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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 Regular Alameda City Council Meeting 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 Regular Alameda City Council Meeting 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 7 0 0 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