Five Noteworthy 3 November 2009 City Council Agenda Items

ABSTRACT: Five noteworthy 3 November 2009 City Council Agenda Items, namely, a Resolution authorizing a contract with Haro, Kasunich and Associates for geotechnical investigation on a road stabilization project on 2nd Avenue between Lopez Avenue and North Casanova Street, a Resolution authorizing the payment of salary and benefit difference to city employees who have been activated into military service from the National Guard or from the inactive military reserves, an appeal of the Planning Commission’s decision to certify an Environmental Impact Report and deny a project for the demolition of an existing building and the construction of a mixed-use development including a two-level underground parking garage, five market-rate condominiums, two low-income housing units, and commercial floor area at the SE corner of Dolores and 7th (Homescapes Building), modifications to the City’s Volumetric Standards and report and policy direction on proposed extension of the holiday season for placement of lights, are presented. Selected excerpts from Agenda Item Summaries, Staff Reports and a letter are presented for Agenda Items. COMMENTS are made on the Resolution affecting Building Official John Hanson and on holiday lights.

CITY OF CARMEL-BY-THE-SEA
City Council Agenda – AMENDED
Regular Meeting
Tuesday, November 3, 2009
4:30 p.m., Open Session

Live and archived video streaming available

City Hall
East side of Monte Verde Street between Ocean and Seventh Avenues

VII. Consent Calendar
These matters include routine financial and administrative actions, which are usually approved by a single majority vote. Individual items may be removed from Consent by a member of the Council or the public for discussion and action.

E. Consideration of a Resolution authorizing a contract with Haro, Kasunich and Associates for geotechnical investigation on a road stabilization project on 2nd Avenue between Lopez Avenue and North Casanova Street in an amount not to exceed $11,980.

Description: At its September 1, 2009 meeting, the City Council reviewed a driveway application submitted by Mr. Zane Blackmer. The driveway application approval was continued by the City Council, pending evaluation of opening 2nd Avenue to through traffic. The City Council directed staff to evaluate the stabilization of 2nd Avenue between Lopez Avenue and North Casanova Street to accommodate the road opening.

The City Engineer advised staff to hire a geotechnical engineer to review the stabilization issue on 2nd Avenue and recommended hiring the Watsonville-based firm, Haro, Kasunich and Associates (HKA), to perform the geotechnical investigation. HKA’s proposal includes site drilling to help develop a soils profile for stabilization analysis. Their analysis will be summarized in a report to the City, along with recommendations.

Overall Cost:
City Funds: $11,980

Staff Recommendation: Adopt the Resolution.

Important Considerations: Second Avenue has been closed to through traffic for a number of years. A section of 2nd Avenue has some stabilization issues that must be investigated before reopening for vehicular traffic. This type of investigation is best accomplished by a geotechnical engineer.

Decision Record: The City Council directed staff to review the 2nd Avenue stabilization to evaluate whether the street can be opened for access to the Blackmer property.

L. Consideration of a Resolution authorizing the payment of salary and benefit difference to city employees who have been activated into military service from the National Guard or from the inactive military reserves.

Description: This Resolution authorizes the City to pay the difference between salary and benefits paid by the military and those paid by the City for City staff activated into service. The purpose of this action is to accommodate the activation of the Building Official, John Hanson, by the National Guard to assist with construction and agriculture in Afghanistan. His deployment will be part of the Provincial Reconstruction Team (PRT) Asadabad encouraging international and non-governmental organizations to operate in rural areas outside of Kabul. The milestones that lead to this activation are as follows:

• April 8, 2009 – Hanson informed staff that he is deploying in July 2009 to Afghanistan.

• July 31, 2009 – Hanson’s travel orders received by City for activation on August 3rd for training and deployment for approx. 400 days.

• September 14, 2009 –Hanson requested use of vacation time for the period of October 13-November 13, 2009, which caused a recalculation of his benefits package.

• September 24, 2009 –Hanson arrived in Afghanistan.

• October 8, 2009 – Receipt of Department of the Army letter requesting extension of Hanson’s City benefits, which will run out on December 31, 2009.

Municipal code sections 2.52.690 and 700 outline how the City will compensate employees activated for military duty (see attached). The City’s Municipal Code states, as it has, since 1987 that military leave beyond 30 days will be unpaid leave. Staff cannot authorize differential pay or benefits for employees as it is would be a gift of public funds. It is within the City Council’s authority to take this action, as it has done previously, as part of a public meeting.

Overall Cost:
City Funds: Hanson’s regular City compensation, salary plus benefits, is $109,000. This will offset the following costs: $51,000 is estimated for Hanson’s differential pay + $50,000 Building Official consultant during Hanson’s activation.

Staff Recommendation: Adopt the Resolution.

Important Considerations: Support of City staff members who have been activated for military service during times of emergencies or declaration of war requires the City Council to adopt a Resolution to cover any differential in pay and benefits. This is Hanson’s fourth military leave from the City since 2001 and each occurrence has followed the same City process. The costs to the City, at this time, are only estimates. As soon as the City receives information regarding military salary, allowances and premiums, the precise amounts will be determined.

Decision Record: In support of Hanson’s previous duty, Resolution 2001-156 was adopted in November 2001 and expired one year later. Resolution 2004-01 was also adopted in January 2004 and expired one year later in 2005.

COMMENTS:
• Omitted from the Agenda Item Summary, under Description, written by City Clerk Heidi Burch, is her September 2009 letter informing Building Official John Hanson of the cessation of his pay differential and medical benefits for his family in November and December 2009, respectively.

• Since City Council Resolutions to cover differential pay and medical benefits have been approved for John Hanson’s previous military leaves from city employment, it appears the change in city policy this time was due to retaliation for his deposition in the sex-based and age-based discrimination, sexual harassment and retaliation lawsuit filed by on-leave Human Resources Manager Jane Miller, which was given in July 2009; City Administrator Rich Guillen was in attendance at the deposition.

VIII. Public Hearings
If you challenge the nature of the proposed action in Court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to, the public hearing.

A. Consideration of an appeal of the Planning Commission’s decision to certify an Environmental Impact Report and deny a project for the demolition of an existing building and the construction of a mixed-use development including a two-level underground parking garage, five market rate condominiums, two low-income housing units, and commercial floor area. The project location is the SE corner of Dolores and 7th (Homescapes Building). The appellant is John Mandurrago.

Description: On September 17, 2009, the Planning Commission certified an Environmental Impact Report, adopted CEQA findings and denied all permits for the Plaza del Mar project. The appellant requests that the City Council overturn the Planning Commission’s decision to deny the project.

Staff Recommendation: Deny the appeal and uphold the Planning Commission’s decision.

Important Considerations: In December 2008 the City Council granted an appeal and overturned the Planning Commission’s decision to approve this project. The Council remanded all project decisions back to the Planning Commission, adopted findings and provided specific direction on several issues to assist the Commission. Part of this direction was to develop better evidence regarding the feasibility of the adaptive reuse.

The Council also affirmed that demolition of the Burde Building would constitute a significant environmental impact and provided the Commission with guidance on the interaction between CEQA and California housing statutes.

Recent Decision Record:
• 9/10/2008 - Planning Commission certifies and EIR and approves the project.

• 12/2/2008 - City Council adopts findings to overturn the Planning Commission decision.

• 9/17/2009 - Planning Commission adopts findings to certify EIR and deny the project.

• 9/21/2009 - Applicant files an appeal of the Planning Commission’s decision.

Letter to Mayor and City Council from Dennis C. Beougher, Lombardo & Gilles, LLP
Dated: October 6, 2009

Re: Appeal of the Planning Commission’s Findings for Denial of Plaza Del Mar-October 6, 2009

Conclusion
The Plaza del Mar application is a clear history of delay (eight years to review and over four years to certify a completed EIR, filing a frivolous anti-SLAPP motion, filing an objection to a calendar preference on appeal, a year to review the adaptive reuse alternative that was never a feasible alternative even on December 2008 when the city required further review of this alternative) and a three year delay for a trumped up significant environmental impact of visual quality which was not based upon any written statement, policy, regulations, resolution, or ordinances and clearly contradicted a City council November, 2006 findings and conclusion that the Burde building could be demolished and should not be placed on the Carmel Inventory. It is also history of misinterpretation of city ordinances and state statures.

Federal equal protection clause (U.S. Const. 14th Amendment) and its California counterpart (Cal. Consts. Article I, sec. 7, subd.(a)) provide that persons who are similarly situated with respect to legitimate purpose of a law must be treated alike under the law. The applicant has been denied equal protection and due process rights for his exercise of First Amendment as to the Mayor. Also, the applicant has not been treated alike other applications (i.e., eight years to process the application) as stated above. The “class of one” allows the applicant to seek federal damages for differential treatment if he raises a concern of arbitrary classification and a wholly irrational decision, not based upon any legitimate reasons (no written policy, regulation, ordinance, or resolution).

XI. Orders of Council

D. Consideration of modifications to the City’s Volumetric Standards, as established in CMC Section 17.10.030.

Description: The City’s volumetric standards establish the maximum amount of exterior volume that may be built on sites located in the Single-Family Residential (R-1) District.

The Planning Commission recommended modifications to the volumetric standards.

Staff Recommendation: Request the Council to provide direction on this issue.

Important Considerations: The City adopted standards several years ago, limiting the amount of exterior volume that could be constructed as part of new development in the Residential (R-1) District. The standards were meant to address concerns about the size of new homes and their affect on the City’s character.

Decision Record: The Planning Commission recommended some modifications to the City Council on 8 July 2009.

A small committee was appointed to review the City’s volumetric standards and make recommendations on the appropriateness of the standards. The Committee includes:
􀂉 John Thodos, Architect
􀂉 Bill Strid, former Planning Commission Chair
􀂉 Sean Conroy, Planning & Building Services Manager (facilitator)

The Committee determined that the volume requirements have been effective, but it recommended some modifications. The Planning Commission reviewed these recommendations on 8 July 2009

LOCAL COASTAL PROGRAM (LCP)
Any proposed changes to the zoning ordinance constitute an amendment to the LCP and would require Coastal Commission approval.

OPTIONS
The Council may wish to discuss at least the following options:
1) Make no changes to the City’s Volumetric Standards.

2) Direct staff to prepare an ordinance addressing all of the recommendations of the Volume Committee and the Planning Commission.

3) Direct staff to prepare an ordinance addressing some of the recommendations of the Volume Committee and the Planning Commission.

RECOMMENDATION
Provide direction on potential modifications to the City’s Volumetric Standards.

E. Receive report and provide policy direction on proposed extension of the holiday season for placement of lights.

Description: City policy defines the “holiday season” for the purpose of placing lights in the public right-of-way and in or on commercial property as beginning on the third Wednesday in November and continuing until the second Wednesday in January. The holiday season, as defined, has been staff’s guideline for to place and remove the Ocean Avenue median lights.

This guideline also applies to commercial properties and the staff code enforcement officer inspects after the second Wednesday in January to ensure that the holiday lights are removed in a timely manner (see the attached policy).

This proposal would define the “holiday season” as beginning on November 27, 2009 (the day after the Thanksgiving Holiday) and ending on February 14, 2010 (the last day of the AT&T Pebble Beach National Pro-Am).

Overall Cost:
City Funds: $200 more than holiday season 2008-09 (23 additional days)
Grant Funds: N/A

Staff Recommendation: Review the report and provide direction.

Important Considerations: The minimal additional energy cost is a small price to pay for Ocean Avenue to appear more festive. The additional lighting also enhances public safety and security during the “holiday season”.

Decision Record: None.

STAFF REPORT
FROM: RICH GUILLEN, CITY ADMINISTRATOR

Review Policy No. C95-08 regarding Holiday Lights and provide policy direction.

BACKGROUND
City policy for placement of Holiday Lights in the public right-of-way and in or on commercial property defines the “holiday season” as beginning on the third Wednesday in November and continuing until the second Wednesday in January. The holiday season, as defined, has been staff’s guideline for placing and removing the Ocean Avenue median lights.

This guideline also applies to commercial properties and of those properties which do install holiday lights, the staff code enforcement officer makes an inspection after the second Wednesday in January to ensure that the holiday lights are removed in a timely manner (see the attached policy).

STAFF REVIEW
In past years, staff has administratively extended the time for the holiday lights to remain.

Generally, this decision has been met favorably by business owners. For the upcoming holiday season, staff is proposing to extend the period for the placement of holiday lights.

This proposal would define the “holiday season” as beginning on November 27, 2009 (the day after the Thanksgiving Holiday) and ending on February 14, 2010 (the last day of the AT&T Pebble Beach National Pro-Am).

There is no provision in the Zoning Code or the Local Coastal Plan that requires a special permit. The decision to extend the “holiday season” is a policy that can be revised by the City Council at its discretion. In light of the challenging economic times, the added time for the holiday season can help attract business and improve community safety in the business district.

FISCAL IMPACT
Last holiday season in little under 60 days of having lights placed on the Ocean Avenue medians, the energy costs increased approximately $550 or the equivalent of $9/day. Under the current policy, the holiday season would start on November 18, 2009 and end on January 13, 2010 for a total of 57 days. The proposed holiday season as stated above would be for a total of 80 days, which is an additional 23 days from last year. Using the $9/day energy cost increase when the Ocean Avenue median lights are illuminated, the energy cost for the added days is approximately $200 total.

SUMMARY
The minimal additional energy cost is a small price to pay for Ocean Avenue to appear more festive. The additional lighting also enhances public safety and security during the “holiday season”.

COMMENT:
• General Plan/Coastal Land Use Plan Land Use & Community Character Element

P1-54 Limit exterior lighting to prevent glare and preserve the traditional low levels of illumination during hours of darkness.

O1-13 Maintain diligent control over signs and other advertising or notice attracting facilities in order to avoid unsightly, bizarre, and/or out of scale visual impacts, including exterior lighting and lights from window displays. (LUP)

P1-80 Prohibit unsightly design elements such as excessive numbers of signs, nonfunctional awnings, exterior displays, interior displays,
and excessive interior lighting used primarily as advertising or
attention-getting features visible from the public rights-of-way. (LUP)