that submitted before the fact, instead of after. In response to Vice Mayor Roth, the City Attorney stated, about two years ago, the standard for Appeal hearings was changed, so that Council has a de novo, a new review, Council is not bound by the Planning Board; the function and purpose of the Planning Board is numerous and their opinions should be given great weight; and Council is not receiving many appeals because the Planning Board is doing a good job. Councilmember Lucas moved to deny the Appeal [by adopting Resolution No. 12581]; and stated Somatix is making sincere effort to reduce decibels to 45; staff will enforce the problem at Insite Vision, which will reduce noise in excess of City ordinance, and, as a speaker noted, imposing one standard on one business and not on another is unfair, particularly in this case when Insite Vision apparently was in violation for some time. Councilman Arnerich seconded the motion with the condition that Executive Vice President of Somatix will do everything possible to bring the decibels even below 50dB, if possible. Councilmember Appezzato stated he will support the motion if, as the company indicated earlier, they will show the design to Mr. Wetherill; both sound engineers are contemporaries and should work together to ensure that City has a project acceptable to the business and the residential community. Vice Mayor Roth stated he believes a problem might be created; his understanding is that they [company and consultants] will keep each other informed, but if they do not agree, the matter is not coming back to Council. President Withrow clarified that Councilmember Appezzato's comment is informal, has nothing to do with the motion; the motion and the second is the legal action; and Vice Mayor Roth's point calling for clarification is well made. The motion to deny the Appeal was carried by unanimous voice vote - 5. * * * * Council recessed to reconvene at 11:30 p.m. * * * * 94-613 Written Communication from Martha Martin requesting Fee Waiver of Appeal of approval of PDA-94-7 for Alameda Real Estate Investments, 2060 Challenger Drive (Somatix) and requesting changes in Alameda's Noise Regulations. Martha Martin, Alameda, stated she has shown evidence of a Regular Meeting, Alameda City Council October 18, 1994 35 financial burden to the Planning Board as required; and also, the fee waiver is in the public interest; as a single-income person, it [fee] represents 20% of her monthly income and she was not acting on her own behalf tonight but in the public interest; basically, enough information was not present at the Planning Board level, and therefore, appealing the decision became necessary. Councilmember Appezzato inquired if Ms. Martin would be willing to submit her tax returns to the City and a determination be made following that; and Ms. Martin stated she would. Councilman Arnerich stated he will agree with certain portions of the material before us; however, Ms. Martin had the option of going to the Homeowners' Association for support; a number of people have supported her, and perhaps some of those persons would contribute. Ms. Martin stated an appeal must be made in 10 days and she had constraints; she had no time to go door-to-door requesting donations or a general appeal from a larger number of people; and she believed the waiver was a hardship and felt justified making a statement to that effect. Councilman Arnerich stated, after people tonight hear of Ms. Martin's predicament, perhaps someone will come to her assistance; he will disagree with Councilmember Appezzato as he does not want to see Ms. Martin's tax records, does not know if Council can legally ask to see the records, admires her tenacity, but she filed the Appeal and is responsible for the cost. Ms. Martin agreed that she filed the Appeal irrespective of cost; however, she does believe the cost is a financial burden and meets the requirements for a fee waiver. President Withrow inquired if she sold her house; and Ms. Martin stated her house was sold five days after she filed the Appeal, is moving but not because of the noise; her house had been on the market for quite some time. President Withrow stated, in his mind, that would argue that Ms. Martin was appealing more for the public welfare as opposed to an intrinsic interest in her own comfort. Ms. Martin agreed and stated her house was on the market for financial and personal reasons. Responding to Vice Mayor Roth, Ms. Martin stated she went to the Homeowners Association for backing and support, however, she did not ask for financial support, and she had an option for a fee waiver. Councilmember Appezzato stated the reason for the waiver is Regular Meeting, Alameda City Council October 18, 1994 hardship; the reason to ask for tax returns, which must be done voluntarily, is to verify hardship; Ms. Martin is willing to provide returns, and he is sure there is a valid reason, at least in her mind, for this hardship; and he is willing to support fee waiver. Shirley Cummins, Alameda, stated Council should not charge Ms. Martin, who has extended herself for the City, and the fees should be erased. Bruce McGregor, President, Planning Board, stated the Board recommended denial of fee waiver for several reasons including recovery of City's cost; this application is unique as it affects so many people; the Board felt there was opportunity for the fee to be shared, as many persons spoke, the Homeowners Association was represented, and they should not allow Ms. Martin to be left with the fee. Councilman Arnerich stated much time was spent by staff on this matter; a person should determine whether they wish to file an Appeal, knowing what the fees will be; Ms. Martin has done a creditable job; however, he will not let anyone off completely when other people pay for City services; $353 is owed; if Ms. Martin can provide $118, Marina Village Homeowners Association and/or the persons who participated with her tonight provide $118, then the City will absorb $118. Councilman Arnerich so moved. Councilmember Lucas seconded the motion. The City Attorney inquired what would happen if other persons or the Association do not provide $118; Councilman Arnerich replied Ms. Martin must provide the remainder; City will absorb $118. Councilmember Lucas commented the fee was paid in advance; City would provide a one-third refund to Ms. Martin. Councilman Arnerich agreed and stated Ms. Martin would need to approach the Homeowners Association. Councilmember Appezzato stated he will not support the motion; he would support a total fee waiver. President Withrow summarized that the Appellant has paid $353; the motion is for the City to reimburse $118 of the Appeal fee with the suggestion that Ms. Martin request $118 reimbursement from the Homeowners Association. The motion carried by the following voice vote: Ayes: Councilmembers Arnerich, Lucas and Roth - 3. Nayes: Councilmember Appezzato and President Withrow - 2. Absent: None. Regular Meeting, Alameda City Council October 18, 1994 ORAL COMMUNICATIONS. NON-AGENDA * * * The City Attorney noted this item allows speakers to address Council on non-agenda items. On those items, Council cannot vote, or take action, and has very limited comment powers because the topics have not been agendized. * * * 94-614 Effie Jones, Alameda, stated that Councilmember Lucas's recent comments concerning possible illegal activities at her [Jones] residence located on Pacific Avenue, has created suspicions in the neighborhood; and she would like a public apology from Mrs. Lucas. Mayor Withrow explained that Council cannot enter into a dialogue under this agenda item. 94-615 Shirley Cummins, Alameda, read and compared an article in the Times-Star with one in the Oakland Tribune concerning Congressman Dellums' performance related to saving the navy base. She does not believe the base will close. 94-616 Neil Sweeney, Alameda, stated that his suggestion that Alcatraz be provided with ferry boat piers and small craft-slips, was not well received recently. On Saturday the Alameda Police Department is having an Open House, Angel Island should be restored and historic writings on the walls reproduced, and small-craft slips and ferry boat piers constructed; other states are legalizing gambling river boats; and suggested [Alameda] create a gambling tourist mecca on Treasure Island. 94-617 Lois Workman, Alameda, urged the City Council, as a legislative body, to oppose Proposition 187, at the November 1, 1994 Council Meeting. 94-618 John Scott Graham, Alameda, addressed Proposition 187, noted some divisive comments made to him by other races; stated this is not a one-nation problem; and that we are one people under God. 94-619 Juan Saavedra, Alameda, noted his heritage as an American and a Mexican; and requested Council to not support Proposition 187. 94-620 Father Jeffrey Keyes, St. Barnabas Church, Alameda, requested Council place Proposition 187 on an agenda and take a position as a Council; commented on a fire built by children on his church steps two years ago, and there was no response from a 911 call. Regular Meeting, Aimee la City Council October 18, 1994 s 94-621 John Doherty, Alameda, stated Proposition 187 is so poorly written that, although he has been in this country many years, because of his brogue, he might still be suspected of being undocumented by a police officer or health provider; and requested Council voice opposition to Proposition 187. 94-622 Anna Rojas, Alameda, stated she has lived in Alameda 12 years, has 4 children, works at Alameda Hospital, and realizes health care problems are complex; Prop 187 denies immunization to children and health care to old people; dollars will not be saved in the long run when control of disease has been lost; urged Council consider how to influence City, how devastating passing 187 would be; [citizens] will not save our State but lose it. 94-623 Roy Mita, Alameda, read from a proclamation in February signed by Mayor concerning Japanese-Americans and dedication as a nation to renewing a spirit of equality and love of freedom for all; stated Prop 187 is a bad law; and urged Council be leaders. 94-624 Bonnie Bone, Alameda, addressed consequences of passage of Prop 187 on the law enforcement community of Alameda, and people they are sworn to protect; according to the Legislative Analyst's Office, the cost to local law enforcement of reporting suspected undocumented persons could reach $5,000,000 annually; described many ways resources would be strained; as a federal law enforcement officer for 16+ years, she has worked with local officers on numerous occasions; Prop 187 would deny health education, social services and law enforcement protection to a large sector of the community, and conflicts with current concept of community policing; City law enforcement resources should not be diverted to enforcing, as San Francisco Chronicle editorial last Sunday described it, this costly, mean and wrong initiative. 94-625 Nick Cabral, Alameda, stated he came tonight to support "No" on Prop 187; believes Council did not have compassion on a lot of young and old people who came tonight and had to leave; and what citizens heard was about noise [Appeal] for five hours; and stated Vice Mayor Roth is from the West End and could have asked the Mayor to let the children speak. Vice Mayor Roth stated he asked for the item to be moved up on the agenda when he was in staff meeting before the Regular Council Meeting. Mr. Cabral stated Council had an opportunity to show the people how to be involved in their City. They need Council's guidance; and inquired why Council cannot say they are against Prop 187. President Withrow inquired if anyone has taken the time to listen or read what positions he and other Councilmembers have taken. He has taken a position against 187 in writing, and has spoken on it; Regular Meeting, Alameda City Council October 18, 1994 Mr. Roth has taken a position in opposition. * * * Mr. Saavedra approached the podium, interrupted the Mayor's remarks and the meeting; Council recessed, and reconvened at 1:08 a.m. * * * 94-626 Maria Hargrove, Alameda, stated she is a taxpayer and citizen of Alameda and if Prop 187 passes, her health will be at risk and because she has a Spanish accent, she will be suspect for deportation; and requested opposition to the proposition. 94-627 Earl Rivard, Alameda, stated he teaches at Encinal High School and is on St. Barnabas Church Parish Council; has worked with immigrants; if Prop 187 passes, as a teacher he would not be able to cooperate; thanked Council for their personal positions and requested they make their positions official. 94-628 Don Newman, Alameda, stated Prop 187 is a bad law, an emotional reaction to something we do not control; is not a City or State issue but a federal issue; enacting a bad law can have ramifications for all; Councilmembers have publicly stood up against this proposition; we must all vote at the ballot box; and urged standing up and voting no on Prop 187. 94-629 Robert Bisi, Alameda, requested Council not be silent on this issue, take a position, which should be easy as most [Councilmembers] are against 187 in private lives; agendize issue and pass resolution opposing 187 at next Council Meeting. 94-630 Gerhard Degemann, Alameda, requested that, when the Bay Farm Island Bridge is repainted, it be painted green. 94-631 Don Roberts, Alameda, inquired if Councilmember Lucas is going to respond to Effie Jones. Councilmember Lucas responded that she intends to comment under Council Communications. COUNCIL COMMUNICATIONS 94-632 Consideration of Mayor's nomination for an appointment to the Transportation Systems Management Committee. Mayor Withrow appointed Elaine Magalit (member at large). 94-633 Councilmember Lucas requested a report from the City Manager on the feasibility of keeping the library open on Fridays, and re-establishing full service. 94-634 Councilmember Lucas stated that she mentioned at the last Council Meeting a property in the 1500 block of Pacific Avenue on which a newsletter had been written; she requested a staff report, Regular Meeting, Alameda City Council October 18, 1994 0 and that is the issue Ms. Jones addressed. Ms. Jones has complained that she [Lucas] mentioned the address, and she [Lucas] responded that it was no reflection on Ms. Jones in any way. A staff report has been provided in the meantime, and she would like staff to send Ms. Jones a copy. 94-635 President Withrow requested a set of proposals on opening City Hall Monday through Friday, and the Library. 94-636 Vice Mayor Roth requested a response to the remarks made by Pastor Keyes concerning a fire set by children on the front stairs of the church, and that no response was received from a 911 telephone call. 94-637 Councilman Arnerich requested that in the future, he would like the 3-minute rule for speakers, or the 15-minute rule for their representative, be adhered to. RETURN TO REGULAR AGENDA 94-638 Report from Public Works Director regarding approval of an Indemnification Agreement with the City of Oakland and the Port of Oakland and setting a Public Hearing for consideration of allowing the Port of Oakland to use tax-exempt bonds for the portion of their dredging project within Alameda. John Scott Graham, Alameda, stated he favors Oakland obtaining bonds. Councilmember Lucas moved approval of staff's recommendation. Vice Mayor Roth seconded the motion. The motion carried by unanimous voice vote - 5. 94-639 Resolution No. 12582 "Rejecting all bids for Bollard Lighting for Bay Farm Island Shoreline Park, determining that Public Works Maintenance Division is capable of doing the work more economically without contract and authorizing Public Works to do the work." (requires 4 votes) Adopted. Councilmember Appezzato stated he is abstaining on the matter because the park where the bollard lighting will be installed is close to his home. Councilmember Lucas moved adoption of the resolution. Councilman Arnerich inquired if the City Manager is comfortable with having the City do the work; and the City Manager replied affirmatively. Councilman Arnerich seconded the motion. The motion carried by the Regular Meeting, Alameda City Council October 18, 1994 1 following voice vote: Ayes: Councilmembers Arnerich, Lucas and Roth and President Withrow - 4. Nayes: None. Absent: None. Abstentions: Councilmember Appezzato - 1. 94-640 Written Communication from Chair, Hometown Holidays, Park Street Business Association, requesting parking meters on Park Street from Lincoln Avenue to San Jose Avenue be free from 11:00 a.m. to 6:00 p.m. during the Hometown Holiday promotional event on December 3, 1994. Vice Mayor Roth moved approval of request. Councilmember Lucas seconded the motion. The motion carried by unanimous voice vote - 5. 94-641 Report from the Assistant City Manager regarding Golf Complex Operations Audit. Councilman Arnerich stated if the City brings in a consulting firm to do audit, the cost will be $20,000 to $30,000; inquired why organizational structure must be looked at when the City took over the Golf Course only ten months ago; the City has the expertise to do the job; and he would like the matter to come back. President Withrow stated the recommendation is for [staff to develop] a Request for Proposals; Golf Commission and Community are concerned that City has a substantial asset and no benchmark from which to evaluate. Councilman Arnerich stated the firm will come back and state they have lowest fees in the West; however, he will support [move] recommendation for RFP. Vice Mayor Roth seconded the motion. In response to an inquiry from Councilmember Appezzato, the City Manager replied the RFP would be done by staff and probably require 10 to 20 hours. The motion carried by unanimous voice vote - 5. 94-642 Report from the Assistant City Manager regarding Mastick Senior Center Lease Extension Proposal. Allen Derr, Alameda, thanked Council for keeping the issue alive; and requested Council not pick apart the proposal but go on with the business of turning the Senior Center over to the citizens. Councilmember Appezzato moved acceptance of the report. Councilman Arnerich inquired if further dialogue with the Alameda Regular Meeting, Alameda City Council October 18, 1994 342 Unified School District has taken place. In response to Councilman Arnerich's inquiry, the City Manager stated some modifications will be recommended by the Superintendent of Schools to the Board of Education and he [City Manager] will, in turn, recommend to Council; and he believes the final version, and an ordinance, will be ready for Council soon. Council, by unanimous consensus, approved the report. Actions Related to Base Conversion Process. 94-643 Status Briefing on Base Conversion Process. President Withrow stated there is no report. ADJOURNMENT President Withrow adjourned the meeting at 2:00 a.m. Respectfully submitted, 4we DIANE B. FELSCH, CMC City Clerk The agenda for this meeting was posted in advance in accordance with the Brown Act. Regular Meeting, Alameda City Council October 18, 1994