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HomeMy WebLinkAbout06-Council Minutes CITY OF SAN BERNARDINO 300 N. "D" Street San Bernardino, CA 92418 Website: www.sbcity.org Mayor Patrick J. Morris Council Members: Esther Estroda Dennis J. Baxter Tobin Brinker Fred Shorett Chas Kelley Rikke Van Johnson Wen<!Y McCammack ~ MINUTES MAYOR AND COMMON COUNCIL AND COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO JOINT REGULAR MEETING DECEMBER 7,2009 COUNCIL CHAMBERS The joint regular meeting of the Mayor and Common Council and Community Development Commission of the City of San Bernardino was called to order by Mayor/Chairman Morris at 1:44 p.m., Monday, December 7, 2009, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. Roll Call Present: Mayor/Chairman Morris; Couneil Members/Commissioners Estrada, Shorett, Kelley, Johnson, MeCammack; City Attorney Penman; City Manager McNeely; City Clerk Clark. Absent: Council MemberslCommissioners Baxter, Brinker. Council Member/Commissioner Brinker arrived at 3:15 p.m. 1. Closed Session Pursuant to Government Code Section(s): A. Conference with legal counsel - existing litigation - pursuant to Government Code Section 54956.9(a): Belinski, Paul v. City of San Bernardino, et al. - United States Distriet Court Case No. CV08-8571PSG(MANx); 1 12/07/2009 Batey, Jane, et al. v. City of San Bernardino, et al. - San Bernardino County Superior Court Case No. SCVSS 141503; In the Matter of the Industrial Disability Retirement Application of Garrett Zirnmon and City of San Bernardino. OAH Case Number 2007080890. B. Conferenee with legal counsel - anticipated litigation - significant exposure to litigation - pursuant to subdivision (b) (1), (2), (3) (A-F) of Government Code Section 54956.9: Inland Communities Corp. v. City of San Bernardino (Paradise Hills) One Case C. Conference with legal counsel - anticipated litigation - initiation of litigation - pursuant to subdivision (c) of Government Code Section 54956.9: City of San Bernardino v. California State University D. Closed Session - personnel - pursuant to Government Code Section 54957. E. Closed session with Chief of Police on matters posing a threat to the security of public buildings or threat to the public's right of access to pub lie services or publie facilities - pursuant to Government Code Section 54957. F. Conference with labor negotiator - pursuant to Government Code Section 54957.6. G. Conference with real property negotiator - pursuant to Government Code Section 54956.8. City Attorney Penman announced that the following additional case would be diseussed in closed session: Human Potential Consultants, LLC v. City of San Bernardino Mayor and Common Council, City of San Bernardino Planning Commission, City of San Bernardino - San Bernardino County Superior Court Case No. CIVDS 917268. 2 12/07/2009 City Clerk Clark announced that she had one case under Section 54954.5(c), Conferenee with legal counsel - anticipated litigation - under significant exposure to litigation pursuant to subdivision (b) of Section 54956.9: One case regarding a proposed petition/charter amendment. Note: See Agenda Item No. NBl for eomments regarding this item. Closed Session Announcement City Clerk Clark announced that in closed session Council MemberlCommission Johnson made a motion, seeonded by Council Member/Commissioner Estrada, to confirm the City Manager's decision to dismiss the Integrated Waste Management Division Manager and decline his attorney's offer of a severance package. The motion carried with Baxter and Brinker absent. Reading of Resolutions & Ordinances Deputy City Clerk Hartzel read into the record the titles of all the resolutions and ordinances on the regular agenda of the Mayor and Common Council and Community Development Commission. Moment of Silence A moment of silenee was observed in memory of community aetivist Jan Misquez. Invocation/PIedge of Allegiance The invocation was given by Minister Harvie Haynes of Ecclesia Christian Fellowship. The pledge of allegiance was led by the Honor Guard from the San Bernardino Police Department. 2. Appointment - Evlyn Wilcox - Community Development Citizens Advisory Committee - Council Member McCammack Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that the appointment of Evlyn Wilcox to the Community Development Citizens Advisory Committee, as requested by Couneil Member McCammack, be approved. The motion carried with Baxter absent. Council Member/Commissioner McCammaek presented Ms. Wilcox with a proclamation in recognition of being in business in San Bernardino for the past 50V2 years. 3 12/07/2009 3. Presentations Mayor Morris unveiled a shadowbox containing the Purple Heart and other military honors earned by James Bert Heap, the son of a pioneer family in San Bernardino, who served in the United States Navy as a Fireman Third Class and was killed on September 5, 1918, during World War I. Mr. Heap's surviving descendent, great niece Christina Perris, presented the shadowbox to Mayor Morris as a donation to the City's historical archives. Lynn Valbuena, Vice Chair of the San Manuel Band of Mission Indians, and other members of the tribe, presented a check in the amount of $30,000 to Kevin Hawkins, Director of Parks, Recreation and Community Services, and Deputy Director Robert Lennox, to purchase a new van for the department to use in their youth and senior programs. Couneil Member Brinker presented a commendation to Richardson PREP High teacher, Marisa Rivas, in reeognition of her being selected as the recipient of the 2009 Milken Educator Award. Certificates of recognition were presented by Mayor Morris to Reverend Fred Adams and Pastor Alvarado of The Rock ehurch, and to Tom Coats, Rose Wolf, and Isaac Choudhry of the Coea-Cola Bottling Company, who recently worked together to collect clothing and assemble hygiene kits, whieh were donated to Project Homeless Connect. Also reeognized were Marci Atkins, Homeless Advocate Officer for the San Bernardino Police Department, and Isaac Jackson, Homeless Services Coordinator with the County of San Bernardino, who orchestrated the event. Rabbi Hillel Cohn, Chairman of the Bicentennial Committee, referred to a newspaper article written in 1910 about an evening of elegance in our city, comparing it to the Bicentennial Gala to be held on May 15, 2010. He introduced former Couneilwoman Betty Dean Anderson and Martha Pinckney, Chairman of the Gala subcommittee, who spoke regarding the upcoming event. 4. Announcements Announcements were made by the Mayor, members of the Common Council, eleeted officials, and a representative from the Chamber of Commerce regarding various civie, community, and chamber events and activities. 4 12/0712009 5. Waive Full Reading of Resolutions & Ordinances Council Member/Commissioner Johnson made a motion, seeonded by Council Member/Commissioner Estrada, that full reading of the resolutions and ordinances on the regular agenda of the Mayor and Common Council and Community Development Commission, be waived. The motion carried with Baxter absent. 6. Council Minutes Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Estrada, that the minutes of the following meeting(s) of the Mayor and Common CouncillCommunity Development Commission of the City of San Bernardino be approved as submitted in typewritten form: November 2, 2009, and November 16, 2009. The motion carried with Baxter absent. 7. Claims & Payroll CouneiI MemberlCommissioner Johnson made a motion, seeonded by Council MemberlCommissioner Estrada, that the claims and payroll and the authorization to issue warrants as listed in the memorandum dated November 17, 2009, from Barbara Pachon, Direetor of Finanee, be approved. The motion carried with Baxter absent. 8. Personnel Actions Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Estrada, that the personnel actions, as submitted by the Chief Examiner, dated December 1, 2009, in accordance with Civil Service rules and Personnel policies adopted by the Mayor and Common Council of the City of San Bernardino, be approved and ratified. The motion carried with Baxter absent. 9. Approve Local Appointments List per Maddy Act Public Comments Joe Ortiz, San Bernardino, CA, supported denial of the item. Council Member/Commissioner Brinker made a motion, seconded by Council MemberlCommissioner Shorett, that the Mayor and Common Council approve the Loeal Appointments List of all regular and ongoing boards, commissions, and committees and direct the City Clerk to send a copy of the List to the Feldheym Library for posting pursuant to Government Code Seetion 54973. The motion carried with Baxter absent. 5 12/07/2009 10. RES. 2009-358 - Resolution of the Mayor and Common Council of the City of San Bernardino, California, reciting the facts of the Primary Municipal Election held on the 3" day of November 2009, declaring the results thereof and setting forth such other matters as are allowed by law. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Estrada, that said resolution be adopted. Resolution No. 2009-358 was adopted with Baxter absent. 11. Resolutions authorizing the execution of Mills Act Preservation Agreements RES. 2009-359 - Resolution authorizing the execution of a Mills Act Preservation Agreement with Stephen T. and Denise Dawson. (l1A) RES. 2009-360 - Resolution authorizing the execution of a Mills Act Preservation Agreement with Steven and Suzanne Earp. (lIB) Council MemberlCommissioner Johnson made a motion, seeonded by Council Member/Commissioner Estrada, that said resolutions A and B, be adopted. Resolution Nos. 2009-359 and 2009-360 were adopted with Baxter absent. 12. RES. 2009-361 - Resolution of the Mayor and Common Council of the City of San Bernardino ratifying the execution of an agreement with William Holt for Hearing Officer andlor Administrative Law Officer Services retroactive to December 1, 2009. Council Member/Commissioner Johnson made a motion, seconded by Couneil MemberlCommissioner Estrada, that said resolution be adopted. Resolution No. 2009-361 was adopted with Baxter absent. 13. Authorize the Director of Development Services to execute Contract Change Order No. One with A.K. Engineering for Traffic Signal Modification at Waterman Avenue and Parkdale Drive (TC05-07), per Project Plan No. 11628 Council MemberlCommissioner Johnson made a motion, seconded by Council Member/Commissioner Estrada, that the Direetor of Development Services be authorized to execute Contract Change Order No. One with A.K. Engineering for Traffic Signal Modification at Waterman Avenue and Parkdale Drive (TC05- 07), per Project Pan No. 11628. The motion carried with Baxter absent. 6 12/07/2009 14. RES. 2009-362 - Resolution of the City of San Bernardino authorizing and directing execution of a license and agreement with BNSF Railway Company for encroachment within that certain north-south alley, known as Walker Place, west of "J" Street, between West Rialto Avenue and West 2nd Street in the City of San Bernardino, for installation and operation of a groundwater monitoring well. Council Member/Commissioner Johnson made a motion, seconded by Couneil Member/Commissioner Estrada, that said resolution be adopted. Resolution No. 2009-362 was adopted with Baxter absent. 15. An Ordinance of the City of San Bernardino adding Chapter 17.07 to the Municipal Code as the City of San Bernardino Water Efficient Landscape Ordinance. FIRST READING Note: No ordinanee was distributed with the backup materials. Council Member/Commissioner Johnson made a motion, seconded by Couneil Member/Commissioner Estrada, that the proposed Ordinance be referred to the Legislative Review Committee for review and recommendation. The motion carried with Baxter absent. 16. RES. 2009-363 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of agreements and issuance of purchase orders with Masters and AssociateslWestnet, Inc. and Tiburon for the purchase and interface of a frre station alerting system; and award a bid for lease purchase fmancing to Bank of America for the purchase of a fire station alerting system. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Estrada, that said resolution be adopted. Resolution No. 2009-363 was adopted with Baxter absent. 17. RES. 2009-364 - Resolntion of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an agreement and issuance of a purchase order to Mallory Fire in the amount of $31,600 for the New Generation Fire Shelters and rescinding Resolution 2009-293. Council Member/Commissioner Johnson made a motion, seconded by Couneil Member/Commissioner Estrada, that said resolution be adopted. Resolution No. 2009-364 was adopted with Baxter absent. 7 12/07/2009 18. 2009 and 2010 Holiday Closure Days Public Comments Joe Ortiz, San Bernardino, CA, supported denial of the item. Council Member/Commissioner Brinker made a motion, seconded by Council Member/Commissioner Shorett, that the Mayor and Common Council authorize the closure of City Hall for the Christmas Eve/Christmas Day on Wednesday, December 23, 2009 and Thursday, December 24, 2009; and New Year's Eve/New Year's Day on Wednesday, December 30, 2009 and Thursday, December 31,2009. The motion carried with McCammack voting "no" and Baxter absent. 19. Resolution of the Mayor and Common Council of the City of San Bernardino approving the destruction of certain records no longer required to be maintained by the San Bernardino Parks, Recreation and Community Services Department. Note: No resolution was distributed with the backup materials. Council MemberlCommissioner Johnson made a motion, seconded by Council Member/Commissioner Estrada, that the matter be continued to the Council/Commission meeting of December 21, 2009. The motion carried with Baxter absent. 20. RES. 2009-365 - Resolution by the Mayor and Common Council to execute Amendment No. 2 to the agreement with the Redlands Unified School District to equally share the cost of crossing guard service at Victoria Elementary School. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Estrada, that said resolution be adopted. Resolution No. 2009-365 was adopted with Baxter absent. 21. RES. 2009-366 - Resolution of the City of San Bernardino authorizing the City Manager of San Bernardino to execute Amendment No. 5 to the Services Agreement with the San Bernardino City Unified School District for the operation of the School Crossing Guard Program by the Police Department. Couneil Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Estrada, that said resolution be adopted. Resolution No. 2009-366 was adopted with Baxter absent. 8 12/07/2009 22. RES. 2009-367 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an agreement and issuance of a purchase order in the amount of $369,000 with four (4) one-year extensions at the City's option to Rehrig Pacific Company for the purchase of automated carts for residential refuse services. Council Member/Commissioner Johnson made a motion, seeonded by Council Member/Commissioner Estrada, that the Director of Finanee be authorized to amend the FY 2009/10 budget and transfer $156,000 from Account No. 527- 412-5179 (Dump/Waste Fees) to Account No. 527-412-5112 (Small Tools and Equipment); and that said resolution be adopted. The motion carried and Resolution No. 2009-367 was adopted with Baxter absent. 23. RES. 2009-368 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an agreement and issuance of a purchase order in the amount of $62,181.60 to Ironman Parts & Services of Corona pursuant to Section 3.04.010-B3 of the Municipal Code, for the purchase and installation of four (4) diesel particulate filters to be installed on four (4) Street Division trucks, per the California Air Resources Board (CARB) regulations. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Estrada, that said resolution be adopted. Resolution No. 2009-368 was adopted with Baxter absent. 24. RES. 2009-369 - Resolution of the City of San Bernardino ratifying the submittal of a grant letter of interest to Kaiser Permanente for funding in the amount of $25,000 to augment the Parks, Recreation and Community Services Department swim program for the 2010 summer season. CouneiI Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2009-369 was adopted with Baxter absent. 25. RES. 2009-370 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the San Bernardino City Fire Department to apply for and administer the FY 2009 Staffing for Adequate Fire and Emergency Response (S.A.F.E.R.) grant submitted to the Department of Homeland Security Federal Emergency Management Agency. Public Comments Jay Lindberg, San Bernardino, CA, supported denial of the item. 9 12/07/2009 Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2009-370 was adopted with Baxter absent. 26. Request for waiver of fees - YMCA Children's Christmas Parade - December 5, 2009 Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Estrada, that the request for a waiver of fees in the amount of $8,912.54 for department personnel and equipment costs associated with the 32"" Annual YMCA Children's Christmas Parade scheduled for Deeember 5, 2009 be approved; and that $8,912.54 be transferred from the Civic and Promotion Fund into the various City departmental accounts as listed in the staff report from the City Manager to recover their costs incurred in assisting with the parade. The motion carried with Baxter absent. 27. Public Hearing - Resolution regarding the allocation of Citizens Option for Public Safety (COPS Option) monies. RES. 2009-371 - Resolution of the City of San Bernardino authorizing the obligation and expenditure of the allocated Citizens Option for Public Safety (COPS Option) monies for FY 09/10 to supplement front-line law enforcement support services. Mayor/Chairman Morris opened the hearing. No public comments were reeeived. Council Member/Commissioner Brinker made a motion, seconded by Council Member/Commissioner Estrada, that the hearing be closed; and that said resolution be adopted. The motion carried and Resolution No. 2009-371 was adopted with Baxter absent. 28. Norton Space and Aeronautics Academy - Reimbursement Agreement for waiver/reimbursement of fees. (Continued from July 6,2009.) Staff requested a continuance to February 16,2010. CouneiI Member/Commissioner Kelley made a motion, seconded by Couneil Member/Commissioner Brinker, that the matter be continued to the Council/Commission meeting of February 16, 2010. The motion carried with Baxter absent. 10 12/07/2009 29. RES. 2009-372 - Resolution of the City of San Bernardino amending the boundaries of the Second Ward and the Fourth Ward to include certain areas annexed within City of San Bernardino Annexation No. 360, Arrowhead Springs area, and Annexation No. 361, portions of various islands generally lying north of Pacific Street, east of Valencia Avenue, south of Piedmont Drive and west of Victoria Avenue. Public Comments Sue Hulse, San Bernardino, CA, supported denial of the item and requested that her house number remain the same if the item was approved. Mayor Morris asked the City Manager's office to meet with Ms. Hulse regarding her request. Council Member/Commissioner Brinker made a motion, seconded by Council Member/Commissioner Shorett, that said resolution be adopted. Resolution No. 2009-372 was adopted with McCammack voting "no" and Baxter absent. COMMUNITY DEVELOPMENT COMMISSION Present: Mayor/Chairman Morris; Council MemberslCommissioners Estrada, Brinker, Shorett, Kelley, Johnson, McCanunack; Senior Deputy City Attorney Wilson; Economic Development Agency Interim Executive Direetor Marzullo and Agency Counsel Sabo; City Clerk Clark. Absent: Council Member/Commissioner Baxter. R30. Public Hearing - The Five-Year Implementation Plan (2009-2010 through 2013-2014) and Ten-Year Housing Compliance Plan (2009-2010 through 2018-2019) for the Agency's 14 Redevelopment Project Areas (All Project Areas) RES. CDC/2009-65 - Resolution of the Community Development Commission of the City of San Bernardino adopting the Redevelopment Agency of the City of San Bernardino ("Agency") 5- Y ear Implementation Plan 2009-2010 through 2013-2014 and 10-Year Housing Compliance Plan 2009-2010 through 2018-2019 for the Agency's Redevelopment Project Areas except for the Uptown Redevelopment Project Area and including the Inland Valley Development Agency ("IVDA") Redevelopment Project Area (Low-Moderate Income Housing Component). (R30A) 11 12/07/2009 RES. CDC/2009-66 - Resolution of the Community Development Commission of the City of San Bernardino adopting the Redevelopment Agency of the City of San Bernardino ("Agency") 5-Year Implementation Plan 2009-2010 through 2013-2014 and 10-Year Housing Compliance Plan 2009-2010 through 2018-2019 for the Agency's Uptown Redevelopment Project Area. (R30B) MayorlChairman Morris opened the hearing. Agency Interim Executive Director Marzullo provided an overview of the staff report. Ken Lee, Senior Associate, and Tara Howard, Associate/Project Manager, RSG, distributed hard copies and provided a PowerPoint presentation of the document titled, San Bernardino Redevelopment Agency, FY 2009-10 through FY 2013-14 Implementation Plan, December 7,2009. Council MemberlCommissioner Estrada requested a report on the number of square miles that make up the City of San Bernardino, and of that number, how many square miles are in Redevelopment Project Areas. No publie comments were received. Council MemberlCommissioner Brinker made a motion, seconded by Council Member/Commissioner Johnson, that the hearing be closed; and that said Resolution A, be adopted. Resolution No. CDC/2009-65 was adopted with McCammack voting "no" and Baxter absent. Council Member/Commissioner McCamrnack stated she would abstain on Resolution "B" because she owns property in the Uptown Redevelopment Project Area. She left the Council Chambers and returned after the vote was taken. Council Member/Commissioner Estrada made a motion, seconded by Couneil Member/Commissioner Brinker, that said Resolution B, be adopted. Resolution No. CDC/2009-66 was adopted with McCammack abstaining and Baxter absent. R31. Public Hearing - Affordable Housing Solutions of San Bernardino (" AHS") - Amendment to the 2009-2010 City of San Bernardino Annual Action Plan authorizing the use of HOME Funds by AHS 12 12/07/2009 Resolution of the Community Development Commission of the City of San Bernardino approving an amendment to the City's 2009-2010 Annual Action Plan and authorizing the use of HOME Investment Partnership Funds by Affordable Housing Solutions of San Bernardino for the purpose of mitigating residential foreclosures and related blighting influences. Note: No backup materials were distributed. Mayor/Chairman Morris opened the hearing. Council Member/Commissioner McCammack made a motion, seconded by CouneiI Member/Commissioner Johnson, that the hearing and the matter be continued to the CouncillCommission meeting of December 21, 2009. The motion carried with Baxter absent. R32. Neighborhood Housing Services of the Inland Empire ("NHSIE") Quarterly Update of Program Activities Council Member/Commissioner MeCammaek stated she would abstain because NHS is a business client. Council MemberlCommissioner Estrada made a motion, seconded by Council Member/Commissioner Brinker, that the Redevelopment Committee recommend to the Community Development Commission to receive and file the Quarterly Update of NHSIE program activities. The motion carried with McCammack abstaining and Baxter absent. R33. California Theatre of the Performing Arts - Approval of Funding for additional National Touring Performances (2009-2010 Theatre Season) RES. CDC/2009-67 - Resolution of the Community Development Commission of the City of San Bernardino approving the funding of certain expenses in furtherance of the California Theatre of the Performing Arts and authorizing the expenditure of funds from varions redevelopment project areas. Council Member/Commissioner Kelley made a motion, seconded by Couneil Member/Commissioner Brinker, that said resolution be adopted. Resolution No. CDC/2009-67 was adopted with Baxter absent. 13 12/07/2009 PLANNING ITEMS 34. Appeal Hearing - Appeal of the Planning Commission's approval of Tentative Tract Map (TTM) No. 16794 and Variance No. 09-02. The project is a 44-lot single family residential subdivision on 18.45 acres, with a variance to permit a retaining wall up to 26 feet in height on the west side of Palm Avenue, 200 feet north of Verdemont Drive in the RL, Residential Low land use district. (Appeal No. 09-02) Mayor/Chairman Morris opened the hearing. Terri Rahhal, Deputy Director/City Planner, stated that the Planning Commission approved Tentative Tract Map No. 16794, a 44-lot subdivision with a minimum lot size of 10,800 square feet, on September 23, 2009; and this was an appeal of that action by the Planning Commission. She stated that the project site is located on the west side of Palm A venue across from Melvin A venue and Huntington Drive in the Residential Low land use district in the Verdemont area. The applicant on the projeet is Borstein Enterprises, and they are represented by MAPCO. She advised that the appeal that has been filed on this project was filed by Mr. Richard Hernandez; and the specific items mentioned in the appeal have to do with procedural issues regarding the Planning Commission hearing itself. One of the things was some confusion that arose from the first vote that the Planning Commission took on the item, and it was the last item considered as a public hearing that evening. The fust motion by the Planning Commission to approve the project actually failed with a vote of 4 in favor of approval, 3 opposed, and 2 abstentions. That did not constitute a majority of the members present, and so the Planning Commission had to reeonsider the item; and at that time a motion to approve on reconsideration did carryon a vote of 5 in favor, 2 opposed, and the 2 abstentions. She noted that the Planning Commission hearing was never actually adjourned during this time, and so the final action taken by the Planning Commission on the tentative tract map was completed before the meeting adjourned. Aside from the technical issues on the procedures of the Planning Commission, which are addressed in the staff report, the main subject of the public comments on this projeet-the testimony at the Planning Commission and some public comments that have already been made to the Council, have centered around the proposed retaining wall along the southern boundary of the project site. This retaining wall is the subject of the variance that was approved by the Planning Commission to have a maximum height of up to 26 feet. (Note: A wire bound 14 12/07/2009 document titled, Tentative Tract Map-16794, City of San Bernardino Mayor and Common Council Meeting, December 7, 2009, had been distributed to the Mayor and Council and was referred to by Ms. Rahhal.) Ms. Rahhal stated that the proposed retaining wall is a Verdura retaining wall system, which incorporates planter soil and a built-in irrigation system as the wall is constructed for ultimate full coverage of the wall with landscaping; and the wall is supposed to be maintained by a landscape maintenanee district. The appearance of the retaining wall and the coverage of vegetation was one of the primary issues of eoncern at the Planning Commission hearing, and it was one of the major concerns voiced by the Planning Commissioners. So much so, that the Planning Commission modified one of the proposed conditions of approval and made it part of the conditions. She stated that Condition of Approval No. 12 was amended to say, "The retaining wall along the south property boundary shall conform to the exhibits in the staff report. Landscaping and drip irrigation shall be installed with suitable soil to support drought tolerant, fire resistant landseape material as the wall is constructed. Uniform coverage of 50 percent of the wall shall be established prior to acceptance of the walls and grading. A detailed planting plan for the Verdura Wall shall be submitted for approval with the Development Permit for the project site." To explain that condition of approval, Ms. Rahhal pointed out that the project before the Couneil tonight was a subdivision map; and prior to development of the project there is still another step in the proeess, and that is a Development Permit for the homes to be submitted for approval by the Planning Commission. Along with the Development Permit, additional design details for fences, walls, the detailed landscape and irrigation plan, and the architeetural design for the homes will be submitted for approval also. The original plans for Tentative Tract Map No. 16794 and the environmental initial study that was prepared for the project describe the proposed retaining wall as ranging from II to 26 feet in height. That range represented a conservative worst-case scenario for the wall height for the purpose of environmental review and to make sure that the worst case was analyzed. Since that time more detailed engineering and design work has been completed, whieh now sets the maximum height at 22 feet, and that height is only at the southwest corner of the project site. Ms. Rahhal stated that one of the last exhibits in the pamphlet that the Council members had been given was an exhibit that presents the various wall height elevations corresponding to the lots at the southern boundary of the site, and those are lots 16 through 26. The height along that south-facing elevation, based on these eorner elevations given, would average approximately 10 feet just along that southern boundary; and the average of 8 feet overall that's noted 15 12/07/2009 at the bottom ineIudes where the wall wraps around to the north on both sides and eventually tapers down to nothing. The variance application was required for the wall to exceed 8 feet in height, which is the maximum height for a permanent wall or a retaining wall. The length of the wall that requires this variance is approximately 650 linear feet. That is the portion of the wall that exceeds 8 feet and requires a variance. Upon hearing the concerns of the residents in the area that were brought up at the Planning Commission and some of the public eomments made to the Council, and also after seeing the petition that was distributed and some other materials in the community, the applicant conducted his own neighborhood outreach. All of the residents were invited to attend a community meeting on Saturday, November 21, whieh was held and hosted by two of the residents on Palm Avenue, across the street from the project site. The turnout was approximately 50 people. They came out to see the project site and to be able to ask questions and hear from the developer what is being proposed. In addition, they did have a few of the residents come and meet with Planning staff. Staff reviewed the background documents on file with these residents and answered their questions to the best of their ability. In conclusion, Ms. Rahhal stated that Tentative Traet Map No. 16794 does conform to all of the development standards of the Residential Low land use district with the exception of the height of the retaining wall, which does require the variance. The varianee for the wall height is justified based on the existing topographic conditions of the site, especially relating to the existing Palm A venue, which is already set, and the grades of the existing tract on the east side of Palm Avenue, the Skyline Tract. The uniform design and the ongoing care that is provided by a landscape maintenance district will ensure the long-term maintenance of this wall. In addition to that, after the wall is initially eonstructed, the developer is required to post a security with the City to guarantee the survival of the landscaping. That would include the cost of potentially having to replace all of the landscaping if it did not survive. That security is kept on deposit for at least one year and until that point when the City accepts it as well-established landscaping that ean continue to be maintained by the landscape maintenance district. Staffs recommendation is that the Mayor and Council deny Appeal No. 09-02 and uphold the action of the Planning Commission to approve Tentative Tract Map No. 16794 and Variance No. 09-02. With that action, staff would also recommend that the Council modif'y the Condition of Approval No.1, to specif'y the maximum height of the retaining wall at 22 feet, as now proposed; and to require conformance to the design details as presented to the Council and for approval of the development permit by the Planning Commission and detailed landscaping irrigation plans prior to construetion of the Verdura Wall. Those 16 12/07/2009 are normal procedures, but staff would recommend that that be added so there is no confusion. Mayor/Chairman Morris stated that with regard to the posted security, to be sure that they have a landscaping plan that actually is maturing as depicted in the plans as a plant covered wall-what is the amount of that seeurity and the rationale for one year forfeiture as opposed to a longer term. Ms. Rahhal stated that the amount of the security is determined after the details of plans for landscaping and irrigation are completed by a licensed architect. That person estimates the cost of all the plant materials and what would be required to replant the wall and reestablish it, if need be. One year is typically a standard factor, at which time you can see if the landscaping is in good condition or not. If, after one year, the City does not see that it is well established and needs to keep the security longer, that would be an option. Council Member/Commissioner McCammack stated that the biggest issue that she kept reading about in all the comments that have been submitted to the Council offiee is that the developer can do better than this. She asked what else, besides this, could the developer do. It was her understanding that the developer owns that property, they have a right to develop it, so what else could they do besides that wall that would be better? Ms. Rahhal stated that the alternative to constructing a wall would be to have, for instance, a 2 to I slope. However, that would end up with an even greater area at the perimeter that has to be landscaped and maintained. She stated that staff sees it as a good economical way to have a nice landseaped frontage to the property . Council Member/Commissioner Estrada asked if there was any reason they couldn't do a two-year or three-year bond. Ms. Rahhal responded that they have required a bond seeurity for at least one year, or until the City determines that it's not necessary anymore. Ms. Estrada stated that she thought it was important because some of the questions that have been raised to her were about what assurances are there that there will be vegetation there at some point. Ms. Rahhal stated that the condition of approval that was modified by the Planning Commission already requires a 50 percent uniform coverage by the landscaping before the wall is even accepted and signed off for its permit. From that point on, the bond is still in place to make sure that 100 percent fills in and that the City is eomfortable with the maintenance district being able to maintain it. 17 12/07/2009 Ms. Estrada asked if there was going to be water for the vegetation on the wall. Ms. Rahhal responded that, yes, it is a built-in system, and each cell has drip irrigation to it. Ms. Estrada asked about the pressure from the wall-was the hydrostatic pressure based on our engineer's review. Ms. RahhaI stated that there will be an engineering review, just as there would be for any retaining wall, but specifically this wall will have those characteristics of the irrigation on it; and yes, that would be part of their engineering review. Council Member/Commissioner Estrada asked at what point do they know that in fact the wall can be built versus moving forward with the projeet. Ms. Rahhal responded that the grading plan would not be approved until the specifications for the wall are accepted by the City Engineer. So if the grading plan is not approved, no eonstruction would take place on the site. Council Member/Commissioner Brinker stated that one of his concerns is that this is a big wall, and it presents itself a little differently than a wall that is completely vertical because it's got a little bit of a grade to it. He thought it would be imminently climbable because of the way it is designed-and so he worries about that a little bit and had a couple of questions about that. One is, how do they block access to the wall. He knows that there is a 3-foot wide area. Do they have some sort of fence that blocks that access that only City personnel can get in to go baek in there to do serviee, if neeessary. If a kid gets back in there, climbs the wall, gets injured-what about liability? And how do they get back in there with only a 3-foot wide area in terms of emergency serviee? Would it be more feasible to have a slightly wider area so they could drive a vehicle back in there? Ms. Rahhal stated that the question of climbing the wall really hasn't come up in any eonversations. However, the access at the bottom has come up, and initially staff was concerned that there wasn't enough room to do anything; however, they were told by the City's own Parks and Recreation Department, that it's not unusual and it is sufficient, and they were satisfied with it for being able to get in and do maintenance. Mr. Brinker stated that for maintenance, he would agree that it is sufficient; but more problematic is that very rare situation when someone gets back up in there and it creates a problem-how do they deal with that and what does that mean for the City? 18 12/07/2009 Ms. Rahhal answered that the site could be fenced off, but on the other hand, the type of fencing that you would use, if a young person is willing to seale a vertical wall, they can easily go over a fence also. So she was not sure that a seeurity fence was the answer to that. Council MemberlCommissioner Johnson stated that his question was really coneerning the property that is south of the wall. How will the wall impact the value of the property to the south of the wall-will it increase it, decrease it, or will it remain the same? Ms. Rahhal responded that the same owners own the property immediately south of this site and the property that will be on the south side of the future Verdemont Kai. That property owner will still have the same building rights as any other in the district. She stated that she thought the improvement of any property with nice new homes, tends to enhance development. There will be new infrastructure completed on Palm Avenue, which would also abut property to the south. It would not impede development to the south-it wouldn't damage it. Mr. Johnson asked if there was any way she eouId really make a determination of value; and she responded that it would be hard for her to calculate that. Council Member/Commissioner McCammack stated that in regards to the drip system-let's just say 10 years from now some of the drip system itself starts to deteriorate within the wall. How would one go about fixing a drip system, when the bloeks are already there? Ms. Rahhal stated that they are installed in a way that they can be maintained after the fact, and part of the assessment that goes to the maintenance includes repairs that will happen over time. Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to the following individuals that they would provide true and honest testimony. The following individuals spoke in support of granting the appeal: Anthony Blacksher, San Bernardino, CA. Riehard Hernandez, San Bernardino, CA. Miehael Craft, San Bernardino, CA. Jay Lindberg, San Bernardino, CA. Jim Mulvihill, San Bernardino, CA. Kim McNair, San Bernardino, CA. Beth Baeker, San Bernardino, CA. Jay McNair, San Bernardino, CA. Rebecea Wilson, San Bernardino, CA. 19 12/07/2009 Don Haggard, San Bernardino, CA. Tiffany MeNair, San Bernardino, CA. Tanis Hazlett, San Bernardino, CA. The following individuals spoke in favor of denying the appeal: Joe Ortiz, San Bernardino, CA. Perry Atkins, San Bernardino, CA. Eric Borstein, Los Angeles, CA. The following individual held no position on the matter but expressed various concerns: Shirley Harlan, San Bernardino, CA. Council Member/Commissioner Shorett inquired about the watering system and whether it would be hidden within the wall structure. He also asked whether the wall was safe and could withstand seismic stress. Dave Mlynarski of MAPCO advised that the watering system would not be on the outside of the wall, but would be a drip system installed by the contractor and maintained by the City. He stated that this wall would be designed to the same standard as any other structure per UBC requirements. Eric Borstein stated that different cities have different requirements as to conditions on their maps. This Planning Commission commissioned him to plant this wall and have at least 50 percent coverage before any building permits would be pulled. He stated that these walls can be seeded, and if they are seeded they ean take upwards of 24 to 36 months to start getting growth. However, they have not been commissioned to seed their walls-they have been commissioned to actually plant the walls with real plant material. The Couneil inquired whether the project could be built without the wall. Mr. Mlynarski stated that he could try to redesign the wall with a 2oo-foot slope, but he didn't know how that would affect the lot count. The lot count would change, but the infrastructure would also be altered. They are trying to complete something that was started with the subdivisions to the east and the south. Council MemberlCommissioner McCammack stated that her concern was that if the homeowners had the expectation that the wall would be 8 feet, or no larger than the currently existing law allows, then she understood that. Her thinking is that if you placed an 8-foot wall and then you sloped it, how many pads would you actually lose? She stated that she needed an answer to that. 20 12/07/2009 Mr. Mlynarski stated that he didn't know if they would necessarily lose any lots. He explained that when you design a pad and you want to put a house on it, you want to have a useable rear yard; and they were trying to provide 25-foot useable rear yards. Mr. Brinker asked about the idea of changing the landscape to something that is cheaper to maintain. He noted that the Council just passed an ordinance for people who want to go to a dryer type of landscaping in front of their home, and there is a state law that he thought they would be discussing soon that will require them to provide that in new developments. Council Member/Commissioner Kelley stated he would like to continue this item so that the full Council is informed by staff and their legal advisors as to the best way to proceed on this and to ensure that they are making the right deeision for the City. He stated that he wanted to ensure that the residents who have signed this petition know that their voices have been heard, that the Council has reviewed it, and that they are aware of their concerns regarding this appeal for a varianee. He stated that he thought they should be deliberate in this process, they should get answers to those questions that this Council has asked, they should answer some of the questions that the residents have raised tonight, and he thought it would be prudent to give staff an opportunity to address these questions. Council MemberlCommissioner Johnson noted that this is a precedent setting agenda item-they haven't had anything like this in the City, so he didn't think the discussion should be germane just to the Verdemont area. Couneil Member/Commissioner Brinker made a motion, seconded by Council MemberlCommissioner Kelley, that the matter be continued to the Council/Commission meeting of December 21, 2009. The motion carried with Baxter absent. Senior Assistant City Attorney Wilson advised that an effort will have to be made to ensure that the questions asked and the answers given are made a part of the record of these proceedings. 35. Public Comments Karen Serrano, San Bernardino, CA, invited everyone to Congressman Joe Baea's annual holiday open house on Thursday, December 17, from 5-9 p.m., to be held at 201 North "E" Street, Third Floor. 21 12/07/2009 Don Parnell, San Bernardino, CA, Cal State San Bernardino baseball coach, spoke regarding the school's baseball program, the investment they have made in Fiscalini Field, and their desire to continue sharing Fiscalini Field with the City of San Bernardino. Betty Long, San Bernardino, CA, spoke regarding love and forgiveness of various individuals. Joe Ortiz, San Bernardino, CA, forfeited his three minutes in honor of Ms. McCarnmack's birthday. Zettie Epps, San Bernardino, CA, spoke regarding the criminal aetivities taking place in the area in which she lives and questioned how long this would be allowed to go on. Jay Lindberg, San Bernardino, CA, spoke regarding the high cost of financing the City's firefighting and law enforcement personnel. Shirley Harlan, San Bernardino, CA, forfeited her three minutes in honor of Ms. McCarnmack's birthday and the lateness of the hour. NBl. Authorization to seek outside legal counsel City Clerk Clark advised that this was a request that the Couneil authorize her to seek outside legal counsel if, in fact, the proponents of a proposed Charter amendment come forward and request that a ballot title and summary be prepared. Council Member/Commissioner Brinker made a motion, seconded by Council MemberlCommissioner Shorett, that the matter arose subsequent to the posting of the agenda. The motion carried with Baxter absent. Council MemberlCommissioner Brinker made a motion, seeonded by CouneiI Member/Commissioner Shorett, that the City Clerk be authorized to seek outside legal counsel in the event a proposed charter amendment is submitted to her office to change the form of how the City Attorney, City Clerk, and City Treasurer are chosen from elected to appointed. Council Member/Commissioner MeCarnmack stated that whether Ms. Clark has a bias one way or the other, it still is a bias, whether it supports her or opposes the charter change, and she believed that because it has to do with her office that she needs to reeuse herself as well. 22 12/0712009 Council Member/Commissioner McCammack made a substitute motion that the Mayor and Council ask the County Registrar of Voters to handle the entire issue. The motion failed for lack of a second. Mayor/Chairman Morris expressed concern that the County has no jurisdiction-it is a City matter that needs to be handled by the City. He noted that the Clerk had not recused herself. City Attorney Penman stated that this was part of the City Clerk's responsibilities and it should be her decision rather than the Council's. He stated that he could understand that some people might feel the way Ms. MeCammack feels, but it is the Clerk's decision. He reiterated his comments made earlier in the meeting that he would disqualif'y himself and his office from any involvement with this proposed Charter amendment because he thought it would be unethical for his office to be involved since it proposes to change the form of how the City Attorney is chosen from elected to appointed. He hoped the Council would support the reeommendation that came independently from both the City Clerk and the City Attorney that she be authorized to engage an attorney of her choosing, and he would sign off as called for by the Charter. City Clerk Clark advised that she would prefer not to seek outside legal counsel; and, had it not been for the article that appeared in the previous day's newspaper where Mr. Penman clearly indicated that he was against the measure, she would have no problem with Mr. Penman preparing the ballot title and summary. Given the City Attorney's public opposition to the prepared measure, she believed that she should seek outside legal counsel. Mr. Penman explained that the conflict arose regardless of whether he took a position-the conflict is inherent in the fact that the proposal would change the method of selecting the City Attorney from elected to appointed. Therefore, regardless of whether he was for it, against it, or neutral on it, he would have to disqualif'y himself. The original motion made by Council Member/Commissioner Brinker, seconded by Council Member/Commissioner Shorett, carried with Baxter absent. NB2. Authorization to assign case to outside attorney James OdIum City Attorney Penman advised that the City had been served this date with a lawsuit by Steve Lowes against former Police Chief Michael Billdt and the Council needed to authorize that the case be assigned out to Attorney James Odium, who has handled previous lawsuits. 23 12/07/2009 Council Member/Commissioner McCammack made a motion, seconded by Council MemberlCommissioner Kelley, that the matter arose subsequent to the posting of the agenda. The motion carried with Baxter absent. Council Member/Commissioner McCammack made a motion, seconded by Council MemberlCommissioner Kelley, that the following case be assigned to outside attorney James OdIum - Steve Lowes, plaintiff v. Michael Billdt & the City of San Bernardino - U.S. District Court Case No. EDCV 09-2215VAP (OPx). The motion carried with Baxter absent. 36. Adjournment At 8:49 p.m. the meeting adjourned. The next joint regular meeting of the Mayor and Common Council/Community Development Commission is scheduled for Monday, December 21, 2009. By: RACHEL G. CLARK .I..) '. C :nit.y Clerk ~P#L Linda E. Hartzel Deputy City Clerk 24 12/07/2009