1991-09-17 Regular CC Minutes279
REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF ALAMEDA
September 17, 1991
The meeting convened at 7:35 p.m., (following the meeting of the
Community Improvement Commission) with President Withrow presiding.
The Pledge of Allegiance was led by Councilmember Roth. Reverend
Dorothy Kimbrell gave the invocation.
ROLL CALL - Present: Councilmembers Arnerich, Camicia, Lucas, Roth,
and President Withrow - 5. Absent: None.
ANNOUNCEMENT OF CLOSED SESSION ACTION(S)
President Withrow announced that at the Special Council Meeting held
at 6:30 p.m., Council adjourned to Closed Session and took the
following action:
91-657 Pending Litigation, pursuant to Subsection (a) of Section
54956.9 of the Brown Act: Mulvey v. City of Alameda and Shaeffer v.
City of Alameda: no action was taken by Council; instructions were
given to the City Attorney.
91-658 Personnel Matters - Employee Appointment Evaluation, pursuant
to Subsection 54957 of the Brown Act: received a briefing by the
City Manager; no action was taken by Council.
PROCLAMATIONS AND SPECIAL ORDERS OF THE DAY.
91-659 Introduction by Mayor Withrow and School Board President Bill
Garvine of Anton Lacap, Student School Board Member.
Mayor Withrow noted Mr. Garvine was not yet present to introduce the
Student School Board Member. [See insert following initial paragraph
of Appeal 91-675.]
91-660 Presentation by Mayor of the Employee Excellence Award to
Leslie Prado, Police Technician II.
Mayor Withrow presented the Employee Excellence Award [plaque] to
Leslie Prado, commending her, noting she will receive a day off with
pay and her name will be added to the plaque in City Hall Rotunda.
91-661 Presentation of Certificate of Appointment to Francie Farinet
as Member of the Navy Base Committee, Strategic Planning.
Mayor Withrow presented the Certificate to Ms. Farinet.
91-662 Proclamation declaring September 22 through 28, 1991, as
Rideshare Week.
Mayor Withrow read the proclamation and presented it to the Public
Works Director who accepted on behalf of the Traffic Systems
September 17, 1991
280
Management, and challenged individuals to rideshare.
CONSENT CALENDAR
At the request of Councilmember Roth, (91-671) report from Economic
Development Commission regarding Joint Committee, and (91-672) report
from Planning Board regarding Joint Committee, were removed from
Consent Calendar for discussion. At the request of Councilman
Arnerich, (91-673) Year-end Financial Report, and (91-674) Sales Tax
Report, were removed from Consent Calendar for discussion.
Councilmember Camicia moved approval of remainder of Consent
Calendar. Councilmember Lucas seconded the motion which was carried
by unanimous voice vote - 5.
Items so enacted or adopted are indicated by an asterisk.
*91-663 Minutes of the Regular Council Meeting of September 3, 1991,
and the Special Council Meeting of August 27, 1991. Approved.
*91-664 Report from Public Works Director recommending stop sign
installation for Palmera Court at Grand Street, Eagle Avenue at
Sherman Street, and Minturn Street at Eagle Avenue. Accepted.
*91-665 Report from Public Works Director recommending acceptance of
work by Gateway Landscape Construction, Inc., for construction of
Tilden Way Landscaping, No. P.W. 5-90-06. Accepted.
*91-666 Report from Finance Director submitting Investment Portfolio
for the period ending August 31, 1991. Accepted.
*91-667 Report from Acting Chief of Police recommending date for
Hearing on Appeal of Non-Renewal of Dance Permit for Establishment
located at 1544 Webster Street. Accepted.
*91-668 Resolution No. 12152 "Amending Resolution No. 11887
Adopting a Street Tree Master Plan, Thereby Modifying Condition No.
25 of Planning Board Resolution No. 1979 Pertaining to Paving of
Planter Strips." Adopted.
*91-669 Ordinance No. 2567t N.S. "Authorizing execution of lease
between City, as Lessor, and Alameda Swimming Pool Association, as
Lessee, for Swimming Pool Facilities at Lincoln and Franklin Parks.
Adopted.
*91-670 Bills, certified by the City Manager to be correct, were
ratified in the amount of $984,020.29.
91-671 Report from Chair, Economic Development Commission, [EDC]
recommending participation by a representative of the Historical
Advisory Board on the Joint Committee for Development of Specific
Plans.
Councilmember Roth stated he requested this item and the next
(91-672) be pulled from Consent Calendar for discussion so he could
vote no; his concern is that involving more and more boards and
September 17, 1991
commissions with this interaction slows down the effort Council is
attempting to do on redevelopment, creates more work on staff in
sending the documentation to support a meeting, and ends up going to
all three boards/commissions; Council may as well make one large
board or commission; he does not believe Council should [approve]
this; and he will vote no.
Councilman Arnerich concurred with Councilmember Roth.
Councilmember Lucas stated both the EDC and Planning Board decided
the Historical Advisory Board (HAB) can provide valuable input, and
have been considering historic aspects of redevelopment so she
believes the one representative from HAB cannot hold up the decision
process but can contribute; and moved the recommendation.
Councilmember Camicia seconded the motion and inquired if
Councilmember Roth's basic concern was the paper flow.
Councilmember Roth responded in the affirmative, and stated Boards
should not be involved with other committees; a fiasco occurred
between the Finance Committee and Golf Commission; [HAB] could
provide input, questions could be asked, but the Board should not
officially be part of the process in the capacity proposed.
Councilmember Camicia withdrew his second.
Councilmember Lucas stated the problem was that the Finance Committee
and Golf Commission did not have representation on each other's
boards; if they had, the fiasco could have been avoided.
Councilmember Roth moved to retain the Joint Committee as originally
set forth, and not add a member of another Commission to it.
Councilman Arnerich seconded the motion which carried by the
following voice vote: Ayes: Councilmembers Arnerich, Camicia, Roth,
and President Withrow - 4. Noes: Councilmember Lucas - 1. Absent:
None.
91-672 Report from President, Planning Board, recommending
participation by a representative of the Historical Advisory Board on
the Joint Committee for Development of Specific Plans.
Councilmember Roth moved to retain the Joint Committee as originally
set forth, and not add a member of another Commission to it.
Councilman Arnerich seconded the motion which carried by the
following voice vote: Ayes: Councilmembers Arnerich, Camicia, Roth,
and President Withrow - 4. Noes: Councilmember Lucas - 1. Absent:
None.
President Withrow stated he has mixed feelings; he understands
concern about becoming overly encumbered in a bureaucratic way, but
Council needs to be sure it does not inhibit communications, and that
the views of the specialist Boards have a way of communicating
values, ideas, concerns and interests to the EDC and Planning Board
and to other Committees including Finance Committee; he believes
Council is saying that will happen on a natural basis and that is why
he supported the majority.
September 17, 1991
Councilmember Roth agreed.
91-673 Report from Finance Director submitting Year-end Financial
Report for Fiscal Year 1990-91.
In response to inquiry from Councilman Arnerich, the Finance Director
clarified that $1,718,853 was received from the Bureau of Electricity
in Fiscal Year 1989-90; in 1990-91 the City did not receive a
similar transfer; for the current year the City will receive
$700,000 in excess of normal contributions, subject to the Council
approving the debt issuance for the Bureau project; and while it
appears the City might have a deficit of about 3 and 1/2 percent,
actually, if there were not the revenues from the year before, the
City would be up about a point and a half; the revenues for 1989-90
would be exceeded by about $500,000.
Councilmember Roth moved acceptance. Councilman Arnerich seconded
the motion which was carried by unanimous voice vote - 5.
91-674 Report from Finance Director transmitting Sales Tax Report for
period ending June 30, 1991.
In response to inquiry from Councilman Arnerich, the City Attorney
stated staff will research letter [dated 6-27-91] from the Board of
Equalization's Senior Tax Counsel, John Abbot, asking cities
discontinue publishing the lists of the top 25 taxpayers.
Councilmember Roth commented he does not believe what a specific
business pays in Sales Tax should be made public; believes what the
Board of Equalization is asking is reasonable, City on a confidential
basis should know that, but the public does not need to know how much
a particular business, e.g., restaurant, pays; what has been made
public by categories, by the City, is sufficient to guide Council.
Councilman Arnerich stated he finds no fault in that; but the City
has been receiving the top 25 producers, and Abbot's opinion should
come before Council.
Councilmember Roth stated, when the matter is reviewed, business
licenses should be reviewed also because business owners are informed
gross sales figures are confidential.
Councilman Arnerich moved acceptance of the report. Councilmember
Roth seconded the motion which carried by unanimous voice vote - 5.
AGENDA ITEMS
91-675 Appeal of a Planning Board denial of Use Permit UP-91-184 for
an unenclosed play structure at the McDonald's Restaurant, 715
Central Avenue.
Don Roberts, Alameda, urged support of Appellant, including proposed
colors, and that the Planning Board decision be overturned.
September 17, 1991
Return to SPECIAL ORDERS OF THE DAY, paragraph 91 -659.
President Withrow introduced Anton Lacap, Student School Board
Member, commenting that Mr. Lacap is the representative to the
School Board, a non - voting but active member, who attends Board
Meetings, and is in a position to influence decisions made; and
congratulated him.
Mr. Lacap stated since he has been appointed, he is more aware of
Board of Education activity; and encouraged people to attend Board
Meetings to the same degree as attending Council Meetings.
*
Return to Appeal paragraph 91 -675.
Patty Jarrat, Alameda, stated she represents West Alameda businesses
who express support of proposed playground at McDonald's Restaurant
on Central Avenue; submitted letters of support from Belinda and
Michael Knight, owners of Fort Knox [store]; David and Mary Duffy,
Duffy's Diner; Sylvia Perry, West Alameda Business Association
Board; Ken Rosenblum, Providence Veterinary Medical Clinic.
Kimberley Byrne, Applicant, Alameda, stated she and her husband were
present to request Council overturn the Planning Board decision to
deny a playland at their restaurant at 715 Central Avenue; believes
playland fits in well with changes and trends in area toward
family- oriented image; the structure is attractive and made of
safest material possible; discussed sign and awning details, and
requested Council approve [the Byrnes's] original proposal and
overturn the Planning Board denial of the Use Permit.
Councilman Arnerich discussed with Mrs. Byrne, the hours of use of
the play structure and fencing; Mrs. Byrne stated the structure is
fenced off and the area can be locked.
To Councilmember Camicia's question, Mrs. Byrne stated another color
option is available which she does not feel would be appealing to
children as it is very subdued, and provided a sample of the color.
In answer to Councilmember Roth, Mrs. Byrne stated hours from 8:00
a.m. to 9:00 p.m. would be preferred.
Replying to Councilmember Lucas, Mrs. Byrne stated bike racks will
be relocated, planting strips are and /or will be landscaped; a light
will illuminate the area during the night but is no brighter than
parking lot lights; the flag pole would be removed; and the awning
will be lowered three feet.
Tom Byrne, Alameda, requested Council reverse the Planning Board
decision; reviewed Board findings; stated he does not understand
something blocked by buildings on either side, can impact visual
character of the area; McDonald's is nestled among trees; sign will
be replaced with smaller sign; described structure and its safety
factors; requested Council allow structure which will increase
business, desireability of Webster Street area, help generate
September 17, 1991
business to West End and incremental income in the form of tax, and
provide tangible example of commitment to business without the need
for public funds.
Councilmember Roth stated his concerns that this is an example that
the City needs to work toward specific guidelines so business owners
will know what to expect while allowing flexibility; he has no
problem with the Conditions except Condition 5 which should be
changed to 14.5 feet, and Condition 8 to read from "8:00 a.m. to
9:00 p.m.," with no usage after dark in winter; the proposed use
favorably relates to the General Plan, is compatable to other land
uses in the general area, and will not require additional public
services; additional Conditions Council sets forth can be complied
with, and will not affect other property in vicinity; and moved to
overturn the Planning Board decision; allow the use with Findings
and Conditions mentioned.
Councilmember Camicia seconded the motion.
Councilmember Roth included the deletion in the motion of Condition
No. 6 [regarding color] because all the parks in the City use bright
colors.
The motion carried by unanimous voice vote - 5.
91-676 Report from Finance Director regarding Oakland Scavenger's
Rate Application for 1992, 1993, and 1994.
Stan Shane, Alameda, commented on a Wall Street Journal article
(9/10/91) regarding garbage firms' antitrust woes; article reports
Waste Management Inc. (WMI) keeps prices artificially high;
recommended City acquire bids from other companies.
John Barni, Sr., Alameda, agreed with Mr. Shane; believes the last
WMI increase was not justified; compared Alameda's rates with City
of Chico's lower rates [provided handout to Council]; and
recommended Council seriously consider the matter before granting any
increases.
Don Roberts, Alameda, stated after the WMI rate increase passed by
previous Council, garbage rates were found to be lower in Oakland;
and requested investigation of the possibility that Alameda pay lower
rates as the operation is easier than Oakland's.
Councilmember Camicia stated he cannot support the increase; and
moved the recommendation to refer the Rate Application to the Joint
Refuse Rate Review Committee [JRRRC], and direct City's
representative [Finance Director] to onpose the increases.
Councilmember Lucas seconded the motion.
Councilman Arnerich commented on WMI's assets, and expressed
displeasure that it has returned so quickly for a 36% rate increase
over the next three years.
Upon request by President Withrow, the City Manager explained the
20-year garbage franchise with Oakland Scavenger, and the functions
September 17, 1991
8
of JRRRC.
Councilman Arnerich named cities in the Joint Powers Authority; and
believes the City of Chico rates cited by Mr. Barni are more
reasonable.
Councilmember Lucas stated she would like the City's representative
to verify the [WMI] rates for other cities; and to see Alameda's
rates lower than others.
The City Manager responded the Committee has been requested to do a
cost of service analysis for each jurisdiction; one factor to be
aware of is that some cities have more commercial and industrial
waste pickup with higher rates which offsets other factors.
President Withrow suggested the City's representative [Finance
Director] convey Council's opposition to any substantial increase
whatsoever, nothing higher than a standard gauge, e.g., the cost of
inflation.
Councilmember Camicia included that [direction] in his motion.
President Withrow inquired what would happen if the Council denied
rate increases, considering the fact a 20-year agreement exists.
The City Manager stated the Scavenger Company could then make a
response which could include non-performance.
President Withrow questioned whether the Company could leave Alameda
if it reached a point where it was no longer profitable to collect
garbage in Alameda, and what would happen if the City denied
increases and pulled out of the Joint Powers Agreement to deal
directly with WMI.
The City
must be
receiving
Alameda.
President
the part
reasonable
Manager responded the City could pull out, but a finding
made by Council that, without raising the rates, WMI is
a reasonable rate of return on its investment within
Withrow clarified that is to be a subjective evaluation on
of the Council with respect to what it considers to be a
rate of return, to which the City Manager agreed.
To Councilman Arnerich's questions for further clarification, the
City Manager stated the first step to follow, as part of the JRRRC,
as specified by the Joint Powers Authority, is to refer this increase
to that Rate Committee for review; after their recommendation, if
the City does Aot agree, it need not follow it; the City can provide
its own review and finding that WMI need not have an increase based
upon its rate of return on Alameda operations.
Councilmember Roth noted a company can expand its costs by spending
more money on fancier equipment, personnel, etc., to justify a
return.
The City Manager replied the job of the Committee is to make sure
September 17, 1991
8 6
that does not happen.
President Withrow commented the [JRRRC] is a fact finding body, which
is advisory and the Council can make the decision.
Councilmember Roth stated he would like to have added to the motion,
that when rate comparisons are made, comparisons be made of cities
where the garbage cans are placed at the curb and where they are not.
Councilmember Camicia agreed.
The motion carried by unanimous voice vote - 5.
91-677 Resolution No. 12153 "Supporting Regulation and Competition in
Cable TV."
Councilmember Camicia moved the resolution be adopted with amendment;
commented the last sentence speaks to introducing telephone
competition and he is not sure that is a good idea from the consumers'
standpoint; and suggested deleting the word "telephone."
Councilmember Lucas seconded the motion.
Councilmember Roth inquired why it matters to Council if the telephone
company is used, to which Councilmember Camicia replied that the City
does not receive a franchise fee, if the telephone company is brought
in.
President Withrow stated [the telephone company] is included in the
word "competition" anyway.
Councilmember Camicia stated if the telephone company went into the
Cable television business, he is concerned the City might not get a
franchise fee, because the telephone company might consider Cable
service an extension of service.
Councilmember Lucas inquired if the City receives a franchise fee from
the gas and telephone companies, to which the City Manager replied the
City receives a 5 percent franchise fee in addition to the utility
users tax.
Councilman Arnerich agreed with Councilmember Camicia; the option
should be kept open for the future.
The motion was carried by unanimous voice vote - 5.
91-678 Resolution No. 12154 "Supporting Harbor Bay Maritime's
Application to the California Public Utilities Commission for a
Certificate of Public Convenience and Necessity for Ferry Service."
- * Oral Status Report by City Attorney on Proposal for City to
Operate the Harbor Bay Maritime Ferry Service. (Councilmember Roth)
Graham Claytor, Alameda, Alameda-Oakland Committee for Aquatic Transit
September 17, 1991
[AOCAT], stated AOCAT is a group dedicated to supporting existing
ferry, and increased use of ferrys on San Francisco Bay; when [Harbor
Bay] filed with Public Utilities Commission (PUC), the intent to apply
for public monies was stated; AOCAT is concerned the Ferry will cost
taxpayers a lot of money, is concerned about ridership numbers as the
Ferry will not be convenient for Main Island residents; and concerned
that Alameda can lose the ferry [Blue and Gold] that works and end up
with a subsidized ferry that does not work; therefore AOCAT has filed
a Protest with the PUC and is looking for specific protective
conditions that will allow the two ferries to operate in a
complimentary fashion, and that the Harbor Bay ferry operate with no
public money, and not compete with the existing ferry.
President Withrow stated the City of Alameda has no intent of funding
any ferry operation.
Mr. Claytor questioned if the Blue and Gold subsidy comes from the
City, to which the City Manager stated the funding is from the
Metropolitan Transportation Commission [MTC] and Measure B funds and
no General Fund money from Alameda.
President Withrow commented on the Blue and Gold owners based in
Texas, and their considerable assets.
Councilmember Lucas expressed appreciation for Mr. Claytor's
volunteer efforts, finds some inconsistent statements, and inquired
why Mr. Claytor finds using the Harbor Bay Ferry inconvenient when he
lives on Regent Street.
Mr. Claytor stated he lives closer to the Harbor Bay Ferry but must
drive a long way around to use the Ferry; AOCAT is asking the PUC for
a temporary Certificate for Harbor Bay Ferry to [allow time to] study
ridership loss.
Councilmember Lucas stated she would like to see the West End ferry
succeed, has problems because it does not run often enough; and she
would like more ferry service.
Mr. Claytor stated AOCAT is asking the PUC to force Harbor Bay Ferry,
through the Certificate process, to run a complimentary service.
Councilman Arnerich clarified AOCAT's position, stating it wants the
two ferries to succeed, does not want the City to incur expenses now
or in the future, and would like Council to approach the PUC.
Mr. Claytor agreed and stated if the City would join AOCAT in asking
that the Harbor Bay Ferry not seek public funding for three years,
that would please the organization.
The City Manager clarified that the Ferry service was a City
requirement upon Harbor Bay when approval was given to develop Village
V; AOCAT is concerned Harbor Bay will apply for a subsidy with MTC,
but the City is the only entity that can request a MTC subsidy;
secondly, Harbor Bay Assessment District funds were used to construct
the Ferry service, no General Funds were used.
September 17, 1991
28
At President Withrow's request, the City Manager named the property
owner involved, Harbor Bay Business Park.
The City Manager clarified the City required a separation between the
Business Park and the residential area; so Bay Farm Island homeowners
go in one gate and the public, from other areas, go through another
gate via Harbor Bay Parkway.
President Withrow stated the rationale for separate gates is for
traffic mitigation for development in Bay Farm Island.
Stan Shane, Alameda, stated taxpayers pay for everything; the grant
comes from someplace and [taxpayers] are paying for it; and there are
no experts, particularly in transportation.
President Withrow stated taxpayers are subsidizing transportation, for
years have subsidized cars, the intent to move people into mass
transportation is a conscious intent and is essential in the Bay
Area.
Councilmember Lucas stated Alameda is fortunate to be where a ferry
service is a good alternate to congested freeways, agrees with the
resolution and believes Council should take the opportunity and push
the ferry service.
Councilmember Lucas moved adoption of the resolution. Councilmember
Camicia seconded the motion.
Councilmember Roth noted he asked this be on the agenda as an interim
report for the City operating the ferry service, the City cannot; he
is concerned with what will happen with the ferry service at the end
of three years; is concerned about the Blue and Gold; if the ferry
service does not have the funds or chooses not to fund, he does not
expect the City to operate the ferrys.
President Withrow stated that has been his position for the last three
years; he sees no reason why any General Fund monies should go toward
regional transportation.
Councilman Arnerich stated part of the condition with Harbor Bay was
that they would be solely responsible for the operation of the ferry;
it is now before the PUC; the City must be protected; he has no
qualms about sending a letter stating that Council supports the ferry
service only, and let the PUC conduct its own hearings.
The motion was carried by unanimous voice vote - 5.
Councilman Arnerich stated for the record that there will never be
monies given to Harbor Bay; he will support the resolution.
Following a brief recess, President Withrow stated he learned that
some persons were in attendance to address the Consent Calendar item
regarding the hearing on Appeal (91-675); the item has been acted
September 17, 1991
489
upon and approved and there is no further opportunity to address the
matter; explained persons could talk in a general sense about issues
of concern but the document and the basic issues are not available at
this meeting; the Hearing at the October 1, 1991 Council Meeting will
allow for expression of views.
The City Attorney stated since there is a hearing on the Appeal, any
testimony or evidence pertaining to the subject should properly be the
scope of that Appeal, and be taken at the October 1st Meeting.
NEW BUSINESS AND UNFINISHED BUSINESS
91 -679 Discussion on Billboard Removal.
Councilmember Camicia stated he requested the matter go on the agenda
to see if Council can reach some accommodation with the billboard
companies before this goes to court; would like to try to find a way
to have billboards removed without having the City go to court for
what he believes will be a long expensive battle; he has put together
some options which range from removal by December 1996.
President Withrow stated there is, surrounding this issue, a lot of
rumor, unknowns, emotion; would like to poll the Council; has spoken
to the City Attorney, and it is legal; and asked if Councilman
Arnerich is in favor of the billboards in Alameda being taken down.
Councilman Arnerich stated he will be voting the billboards come down
in effect, per the agreement signed in 1980; if there is litigation,
he is prepared to proceed with the judgment rendered 10 years ago.
President Withrow stated the citizens need to know the status and
position of each of the Councilmembers, including himself, with
respect to the billboards coming down.
Councilmember Roth stated he has no problem with that, but President
Withrow stated several questions would be asked, and he [Roth] would
like to know what those questions are, and he declined to answer the
question about whether or not he wanted the billboards to come down.
Councilmember Lucas stated she felt the same as Councilmember Roth;
she believes all Councilmembers want the billboards to come down.
President Withrow stated that is the only point he is trying to make
because some confusion seems to exist in the City that some persons on
the Council do not want the billboards to come down; inquired if
Councilmember Camicia would like the billboards to come down; and
Councilmember Camicia replied affirmatively.
President Withrow stated he also would like the billboards to come
down and intends to do whatever is necessary to see the billboards are
taken down; the City has a Settlement and a Court Order.
The City Attorney explained the judgment was entered in 1980, the City
entered into a Settlement Agreement staying the enforcement of the
judgment for ten years; now, if the City wants to enforce the
judgment, it must go back to the Court in a contempt hearing to get
September 17, 1991
an order.
President Withrow stated the question as to whether Council wants the
Agreement to be complied with has been answered: Yes Councilmembers
want the Agreement to be complied with; the fact the companies were
not going to take down the billboards was quite evident; no permits
were taken out by the companies for removal of the billboards; he
commented on the issue of the First Amendment, a loophole in the
Agreement, the possibility of going back to Court again, and the cost
of litigation.
President Withrow inquired how much Councilman Arnerich would be
willing to commit [by vote] to put aside any reserves in a legal fund
to fight in Court to have the billboards taken down.
Councilman Arnerich stated Council should not need to fight; the
Agreement was signed ten years ago and the companies should abide by
the Agreement; he reviewed the related activity and stated he is
willing to commit to spend a million dollars of the City's money so
that people cannot come in and break a promise to the people of
Alameda.
Councilmember Roth stated money does not enter into principle; all of
Council want the signs down, and only a question of when, is the
issue; and stated he would like to hear from the speakers, and he
does not have a price.
Councilmember Lucas stated she did not think it fair to ask for the
total sum City wants to spend at this point; she wishes to take this
matter in stages, as the City Attorney described.
Councilmember Camicia stated he does not know what to say about the
amount of money; to him, what is most important is that he does not
want to go back to court and risk losing something that has already
been won; Paragraph 7, Settlement Agreement, on the decision that was
won, states "In the event that California State Legislature enacts
legislation which can be asserted as a defense to the proceedings
contemplated. .; that happened and it makes this Agreement
virtually worthless; he wants to get the billboards down, and does
not care about going back to court and risk losing.
President Withrow stated the only reason for the poll is to
communicate to the citizens that the Council is united in the goal of
bringing down the billboards; the second issue is not whether Council
is willing to spend whatever amount, but it's not going to be free;
there is a risk; if the City loses in Court, it will cost money to
pay the legal costs; nothing is risk-free in the legal arena.
Elizabeth Roth, Alameda, questioned the process [of the poll], and she
believes it poor practice to set out how far Councilmembers will go in
court when potential court opponents are in the audience.
George Broder, Patrick Media Group, commented, for the record, the two
companies are new, not Foster & Kleiser and Eller Outdoor with whom
the Agreement was made; the 1980 agreement did allow for the
September 17, 1991
91
change in State law which does allow for just compensation for the
forced removal of billboards; a proposal has been offered to the City
for the systematic removal of structures [billboards].
Steve Shinn, Gannett Outdoor Co., noted the company is only a small
subsidiary of the Gannett newspaper chain, concurred with Mr.
Broder's comments; stated it is the intent of his company to work
with Alameda; does not wish costly litigation; but the Agreement
does state the right to review the Agreement and consider other legal
means, and which steps they have taken.
Don Roberts, Alameda, stated the companies have received millions of
dollars of income from the signs, which covers just compensation, and
concurs with Councilman Arnerich's comments.
Patty Jarratt, Alameda, stated she wants the billboards down because
as she walks her children to school, they see billboards promoting
cigarettes, etc.; also some businesses cannot be seen because of the
billboards; and some billboards do not appear to be earthquake - proof;
and she would like to know who determines which billboards come down
and at which time.
Rosemarie Bremann, Alameda, stated the billboard companies should live
up to the Agreement, and inquired into Councilmember Camicia's
reasoning.
Councilmember Camicia stated the 1980 Agreement is not worthwhile and
believes the billboards could come down if a new Agreement is written,
and secondly the new Agreement should require a performance bond.
Mrs. Bremann stated she presented a petition from Park Webster
Homeowners to Council to stand by the Agreement and do whatever
possible to enforce the Agreement and get the billboards down and
secondly, the pledge is that those persons will buy nothing advertised
on those billboards.
Councilmember Lucas stated Council should follow Ms. Roth's advice
and not comment on the legality of the Agreement as it is not good
practice.
The City Attorney stated that since the City may go into litigation on
this matter, perhaps litigation strategies and like matters should be
reserved for Closed Session.
President Withrow agreed; and stated he is willing to permit some
disadvantage in order to allow the citizens to understand what is
happening.
James Sweeney, Alameda, stated he would like
context; Redevelopment Plan and General Plan
for the West End; the City must proceed;
cannot be separated from general welfare; the
litigation to remove billboards; the City has
and now must move ahead.
to put the matter into
set out what is desired
aesthetics, economics
one promising avenue is
been patient ten years;
September 17, 1991
9
Kurt Stein, Alameda, stated Councilmembers who are sincerely
interested [in removal of billboards], and those who have other
motives, can be discerned, and will be remembered during an election.
Stephen Freitas, Alameda, Patrick Media, stated billboards are the
masterpiece medium of advertising, are handpainted artwork, should
never come down, are part of Americana; and read a letter from South
Shore Travel noting increase in business since advertising on
billboards.
Diane Coler-Dark, Alameda, stated the billboard companies are refusing
to honor past commitments so why would anyone believe they would honor
a new one; noted a citation that an ordinance prohibiting existing
billboards may be enforced as a constitutionally valid exercise of the
States police power which does not require compensation if a
reasonable amortization period for discontinuance of the use is
provided.
Robert M. Wood, Alameda, stated pride was what he felt in August when
he read the billboards would be coming down; Alameda is not banning
billboards but enforcing a law, the sign ordinance; is exercising its
rights as a community to uphold some design standards, the sign
ordinance does not ban billboards, allows them, but within certain
parameters; if Council decides the billboard companies need not live
by the ordinance, the ordinance must be discarded for other
businesses; the City is within its rights and must proceed.
Stan Shane, Alameda, stated Tahoe Regional Planning Agency won an
appeal to remove billboards, signed September 6, 1991, and talk of
First Amendment rights was not heard from anyone; suggested attorneys
and billboard persons drop legalese and comply with the Agreement.
Don Patterson, Alameda, stated billboards directly affect the City,
are citizens' image of their community, their aesthetics,
psychological and emotional being, and most importantly, the business
climate of this community and the ability to not only keep but attract
new businesses; and questioned what message Council is sending to
citizens and business community at this point.
Councilmember Camicia stated he wants the billboards down; has
options put together: First Option) all the billboards should be
removed by end of December, 1991, Second Option) a phased removal of
billboards through 1994, 9 of the 30 structures by end of 1991, and
phasing out remainder through 1994, and the company provide a surety
bond for non-compliance in the amount of $500,000 if the signs are not
removed; and requesting $25,000 by the end of this year; Third
Option) essentially is the same option and just extends the time
through 1995; Fourth Option) again, is essentially the same, extends
it through 1996.
Councilmember Roth inquired which option is favored and Councilmember
Camicia replied he favors Option No. 1, otherwise No. 2; he would
like to see the boards down by the time Redevelopment starts moving,
about 1994-95.
September 17, 1991
9
Councilmember Roth inquired if Messrs. Shinn and Broder could express
an opinion on it.
President Withrow stated Council cannot negotiate; and requested the
City Attorney to address the matter.
The City Attorney stated the majority of Council can discuss anything
in open session, as there is no legal prohibition but a policy
decision.
By consensus, Council agreed to extend the Meeting past 11:00 p.m.
Councilman Arnerich moved the City proceed very quickly and "do
whatever is necessary to have the billboards removed, and go to court;
and do whatever is necessary to keep the Agreement that was made with
the people of the City of Alameda."
Councilman Arnerich [restated his previous motion] that the billboards
come down in agreement with the Settlement Agreement between the
billboard company and the City. Councilmember Lucas seconded the
motion.
Councilmember Lucas stated she considers the chances of the City in
Court to be much greater that what was discussed tonight; the City
Attorney has secured the services of an attorney from the City of
Santa Cruz which was successful in getting rid of all their
billboards; believes the City has a chance of prevailing at a very
reasonable cost; it is amazing to hear the billboard supporters speak
of art and First Amendment rights; the profit figures have been so
high, that may also be a motivation to keep the billboards; regarding
amortization, the Judgment in the City's favor stated the billboards
had been amortized in 1980, so there is no basis to request additional
amortization; and that is why she is a strong supporter of Mr.
Arnerich's motion.
Councilmember Camicia stated the motion is appropriate, but he would
like to find a way to get the signs down without going to Court; the
chance of winning is great, but there is also a good chance of losing.
Councilmember Roth stated three current billboard lawsuits exist, two
filed by billboard companies, one by the City; it appears Council and
citizens want the boards down; believes the City has a strong case
and will win; believes billboard company knows it will lose, and that
matter can be dragged out in court; the Agreement is already broken
because billboards were not down by September 1st; the matter is
going to court October 7; money is not an issue its principle; the
two representatives in the audience can tell Council what will be
necessary to get the billboards down; the companies have made an
offer not acceptable to Council; their recent offer has not been
voted on; Councilmember Camicia has proposed, Option 1, that the City
September 17, 1991
receive no money, billboard companies pay City's legal fees and
associated costs, and all signs come down by December 31, [1991];
that may be the earliest the Court could affect billboard removal, so
why not ask them if the billboard companies are willing to do that.
Councilmember Lucas stated she has no objection to Councilmember Roth
querying the two representatives whether they are willing to take the
billboards down by December 1991.
Mr. Broder stated at this time, he would not make that commitment to
comply with Option 1: removal of all billboards by December 31, 1991.
President Withrow questioned how Mr. Broder justifies not taking the
billboards down on September 1st.
Mr. Broder stated there are several reasons why; the City Attorney
did contact the companies numerous times; the City was contacted; in
June, a letter was written to the Mayor referencing the September 1,
1991, deadline for the Agreement, requesting a meeting with the Mayor
or appropriate members of Council or City Officials to discuss
September 1st deadline in detail; brought to the attention of Council
and City, the changes in State law, that there were new successor
interest companies involved now, and that the objective was to resolve
the Settlement Agreement without litigation; the 1980 Agreement
allowed for possible changes in State law which did occur; the
initial proposal discussed with Councilmembers Camicia and Arnerich
failed to receive Council's approval, so on the Friday before
September 1st deadline, the companies went to Court to protect their
legal rights, seeking declaratory relief, asking the Judge to explain
the companies' rights, obligations and responsibilities under the
Agreement, given the changes in State law; compliance with the
September 1st deadline did not occur because of the reasons set forth;
the companies continue to be present, seeking to resolve the matter
but he cannot commit for his company, to comply with Option 1.
Councilmember Lucas requested for the record, to hear Mr. Shinn's
statement on Option 1.
Mr. Shinn, Gannett Outdoor, stated, for his company, Option 1 would
not be acceptable at this time, but would be willing to discuss
Options 2, 3 and 4.
Councilmember Roth stated if the City goes to Court, and the case
lasts 3 years, during that period the company will gross approximately
$750,000; if the company lost the case, [the company would] pay the
City the $86,000 the contract calls for, and legal fees. If the
company took down eleven signs by October 1st, agreed to take down
eleven signs in six months, and the remainder by the end of one year,
the company would gross $117,000, with $35,000 gross profit and no
lawyer fees to pay; signs would be gone; lawsuits would be dropped;
the Good Faith [effort] is that eleven would be down by October 1st,
and by the October 7th court appearance, the Judge would know the City
agreed to the phase-out and would take care of the contempt
[proceeding].
September 17, 1991
995
Councilmember Lucas requested dates be repeated; and Councilmember
Roth clarified by October lst, 11 signs would be down and an Agreement
would be signed that 11 more would be down in six months and the
remainder in one year. There would be no money changing hands; the
attorneys could work out the agreement if the companies are willing to
do that.
Mr. Broder asked to be excused for a moment, stating there is a
technical aspect of this discussion that relates to the physical
ability of the removal of those structures.
Councilman Arnerich referred to letters dated January 20, 1990,
written by the City Attorney to the new companies, to let the
companies know that the City intends to enforce the Settlement
Agreement and requires removal of the advertising displays on or
before September 1, 1991; stated the first letter City received back
was in August, 1991, and inquired what took the companies so long to
respond.
Mr. Shinn stated until June, it was true a response was not sent.
[Time was given for the technical aspect to be considered by the
companies as requested.]
Mr. Broder suggested the following: 10 billboards down by December 1,
1991; 10 by April 1, 1992 [from October 1, 1991] and 10 by October 1,
1992.
Councilmember Lucas requested the City Attorney obtain a continuance
in order to keep the contempt proceeding pending until some compliance
can be seen.
The City Attorney stated the City could have an agreement for the next
Council Meeting or get a continuance for the contempt proceeding,
perhaps jointly stipulate to continue for a month.
Councilmember Lucas stated she did not want to withdraw the
until 10 billboards are down.
Councilmember Roth agreed, stating that is why he asked
October 1st [Council] meeting; that the agreement needs to
out and Council could review it.
Councilmember Lucas stated the companies say they cannot
billboards down by October 1st.
Councilmember Roth stated the process could be accelerated
City government, e.g., permit fees could be waived.
The City Attorney stated an agreement could be brought back for the
Council whereby the Settlement Agreement could be further amended,
also agree to a further continuance date, or to not object to a
continuance date after December 2nd; some type of legal agreement
could be worked out.
contempt
for the
be worked
have the
within the
September 17, 1991
e
President Withrow inquired if the City Attorney is comfortable
regarding the intent, to which the City Attorney replied she
understands the intent.
Councilmember Lucas withdrew her second to the motion and inquired if
Councilmember Roth wished to make a new motion.
Councilmember Lucas stated she would like to hear for the record that
Mr. Shinn agrees for his company.
Mr. Shinn stated for the record, he agrees for Gannet Outdoor to the
same guidelines as Mr. Broder outlined.
Councilman Arnerich stated the process has been watered down, he
cannot deviate from his original motion, and he will not support any
motion.
Councilmember Roth moved the companies start taking down ten
structures; to be down by December 1, 1991; ten structures by April
1, 1992; and by October 1, 1992, all structures to be down; an
agreement will be entered into by October 1, 1991, and the lawyers
would determine the legalese protecting rights as to holding contempt;
they would drop their lawsuits and Council would review [Agreement] at
the October 1st Meeting.
Councilmember Lucas stated the contempt proceeding would be kept
intact until after the first ten structures come down.
Councilmember Roth responded the whole agreement should be written
that at any time they want to break [Agreement], the contempt
[proceeding] can be entered into.
Councilmember Camicia seconded the motion, commended Councilmember
Roth and the company representatives for the great job; and commented
Council is bringing the billboards down and saving a large expenditure
in legal fees.
The motion carried by the following voice vote: Ayes: Councilmembers
Camicia, Lucas, Roth and President Withrow - 4. Noes: Councilman
Arnerich - 1. Absent: None.
91-680 Consideration of a nomination for appointment to the Golf
Commission.
Mayor Withrow noted 27 applications were received for the two
Commissions, he interviewed all but two people and has attempted to
reach those two by telephone.
Mayor Withrow nominated Edward W. Trevathan to the Golf Commission.
Councilman Arnerich seconded the nomination.
91-681 Consideration of two nominations for appointment to the
Recreation Commission.
The City Clerk requested Applicant Lawrence Arnolie be disqualified as
he is not a resident of Alameda, though he works at the Navy Base.
September 17, 1991
297
Mayor Withrow nominated Toby Chavez for reappointment, Gail Wetzork
for appointment, to the Recreation Commission.
91-682 Councilmember Lucas requested a resolution on the next Agenda
requesting the Post Office to provide a drop mailbox in the West End,
and suggested Central Avenue and 4th Street traffic island.
ADJOURNMENT
91-683 President Withrow announced that Tom Matthews, Executive
Director of the Housing Authority, is recuperating from a very
serious operation and Council wishes him the very best and a speedy
recovery; the Deputy City Clerk's husband is seriously ill, and
Council wishes her the best and a speedy recovery to her husband;
and, at the request of Councilmember Camicia, adjourned the meeting
in memory of Franz Collischonn, former Mayor of Alameda, at 11:45
p.m.
Respectfully submitted,
DI E B. FELSCH, CMC
City Clerk
The agenda for this meeting was posted 72 hours in advance.
September 17, 1991