Four Noteworthy 3 May 2011 City Council Agenda Items

ABSTRACT: Four Noteworthy 3 May 2011 City Council Agenda Items, namely an appeal of the Planning Commission’s decision to deny a two-unit, multi-family residential project for a site located on San Carlos Street 3 SE of 7th Avenue and an appeal of the Planning Commission’s decision to deny a two unit multi-family residential project for a site located on Mission Street 3 SW of 7th Avenue (appellant Old Mill Properties LLC), a Resolution authorizing an agreement with XXXX for recruitment services for the next City Administrator and Approve amendments to City’s revised Harassment Prevention Policy, are presented. Excerpts from Agenda Item Summaries and Staff Reports are provided and Architect Eric Miller’s letter regarding the appeals is reproduced. HARASSMENT PREVENTION POLICY (DRAFT NO. 5) is embedded and MEMORANDUM from Sean Conroy, Planning & Building Services Manager and Janet Bombard, Library Director and MEMORANDUM from Margi Perotti, General Employee President and Dave Ritchie, LiUNA, UPEC Local 792 Representative, are reproduced.

CITY OF CARMEL-BY-THE-SEA
CITY COUNCIL AMENDED AGENDA PACKET
Regular Meeting
Tuesday, May 3, 2011
4:30 p.m., Open Session

Live & Archived Video Streaming

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

II. Roll Call

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 deny a two-unit, multi-family residential project for a site located on San Carlos Street 3 SE of 7th Avenue. The appellant is Old Mill Properties LLC.

Description: The appellant is requesting that the Council overturn the denial of the project. The appellant argues that the project complies with City standards and should be approved.

Staff Recommendation: Grant the appeal.

Important Considerations: The RC District was established to provide an appropriate location for residential uses and limited commercial uses and to be a transition zone between the more intense activities in the CC and SC Districts and the activities in the R-1 District.

During the Planning Commission hearings several concerns were raised by the Commission about the project. However, the primary point of debate centered on whether the applicant should be required to place the parking at the rear of the lot.

Decision Record: On 12 January 2011 this project received a split 2-2 vote and was denied due to a lack of a motion for approval.

BACKGROUND & PROJECT DESCRIPTION
The project site is located on the east side of San Carlos Street between Seventh and Eighth Avenue in the Residential and Limited Commercial (RC) District. The lot was previously developed with two small cottages that were used for commercial and residential purposes. The structures were condemned by the City and demolished in May 2010.

The applicant is appealing the Planning Commission’s denial of the proposal to develop two adjacent lots, each with a multi-family residence. One lot fronts on San Carlos Street and the other fronts on Mission Street. The lot which faces San Carlos Street (DR 10-24) is the subject of this staff report, while the lot facing Mission Street (DR 10-25) is the subject of a separate report.

The proposed multi-family dwelling on San Carlos Street is a 3,200 square foot Spanish style structure. The project includes a 2,371 square foot main residence, a 412 square foot apartment and a 417 square foot garage. The apartment is located on the lower level and has a separate entry as well as a kitchen and full bathroom. The project includes three parking spaces as required by code.

The structure is clad with stucco siding, a clay tile roof and includes unclad wood windows. The front elevation presents an entry element, a balcony and single wood garage door. The garage door is located 22.5 feet from the sidewalk and is recessed behind the front balcony. No variances are being requested.

Planning Commission Review: Since there was no majority vote to approve or deny the project, there are no formal Planning Commission findings that accompany this appeal. During the hearings several concerns were raised by the Commission including mass and scale, architectural design, landscaping and safety. However, the primary point of debate centered on whether the applicant should be required to place the parking at the rear of the lot.

The motion to deny the project was based on a determination that it was inconsistent with the General Plan, the intent of the RC District and the Design Guidelines because it was not pedestrian oriented due to the configuration and location of the parking. Concern was also expressed over the lack of landscaping in the front setback as required by code. The motion to approve the project was based on a determination that the project sufficiently complied with the General Plan, Zoning Ordinance and Design Guidelines and was a considerable improvement over existing conditions.

BASIS FOR APPEAL
The property owner is appealing the project denial for the following reasons:
• The proposed project is consistent with the Zoning Code and Commercial Design Guidelines.
• The determination that parking should be at the rear of the property is unfounded and cannot be tied to the Zoning Code or Design Guidelines.
• Parking in the back is impractical and too costly.

EVALUATION
This section of the staff report discusses the General Plan, Zoning Regulations and Design Guidelines that should be used by the City Council in its deliberation. Staff notes that the City Attorney was recused due to a conflict of interest and did not provide staff with any legal counsel for this project. On April 5th, 2011 the City Council directed staff to contract with land use attorney Brian Finegan to provide legal advice on this project.

General Plan
The General Plan land use designation for this site is Commercial/Residential. Page 1-15 of the General Plan states:

“this area is intended to provide for a mix of residential dwellings and a limited range of office and service uses in scale with the character of the community. Less intense commercial uses and visitor accommodations are allowed in this area. Mixed-use developments of commercial and multi-family residential uses at a maximum density of thirty-three (33) units per acre are allowed. This area is also appropriate for public service uses.”

The General Plan envisions residential, limited commercial, public services and mixed use developments for this area. The traditional character of the RC district is quite eclectic and contains single-family residences, multi-family structures, mixed use structures, commercial structures and public services. The proposed multi-family residential use is consistent with the intent of the General Plan and the traditional character of the District.

There are several goals, objectives and policies in the Land Use Element of the General Plan that provide guidance on project design...Objective 01-11 was the focus of much of the Commission’s debate and encourages pedestrian-oriented commercial and multi-family districts that are integrated into the residential character of the community. The Commission was divided on whether the proposed design conflicted with this objective.

Staff notes that there are challenges to placing parking at the rear of this site. This site is narrow, steeply sloped, and includes a large significant tree that constrains the potential location of parking. Placing the parking at the rear would require a sloped driveway. Sloped driveways often require tall retaining walls and expose more of the mass of a structure to the street, as well as presenting safety concerns due to a driver’s limited line-of-sight when approaching the street from the driveway. These challenges should be taken into consideration as well as the concerns raised by the Commission that placing the parking near the front of the site is not pedestrian friendly.

Zoning Regulations
The Zoning Designation for this site is Residential and Limited Commercial (RC). CMC Section 17.14.010.C states that the purpose of the RC District is:

“to provide an appropriate location for permanent and transient residential uses, service and office uses, and limited retail uses that do not adversely impact the residential neighborhood. This district is intended to provide a transition and buffer between the more intense activities in the CC and SC districts and the less intense activities in the R-1 and R-4 districts.”

CMC Section 17.14 establishes the range of permitted and conditional uses that are allowed in this district. Multi-family residential projects with a density between 0-22 acres are considered a permitted use by the Zoning Ordinance. CMC Section 17.68.030 defines a multi-family dwelling as:

“a building or group of buildings on a single building site that contains two or more dwellings, each with its own facilities for parking, living, sleeping, cooking and eating. This classification includes condominiums, townhouses, and apartments.”

The proposed structure includes a 2,371 square foot main residence with a 412 square foot apartment. The apartment has a separate entry, bathroom, cooking and sleeping facility, and includes a designated parking space. Based on the above definition, the project qualifies as a multi-family dwelling.

Staff notes that the Zoning Code and Housing Element encourage a mix of unit sizes to provide a wide range of housing opportunities. Small studio units can potentially help provide affordable housing opportunities in the City of Carmel-by-the-Sea.

Design Guidelines: CMC Section 17.14.100 states that the “Basic standard of review in the commercial district is whether the project constitutes an improvement over existing conditions – not whether the project just meets minimum standards.” CMC 17.14.110 indicates that the Commercial Design Guidelines have been adopted to assist in the design review process and that “Proposed projects need not strictly comply with every Guideline to be approved but deviations should be minor and reasonably related to good design principles and site conditions.”

In summary, the Guidelines encourage buildings to provide visual interest, complement the rhythms established by other buildings in the immediate vicinity and encourage building materials and colors to respect the traditions already established in the commercial district.

The project provides visual interest and is consistent with the heights of other buildings between Seventh and Eighth Avenues on San Carlo Street. The structure is larger than the neighboring building to the south, however, the neighboring building is undersized compared to the other buildings in the vicinity.

With regards to materials, the applicant is proposing an off-white stucco siding, clay tile roofing and wood windows. Spanish style architecture with the proposed materials is traditionally used in the commercial district. The proposed color also respects the traditions and context of the commercial district.

Safety: The Carmel Police Department reviewed the plans and conducted a site visit in order to evaluate the safety of the proposed parking designs (see attachment “E”). The Police Department determined that there were no undue traffic and safety problems arising from the construction of the driveway as set forth in the plans.

While the police determined that backing onto San Carlos Street is safe, the applicant has agreed to install an automobile carousel. The purpose of the carousel is to rotate automobiles into a forward position, so that the driver would not have to back out of the driveway. The proposed carousel is located under the carport and would be covered with pavers to blend with the driveway. The carousel is only being proposed for the San Carlos Street project because there is higher volume of traffic on this street than on Mission Street. The carousel is also more compatible with the San Carlos garage design.

Use Permit: The construction of basement floor space is permitted in the commercial district with the approval of a use permit (CMC 17.14.015). Floor space qualifies as a basement if the distance between the exterior grade and finished floor above is one-foot or less. In the original proposal a portion of the lower level dedicated to storage and mechanical equipment qualified as a basement space. The applicant has since revised the design so that no portion of the lower level qualifies as a basement. As a result a use permit is no longer required.

Summary: The City Council should discuss the following questions:
• Is the project consistent with the General Plan?
• Does the project comply with the Zoning Requirements for the RC District?
• Is the project consistent with the Commercial Design Guidelines?

RECOMMENDATION
Staff recommends that the Council make the following motion:
1) Grant the appeal for DR 10-24 (San Carlos Street) and direct staff to prepare findings and conditions for approval.

B. Consideration of an appeal of the Planning Commission’s decision to deny a two unit multi-family residential project for a site located on Mission Street 3 SW of 7th Avenue. The appellant is Old Mill Properties LLC.

Description: The appellant is requesting that the Council overturn the denial of the project. The appellant argues that the project complies with City standards and should be approved.

Staff Recommendation: Grant the appeal.

Important Considerations: The RC District was established to provide an appropriate location for residential uses and limited commercial uses and to be a transition zone between the more intense activities in the CC and SC Districts and the activities in the R-1 District.

During the Planning Commission hearings several concerns were raised by the Commission about the project. However, the primary point of debate centered on whether the applicant should be required to place the parking at the rear of the lot.

Decision Record: On 12 January 2011 this project received a split 2-2 vote and was denied due to a lack of a motion for approval.

The project site is located on the west side of Mission Street between Seventh and Eighth Avenues in the Residential and Limited Commercial (RC) District. The lot was previously developed with a small single family residence. The structure was condemned by the City and demolished several years ago.

The applicant is appealing the Planning Commission’s denial of the proposal to develop two adjacent lots, each with a multi-family residence. One lot fronts on San Carlos Street and the other fronts on Mission Street. The lot which faces Mission Street (DR 10-25) is the subject of this staff report, while the lot facing San Carlos Street (DR 10-24) is the subject of a separate report.

The applicant is proposing to construct a 3,600 square foot multi-family dwelling. The project includes a 2,756 square foot main residence with a 410 square foot apartment. The apartment is located on the lower level and has a separate entry as well as a kitchen and full bathroom. The project includes three parking spaces as required by code. The proposed structure consists of a low pitched gable and hip roof design with wood rafter tails. The entire residence is clad with a stone veneer and includes wood doors and windows and a slate roof. The front façade presents an entry element and a two-car garage and carport to the street. No variances are being requested.

Planning Commission Review:
Since there was no majority vote to approve or deny the project, there are no formal Planning Commission findings that accompany this appeal. During the hearings several concerns were raised by the Commission including mass and scale, architectural design, landscaping and safety. However, the primary point of debate centered on whether the applicant should be required to place the parking at the rear of the lot.

The motion to deny the project was based on a determination that it was inconsistent with the General Plan, the intent of the RC District and the Design Guidelines because it was not pedestrian oriented due to the configuration and location of the parking. Concern was also expressed over the lack of landscaping in the front setback as required by code. It was also noted that a plan previously approved at this location, but never constructed, included parking at the rear of the site. The motion to approve the project was based on a determination that the project sufficiently complied with the General Plan, Zoning Ordinance and Design Guidelines and was a considerable improvement over existing conditions.

BASIS FOR APPEAL
The property owner is appealing the project denial for the following reasons:
• The proposed project is consistent with the Zoning Code and Commercial Design Guidelines.
• The determination that parking should be at the rear of the property is unfounded and cannot be tied to the Zoning Code or Design Guidelines.
• Parking in the back is an impractical and too costly.

EVALUATION
The staff report for the San Carlos project appeal discusses the General Plan and Zoning Regulations that apply to both projects and should be used by the City Council in its deliberation. Staff notes that the City Attorney was required to step down due to a conflict of interest and did not provide staff with any legal counsel for this project. On April 5th, 2011 the City Council directed staff to contract with land use attorney Brian Finegan to provide legal advice on this project.

The Mission Street project presents similar challenges with regards to placing the parking at the rear. The Mission Street project also includes an apartment with a separate entry, bathroom and cooking facility that qualifies the structure as a multi-family dwelling.

Design Guidelines: CMC Section 17.14.100 states that the “Basic standard of review in the commercial district is whether the project constitutes an improvement over existing conditions – not whether the project just meets minimum standards.” CMC 17.14.110 indicates that the Commercial Design Guidelines have been adopted to assist in the design review process and that “Proposed projects need not strictly comply with every Guideline to be approved but deviations should be minor and reasonably related to good design principles and site conditions.”

In summary, the Guidelines encourage buildings to provide visual interest, complement the rhythms established by other buildings in the immediate vicinity and encourage building materials and colors to respect the traditions already established in the commercial district.

The proposed structure has a simple design that appears visually interesting. The applicant is proposing stone siding, a slate roof and wood windows. The proposed materials are natural and are consistently used throughout Carmel’s commercial and residential districts. The applicant is proposing to apply a stone veneer to the entire structure as opposed to being used on only the street façade. Staff concludes that the proposed project is consistent with the Guidelines.

Safety: The Carmel Police Department reviewed the plans and conducted a site visit in order to evaluate the safety of the proposed parking designs. The Police Department determined that there were no undue traffic and safety problems arising from the construction of the driveway as set forth in the plans.

Use Permit: The construction of basement floor space is permitted in the commercial district with the approval of a use permit (CMC 17.14.015). Floor space qualifies as a basement if the distance between the exterior grade and finished floor above is one-foot or less. In the original proposal a portion of the lower level dedicated to storage and mechanical equipment qualified as a basement space. The applicant has since revised the design so that no portion of the lower level qualifies as a basement. As a result a use permit is no longer required.

Summary: The City Council should discuss the following questions:
• Is the project consistent with the General Plan?
• Does the project comply with the Zoning Requirements for the RC District?
• Is the project consistent with the Commercial Design Guidelines?

RECOMMENDATION
Staff recommends that the Council make the following motion:
1) Grant the appeal for DR 10-25 (Mission Street) and direct staff to prepare findings and conditions for approval.

ERIC MILLER
ARCHITECTS

January 21, 2011

Sean Conroy, Planner
Mark Wiener, Assistant Planner
City of Carmel
P O Drawer G
Carmel, CA 93921

Gentleman:

We are appealing this project because the split decision from the Planning Commission is unfounded.

The two “no votes” from commissioners Steve Dallas and Victoria Beach were not based on the zoning code, or the design guidelines.

1) Commissioner Dallas based his “no vote” on his arbitrary desire to have us place the parking in back of the lot. This is not required in the zoning code, or the design guidelines. In fact, as the analysis of the planning staff clearly shows, our project is consistent with all sections of the zoning code and the design guidelines. Also, parking in the back is an impractical notion, is too costly to justify and would result in a financially disastrous project that would never be built.

2) Equally unfounded is the decision made by Victoria Beach. Ms. Beach based her vote on her claim that a garage door, set back from the property line with a level, 22’ driveway, is pedestrian unfriendly and a steep ramp, right up to the property line, that requires parabolic mirrors to see pedestrians, is some how more friendly to pedestrians.

She was also unable to tie her decision to the zoning code, or even the design guidelines.

Sincerely,


Eric Miller, Architect
Eric Miller Architects, Inc.

157 Grand Avenue, Suite 105 Pacific Grove, California 93950
Ph: 831.372.0410 Fax: 831.372.7840 Eric Miller Architects, Inc.
www.ericmillerarchitects.com


X. Resolutions

A. Consideration of a Resolution authorizing an agreement with XXXX for recruitment services for the next City Administrator

Description: On April 27 and April 30, 2011, the City Council interviewed the representatives from four recruitment firms that had submitted proposals to conduct the search for a City Administrator.

Overall Cost:
City Funds: Dependent upon firm selected

Staff Recommendation: Approve the Resolution authorizing the agreement with the firm chosen.

Important Considerations: City Council interviewed four recruitment firms in late April. Upon execution of this agreement, the firm chosen will commence work toward recruiting a City Administrator.

XI. Orders of Council

D. Approve amendments to City’s revised Harassment Prevention Policy.

HARASSMENT PREVENTION POLICY

CITY OF CARMEL-BY-THE-SEA
CITY POLICY NO. __________
HARASSMENT PREVENTION POLICY
DRAFT NO. 5

TO: Mayor Sue McCloud, Members of the City Council
Jason Burnett, Paula Hazdovac, Karen Sharp and Ken Talmage

FROM: Margi Perotti, General Employee President
Dave Ritchie, LiUNA, UPEC Local 792 Representative

DATE: April 22, 2011

SUBJECT: Adoption of the Harassment Prevention Policy

The General Employee Association, LiUNA, United Public Employees of California, Local 792 has reviewed “DRAFT” No. 5 of the Harassment Prevention Policy.

We are concerned that the policy may be, at least in part, too responsive to a specific instance of reported harassment rather than seeking an overall policy approach.

SUBJECTIVE v. OBJECTIVE OBSERVATION OF POTENTIALLY HARRASSING BEHAVIORS: The policy does not address the subjective perception one might have of another in any situation. For example, the policy requires reporting what any observer believes to be harassment but a neutral observer can only do so objectively to the best of their ability. Observers should not find themselves cross-wise with the policy if they fail to report something that they didn’t understand to be harassment because they lacked the subjective viewpoint of the victim or alleged harasser.

ADMINISTRATIVE LEAVE PROVISIONS
We are concerned that if a person is accused of harassment with no determination of wrong doing that could have very significant economic consequences for the employee if placed on administrative leave without pay. We feel that it should be PAID ADMINSTRATIVE LEAVE until such time as a decision follows a name-clearing hearing (Skelly) where the employee is represented and at which they can respond to the allegations of wrongdoing (except in the event that the charges are so egregious and evidence is so clear that no reasonable person could come to the conclusion that the charges do not constitute clear due cause for termination of employment).

The severance of the employment relationship remains subject to the requirements that such action is for due cause and in observance of all due process rights provided by operation of law or contract between the City and the Employee Recognized Representatives.

VERBAL BEHAVIOR
Whistling should be included as a verbal behavior.

INESTIGATROY TIME PERIOD (page 5)
The investigation should not take up to 10 days to commence. The meeting is required within 48 hours and these are priority issues.

MANDATORY COUNSELING
The City should reserve the right to include mandatory counseling/training on harassment at any time it deems necessary as a remedy.


CITY OF CARMLE-BY-THE-SEA
DEPARTMENT OF COMMUNITY PLANNING AND BUILDING

MEMORANDUM

TO: Heidi Burch, Assistant City Administrator

FROM: Sean Conroy, Planning & Building Services Manager
Janet Bombard, Library Director

DATE: 22 April 2011

RE: Harassment Policy

We fully support the need to have a clear policy that prevents harassment of any kind in the work force. However, we would like to submit some comments and concerns regarding the draft policy.

Section VI.2 discusses the responsibilities of a supervisor to enforce the policy. The policy indicates that disciplinary action, including termination, can be taken against a supervisor for failing to take proper action when harassment is reported and/or observed. Section IV identifies four basic types of harassment. Whether an action falls under some of these categories can be highly subjective. For example, a derogatory comment can be considered harassment according to the policy. Would that include a supervisor’s negative critique of the work of an employee? This puts a supervisor in an extremely difficult situation, especially since the policy requires that the supervisor document any harassing behavior that they observe. It seems that the implementation of section VI.2 needs to be thought out in more detail, possibly involving City supervisors in the process so that it can be written in a fair and understandable way.

Section VI.4 of the draft policy allows for an employee to be placed on administrative leave with or without pay to allow time to investigate a complaint. This raises some significant concerns. Placing an employee on administrative without pay and with no determination of wrong doing could potentially have significant economic consequences for the employee. Employees who suffer economic loses could seek legal action against the City, particularly if the complaint is found to be unwarranted.

Another concern is that placing an employee on administrative leave could damage the employee’s reputation when in fact no wrong doing may have occurred. It is critical that the rights of both the alleged harassee and the alleged harasser be considered.

Regarding sexual harassment issues, DeCenzo and Robbins (2010) correctly point out the “no action should be taken against someone until a thorough investigation has been conducted” (p. 75).

We recommend that this section either be eliminated, or at the very least revised to indicate that anyone placed on administrative leave will be paid their normal wages until such time as an investigation has been concluded.

Thank you for this opportunity to comment on this policy.

DeCenzo, D.A., & Robbins, S. P. (2010), Fundamental of human resource management (10th ed.), Hoboken, NJ: John Wiley and Sons.

ADDENDUM:
DeCenzo, Robbins: Fundamentals of Human Resource Management, 8th Edition

Chapter 3: Equal Employment Opportunity.

NOTES:
Special City Council meetings:

Special City Council Budget Workshop – 4:30 P.M.
Thursday, May 19, 2011
Council Chambers

Special City Council Budget Workshop – 4:30 P.M.
Thursday, May 26, 2011
Council Chambers