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1990-08-21 Regular CC Minutes27 REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF ALAMEDA AUGUST 21, 1990 The meeting convened at 7:30 p.m. (at the conclusion of the Alameda Sewer Improvement Financing Corporation) with President Corica presiding. The Pledge of Allegiance was led by Councilmember Withrow. Reverend Robert Keller gave the invocation. ROLL CALL - Present: Councilmembers Arnerich, Camicia, Thomas, Withrow and President Corica - 5. 90-582 Resolution No. "Censuring Councilmember Barbara Thomas for misconduct in office and removing her as Council's appointed representative on all boards, committees, and commissions and removing Don Roberts from the Finance Committee and Solid Waste Management Recycling Committee." Not adopted. Councilmember Camicia commented that he believes he has sufficient evidence for his position and could get the votes to pass the resolution but wishes to use his remaining months on the Council to focus on City business and accomplish something for the City; and removed (90-582) resolution of censure of Councilmember Thomas, and for removal of Don Roberts from Committees, from the agenda. President Corica, seeing no objection from Council, pulled the resolution from the agenda. 90-583 Resolution No. "Censuring Councilmember Camicia for his efforts to gain approval of proposed Ballena Bay Hotel Development, for violating the Brown Act and conspiring to violate the Brown Act, and to remove Councilmember Camicia from all Council appointed representation of the City of Alameda." Not adopted. Councilmember Thomas commented she had placed a statement on file related to the issue, and would like that statement available to the public, and removed (90-583) resolution of censure of Councilmember Camicia, from the agenda. President Corica stated, as there are no objections, the resolution will be pulled from the agenda. President Corica commended Councilmembers Camicia and Thomas for taking the action [removing the items from the agenda) for the good of the City and putting aside their personal feelings, so Council can move ahead. Councilman Arnerich commented on the accomplishments of Council over the past two years, and stated Councilmembers Camicia and Thomas are to be congratulated for putting their differences aside August 21, 1990 273 in the best interests of the City. CONSENT CALENDAR Councilmember Thomas stated she would vote no on (*90-595) Bills. Gerhard Degeman, 19 Sandpiper Place, requested (90-618) report on City's Disaster Planning, be pulled from the Consent Calendar to the regular agenda. Councilmember Camicia moved approval of the remainder of the Consent Calendar. Councilmember Withrow seconded the motion, which was carried by unanimous voice vote - 5. Items so enacted or adopted are indicated by an asterisk. REPORTS AND RECOMMENDATIONS *90-584 From Public Works Director recommending adoption of plans and specifications and calling for bids for traffic signal construction at Bridgeway and Packet Landing Roads, No. P.W. 6-90-9. Accepted. *90-585 From Finance Director transmitting Investment Report for July 31, 1990. Accepted. *90-586 From Finance Director regarding surplus equipment. (Fire Department Ladder Truck 3). Accepted. *90-587 From Finance Director transmitting annual City of Alameda Investment Policy. Accepted. *90-588 From Finance Director regarding proposed Community Facilities District #2, Paragon Gateway Development. Accepted. *90-589 From Fire Chief requesting approval to proceed in developing Specifications for a new Fire/Rescue Boat. Accepted. *90-590 From Police Chief recommending open-market purchase of seven (7) patrol vehicles for Police Department. Accepted. RESOLUTIONS *90-591 Resolution No. 12000. "Authorizing application to the Public Utilities Commission of the State of California to construct a public roadway across the right-of-way of the Alameda Belt Line Railroad to facilitate the extension of Sherman Street north from Eagle Avenue to the easterly terminus of Atlantic Avenue." Adopted. *90-592 Resolution No. 12001. "Ordering Summary Vacation of Public Utilities easement over portions of Lots 37 and 38, Tract 4122 (Harbor Bay Isle Village Four)." Adopted. *90-593 Resolution No. 12002. "Accepting Easements for Tract 6147 and Tract 6226 (Harbor Bay Isle Village Five)." Adopted. August 21, 1990 274 *90-594 Resolution No. 12003. "Authorizing destruction of Police personnel records." Adopted. BILLS *90-595 A List of Claims, certified by the City Manager as correct, was ratified in the amount of $1,280,298.96. [One No Vote: Councilmember Thomas] MINUTES President Corica noted that the August 7, 1990, minutes under Paragraph 90-555 should reflect "son-in-law" instead of "son." Councilmember Withrow requested that, in the motion under Paragraph 90-561, the wording "up to" be inserted in front of "4.8 [percent]." Councilmember Withrow moved approval of the Minutes of the Regular Council Meeting of August 7, 1990, and Special Council Meeting of July 31, 1990, Councilman Arnerich seconded the motion which was carried by unanimous voice vote - 5. SPECIAL ORDERS OF THE DAY 90-596 Proclamation declaring September 7, 8, and 9, 1990, as PICKLE FAMILY CIRCUS DAYS IN ALAMEDA. President Corica read the proclamation and encouraged people to attend the circus, noting that the event provides funds for charitable organizations in Alameda. Dr. Richard H. Marcus, President, Rotary Club of Alameda, accepted the Proclamation on behalf of the Pickle Family Circus, expressed his appreciation, and invited attendance. Councilmember Thomas moved (90-597 through 90-603) resolutions appointing Members to the Economic Development Commission be taken out of order. Councilmember Camicia seconded the motion, which was carried by unanimous voice vote - 5. 90-597 Resolution No. 12004 "Appointing James T. Kennedy as member of the Economic Development Commission." Adopted. Councilmember Thomas moved adoption of the resolution. Councilman Arnerich seconded the motion which carried by unanimous voice vote - 5. The City Clerk administered the Oath of Office. 90-598 Resolution No. 12005 "Appointing Diane Coler-Dark as member of the Economic Development Commission." Adopted. Councilmember Thomas moved adoption of the resolution. Councilmember Withrow seconded the motion which carried by unanimous voice vote - 5. August 21, 1990 275 The City Clerk administered the Oath of Office. 90-599 Resolution No. 12006 "Appointing Robert M. Wood as member of the Economic Development Commission." Adopted. Councilmember Withrow moved adoption of the resolution. Councilmember Thomas seconded the motion which carried by unanimous voice vote - 5. [Mr. Wood arrived later in the evening, and the City Clerk administered the Oath of Office. (See 90-606)] 90-600 Resolution No. 12007 "Appointing Wayne A. Milani as member of the Economic Development Commission." Adopted. Councilmember Withrow moved adoption of the resolution. Councilmember Thomas seconded the motion which carried by unanimous voice vote - 5. 90-601 Resolution No. 12008 "Appointing Helen L. Sause as member of the Economic Development Commission." Adopted. Councilman Arnerich moved adoption of the resolution. Councilmember Thomas seconded the motion which carried by unanimous voice vote - 5. 90-602 Resolution No. 12009 "Appointing James G. Pittard as member of the Economic Development Commission." Adopted. Councilmember Withrow moved adoption of the resolution. Councilmember Thomas seconded the motion which carried by unanimous voice vote - 5. 90-603 Resolution No. 12010 "Appointing Edward H. Clark as member of the Economic Development Commission." Adopted. Councilmember Thomas moved adoption of the resolution. Councilman Arnerich seconded the motion which carried by unanimous voice vote 5. The City Clerk administered the Oath of Office. WRITTEN COMMUNICATIONS 90-604 From Rachelle Walter, Californians for New Forestry, Sacramento, requesting Council take a position in favor of Proposition 138 [urban reforestation and requirement of timber company long term management plans] and against Proposition 130 [public purchase of privately owned timberlands]. Doug Linney, 617 Haywood Road, of California League of Conservation Voters, stated only 5 percent remains of the redwood forests in California 200 years ago; urged support of Proposition 130, which would provide money in the form of bonds to purchase some of the old-growth forests and would recognize forestry practices that would sustain forests, should be placed into law; and stated major August 21, 1990 276 environmental organizations support Proposition 130. Dean Giardino, 705 Watson Canyon Court, #235, San Ramon, California for New Forestry, stated. Proposition 138, which he supports, provides for a bond measure for $300,000,000 for reforestation; is very comprehensive and well-balanced; bans clear cutting of old growth in ancient timber forests; and urged a yes vote. Councilmember Camicia stated he does not believe Council should take any position; he is familiar with the group that has organized the letter, and the group is impressive; and the Propositions are dueling propositions. Councilmember communication. motion failed, Camicia moved acceptance of the written Councilmember Withrow seconded the motion. The as no vote was taken. Councilmember Thomas stated she has heard contradictory information on the propositions; would like the propositions referred to the City's Management Analyst for an off-agenda report, and Council, if it so wishes, may take a position. Councilman Arnerich moved to accept the communication and direct the Management Analyst to provide report as requested by Councilmember Thomas. Councilmember Withrow seconded the motion which was carried by unanimous voice vote - 5. 90-605 From John Barni, Jr., Alameda, requesting refund of City fees related to Parcel Map 5105 (Otis Drive and Park Street). John Barni, 875 Island Drive, stated his letters are self-explanatory; the fees are imposed on Parcel Maps, not Certificates of Compliance; there was nothing to review because the City of Alameda had owned the land, had reviewed the parcel in the early 1960s, and the information was on file. The Public Works Director stated the fees were charged on the basis of the staff work involved. Councilmember Thomas inquired if the Parcel Map was required to consolidate the three lots, to which the Public Works Director replied combining the lots can be done by Parcel Map or by Certificate of Compliance; Mr. Barni started with a Parcel Map at the advice of staff, and later went with Certificate of Compliance. Mr. Barni stated staff had advised him a Parcel Map was disagreed, and the Parcel Map has not been implemented. A brief discussion ensued regarding the charges, procedures. Councilman Arnerich questioned Mr. Barni concerning the amount of fees Mr. Barni believed should be refunded. The City Attorney stated the City has a Claims Board; if Council so chooses, the written communication can be accepted and the needed, he and related August 21, 1990 277 matter referred to the Claims Board. Councilmember Camicia moved the City Attorney's suggestion. Councilmember Withrow seconded the motion. The motion failed as no vote was taken. Councilmember Thomas stated Council has discussed refunds on certain occasions; if the [former] Planning Director told Mr. Barni a procedure was necessary which required an expenditure of funds although an alternative existed which only required the reading of a legal description which the City drafted, then perhaps Mr. Barni was led astray, and she believes Council can refund the fee; the matter can be passed to the Claims Board if Council wishes, but she supports immediate refunding by Council. Councilman Arnerich stated he would not support that; the matter should go to the Claims Board and Mr. Barni can submit an application; and so moved. Councilmember Withrow seconded the motion which was carried by unanimous voice vote - 5. 90 -606 President Corica noted Mr. Robert Wood's arrival and stated he would like (90 -599) Resolution appointing Mr. Wood to the Economic Development Commission revisited. Councilman Thomas so moved, Councilmember Camicia seconded the motion which was carried by unanimous voice vote - 5. President Corica commented on Mr. Wood's prior service to the City. The City Clerk administered the Oath of Office. HEARINGS 90 -607 Consideration of Oakland Scavenger Company's performance under its franchise agreement with the City of Alameda. President Corica declared a conflict due to a son -in -law who works for the Oakland Scavenger Company, and left the Council Chamber. President Corica requested the Vice -Mayor preside over the matter. Dr. G. Leon Lang, 2051 Shoreline Drive, stated he had problems but worked with Oakland Scavenger representative and the problems were resolved; suggested designating a person in the City and a person in Oakland Scavenger Company to take complaints and resolve matters. John Hand, 1617 Gould Court, stated the consensus he has heard from workers who collect waste, is that there would be many problems if the hours for pickup were changed to traffic - congested commute hours, and would cause hardship on citizens as well as workers. Harry Carsch, 2101 Shoreline Drive, Willows Apartments, stated some August 21, 1990 278 Apartments face the Safeway parking lot, requested Council not change the ordinance, and not permit collection before 7:00 a.m.► since the collection discussion at the February Council meeting, trucks have collected after 7:00 a.m. and that is very much appreciated. Jeff G. Croft, 1324 Fountain Street, stated he works for Oakland Scavenger in Alameda, has surveyed garbage routes; the 7:00 a.m. collection time will create more problems; isolated complaints should be checked and resolved; the workforce should not be penalized; and safety should be the primary concern. Stanford Shane, 470D Cola Ballena, stated if workers must come early, they could be quiet; there is inadequate supervision of employees; sometimes the condominium collection is missed because workers forget the key; if the workers will take pride in their jobs, make their pickups and are quiet, people would be satisfied. Joe Perata, 3311 Washington Court, stated he works for Oakland Scavenger, enjoys working here, gets along with customers, knows many on first -name basis; problems can be worked out; coming early helps to avoid traffic, backing trucks into traffic could be dangerous; as a parent, he is concerned that schools would be serviced while children are going to, or are attending, school; urged Council continue the 5:30 a.m. starting time. Alan Asker, 1126 Broadway, stated he has no complaints about the garbage pickup service; however, it takes too long for delivery of a drop box; Mr. Alberti [Oakland Scavenger] was helpful. David MacDonald, Oakland Scavenger Company, apologized for not filing sufficient notice with the City after the earthquake when the Company needed to move from their location of almost a century; Company worked at notifying customers and telephone service installed, has now filed formal notification with City, has a very low complaint rate, and works hard at resolving complaints; traffic congestion is an issue and there are union matters to be considered; noted preference of staff recommendation No. 2; the Company wishes to continue its long - standing relationship with Alameda, and wants to strike a compromise, and operate within the law. Lin Sinclair, P.O. Box 1690, stated she sent letters to Public Works and Oakland Scavenger with Return Receipts requested, received the receipts but not replies; the workers are now quieter, however the trucks still come early. Councilmember Withrow noted that six months ago, Council discussed changing the starting time [for collection]; but the law has not been changed and perhaps it should be; his understanding is that the Company was going to prepare a proposal for certain collection zones for 5:30 a.m. and 7:30 a.m. The City Manager stated Oakland Scavenger met only once with Public Works, but proposed nothing along that line; Oakland Scavenger indicated a preferance for the entire City collection to start at August 21, 1990 279 5:30 a.m. Councilmember Withrow discussed citations, compliance with laws, and procedures. The City Manager noted the Company has been given a 30 -day notice for termination of the Franchise Agreement. The City Attorney added that the City has started the process for termination by issuing the 30 days' notice, and if the Company still does not comply, there must be a hearing, and the City will be entitled to termination. Councilmember Withrow noted there are three alternatives, one of which is to terminate. The City Attorney noted terminating a franchise is a long process; and described the process. Councilmember Thomas stated she is not clear if the time of pickup is a material term of the contract, and inquired if the time is a condition or a covenant, as one allows damages to be obtained, and one allows termination of the contract. The City Attorney stated, from the reactions of the citizenry, she perceives the citizens believe this is a material term; the termination of non - performance specifically states compliance with all of the laws or ordinances, also, the pickup is one of the specific terms of the Franchise Agreement, however, if Council directs staff to proceed with termination proceedings, staff will look at the matter further and she will provide a legal opinion and probably a brief. Councilmember Thomas stated she would like to know whether a material breach of a condition has occurred for which Council can cancel the contract or one for which Council can seek damages before proceeding; does not believe the feelings of the citizenry constitute legal criteria for whether or not a material breach has occurred; she favors some variation of Alternative No. 2 which is to direct the Planning Board to hold hearings, and make recommendations to change the Zoning Ordinance to allow collections to start at 5:30 a.m., however she does not believe there should be a blanket cutback to 5:30 a.m.; there perhaps should be a conditional Use Permit; there needs to be flexibility and some controls for complaints, special attention to type of equipment used as there will possibly be three trucks, refuse collection, recycling, and compost; and areas of service should be defined. Councilmember Thomas moved to refer the matter to the Planning Board, in view of the fact that there may be three trucks, for a recommendation to amend the [Zoning] ordinance to provide as much flexibility for the trucks and traffic, retain as much control as possible, through use of a Use Permit. Councilmember Camicia seconded the motion. August 21, 1990 280 Acting President Arnerich commented there are many inconveniences in modern times from airport noise, trains, fire and police sirens, etc., he agrees with Alternative No. 2. Councilmember Withrow inquired if Councilmember Thomas would consider modifying her motion to include a provision that the City continue the legal process against Oakland Scavenger during the period of time for non - compliance to the law. Councilmember Thomas stated she needs an answer to her question regarding material breach and if the City is in a position to terminate the franchise; and believes the solution is to go back to the Planning Board to look at 5:30 a.m. and the entire situation. Councilmember Withrow stated he would again request a modification to the motion, whether the City can recover damage or terminate the contract; Oakland Scavenger has not complied with the law [7:00 a.m. collections], the City Manager has notified the Company, and Council should back the City Manager. Councilmember Thomas stated Council should focus on how to avoid having the same problems come up in the context of having 2 or 3 trucks on the same day coming through the City streets; she would prefer having the people who have complaints come to the Planning Board, and have the Board and legal staff spend their efforts to eliminate the problems. Acting President Arnerich stated he believes the City Manager's memo and consideration of cancellation of contracts is a bit premature; because the firm has served the City for over 70 years, and has gone through changes, he believes Council needs to have a viable discussion with the Company, and at this time stay with Alternative No. 2. Councilmember Camicia called for the question, and clarified the the motion is the original motion without amendment. The motion was carried by the following voice vote: Ayes: Councilmembers Camicia, Thomas and Acting President Arnerich - 3. Noes: Councilmember Withrow - 1. Absent: None. Abstentions: President Corica - 1. Acting President Arnerich stated Council directs the Planning Board to hold hearings and make the recommendation for changes as outlined in Alternative No. 2, of the report by the Public Works Director. The Public Works Director clarified that the direction for staff in the interim, is to work closely with Oakland Scavenger to resolve complaints. Acting President Arnerich stated he believes Oakland Scavenger will be very willing to work with the Public Works Director. August 21, 1990 281 President Corica took his seat on the dais. 90 -608 Consideration of amendment to Real Estate Property Transfer Tax Ordinance. President Corica explained the procedure of the hearing. The Finance Director reviewed the background of the matter. The public portion of the hearing was opened. On the call for proponents, the following person spoke. John Barni, Jr., 875 Island Drive, spoke in favor of the amendment. On the call for opponents, there were none. President Corica closed the public portion of the hearing. Councilmember Camicia moved the related ordinance be taken out of order. Councilmember Withrow seconded the motion which was carried by unanimous voice vote - 5. 90 -609 Ordinance No. N.S. "Amending the Real Estate Property Tax Ordinance." Introduced. Councilmember Camicia moved introduction of the ordinance. Councilmember Withrow seconded the motion which was carried by unanimous voice vote - 5. 90 -610 Consideration of Amendment to Business License Ordinance as it relates to rental commercial properties and financial institutions. President Corica explained the procedure of the hearing. The Finance Director explained the background of the matter. The public portion of the hearing was opened. On the call for proponents, the following persons spoke. John Barni, Sr., 1380 East Shore Drive, stated a minimum of $86 for small property owners and $5/1000 square feet for large - property owners, does not make sense, and urged boosting the fee to $20 a thousand square foot. John Barni, Jr., 875 Island Drive, stated he hopes Council can implement the ordinance immediately. On the call for opponents, the following persons spoke: Mike Grappo, P.O. Box 1189, stated he believes the minimum tax is out of line, the problem is there is not a graduated rate and the fee is discriminatory against the very small lower- income owner; and the inequity needs to be corrected. August 21, 1990 282 Richard Roth, 1417 - 5th Street, stated his opposition, noting commercial property tenants pay for business licenses, the owner's taxation will be passed to the business tenant, so that is double taxation; the $86 minimum fee is too high; also, it would appear to be more fair if banks pay on the basis of employees. Councilmember Camicia moved the related ordinance be taken out of order. Councilmember Withrow seconded the motion which was carried by unanimous voice vote - 5. 90-611 Ordinance No. N.S. "Amending the Business License Ordinance as it relates to Rental Commercial Properties." In response to Councilmember Camicia's question regarding the $86 fee, the City Manager explained the minimum fee, noting the $86 fee was set up as a blanket for small businesses. Councilmember Camicia inquired if reducing to under $75 would destoy the formula. The City Manager responded there are about 200 businesses in the minimum category, therefore, the reduction in revenue would be approximately $2000. Councilman Arnerich stated the minimum fee is recommended to remain the same; and inquired how long the minimum fee has been in effect, to which the Finance Director responded the minimum fee of $75 was adopted by ordinance in 1978 and has an escalation clause for adjustment according to the consumer price index and the fee, therefore, is now $86. Councilmember Withrow questioned the logic behind the minimum tax, to which the City Manager replied the basis of the minimum tax is for ease of implementation to cover cost to the City of paper work, sending notices, etc. Councilmember Withrow commented, if the fee is costing the City $86 to collect $86, why not remove the fee. The City Manager stated that would raise the issue of the fairness of charging some people and not charging others. Councilmember Withrow stated, when the City reaches the threshold where the City is charging taxes to cover the cost of charging the taxes, at that point, the fee should be cut off; perhaps it is not a reasonable way to raise taxes from that group of citizens; and proposed the minimum fee be discontinued. Councilmember Camicia inquired if that could be inserted in the ordinance at the meeting. The City Attorney noted, as this is the first reading of the ordinance, staff can be directed to determine the figure, insert it into the minimum tax sentence, and bring it back at the second reading; and the criteria would be the figure that would basically August 21, 1990 283 be a wash. The Finance Director asked for a point of clarification regarding the minimum fee being cut off, whether Councilmember Withrow was only speaking to commercial property or the entire business ordinance; the $86 minimum applies to all other business categories. Councilmember Withrow responded, wherever it costs the City more to collect the taxes than what is brought in, wherever it is in the ordinance, he would want it applicable, business or otherwise. Councilmember Withrow moved introduction of the ordinance as amended by previous discussion and the staff be directed to provide the figures for the second reading. Councilman Arnerich seconded the motion. The motion was carried by the following voice vote: Ayes: Councilmembers Arnerich, Camicia, Withrow and President Corica - 4. Noes: Councilmember Thomas - 1. Absent: None. Councilmember Thomas stated she will not vote for the motion because she feels uncomfortable voting on the ordinance when she does not know what it says, and until staff comes back and puts the figures in, she does not know if that is acceptable. Councilman Arnerich suggested perhaps the matter can be put over for thirty days because there are a number of items scheduled for the next meeting. Councilmember Camicia so moved. Councilman Arnerich seconded the motion which was carried by the following voice vote: Ayes: Councilmembers Arnerich, Camicia, Withrow and President Corica - 4. Noes: Councilmember Thomas - 1. Absent: None. 90-612 Ordinance No. N.S. "Amending the Business License Ordinance as it relates to Financial Institutions." Deferred for 30 days. Councilmember Thomas stated she believes Mr. Roth made a good point when he said the blanket fee does not seem to be fair. [See Paragraph No. 90-6103 Councilmember Withrow inquired if the same problem occurs here where there is a certain level where it costs more to collect taxes than what is derived. The Finance Director stated the Business License Fee is a new one so there is no history on collecting from financial institutions; the proposed fee is $400 per year, plus $5 per employee; Mr. Roth indicated he believes the fee should have been based on gross payroll. Councilmember Withrow inquired what other communities are doing, and what the benchmark is for the fee proposal. The Finance Director stated there is no history to base the fee on because the fee is the result of a recent court decision; there August 21, 1990 2841 was a survey, Berkeley will levy a fee, Walnut Creek and San Leandro will not; Los Angeles charges $3.10 per $1000 of revenue. Councilmember Withrow stated the flat rate, on the surface, does not sound equitable. President Corica stated he believes staff should provide a comparison. Councilmember Withrow stated he would feel more comfortable having additional information; at least on a statistical sampling, some comparisons could be made on projected revenue. Councilman Arnerich agreed there should be some comparisons. President Corica entertained a motion to defer the matter until the information can be provided. Councilmember Withrow so moved. Councilman Arnerich suggested thirty days. Council by agreed. Councilmember Camicia seconded the motion, which was unanimous voice vote - 5. consensus, carried by REPORTS AND RECOMMENDATIONS 90-613 From President, Social Service Human Relations Board, opposing reduced State and County funding for human services. President Corica announced that Council wrote letters to Supervisor Don Perata, Chairman, Board of Supervisors, and a message has been received that the Mental Health Clinic will remain open; believes Chairman Perata, worked hard on the matter, and a letter of thanks should be written to him. Councilmember Camicia stated he believes a thank you is in order, also, for the Social Service Human Relations Board. Councilman Arnerich moved acceptance of the report, Councilmember Withrow seconded the motion which was carried by unanimous voice vote - 5. 90-614 From City Attorney on new amendments to the Brown Act and application of Brown Act to Advisory Committees. Councilmember Withrow moved the recommendations of the City Attorney [to direct legislative bodies and advisory bodies of the City to comply with the Brown Act as set forth in the report] be accommodated. Councilman Arnerich seconded the motion which was carried by unanimous voice vote - 5. 90-615 From City Attorney on Appeals of Planning Board decisions to the City Council. August 21, 1990 285 Diane Coler -Dark, 2847 Jackson Street, stated she is in favor of rescinding Council's decision [to disallow speakers] of July 17; and Council needs more input before making another decision. Elizabeth Phipps, 536 Kings Road, stated Council cannot change the ordinance tonight because that requires hearings, etc., the only action is to rescind the July decision. Diane Broch, 546 Kings Road, urged Council vote to rescind its recent vote to limit Appeals to written input; and allow open oral public comment on all Appeals. Linda Pritchard, 2515 Clement Avenue, President, Planning Board, stated the concern of the Planning Board is that the Board does not want to keep re- hearing matters over and over; and, if new evidence is heard before Council, speakers may not wish to go before the Planning Board; however there is provision if new evidence is presented, to remand to the Planning Board. Stanford Shane, 470 Cola Ballena, stated he agrees with the preceding speakers on this issue; he believes Council is shutting the people off; and Council should allow people to speak. Thomasina Woida, 1210 Porta Ballena, stated she believes the right thing for Council is to allow comment in the Appeal process. President Corica stated the only thing Council can do right now is take a vote of reconsideration of the prior action taken July 17th and obtain more input on the five options in the report. Councilmember Camicia stated the five options all state that issues must be limited to testimony before the Planning Board, and what Council discussed on the 17th is who determines what that [record] is and that is why written testimony was considered; Council can rescind but that would take Council back to the previous rule. Councilmember Withrow stated it has been odd to have a Code that states if there is new evidence, Council cannot hear it, and he would like clarification from the City Attorney on what actual constraints are; what it will take to eliminate that constraint. President Corica stated in the past, if something came up of great importance that had not been seen before, the matter would go back to the Planning Board, however, speakers often come before Council during the Appeal hearing to address an issue that they did not bring before the Planning Board, or when they feel they have not had a fair hearing. Councilmember Withrow stated he would like no constraints on an Appeal hearing; Council has been advised it has a limitation (Planning Board record), and he would like clarification on that. The City Attorney stated the general rule is that Appeals are only to be heard on the record, however, there is an exception contained in the ordinance and the exception continues to apply and the only exception to limiting Appeals to the record is if the Appellant August 21, 1990 286 shows in the Notice of Appeal that is filed, that he or she could not have produced certain evidence or where the evidence was improperly excluded and if that exception applies, the Council may send the Appeal back to the Planning Board; if that exception applies which in the Notice, says that there is new evidence or they cannot produce certain evidence, the City Council could choose to hear that new evidence. Councilmember Withrow inquired what changes must be made to remove constraints, to which the City Attorney replied the Alameda Municipal Code will need to be changed. Councilmember Withrow stated he believes the Mayor and the people want a democratic process of speakers saying whatever they wish on any subject they feel is pertinent, and if Council is to do that, it should be done correctly. Councilmember Camicia stated Council must be sure it does not usurp the authority of the Planning Board; perhaps Council should rescind [the July 17 decision] for the next Appeal coming up, and go back to the old rule. Richard Persoff, 1712 Dayton, stated it is possible for new evidence to come up at the last minute, seems fair for that information to be presented to Council, but inappropriate for Council to decide on information the Planning Board has not been able to consider. Councilmember Camicia stated technically, the Appellant must reflect new evidence in the Notice of Appeal. President Corica stated he believes the only action possible is to reconsider the [July 17th] action, have staff, with Council input, provide something workable for everyone. Councilmember Camicia suggested two members of Council, and two members of the Planning Board work with staff to provide an equitable proposal. Councilman Arnerich questioned the City Attorney regarding the Ballena Hotel Appeal, if the matter can be opened up to include new information. The City Attorney again reviewed the Code; noted Council could inform people they can speak, attempt to limit speakers to the record and at the end of the testimony, direct the Planning Director to indicate which items were not in the record and are not to be considered. Councilmember Camicia moved to rescind previous action; appoint a subcommittee of the Council and request the Planning Board to appoint two members to work with the staff to provide recommendations for revising the Appeals procedure. Councilmember Withrow seconded the motion which was carried by unanimous voice vote - 5. August 21, 1990 28'7 90 -616 From City Attorney regarding renewal of Gates McDonald Contract for administration of City Workers' Compensation Plan. Councilmember Camicia moved recommendation. Councilmember Withrow seconded the motion which was carried by the following voice vote: Ayes: Councilmembers Arnerich, Camicia, Withrow and President Corica - 4. Noes: Councilmember Thomas - 1. Absent: None. 90 -617 From Public Works Director on the proposed Mitigation Program to Reduce Seismic Hazards in Unreinforced Masonry Buildings (SB547). Lisa Gregerson, 1325 Park Street, commented on the cost of upgrading her building on Park Street, and stated her contractors have advised her the best thing she can do is tear down the building, and she hopes that will not be necessary. Alan Asker, 1126 Broadway, stated Council promised some building owners they would have an opportunity for input on a Committee and it appears by the report, that step is being by- passed, and hopes that it is not. John Leavitt, 1612 San Antonio, stated he understood building owners would be on the Committee but the staff report was not shown to the owners and is being presented to Council for approval; and would like the Committee reconvened and building owners added. Wil Garfinkle, 2938 Northwood Drive, stated when the building owners came to the meeting they thought a July report would be addressed, however, they found a new report; and believes staff is not providing information to the builders. James Thompson, 3231 Calhoun Street, stated he received an agenda, but not a report. John Scott Graham, 1728 Tregloan Court, stated the main issue is safety. Mike Gorman, 1318 Clinton, representing Listo Pencil Corporation, stated two of Listo's buildings are on the list of URM buildings; believes proper care has not been given in identifying URM buildings; he has written staff requesting his buildings to be reviewed, but has had no response; one building is at 1616 Stanford Street, is all metal; requested Council direct staff to look into the matter. President Corica stated the original Committee worked hard and well, but they did not have the input of owners; Council is now going to create a new Committee and will try to get a couple of former Committee members to come back and work with the new group. Niall Leahy, 2065 Encinal Avenue "E ", stated in the last two weeks, two more businessess on Webster Street, have gone out of business; and the property owners are asking for input. The Public Works Director noted that the report, at the bottom of August 21, 1990 288 page 3, reflects that a copy was to be sent to Alameda Property Owners' Association. Fred Delanoy, 126 Weymouth Court, noted the displacement of senior citizens and tenants going out of business, which will occur in the upgrading process, and urged Council reaffirm assurances given building owners at the last meeting. The City Manager stated some people have said the City is requiring full retrofitting, but that is not the case; the City is required by the State to provide a program; the next time there is to be communication with the property owners, two copies will be sent, one by registered [certified] mail, to make sure it is received. President Corica stated the property owners' names he would submit to serve on the new URM Committee, Jim Thompson, John Leavitt, Italo Calpestri, and if Council could bring back three of the members of the former Committee, he believes that would be a workable situation. Councilmember Withrow suggested each Councilmember could attempt to recruit the individual they first appointed to the Committee, he is not sure he understands why there is a conflict on the liability, he has been led to believe that, as of January, 1990, the City was liable for any damages or injuries or loss of life due to earthquake damage to a URM building given the fact that this City does not have an approved program and he would like clarification on whether that is true or not. The City Attorney referred to her memorandum attached to the staff report, dated May 14, 1990, concerning City liability, which states the Senate bill requires three things: 1) Identify potentially hazardous buildings, 2) establish a mitigation program and 3) report to the Seismic Safety Commission; and perhaps there is confusion because it does not need to be complex, simply a program the Council votes on, and approves; and includes a notification. Councilmember Withrow inquired if Council's conceptual approval of the ordinance was sufficient, to which the City Attorney stated it was not; but if Council had taken a final vote, not a conceptual approval, to establish Option No. 2, to include some type of retrofitting and established that as an interim program, with the authority to report that to the Siesmic Safety Commission, that would have been fine. Councilmember Withrow inquired if establishing a voluntary program would comply, to which the City Attorney stated it would; and he further questioned why Council cannot do that as an interim measure, and then come up with a meaningful program. President Corica inquired if it should be called an interim measure, and if that would be acceptable in Sacramento, to which the City Attorney stated she has not discussed that with the Seismic Safety Commission. Councilmember Withrow stated he would not be comfortable with a August 21, 1990 289 voluntary program indefinitely because a voluntary program is no program, and that would be shorting the residents of Alameda, however, he believes the minimum required to satisfy Sacramento should be defined and Council should take care of that. The City Attorney suggested an interim program might be one that would work for one year and then could be rolled over or something else put in place. The Public Works Director noted even an interim program would need to have some environmental assessment therefore that would need to come before the Planning Board. Councilmember Withrow requested a thorough scrubbing of the unreinforced masonry buildings list, and a priority ranking of same. Councilmember Withrow moved the meeting continue past 11:00 p.m. Councilman Arnerich seconded the motion which carried by unanimous voice vote - 5. Councilman Arnerich stated the matter does not need to be summed up tonight; there must be a careful look at the buildings list; the Committee did an exceptional job; this is a touchy and lengthy process; and a voluntary program will not work. Mr. Thompson stated Palo Alto has a volunteer program and since the program was initiated, that City has had 40 percent compliance, however, there are fringe benefits, e.g., if there is room for extra square footage, the owner is allowed to build extra square footage, and that raises the value of the property, to compensate for the retrofitting of the building. Councilmember Withrow moved to approve the three URM Committee nominees suggested by President Corica. [Motion failed due to lack of a second.] Mr. Calpestri stated he would like to participate but since he is an architect, and practices in Alameda, there is a potential conflict, therefore, he must withdraw his name. President Corica suggested William Martini. Messrs. Thompson, Leavitt, and Martini indicated they would be willing to serve. Councilman Arnerich commented on the availability of the City Attorney's office for legal assistance for the Committee. Councilmember Withrow proposed [moved] to accept the report; suggested the staff identify a point of contact within Public Works Department where the Committee could have an individual they could work with, and would like a status update from the Committee in thirty days to the Council. The Public Works Director recommended that he [Robert Warnick] be August 21, 1990 290 the point of contact. Councilmember Camicia seconded the motion. Councilmember Withrow clarified the motion is to accept the report only, not the recommendations. [There was no call for the vote.] The Public Works Director clarified Council is forming a new Committee with the three nominees selected, plus as many of the former Committee as will come back, he [Public Works Director] is directed to meet with the Committee, review the action taken thus far, and start toward a new recommendation. Council by consensus, agreed three persons from the former Committee, would be an appropriate number to balance the three property owners. The Public Works Director stated he believes the Council action of July 3rd should be rescinded to place the matter back to where the current Committee can proceed. Councilmember Withrow so moved. Councilman Arnerich seconded the motion which was carried by unanimous voice vote - 5. 90-618 From Fire Chief submitting status report on the City's Disaster Planning. Accepted. Gerhard Degemann, 19 Sandpiper Place, stated he would like the Fire Chief to describe what is going to happen in the event of an earthquake. President Corica requested the Fire Chief prepare a City Disaster Plan update/directive for the community. Councilmember Camicia moved acceptance of the report. Councilmember Withrow seconded the motion which was carried by unanimous voice vote - 5. INTRODUCTION OF ORDINANCES 90-619 Ordinance No. , N.S. "Amending Ordinance No. 1082, New Series, to retain existing Pension Fund and provide an option for members of the Police and Fire Departments of the City of Alameda to transfer to State of California Public Employees Pension System (PERS)." Introduced. Councilmember Withrow moved introduction of the ordinance. Councilmember Thomas seconded the motion which was carried by unanimous voice vote - 5. UNFINISHED BUSINESS 90-620 Request to rescind Council decision to have public presentation of Board/Commission Applicant qualifications. (Vice Mayor Arnerich) August 21, 1990 291 Councilman Arnerich stated he discussed this matter with the two persons who spoke before Council as applicants; he believes this procedure for public presentations to be unworkable in its present state and moved to rescind Council's decision of July 17, 1990, [Paragraph No 90 -5123. Councilmember Withrow seconded the motion which was carried by unanimous voice vote - 5. ANNOUNCEMENT BY MAYOR OF CLOSED SESSION ACTION Mayor Corica announced that, prior to the regular meeting, Council adjourned to Closed Session and took the following action: 90 -621 Workers' Compensation Claim, pursuant to Subsection (a) of Section 54956.9 of the Brown Act: discussed Claim and authorized settlement. ORAL COMMUNICATIONS, NON - AGENDA ITEMS 90 -622 Richard Sherratt, Alameda, stated, regarding the resolutions of censure on the agenda for the meeting, that if there has been misconduct, it should be taken care of, if there has not been, then he commends Councilmembers for getting its house in order. ADJOURNMENT 90 -623 President Corica adjourned the meeting at 11:32 p.m., in memory of Louis Allen, Past - President of West Alameda Business Association and an active person in the community. Respectfully submtted,,, DIANE B. FELSCH, CMC City Clerk The agenda for this meeting was posted 72 hours in advance. August 21, 1990