HomeMy WebLinkAbout05-17-2004 MinutesMINUTES
MAYOR AND COMMON COUNCIL AND
COMMUNITY DEVELOPMENT COMMISSION
AND THE
SAN BERNARDINO CITY HOUSING AUTHORITY
OF THE CITY OF SAN BERNARDINO
JOINT REGULAR MEETING
MAY 17, 2004
COUNCIL CHAMBERS
The joint regular meeting of the Mayor and Common Council, Community
Development Commission, and San Bernardino City Housing Authority of the City of
San Bernardino was called to order by Mayor/Chairman Valles at 1:41 p.m., Monday,
May 17, 2004, in the Council Chambers of City Hall, 300 North "D" Street, San
Bernardino, California.
Roll Call
Roll call was taken by City Clerk Clark with the following being present:
Mayor/Chairman Valles; Council Members/Conunissioners Estrada, Longville,
McGinnis, Derry, Kelley, Johnson, McCammack; City Attorney Penman, City Clerk
Clark, City Administrator Wilson. Absent: None.
1. Closed Session
Pursuant to Government Code Section(s):
A. Conference with legal counsel - existing litigation - pursuant to
Government Code Section 54956.9(a):
Shirley Allen, an individual v. City of San Bernardino, et al. - San
Bernardino Superior Court Case No. SCVSS 10287;
Ruby Howard v. City of San Bernardino, Redevelopment Agency of the
City of San Bernardino, et al. - San Bernardino Superior Court Case
No. SCVSS 95713;
California Bio-Mass et al. v. City of San Bernardino/Redevelopment
Agency - San Bernardino Superior Court Case No. SCVSS 083473;
The People of the State of California v. Highland Delmar Heights
Quality Water Supply Authority - San Bernardino Superior Court Case
No. SCVSS 104542;
1 5/17/2004
Jonathan Smith v. City of San Bernardino, et al. - United States District
Court Case No. CV 98-1990 GAF (Cix);
Michelle P. Arroyo v. City of San Bernardino, et al. - United States
District Court Case No. CV 02-8967 ABC (SHSx) - San Bernardino
Superior Court Case No. SCVSS 100619;
Redevelopment Agency of the City of San Bernardino v. Jaime Alvarez,
et al. - United States District Court Case No. EDCV 02-142 RT
(SGLx);
Shirley J. Goodwin v. City of San Bernardino, et al. - United States
District Court Case No. EDCV 98-66 RT (VAPx).
B. Conference with legal counsel - anticipated litigation - significant
exposure to litigation - pursuant to subdivision (b) (1), (2), (3) (A-F) of
Government Code Section 54956.9:
NAACP v. City of San Bernardino
MALDEF v. City of San Bernardino
C. Conference with legal counsel - anticipated litigation - initiation of
litigation - pursuant to subdivision (c) of Government Code Section
54956.9.
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
public services or public 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:
1. Propert : 247 West Third Street
Negotiating Parties: Gary Van Osdel, Executive Director, on behalf
of the Redevelopment Agency, property owners
and Gerry Newcombe, Deputy Administrative
Officer, on behalf of the County of San
Bernardino
2 5/17/2004
Under Negotiation:
OLD TOWNE
2. Property:
Purchase price, terms and conditions
APN 0134-021-29
631 North G Street
Negotiating Parties: Gary Van Osdel, Executive Director, on behalf
of the Redevelopment Agency and Willie
Wagoner. Jerry Wagoner and Rose Wagoner
Harris, property owners
Under Negotiation: Purchase price, terms and conditions
MT.VERNON
3. Proper : APN 0138-114-09
Negotiating Parties: Gary Van Osdel, Executive Director, on behalf
of the Redevelopment Agency and Kathy T.
and Thang Pham, property owners
Under Negotiation: Purchase price, terms and conditions
MEADOWBROOK
4. Property: APN 0135-302-36, 0135-302-37
121 North Allen Street
Negotiating Parties: Gary Van Osdel, Executive Director, on behalf
of the Redevelopment Agency and Sebastion
and Ynez Lechuga, property owners
Under Negotiation: Purchase price, terms and conditions
5. Proper APN 0135-291-18, 0135-291-19
174 and 168 N. Allen Street
Negotiating Parties: Gary Van Osdel, Executive Director, on behalf
of the Redevelopment Agency and Trinidad
Gonzalez. Joe Gammariello, Ricardo Montoya,
Valerie Montoya, Luis Gonzalez, Gilbert
Gonzalez. Rosie Hernandez, and Lina (Lena)
Ugarte, property owners
Under Negotiation: Purchase price, terms and conditions
3 5/17/2004
City Attorney Penman announced that the following additional cases would be
discussed in closed session:
City of San Bernardino Municipal Water Department v. United States
Department of the Army - U.S. District Court Case Nos. CV 96-8867 and CV
96-5205;and
Under Agenda Item 1G, Conference with real property negotiator:
Propert That Parcel consisting of approximately 67.75 acres identified
as Parcel I-2, San Bernardino International Airport, and
generally bounded by Harry Sheppard Blvd., Del Rosa Drive,
Paul Villasenor Blvd., and Memorial Drive.
Negotiating Parties: Don Rogers, on behalf of the Inland Valley Development
Agency; David Newsom on behalf of Hillwood/San Bernardino
LLC; Bruce Varner on behalf of Stater Bros. Markets; James
Penman on behalf of the City of San Bernardino.
Under Negotiation: Terms and conditions.
Reading of Resolutions & Ordinances
Deputy City Clerk Hartzel read into the record the titles of all the resolutions and
ordinances on the regular and supplemental agendas of the Mayor and Common
Council, Community Development Commission, and San Bernardino City Housing
Authority.
Invocation/Pledge of Allegiance
The invocation was given by Sister Carmel Crimmins of the Diocese of San
Bernardino, followed by the pledge of allegiance, led by Kevin Carrillo, a fourth grade
student from Ramona Alessandro School.
Moment of Silence
Mayor/Chairman Valles extended condolences to the families and requested a moment
of silence in memory of Maria Jimenez, who had been employed in the City's Facilities
Management Department and was assigned to the Police Department; and "Red", a
familiar face around the downtown area, who worked for Angie's Flowers.
Council Member/Commissioner Longville asked for a moment of silence in
remembrance of Chuck Cheeley, her husband's uncle, who lived in San Bernardino
since the late `40s and was affiliated with the Cheeley Chiropractic Clinic on "D"
Street.
2. Appointments
There were no Commission appointments.
4 5/17/2004
M
Proclamations & Presentations
Mayor Valles presented a resolution of commendation to a representative from
the Association for Retarded Citizens in recognition of the organization's 52n1
Anniversary.
Mayor Valles and Dr. Karnig, President of California State University, San
Bernardino, presented certificates of recognition to the California State
University San Bernardino Model United Nations Team on receiving their 14'
consecutive "Outstanding Delegation" award.
Lemuel Randolph, Director of Parks, Recreation and Community Services,
presented certificates of recognition to participants involved with the Rudy
Hernandez Community Center mural.
Councilwoman Longville made a presentation to Reverend Kalke of the Central
City Lutheran Mission in recognition of the Mission's new "H" Street medical
clinic.
Councilwoman Estrada joined Mayor Valles in presenting a certificate to Traffic
Engineer Anwar Wagdy on the occasion of his retirement from the City.
Tracylyn Sharrit, who spearheaded a project called "Hearts to Hands", which
brought children in the community together with children at the Center for
Individuals with Disabilities (CID), presented a check in the amount of $820 to
Rachel Clark, Assistant Governor of Rotary District 5330, to be given to CID.
The check represented proceeds from the art projects created by the children.
David Pruitt, Executive Assistant to the Mayor, read the names of the following
individuals who were presented a service pin award by Mayor/Chairman Valles
in recognition of their many years of dedicated service to the City:
Name
Karen Dundee
Linda Adams
William Mitchell
Kevin Savage
Brian Smith
Charlene Gallagher
4. Announcements
Department
Information Services
Library
Police
Police
Police
SBETA
Years of Service
15
5
10
10
20
25
Announcements were made by the Mayor, members of the Common Council,
elected officials, and a representative of the Chamber of Commerce regarding
various civic and community events and activities.
E
5/17/2004
Mr. Penman announced that there had been some confusion as to when the
Charter would be discussed this evening, since one listing was for 7 p.m. and
the other was for 5 p.m. He stated that he had spoken with the Mayor and it
had been decided that the people who were present at 5 p.m. would be given an
opportunity to speak; and then the matter would be discussed again at 7 p.m.
and the vote would be taken at that time.
5. Waive Full Reading of Resolutions & Ordinances
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner McGinnis, that full reading of the resolutions
and ordinances on the regular and supplemental agendas of the Mayor and
Common Council, Community Development Commission, and San Bernardino
City Housing Authority, be waived.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
6. Council Minutes
Council Member/Commissioner McCammaek made a motion, seconded by
Council Member/Commissioner McGinnis, that the minutes of the following
meeting of the Mayor and Common Council, Community Development
Commission, and San Bernardino Housing Authority of the City of San
Bernardino be approved as submitted in typewritten form: April 5, 2004.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
7. Claims & Payroll
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner McGinnis, that the claims and payroll and the
authorization to issue warrants as listed on the memorandum dated May 11,
2004, from Barbara Pachon, Director of Finance, be approved.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
6 5/17/2004
8. Personnel Actions
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner McGinnis, that the personnel actions as
submitted by the Chief Examiner dated May 11, 2004 (Revised 5/13104) 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 by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
9. Approve refund - Temporary Use Permit fee - 10th Annual Health Fair -
May 2, 2004 - Lucky Farms, Inc.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner McGinnis, that the request by the Tzu Chi
Foundation and Lucky Farms, Inc., for the refund of the Temporary Use Permit
fee of $361.75 paid in connection with their 10' Annual Health Fair scheduled
for Sunday, May 2, 2004, at 1194 Brier Drive, San Bernardino, be approved.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
10. Set dates & times - Fiscal Year 2004/2005 budget deliberations
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner McGinnis, that the Mayor and Common
Council set the following dates for deliberation of the Fiscal Year 2004/2005
City/EDA budgets to be held in the Economic Development Agency
Boardroom:
Wednesday, June 9, 2004 - 9:00 a.m.
Wednesday, June 16, 2004 - 3:30 p.m.
Tuesday, June 22, 2004 - 3:30 p.m.
Wednesday, June 30, 2004 - 5:30 p.m.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
7 5/17/2004
11. Authorize budget amendment omitted at the May 3, 2004, meeting of the
Mayor and Common Council relative to an annual purchase order with
Matich Corporation to supply materials for roadway pavement repairs
City Attorney Penman stated that he abstained on this matter because he had
received campaign contributions from Matich Corporation.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner McGinnis, that the Director of Finance be
authorized to amend the FY 2003/2004 Public Services Street Budget and
transfer $42,651 from FY 2003/2004 budget Account No. 001-402-5502,
Professional/Contractual Services into FY 2003/2004 budget Account No. 001-
402-5111, Materials and Supplies for an increase of $114,651 for a purchase
order total not to exceed $139,551.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
12. RES. 2004-126 - Resolution of the City of San Bernardino amending
Resolution No. 655 entitled, in part, "A Resolution... designating certain
streets, or portions thereof as through highways..." and establishing a four
way stop at the intersection of Marshall Boulevard and "H" Street.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2004-126 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley,
Johnson, McCammack. Nays: None. Absent: None.
13. RES. 2004-127 - Resolution of the Mayor and Common Council of the City
of San Bernardino approving the Final Map for Subdivision Tract No.
13630 - located at the northeast corner of Belmont and Magnolia, accepting
the public dedications as set forth on said map; and authorizing execution of
the standard form of agreement for the improvements in said subdivision,
with time for performance specified.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2004-127 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley,
Johnson, McCammack. Nays: None. Absent: None.
8 5/17/2004
14. RES. 2004-128 - Resolution of the City of San Bernardino approving
Amendment No. 1 to the Five-year Capital Improvement Program (2003-
2008) for Measure "I" Local Expenditures.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2004-128 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley,
Johnson, McCammack. Nays: None. Absent: None.
15. RES. 2004-129 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing an increase to the annual purchase order
with Greenwood's Uniforms for replacement of Class "B" Uniforms.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2004-129 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley,
Johnson, McCammack. Nays: None. Absent: None.
16. RES. 2004-130 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the execution of a purchase order between
the City of San Bernardino and Diversified Metal Fabricators, Inc. for the
purchase of bleachers per RFP Bid Specification F03-021.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2004-130 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley,
Johnson, McCammack. Nays: None. Absent: None.
17. RES. 2004-132 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the Mayor or her designee to execute
Amendment No. 14 to the Agreement between the City and Casa Ramona,
Inc. relating to the operation of a Drop -In Center located at 1524 West 7'
Street, San Bernardino, California, to extend the term of the Agreement for
an additional one year period.
Council Member/Commissioner Estrada abstained on this matter because Casa
Ramona is her employer. She left the Council Chambers and returned after the
vote was taken.
9 5/17/2004
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner McCammack, that said resolution be adopted.
Resolution No. 2004-132 was adopted by the following vote: Ayes: Council
Members/Commissioners Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Abstentions: Council Member/Commissioner
Estrada. Absent: None.
18. Item Deleted
19, RES. 2004-131 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the Mayor or her designee to execute a
Consultant Agreement between the City of San Bernardino and Bruce C.
Daniels to provide management services at the San Bernardino Soccer
Complex for the period of June 1, 2004 through May 31, 2005.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner McGinnis, that said resolution be adopted; and
that the Director of Finance be authorized to amend the FY 2003/04 Parks,
Recreation and Community Services Soccer Field Budget and transfer $7,417
from FY 2003/04 budget Account No. 134-462-5011, Full time Salaries, into
budget Account No. 134-462-5505.
The motion carried and Resolution No. 2004-131 was adopted by the following
vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis,
Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None.
20. Final Map for Tentative Tract No. 14112 located northeasterly of the
intersection of Foothill Drive and Sterling Avenue. (Continued from
November 17, 2003.)
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner McGinnis, that the Mayor and Common
Council approve a final continuance of the final Map for Tentative Tract No.
14112 to the Council/Commission meeting of November 15, 2004.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
21. Review and take action regarding the need for continuing in effect the local
emergency caused by the Old Waterman Canyon Fire pursuant to
Government Code Section 8630 (c)(1).
Note: No backup materials were submitted on this item.
10 5/17/2004
Council Member/Commissioner McGinnis made a motion, seconded by Council
Member/Commissioner McCammack, that the Mayor and Common Council
confirm the need for continuing in effect the local emergency caused by the Old
Waterman Canyon Fire.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None
22. RES. 2004-133 - Resolution of the City of San Bernardino approving the
Transportation Expenditure Plan for the revenues expected to be derived
from the proposed continuation of Measure I.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner McCammack, that said resolution be adopted.
Resolution No. 2004-133 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley,
Johnson, McCammack. Nays: None. Absent: None.
23. Workshop - discuss and take possible action regarding the proposed new
City Charter (See related Agenda Item #S1)
Note: No staff report was submitted with the backup materials.
RES. 2004-135 - Resolution of the Mayor and Common Council of the City
of San Bernardino calling a Special Municipal Election on a proposed new
City Charter and requesting that said City of San Bernardino's Special
Municipal Election be consolidated with the November 2, 2004, Statewide
Presidential General Election conducted by the County of San Bernardino.
(23A)
RES. 2004-136 - Resolution of the City of San Bernardino proposing a new
City Charter. (23B)
RES. 2004-137 - Resolution of the City of San Bernardino submitting to the
qualified electors of said City a proposed new City Charter; transmission of
the proposed new City Charter to the Office of the City Attorney for
purposes of preparation of an impartial analysis. (23C)
11 5/17/2004
Mayor Valles advised that in addition to the resolutions received from the City
Attorney's Office, City Clerk Clark had submitted a Charter comparison
document, which states the Charter as it currently exists, the changes
recommended by the City Attorney's Office, and the City Clerk's
comments/questions regarding various sections of the Charter document.
She proposed to the Council that they consider amending the Charter in at least
two phases —possibly three or four —so that it does not become an overwhelming
task, as has happened in the past. She stated that the suggestions made by the
City Clerk were very valid, but they arrived too late to be seriously considered
for this Charter amendment. She asked the Council to work on the
recommendations that had been submitted April 5, 2004, as the first phase to be
considered for the election to be held in November.
City Attorney Penman thanked the City Clerk for the time that was put into her
document —that it included a good deal of good information. He informed the
Mayor and Council that the document that would actually go to the voters would
not have any annotations —there would be no election dates, no court cases, no
City Attorney legal opinions listed —because this is what will actually go to the
voters.
Mr. Penman noted that the document from the City Clerk points out that dates
of previous elections and adoptions were omitted, and that is true; however,
they did leave in the court cases and Cite Attorney legal opinions, which
interpret the Charter. It was noted that it had also been determined to leave in
the election and adoption dates.
Mr. Penman pointed out that staff had tried to concentrate primarily in this
Charter on the City Manager form of government and a couple of other things
that they do not believe will be controversial with the voters.
The following individuals expressed support of the proposed new Charter:
Russell Boyd, 755 Campus Way, San Bernardino, CA;
Rita Magnino, 755 Campus Way, San Bernardino, CA;
Michael J. Gallo, 5804 North Mayfield Avenue, San Bernardino, CA;
Drew Gagner, 2101 North Waterman Avenue, San Bernardino, CA;
Cliff Cummings, 3377 Valencia Avenue, San Bernardino, CA;
Richard Young, 316 North Mountain View, San Bernardino, CA;
Larry Quiel, 4040 La Hacienda, San Bernardino, CA.
Mayor Valles stated that in response to some of the comments being made she
wanted to clarify that the citizens will not be voting on a City Manager form of
government, which is different from what is being proposed by the City
12 5/17/2004
Attorney. She advised that the City Administrator in the City of San Bernardino
has been acting as a City Manager all along, and the functions of the City
Manager as identified in the proposed charter are exactly what the current City
Administrator is doing. Also, the strong Mayor form of government will still
be in place.
She stated that she needed to say this because having visited many Mayors
throughout this nation, most have a strong Mayor form of government outside
of California. Within California we have different forms of government, most
of them being general law cities. But Mayors throughout this country are
pushing for becoming the CEOs of a city, which means a strong Mayor form of
government. She noted that we have the best of both worlds here in San
Bernardino —we have the strong Mayor form of government and we have a City
Administrator that has been functioning as a City Manager, but without the title
and without being included in the Charter. What we are doing with the
proposed new Charter is recognizing the City Administrator as a City Manager
in the Charter, so that it is mandated in the Charter versus the way it has been in
the past.
She stated that she did not want the voters to be confused regarding the form of
government. We are not changing the form of government per se. It is not the
traditional City Manager form of government that is being proposed; and it will
be different; and it may be the prototype.
Ray Frisbie, 1731 Kenwood Avenue, San Bernardino, CA, stated that he felt
the new Charter did not go far enough because it still includes the strict
construction whereby if it doesn't specifically grant the powers to the Mayor
and Council to do something, then they can't do it. He stated that a progressive
Mayor and Council should be given the right of a liberal construction in the
Charter, and proposed that where the Charter always demands a strict
construction that the wording be changed.
Barbara Sokopoff, 3324 Sepulveda Avenue, San Bernardino, CA, stated that
she had come for information —that no one had provided the pros and cons and
the public needs to be educated, otherwise it is a lobbyist -type situation. She
expressed concern that certain duties of the Mayor were being eliminated.
Mayor Valles noted that many changes have occurred since the Charter was first
adopted. She pointed out that San Bernardino has had a strong Mayor form of
government —which is good; and the City has also had a City Administrator —
which is also good. However, the City Administrator has actually been
functioning as a City Manager, but has not been recognized in the Charter as
such. She stated that this time, staff has taken recommendations from previous
Charter committees and tried to address them in this document. She stated that
she believes it is important to keep a strong Mayor form of government, and we
13 5/17/2004
are doing that; but also recognizing the functions of the City Administrator as a
City Manager is also important and must be identified in the Charter.
City Attorney Penman advised that the responsibility for the day to day
operations would shift from the Mayor to the City Manager, and the language
that Ms. Sokopoff read, those responsibilities would become the City Manager's
responsibilities under the supervision of the Mayor in the proposed Charter.
The Mayor would still be a strong Mayor and would decide who the City
Manager will be and appoint the City Manager subject to the confirmation of the
Council. He added that the Mayor would supervisor the Fire Chief, Police
Chief, and City Manager.
Paul Sanborn, 3559 Genevieve Street, San Bernardino, CA, questioned
whether the Charter as a whole was going to be placed on the ballot, or whether
it would be separated into sections to be voted on individually.
City Attorney Penman advised that it would be a new Charter, to be voted on as
a whole; however, most of the language is the same as the present Charter. He
stated that the basic change would be that the day to day responsibility for
running the City would change from the Mayor to the City Manager. In
addition there would be a clause that prohibits nepotism; a change which would
make it easier for the voters to pass an initiative or recall an elected official;
changes to make the Charter gender neutral; and also language which prohibits
the City Attorney or any Council member from giving orders to any department
head or other person outside of their own office.
Mr. Sanborn stated he would like to see the residency requirement of 30 days
for individuals running for office changed to one year, and the inclusion of a
minimum salary for the Council of $2500 per year. He also inquired about
having a minimum salary for the City Manager included in the Charter.
Council Member/Commissioner Derry stated that he did not think any salaries
for any positions should be in the Charter; and the biggest mistake would be to
freeze the salaries of the City Manager (if this passes), the City Administrator,
or the Council in the Charter because it would require another Charter
amendment in order to change it.
Mayor Valles noted that the Charter is a governance document and should not
be so prescriptive that it ties the hands of future legislative bodies, and salaries
should not be included in such a document.
City Attorney Penman stated that he would like to see a longer residency
requirement before people run for office; however, state law has interpreted that
it would be unlawful to require longer than a 30-day residency.
14 5/17/2004
Micaela Cruz, 5004 Coyote Lane, San Bernardino, CA, representing the
League of Women Voters, concurred that changes need to be made to the
Charter, but that there should be more public input —that the time frame for
input has been too short and everyone should have a chance to speak on the
matter. She stated her main concern was lack of input by the public.
James P. Morris, Esq., 776 Bernard Way, San Bernardino, CA, read and
submitted for the record a letter to the Mayor and Council dated May 17, 2004.
He expressed several concerns which he outlined under the following headings:
1) Educate yourselves and seek input and analysis from experts; 2) Define a
purpose for the charter changes and ensure the purpose is carried consistently
throughout the Charter; and 3) Understand all the effects of proposed Charter
changes. In summation, he urged the Mayor and Council not to make San
Bernardino an experiment in local governance, stating, "The current charter
proposal attempts to "shoehorn" a city manager into our governance structure.
It is NOT a proposal to create a true city manager form of government that
exists in the vast majority of cities throughout the state."
City Attorney Penman stated he agreed with Mr. Morris in terms of taking the
time for education and input. He stated that for the last 16 years the City
Attorney's Office has been attending the various City Charter meetings, and
they reviewed the minutes of those meetings prior to preparing the present
document. They also looked at the recommendations of the expert hired by the
City to assist with Measure M.
Mr. Penman stated that in his opinion, the key was looking at past votes and
past elections to determine what things will or will not pass in San Bernardino.
During Measure M the committee decided that rather than go with what they
thought might pass, they went with what they thought was the right thing to do,
and 68 percent of the people said it was the wrong thing to do. He stated that
this is what has happened in San Bernardino's history with Charter change
efforts throughout the years.
He responded to Mr. Morris' comment that "with much of the City being
managed by the Mayor, why are we doing this", by pointing out that the City is
not being successfully managed by the Mayor, but by the Mayor and the City
Administrator, who is trying to work and perform the duties of a City Manager.
However, he doesn't have the authority to do it, he doesn't have the final
responsibility to do it, and his decisions can he overturned at any time. This is
a prescription for failure because it is not in the best interests of the City
Administrator to make controversial decisions if those decisions are not going to
have the finality that a manager needs to have in running the daily operations of
the City.
15 5/17/2004
Council Member/Commissioner Estrada stated that she had checked on the time
frame for putting something before the voters in November, and it appeared that
the drop -dead date was August 6. She stated that she did not have a problem
with the form of governance being proposed as much as she had concerns
relative to the Council clearly understanding the ramifications and consequences
of the proposed changes, so that they clearly understand what they are putting
before the voters. Secondly, she believed the voters should have input into the
process before a resolution is written and placed on the ballot.
Ms. Estrada stated that her concerns were related to the process that is being
followed. Although she understands that the City Attorney's office has
reviewed all the documents of past meetings, discussions, committees, and
Charter committees that have done the work on this issue before, she just
doesn't think that we are following a process that gives this Council and gives
the public the opportunity to know what those changes mean for the future of
San Bernardino.
Council Member/Commissioner Estrada stated that she considered the Charter
the constitution of San Bernardino, and the change that is being recommended is
a major change for the City; and she is all for change, but she is also for making
people aware of what those proposed changes might do for them and for the
community. She stated that she thinks there is a better way to work with the
public and get their input and participation than doing things like placing the
resolutions on the agenda to be acted upon, with an announcement that if action
isn't taken that a petition drive will be started the next day to put the matter on
the ballot for November. She stated that this creates the appearance of
ramrodding something through, which may not be the case, but it creates that
perception.
Ms. Estrada pointed out that the Council had received the City Clerk's
document only today; and the City Clerk obviously spent an enormous amount
of time to read the existing Charter, the proposed changes to the Charter, and in
some cases give some kind of an opinion of what is being recommended. It was
her contention that the Council members needed to have a workshop with the
City Attorney to review the document section by section, followed by a public
hearing for constituents and the people of San Bernardino. She stated that she
felt it was her responsibility as a Council member to make the public as aware
as possible about what it is the City is trying to do.
Tim Prince, a resident of San Bernardino, stated that he agreed with Ms.
Estrada's comments. He stated that the semi -strong Mayor form of government
being proposed by the City Attorney would be unique among California cities —
that the form of government proposed would not be a City Manager form of
government and would not give the City Manager the tools to take advantage of
some of the benefits of a City Manager form of government.
16 5/17/2004
He noted that you then have to ask yourself, if we are not going to go all the
way and adopt a true City Manager form of government, with all the changes
that would encompass including elimination of the elected City Attorney and
elected City Treasurer, then what are we doing. Are we answering a true need
and a groundswell, a cry from the public, a documented problem in the
management of City government, or are we massaging political balances of
power.
Mr. Prince noted that most of the cities in California are general law cities and
most are City Manager forms of government. Out of the 10 percent or so that
have charters, very few have the challenges that San Bernardino has built into
its existing Charter and none of them have the semi -strong Mayor form of
government being proposed. What it comes down to is a balance of power. He
stated that the current mayor has his compliments on her attention to the City's
image and her efforts to try to avoid conflict and to try to present a professional
image for the City; but when that is not possible and we do not have a Mayor
with the skills of our current Mayor, as we have seen in the past, the balance of
power will degenerate into a war. He concluded his remarks by stating that if
we are going to change the Charter it should be to a true City Manager form of
government.
Jay Lindberg, a resident of San Bernardino, stated that he had one concern
regarding how the City Manager is going to run all these departments that are
going to do the work and provide the goods and services for the constituency.
He noted that the Mayor is an elected official and the Mayor recommends a City
Manager and the Council votes on it. The problem is, if you are a citizen, and
you have problems with law enforcement or whoever, who do you go to?
Mayor Valles answered that an individual's elected official is still the person to
contact first.
Oscar Gonzalez, 635 East Evans Street, San Bernardino, CA, stated that he
wants to continue a strong Mayor form of government, because he believes the
management of the City needs to remain in the hands of the voters. He said he
finds it hard to believe that the Mayor's position will remain a strong form of
Mayor government when so much of the language in reference to the Mayor in
the proposed Charter has been stricken or deleted. He stated that he does not
believe the system is broken and, therefore, it does not need to be changed.
He noted that the experience and knowledge of the City Manager are the only
things addressed in the proposed Charter, but not the educational requirements.
He stated he was also concerned that the base salary of the City Manager and
that of Assistant City Manager are not addressed, and he felt that at least the
base pay should be addressed. He asked whether the current City Administrator
17 5/17/2004
was going to be grandfathered into the position of City Manager, or whether
there would be a nationwide recruitment; and also whether or not the Mayor's
salary would be reduced commensurate with the reduced duties of the Mayor.
According to Mayor Valles and City Attorney Penman, the final version of the
proposed Charter had been changed and now requires that the "City Manager
shall have received from an accredited college or university a masters degree in
public administration, business administration, or an equivalent degree in a
related field, or a higher degree, and said City Manager shall have served as a
City Manager, or as a City Administrator, or Chief Executive Officer of a
county, or as an Assistant City Manager, City Administrator, or Chief
Executive Officer of a county for a minimum of three years."
City Attorney Penman advised that if the Charter is approved by the voters, it
will not go into effect until the Mayor's present term ends. Then, who the City
Manager is will be up to whoever the Mayor is at that time. He stated that
presently under the Charter, the Mayor has all the duties and responsibilities of
a City Manager. She gets paid as a Mayor, about $70,000+ a year; however,
she has the responsibilities legally of the City Manager. The City
Administrator, who does not have the responsibilities and does not have the
legal power in the Charter to carry them out, already draws the salary of a City
Manager.
He continued, stating that the annual salary of the City Administrator in the City
of San Bernardino is based on salary surveys comparing his salary with salaries
of City Manager cities. Therefore, if this form of government is adopted by the
voters as proposed, what would happen is that the Mayor would begin to do the
job that she is actually paid for and the City Manager would be getting paid for
the job that the Mayor under the current Charter is supposed to do. The Mayor,
right now, is getting paid about $100,000 less a year than she should be getting,
given the duties given to her in the current Charter, whereas the City
Administrator is getting paid probably $100.000 more than he should be if he
was only doing the duties that are in the Charier.
Mr. Gonzalez stated that he wanted to make sure that the duties of the Mayor
are not diluted in any way, shape, or form from the way they are stated in the
present Charter.
Mayor Valles said that she personally did not see an erosion of the duties of a
strong Mayor; however, it doesn't matter what the organization is, in actuality it
boils down to the people holding those positions.
Council Member/Commissioner Derry stated that he agreed with Mr. Prince
that it would be better to go to a full City Manager form of government;
however, he did not think that was possible --he did not think the voters would
approve it at this time. However, he believed this was a good compromise, and
19 5/17/2004
he believed that it would work and be functional. He stated that he believes this
is a push in the right direction, which will take a great deal of the burden off of
the Mayor, allowing that position to do other equally important things, with the
City Manager taking care of the daily day-to-day operations.
Mr. Derry stated that there was one issue that he had with the new proposed
Charter —he was concerned that some of the former language might have
interfered with the Council members' ability to contact staff directly, but that
had been addressed. The new proposed Charter would not allow individual
Council members to order staff to do anything —that would be up to the Council
to do, and that is the way it should be —but they can contact staff.
Mr. Derry stated that he believed there was enough momentum in the
community to put this on the ballot as it has been amended by the City
Attorney's office. He stated that he knew of people who were ready to sign
petitions and move it forward whether the Council decided to place the matter
on the ballot or not. He felt that the Council could be proactive on the matter,
and that the real debate would occur during the forums that always occur during
Charter amendments, or when there are any other type of changes in the form of
existing government.
Council Member/Commissioner Derry made a motion, seconded by Council
Member/Commissioner McCammack, that said resolutions A-C be adopted.
(Note: The motion was amended and the vote was taken after further
discussion.)
Council Member/Commissioner Estrada reiterated her comments relative to the
process being followed to accomplish the recommended Charter change and the
lack of public input. She also questioned why the City Clerk had prepared such
an extensive document if it was not going to be considered. She noted that the
Mayor had mentioned that this is the beginning of the process, and had
recommended that it be done in phases; however, she believed that nothing as
yet had been spelled out as far as saying, this is the document and we are going
to do it in three (or however many) phases.
Mayor Valles agreed that the comparison document prepared by Ms. Clark was
a beautiful document and represented a lot of work, which was why the Mayor
was suggesting the phasing process. She asked Ms. Clark to explain why she
had prepared such a document.
City Clerk Clark stated that as indicated in her cover memo, at the April 5
Council meeting everyone was handed the proposed City Charter. She stated
that she did not have an opportunity to review it either prior to or during the
meeting; and if you looked at the City Attorney's proposal, in those sections
where no changes were being recommended. it just simply said "No Changes,
Section Reserved, etc.", but you didn't really have an opportunity to see what
19 5/17/2004
was in the Charter versus what was being proposed. Therefore, as the official
keeper of the official records of the City, she felt it was important to proofread
the entire document, as her office typically does with everything, to make sure
that nothing had been inadvertently omitted --a chapter, or word, or section —so
that was her first reason.
The second reason was that her office did not have an opportunity to comment,
nor were they asked, how the proposed changes would affect the City Clerk's
office; specifically in the areas that impact the City Clerk's office, such as
initiative, referendum, and recall. Ms. Clark stated that she felt it was
important to share with the Mayor and Council, as the person charged with the
responsibility for those processes, what the experience has been in the Clerk's
office and to let the Council know what the Elections Code provides.
Ms. Clark noted that a lot of the things that Mr. Penman is recommending in the
area of recall are very similar to the Elections Code. So her question was, why
not just adopt the provisions of the Elections Code, because experience has been
that our Charter has very convoluted language, which is either confusing, silent,
ambiguous, or conflicting. The same thing happens in initiative, referendum
and recall. In the Elections Code, however, everything is pretty much spelled
out, so currently we use both documents.
She noted that Mr. Penman's suggestions on recall parallel the state. He's
recommending 15 percent in recalling a City-wide officer, which is exactly what
the state Elections Code calls for. She stated that probably the biggest
difference between the new Charter that the City Attorney is proposing and the
Elections Code is the amount of time that is required to gather signatures. Our
current Charter proposes, depending on which process it is, a time frame of 60-
90 days, and if your petition is deficient or doesn't have enough signatures, then
you have an additional 30 days to amend or append. The Elections Code, on
the other hand, provides a longer time frame for gathering signatures, but if you
don't obtain a sufficient number of signatures within that time frame, it is dead.
Ms. Clark pointed out that she did not address the issue of the City
Administrator or the City Manager —her intent was to come from the
perspective of how this document was going to impact the City Clerk's office.
She noted that as mentioned earlier by the Mayor, she did have concerns
regarding deletion of references to past election dates on changes that were
approved by the voters; however, Mr. Penman had clarified that this
information would remain in the new document.
City Attorney Penman pointed out that earlier the Mayor had said that Ms.
Clark's document and the questions therein would be addressed subsequent to
the new document prepared by his office. He stated that all the questions that
Ms. Clark posed could be answered; that he thought she did a good job and
brought up a lot of good points. He stated that his office had looked at all of
20 5/17/2004
these points; however, the main purpose of this particular Charter proposal was
not to focus on the elections in the City. He advised that the proposed document
had been drafted to be appealing to the voters and to address issues that they
have voted on in certain ways in the past.
He stated that the point he was trying to make was that this document was
something that was ready to go to the voters; and Mr. Derry was correct, he has
been under pressure from a citizen's group that has said they are ready to get
out there and start gathering signatures. He stated that there were a couple of
changes the Council needed to be made aware of before they vote, and some
technical explanation on the language in the motion that needed to be made.
City Clerk Clark stated that her only concern was the fact that the cost of an
election was well over $300,000 for just a Charter amendment, not including
printing costs; and she believed, just as Councilwoman Estrada and Mr. Morris
and Mrs. Cruz from the League of Women Voters indicated earlier, that the
voters need to have an opportunity to understand the changes that are being
made. She stated that if we're dealing with just the City Manager, that's all
well and good —present that idea, but don't make other changes and pass them
on as though they may not have an impact on the City in the future.
Mayor Valles noted that the points that had been made were all valuable; and
the points that were made by Mr. Morris need to be foremost in our minds —that
when we create a change in one area, we need to fully understand the domino
effect. She also thought that Ms. Clark was trying to address that in some of
her comments, which means we do need to look at the document holistically.
She stated she was going to put the City Administrator on the spot and ask him
what he thought about this proposed Charter amendment.
City Administrator Wilson stated that as he looked at the document from a
macro point of view, which is to try and look at it and not think about who
would be in this position, but to really look beyond everyone's tenure and what
is in the best interest of the City, and as he talked to his colleagues throughout
the state and other people, he thought that the norm is that you see a City
Manager or equivalent position in a Charter, and that position is given certain
powers in the Charter —that's the norm in the state.
He stated that this City is unique, for whatever reason, but he thought this
change should have happened many, many years ago. It didn't happen, and the
power that he has is simply whatever power that the Mayor grants to his
position, but there is nothing in the document that says this position can do this
and not do that. For those reasons he would support putting the City Manager
in the Charter and giving that position some power, so that whoever is in the
position in the future really understands what their role is. He also thought it
would serve as a good check and balance between the elected body and the staff.
21 5/17/2004
Mayor Valles stated that Ms. Clark raised another very important issue. She
noted that as City Clerk, she is the City's elections "expert", and any changes
that are made that have an implication in her area of expertise need to be
considered. She stated that this brings her back to her original point —we can't
change it all, but we've got to start someplace and put it to the voters.
Council Member/Commissioner Longville stated that she thought the process
that was used last time (Measure M) with extensive public participation and
extensive hearings was going to give the City a document that the public would
support, and she was wrong. She noted that the City has a good situation
because our City Administrator has had a really good working relationship with
our Mayor and with the Council, but the City Administrator has no authority to
do anything without the Mayor's approval —especially if it is a painful
management decision.
She stated that she thought this new Mayor/Manager form of government would
create a City Manager who has authority to implement new policies within City
Hall, with exceptions that are in the document, without daily micro -
management. And if the Mayor doesn't like the way the City Manager
implements the policies, she is the only person who can fire him and bring
forward somebody who does; and this is a great check and balance.
Ms. Longville stated that she has been on the Council for six years and she has
watched how the current system works. She stated that it is because of the
system that we have that the Mayor personally has to take the time and energy
to approve the actions of the City Administrator, and her office is subjected to
enormous pressure, both inside and outside City Hall. She noted that the new
structure gives the authority to the City Manager to effectively manage and takes
the Mayor out of the middle, and she thought that was wonderful. She stated
that she also thought this new form of government would be better for residents
in the Second Ward.
Council Member/Commissioner Longville stated that she had a few suggestions
she wanted to bring up relative to the proposed charter; however, they were not
deal breakers.
1. Section 34 - change the amount of the fine which can be imposed on
Council members for disorderly or contemptuous behavior from $50 to
$250.
2. Section 105 - would like to see this provision deleted.
3. Section 130 - on Line 7 after the Nords, "probable wants of all the
departments" add the words, and measurable objectives of each
department accompanied by a summary of the prior year's
performance . .
22 5/17/2004
City Attorney Penman stated that any change to Section 105 would be a deal
breaker; Council Member Longville withdrew that suggestion.
Relative to Section 130, Mayor Valles stated she had a problem with a
governance document being so prescriptive and opposed the additional language;
therefore, she suggested considering each amendment separately.
Council Member/Commissioner Derry made a motion, seconded by Council
Member/Commissioner McCammack, that Section 34 of the proposed charter be
amended to change the following clause, as follows: . . . to punish any
member by a fine not exceeding fift.. loll^_.. ($50 nn` two hundred and fifty
dollars ($250.00) for disorderly or contemptuous behavior in its presence; . . . "
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, Derry, Kelley, Johnson, McCammack.
Nays: Council Member/Commissioner McGinnis. Absent: None.
Council Member/Commissioner Derry made a motion, seconded by Council
Member/ Commission McCammack, that Section 130, first sentence, third
clause, of the proposed charter be amended to include the additional language
shown in bold, as follows: ` . . . probable wants of all the departments and
measurable objectives of each department accompanied by a summary of
the prior year's performance of the Municipal Government in detail, ..."
The motion failed by the following vote: Ayes: Council Members/
Commissioners Longville, Derry, McCammack. Nays: Council
Members/Commissioners Estrada, McGinnis, Kelley, Johnson. Absent: None.
Council Member/Commissioner McGinnis stated that he did not have a problem
with having a City Manager or with the changes in the proposed document;
however, he agreed with Ms. Estrada relative to needing more input from the
citizens. He stated he did have a few questions regarding some of the
information contained in the document prepared by the City Clerk, such as the
item regarding the City Schools. He questioned why this was even in the
Charter when the City is not in charge of the chools.
City Attorney Penman explained that City Schools had specifically asked the
City, some time in the past when one of the charter committees was meeting,
not to drop that language because they thought that at some point in the future
they might need it again.
City Clerk Clark stated that one of the questions she had that she had failed to
ask Mr. Penman earlier was why the changes being proposed on recall and
initiative were proposed to take effect, if the new Charter is adopted, as soon as
23 5/17/2004
the State Legislature approves it; but the remainder of the changes he is
proposing would not take effect until the new Mayor takes office.
Mr. Penman stated that the reason is very simple —so that he can be recalled
sooner. He said that is exactly what he said at the outset and why his
recommendation was to lower the percentage of signatures required to 15
percent city-wide. He stated that when the public learns about the document
during the campaign concerning adoption of the document, the individual(s) who
drafted the document is going to be the person who is the focal point of any
attack, which has happened with every charter amendment he has been involved
with. He stated that if he is going to be the subject of scrutiny, he wants to be
able to point out that nothing in the document gives him or the City Attorney's
office any authority they didn't have before, and moreover throughout the
document there are provisions which make it easier to remove a City Attorney.
Mr. Penman also explained the rationale for prohibiting a person being recalled
from having his name on the ballot as a candidate, which is also what the
Elections Code provides.
Council Member/Commissioner Kelley thanked the City Attorney's office and
the City Clerk's office for the work they had done on this proposal, stating that
it is very important for a new Council member to take the time to read through
all the information, that he had read through it, and he had confidence in the
action being recommended by the City Attorney's office relative to approval of
the proposed Charter. He stated that he felt the City Manager form of
government was the best form of govermnent the City could have, while
retaining a strong Mayor position. He stated that he agreed that the public
should have input, and that ultimately on election day they would give their
input and have their final say.
Council Member/Commissioner Johnson stated that there were some things in
the proposed Charter that he agreed with and some things that he disagreed
with, as well. He stated that the City of San Bernardino is unique in that we
have a strong Mayor, and if this hybrid form of government is adopted the City
will still be unique. He stated that the document was a lot to chew on, and he
agreed with the Mayor that changes to the Charter needed to be taken in phases.
He stated that everyone seemed to be in agreement regarding the City Manager;
therefore, why not deal with that portion of it first. He noted that the City
Clerk had presented some items that the Council needed to look at relative to
her office; therefore, he suggested looking at that as well, but separately.
City Attorney Penman advised that what the Council would actually be voting
on would be the three resolutions —A, B, and C listed under Agenda Item No.
23. He explained that each resolution had attached to it a copy of the proposed
new Charter. He stated that there was one additional section to be added, a
severability clause, which he asked that the Council add by motion as Section
263 to the proposed document.
24 5/17/2004
Council Member/Commissioner Derry made a motion, seconded by Council
Member/Commissioner McCammack, that the following section be added to the
proposed charter: "Section 263. Severability. The provisions of this Charter
are severable, and, if any sentence, section or other part of this Charter should
be found to be invalid, such invalidity shall not affect the remaining provisions,
and the remaining provisions shall continue in full force and effect."
The motion carried by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley,
Johnson, McCammack. Nays: None. Absent: None.
Council Member/Commissioner Derry made a motion, seconded by Council
Member/Commissioner McCammack, that said resolutions A-C, be adopted,
including the amendment of Section 34 and the addition of Section 263.
The motion carried and Resolution Nos. 2004-135, 2004-136, and 2004-137
were adopted by the following vote: Ayes: Council Members/Commissioners
Longville, Derry, Kelley, McCammack. Nays: Council Members/
Commissioners Estrada, McGinnis, Johnson. Absent: None.
Mayor Valles noted that the Charter needs to be looked at holistically, and once
this proposed Charter is adopted the Council needs to fully comprehend the
domino effect on other portions. Therefore, she asked the City Attorney and the
City Clerk to work together and develop the next two or three or four phases,
whatever it takes. She stated that the points made by Ms. Clark in her analysis
were very important and should be considered. In addition, she requested that
the rest of the Council look at the document prepared by Ms. Clark and add to it
as the City Attorney and City Clerk are developing the next phases. She stated
that it was important to move forward and start someplace, but equally
important to fully comprehend the implications that these actions will make on
the rest of the Charter.
Following the vote the following individuals had final comments:
Micaela Cruz, 5004 Coyote Lane, San Bernardino, CA, representing the
League of Women Voters, reiterated that the League of Women Voters was not
saying that the City does not need this Charter —they know and understand the
need —but she questioned why there couldn't be a few more weeks for input.
She stated that even now, listening to all the Council members and their
comments, there were some questions, which would indicate the need for a little
more input and a little more discussion amongst themselves.
25 5/17/2004
Walter Hawkins, a citizen, stated that most of the public was informed that this
workshop would be at 7 p.m., and there were a lot of people who got together
and discussed it over the past few weeks, even asking some of the City officials
to come to some of those forums. He stated that as he saw it, the issue is that
there has not been enough public discussion and understanding of the matter,
and the meeting tonight shows that if some of the Council members have no idea
what this is about, then why would they think the citizens would comprehend all
that is going on.
Council Member/Commissioner McCammack stated she wanted the folks
listening at home to know that she has had four years of input on this Charter,
and she has been told it is about time the City takes this step. She stated that
many people have called and written in support of the proposed changes.
24. Appeal hearing - Planning Commission's approval of Conditional Use
Permit No. 04-02 to construct a 3,220 square foot fast-food restaurant with
a drive-thru at the southwest corner of Tippecanoe Avenue and Harriman
Place in the CR-3, Commercial Regional Tri City/Club, land use district
Mayor/Chairman Valles opened the hearing.
City Planner Valerie Ross explained that in 2003, the Planning Commission
approved a conditional use permit for In-N-Out Burgers, which was
subsequently appealed by the attorney representing the people who owned the
motel on the site being proposed for In-N-Out Burgers location. Late last year,
In-N-Out withdrew their application, as they were not ready to proceed at that
time. However, In-N-Out resubmitted their application early this year for the
same proposal —the same square footage, fast-food drive-thru.
The Planning Commission considered the matter on April 6, and unanimously
recommended approval of the project. Cheryl Houde, on behalf of Attorney
Frank Weiser, presented a letter requesting that the Planning Commission not
act on the conditional use permit. The Planning Commission, before they
voted, also considered a letter from William Brinckloe, attorney for In-N-Out,
as well as a memorandum from Henry Empeiio, Senior Deputy City Attorney.
Ms. Ross noted that copies of all correspondence were included in the backup
materials.
After reviewing the memorandum from Henry Empeno, which advised the
Planning Commission that they could proceed with the action, the Planning
Commission approved the project and Mr. Weiser filed an appeal. However,
staff was recommending that the appeal be denied, and the Planning
Commission's approval be upheld, based on the Findings of Fact in the Planning
Commission's staff report, subject to the conditions of approval and the standard
26 5/17/2004
requirements. Ms. Ross noted that the project, as proposed, meets all of the
City's requirements.
Pursuant to Resolution 2000-279, City Clerk Clark administered an oath that the
following speaker would provide true and honest testimony.
Frank Weiser, attorney for the appellant, stated that as Ms. Ross indicated, he
was here last year in October of 2003. That was during the pendency of an
eminent domain trial by the Inland Valley Development Agency (IVDA) to take
the property from the Patels. He advised that he did obtain an 11-I jury verdict
as far as the compensation issue, but has appealed various issues, including the
right to take, to the Fourth District Court of Appeals.
Mr. Weiser stated that the last time he was here, the attorney for In-N-Out
Burgers withdrew his application. Therefore, unless circumstances have
changed —such as the Fourth District denying his appeal, or that he has
somehow exhausted his state due process remedies —he contends that the
doctrine of administrative collateral estoppel applies, and that is a doctrine that
says that even city councils can be collaterally stopped from re -litigating issues
that have already either been decided, waived. or whatever.
Therefore, he believes that the In-N-Out Burger attorney has waived that issue,
unless there are changed circumstances, and there are none.
Mr. Weiser noted, for the record, that the District Court of Appeals Case No. is
E034937, Inland Valley Development Agency v. Vibhakerbhai Patel. He stated
that this case is still pending, and that is his number one reason for the appeal.
Number two is that the fact that he doesn't have a decision on the appeal
challenging the right to take, and he finds it very imprudent that In-N-Out
Burger would build on the site, even if it was highly improbable that he would
win. Mr. Weiser stated that he thought he had some very serious issues to
discuss with the Court of Appeals. However, if In-N-Out Burgers builds on the
site, and the Court of Appeals determines that the appellant has a right to go
back to the property, it's going to cause a huge problem for the City and for In-
N-Out Burgers, and obviously for the Patels. Therefore, at the very least, aside
from the legal due process issue, it's imprudent for the City now to grant a
permit until it is known how the state appeal process plays itself out.
Mr. Weiser noted that in addition to the legal issues, he believes that if the
appeal is denied at this point, it will be a violation of due process equal
protection and a further taking of the Patel's interests. In fact, it will impinge
on their access to the courts, which they have a right to do in terms of appealing
the underlying judgement to the Fourth District Court of Appeals. He stated
that if this process plays itself out and the Patels lose and it's final, that's one
27 5/17/2004
thing. The circumstances are then changed and In-N-Out Burgers can, in fact,
go forward at that point. But that's not the case here. He urged the Council to
reconsider this, and for the sake of the City and saving everybody a lot of time
and money in the courts, that this matter be placed on hold until the appeal is
exhausted.
Mr. Weiser stated that there was one other thing he would like clarified —that he
may be wrong, but at the last hearing when In-N-Out Burgers withdrew their
application, there had been a discussion with the attorney, and it was his
understanding that there was some amendment to the Disposition and
Development Agreement. It was his understanding that pursuant to that
amendment, In-N-Out Burgers was not fully obligated to go forward on the
project. One of his additional contentions was, if somehow they were released
from any obligation, it makes the whole issue moot.
Mr. Weiser stated that he thinks Mr. Empeno takes a different position, but he
has not seen, nor was he given any of those documents during the litigation in
the underlying court action. According to his understanding, there were some
amendments just prior to the trial in early October, which he never saw;
therefore, he would like clarification on that.
Henry Empeno, Senior Deputy City Attorney. advised that attached as Exhibit 5
to the Planning Division staff report was a copy of his memo dated April 6,
2004, to the Planning Commission, in which he responds to Mr. Weiser's letter
dated April 3, 2004, and the factual and legal points that Mr. Weiser makes in
that letter.
Mr. Empeno stated that the letter dated April 3, 2004, from Mr. Weiser
addressed to the Planning Commission and to the City Attorney's office, is the
only document, aside from his application for appeal, that is before the Council
that states the position of the appellant. He stated that in his letter of April 6,
2004, he did correct the misrepresentations Mr. Weiser had made in his letter
regarding the eminent domain case filed by the Inland Valley Development
Agency (IVDA) and the resolutions of necessity approved by the IVDA, as well
as the misrepresentation he made regarding the Owner Participation Agreement
approved by the Redevelopment Agency.
Mr. Empeno advised that there has been no court order issued by either the
Superior Court or the Court of Appeals in the pending condemnation action
which prevents the City Council from approving this conditional use permit;
therefore, he believes the City Council can go ahead and deny the appeal and
approve the conditional use permit.
Regarding Mr. Weiser's recent comments regarding In-N-Out Burgers' position,
Mr. Empeno stated that he would like to inform the Council, for the record
again, that Mr. Brinckloe, the attorney for In-N-Out Burgers, was present if the
28 5/17/2004
Council wished to ask any questions of him. In addition, Dave Gondek, special
legal counsel to the Economic Development Agency, was also in attendance and
would be willing to answer any questions from the Council. He encouraged the
Council to allow Mr. Gondek to speak so he could provide the history regarding
the relationship of the IVDA condemnation action and the Economic
Development Agency and its pending application.
David F. Gondek, special legal counsel to the Redevelopment Agency of the
City of San Bernardino and a lawyer with the law firm of Lewis, Brisbois,
Bisgaard and Smith in San Bernardino, noted that this project does have a long
history. Its origins go back at least as far as 1998, and perhaps even farther.
He noted that the interest of the community In causing the HUB Project Area to
be redeveloped is manifold. One of the key problems the community identified
as needing attention in the vicinity of the I-10 Freeway and Tippecanoe was the
local street circulation patterns at old Rosewood Avenue and old Laurelwood.
The Laurelwood/Tippecanoe intersection for many, many years was a source of
numerous vehicle traffic incidents. It imposed a terrific demand on the
community for fire emergency and police emergency services on virtually a
weekly basis.
The HUB Project was intended, among other things, to remedy those
longstanding traffic problems and has, in fact, taken care of that intersection.
The intersection has been redesigned/reconfigured, and the City is now
completing the third phase of the final improvements to the Tippecanoe
intersection as part of the overall HUB Project.
This project was originally subject to intense study and a final FIR that was
certified in May 2001 at a public hearing. Notice for that public hearing was
issued far and wide; and every owner of property in the HUB Project site,
including the family who is represented by Mr. Weiser, received notice of the
EIR and the project. After the project was approved, the Redevelopment
Agency of the City of San Bernardino and the Inland Valley Development
Agency entered into a condemnation memorandum, pursuant to which the IVDA
would acquire specific parcels of property which the Redevelopment Agency
had not been able to complete negotiated purchases —properties on behalf of the
Redevelopment Agency in support of the HUB Project. He reminded the
Council that even farther back than 2001, the Inland Valley Development
Agency, the City, and the Redevelopment Agency entered into a Redevelopment
Cooperation Agreement to cause the development of the HUB Project.
The University Inn Motel property was one of a few parcels that the
Redevelopment Agency was unable to acquire through negotiated purchase, and
so that acquisition was referred to the Inland Valley Development Agency for
acquisition by condemnation. He stated that the agenda materials included in
the Council's package contained a copy of the resolution of necessity which was
29 5/17/2004
adopted by the Inland Valley Development Agency in 2002—IVDA Resolution
No. 2002-21—and that it was Exhibit 1 in the materials that were included in the
record this evening.
Mr. Gondek explained that subsequent to the adoption of that resolution of
necessity, the Inland Valley Development Agency, in accordance with the
condemnation memorandum with the Redevelopment Agency, obtained a pre-
judgement order for possession of the University Inn Motel property. After
some effort the Inland Valley Development .Agency obtained possession of the
property; and shortly thereafter the building was demolished and the first phase
of the street improvement work was undertaken by the City of San Bernardino.
That was the initial phase of Laurelwood realignment; the first of the three
phases of overall improvements to correct the intersection and circulation
problems for the HUB Project and the Tippecanoe/I-10 intersection.
Subsequent to that, there has been considerable litigation, as Mr. Weiser has
indicated. However, in November 2003, the Inland Valley Development
Agency obtained a final Judgement of Condemnation in the University Inn
Motel case —that's San Bernardino Superior Court Case No. SCVSS 89192.
And then finally in December 2003, a final Order of Condemnation was
recorded on the property —recorded instrument No. 2003-0926157. The Inland
Valley Development Agency has completed the condemnation of the property in
accordance with the condemnation memorandum; and again and further, with
the Redevelopment Condemnation Agreement among the City, the
Redevelopment Agency, and the IVDA.
The Redevelopment Agency of the City of San Bernardino has separately
entered into an Owner Participation Agreement with In-N-Out Burgers, Inc.
That Owner Participation Agreement was the product of a series of notifications
that the Redevelopment Agency began issuing the neighbors —property owners
in the neighborhood —back in 1999 and 2000. In-N-Out Burgers responded
favorably to the Redevelopment Agency's solicitation to participate in the
redevelopment of the project; they wanted to remain in the project, to relocate,
to have a new facility, and to eliminate some of the traffic problems that had
afflicted the neighborhood previously.
Mr. Gondek stated that he and Agency staffthought that was a very positive
thing and believed at the time that having In-N-Out's involvement in the project
was positive. The developer also agreed to include In-N-Out in the project and
numerous design considerations were incorporated into the overall HUB project
to accommodate In-N-Out. Again, this was all subject to numerous public
hearings and public scrutiny which culminated in the adoption of the final EIR
for the project in May 2001. Shortly after the original Disposition and
Development Agreement with FBT Partners was approved, an Owner
Participation Agreement (OPA) was entered into by the Agency with In-N-Out
Burgers. He stated that In-N-Out was committed then, and remains committed
30 5/17/2004
today, to complete the relocation of its store into a new configuration as
described in the agenda materials that were presented this evening.
Mr. Gondek stated that the new store will eliminate all street circulation directly
from the property onto Tippecanoe, which, as everyone knows, was the single
biggest contributor to the demands for police and fire services at that
intersection over the past many years. So the proposal tonight is part of the
CUP approval, culminates many, many years of active involvement in trying to
solve the problem. It involved cooperation among sister public agencies, the
Inland Valley Development Agency, the City, the Redevelopment Agency, as
well as an owner of the site, In-N-Out Burgers.
He noted that currently In-N-Out owns approximately 50 percent of the total
site; approximately 30 percent is the remnant, or what is left, of the University
Inn Motel property after taking out the area for the new street dedication. The
remainder of the site is owned by the Redevelopment Agency. If this project is
approved —the CUP is approved this evening —then In-N-Out will proceed to
complete its acquisition of the property at the earliest feasible time and begin
development of the new store. Their driveways will be closed and construction
of the third and final phase of the Tippecanoe street improvements will begin
sometime in June.
No comments were received from the public.
Council Member/Commissioner Derry made a motion, seconded by Council
Member/Commissioner McCammack, that the hearing be closed; the appeal be
denied, and that the Planning Commission's approval of Conditional Use Permit
No. 04-02 be upheld, based on the Findings of Fact contained in the Planning
Commission staff report dated April 6, 2004, subject to the Conditions of
Approval and Standard Requirements.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
25. Public hearing - General Plan Amendment No. 02-10 and Conditional Use
Permit No. 02-29 to change the land use district from OIP, Office Industrial
Park to CG-1, Commercial General, and to expand a used vehicle
dealership - 233-333 S. Waterman Avenue
31 5/17/2004
RES. 2004-134 - Resolution of the City of San Bernardino adopting General
Plan Amendment No. 02-10 to the General Plan of the City of San
Bernardino, to amend the General Plan Land Use Designation from OIP,
Office Industrial Park to CG-1, Commercial General for five acres located
on the east side of Waterman Avenue, approximately 350 feet north of the
Twin Creek Channel.
Mayor/Chairman Valles opened the hearing.
City Planner Valerie Ross provided background information from the staff
report.
No public comments were received.
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner Estrada, that the hearing be closed; that said resolution
be adopted; that the Mitigated Negative Declaration and Mitigation
Monitoring/Reporting Program be adopted; and Conditional Use Permit No. 02-
29 be approved based on the Findings of Fact in the Planning Commission staff
report, subject to the Conditions of Approval (Attachment C) and Standard
Requirements (Attachment D).
The motion carried and Resolution No. 2004-134 was adopted by the following
vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis,
Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None.
SAN BERNARDINO CITY HOUSING AUTHORITY
Staff Present: Mayor/Chairman Valles; Council Members/Commissioners Estrada,
Longville, McGinnis, Derry, Kelley, Johnson, McCammack; Senior Assistant City
Attorney Carlyle, Economic Development Agency Special Counsel Sabo and Executive
Director Van Osdel, City Clerk Clark. Absent: None.
R26. Hearing - resolution of public interest and necessity for acquisition of real
property at 155 East 2"" Street and 123 North Sierra Way
RES. SBHA/2004-1 - Resolution of the San Bernardino City Housing
Authority declaring the public interest and necessity of acquisition of real
property by the San Bernardino City Housing Authority over the property
known as 123 North Sierra Way (APN 0135-292-35), San Bernardino,
California in the Inland Valley Redevelopment Project Area. (R26A)
32 5/17/2004
RES. SBHA/2004-2 - Resolution of the San Bernardino City Housing
Authority declaring the public interest and necessity of acquisition of real
property by the San Bernardino City Housing Authority over the property
known as 155 East 2"" Street (APN 0135-291-10), San Bernardino,
California in the Inland Valley Redevelopment Project Area. (R26B)
Mayor/Chairman Valles opened the hearing.
Economic Development Agency Executive Director Van Osdel and Agency
Deputy Director Pacheco provided background information and an overview of
the staff report. It was noted that unlike a public hearing, this is simply a
hearing for the owners of the subject properties to be able to appear, if they
wish.
No public comments were received.
Council Member/Commissioner Estrada made a motion, seconded by Council
Member/Commissioner McGinnis, that the hearing be closed; and that said
resolutions A & B, be adopted.
The motion carried and Resolution Nos. SBHA/2004-1 and SBHA/2004-2 were
adopted by the following vote: Ayes: Council Members/Commissioners
Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays:
None. Absent: None.
COMMUNITY DEVELOPMENT COMMISSION
Staff Present: Mayor/Chairman Valles; Council Members/Commissioners Estrada,
Longville, McGinnis, Derry, Kelley, Johnson, McCammack; Senior Assistant City
Attorney Carlyle, Economic Development Agency Special Counsel Sabo and Executive
Director Van Osdel, City Clerk Clark. Absent: None.
R27. Hearing - resolution of public interest and necessity for acquisition of real
property at 2072 and 2095 North Newcomb Street
RES. CDC/2004-11 - A Resolution of the Community Development
Commission of the City of San Bernardino declaring the public interest and
necessity of acquisition of real property by the Redevelopment Agency of
the City of San Bernardino for Community Redevelopment purposes over
the property known as 2072 and 2095 N. Newcomb Street, San Bernardino,
California (APN 1191-021-18 and 1191-021-22) in the Inland Valley
Redevelopment Project Area.
Mayor/Chairman Valles opened the hearing.
33 5/17/2004
Economic Development Agency Deputy Director Pacheco provided an overview
of the staff report.
No public comments were received.
Council Member/Commissioner McCammack 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. CDC/2004-11 was adopted by the
following vote: Ayes: Council Members/Commissioners Estrada, Longville,
McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent:
None.
R28. Approve 2004 Redevelopment Cooperation Agreement - Redevelopment
Agency of the City of San Bernardino and the San Bernardino City Housing
Authority
RES. CDC/204-12 - A Resolution of the Community Development
Commission of the City of San Bernardino approving and authorizing the
Executive Director of the Redevelopment Agency to execute the 2004
Redevelopment Cooperation Agreement by and between the Agency and the
San Bernardino City Housing Authority related to the Meadowbrook
Neighborhood Single Family Housing Development (Inland Valley
Redevelopment Project Area). (R28A)
RES. SBHA/2004-3 - A Resolution of the San Bernardino City Housing
Authority approving and authorizing the Chairman of the Authority to
execute the 2004 Redevelopment Cooperation Agreement by and between
the Redevelopment Agency of the City of San Bernardino and the Authority
related to the Meadowbrook Neighborhood Single Family Housing
Development (Inland Valley Redevelopment Project Area). (R28B)
Council Member/Commissioner Estrada made a motion, seconded by Council
Member/Commissioner McCammack, that said resolutions A & B, be adopted.
Community Development Commission Resolution No. CDC/2004-12 and City
Housing Authority Resolution No. SBHA/2004-3 were adopted by the following
vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis,
Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None.
29. Public Comments
Rick Avila, Avila Construction, Inc., stated that he was going to come and
speak at the Council meetings every month until he was paid the money the City
34 5/17/2004
owes him as a result of a recent lawsuit he filed against the City. He alleged
corruption in the courthouse and asked the Mayor when he was going to get the
money that had been awarded to him.
Mayor/Chairman Valles stated she did not have an answer for Mr. Avila; and
City Attorney Perlman provided information on various aspects of the lawsuit.
Paul Sanborn, 3559 Genevieve Street, San Bernardino, CA, asked the Mayor
and Council to put up $1000 of City money as a "prize" in order to encourage
residents to vote.
John Stevens, 4097 Pershing Avenue, San Bernardino, CA, spoke regarding
the war in Iraq.
Theresa Goins, apartment manager, and Martha Hargrave, 757 West Virginia
Street, San Bernardino, CA, expressed concerns regarding the Central City
Lutheran Mission located at Virginia and "G" Streets; in particular, concerns
regarding the homeless shelter and various activities taking place there.
Council Member/Commissioner Longville advised that both the Police
Department and the Community Prosecutor's Office with the District Attorney
had met with management of the Central City Lutheran Mission regarding every
single complaint recently received from the neighbors, and both organizations
had suggested that a community forum take place to address these concerns.
She stated that the forum had been scheduled for Wednesday, May 26, 7-9 p.m.
at the Mission, and representatives from both organizations would be attending.
Randy Lally, 2249 West Walnut Street, San Bernardino, CA, submitted a
petition signed by over fifty residents who lip a near the flood control reservoir
at Macy and Walnut Streets, between Mill and Rialto Avenue, requesting that
immediate action be taken regarding the many criminal and unsavory acts going
on there. They requested some type of gate or barrier at the south side of the
basin and lights.
Yvonne Olivares of the SCIU asked the Mayor and Council to adopt a
resolution in support of home care workers and those who receive their services,
stating that their services allow many seniors to remain in their homes instead of
being institutionalized.
Jay Lindberg, 6340 Orange Knoll, San Bernardino, CA, spoke regarding the
dangers associated with the transportation of nuclear waste.
35 5/17/2004
Larry Neiderhise, 2105 East 17' Street, San Bernardino, CA, spoke regarding
being cited relative to parking his RV at his home, yet others in the
neighborhood are doing the same thing and nothing is being done about them;
and he questioned this discrepancy.
S1. Workshop to discuss and take possible action regarding the proposed new
City Charter (See related Agenda Item ##23)
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Kelley, that the workshop regarding the
proposed new City Charter (Agenda Item 1#23) scheduled for 7:00 p.m. be
advanced to 5:00 p.m. for discussion and possible action.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
S2. Presentation by the Wildlands Conservancy/University of Redlands on "The
Santa Ana River in the City of San Bernardino: A Vision for the 21"
Century"
Council Member/Commissioner Longville reviewed the staff report with the
Council regarding the creation of a point to point trail from the headwaters of
the Santa Ana River all the way to the Pacific Ocean. She concluded by noting
that the Mayor would be appointing representatives to the City of San
Bernardino Santa Ana River Task Force and had asked her to act as Chair.
Dr, Tim Krantz, Associate Professor of Environmental Studies at the University
of Redlands, made a presentation relative to the overall concept of the Santa
Ana Trail; the possibilities associated with the Santa Ana River; and the process
and role of the Wildlands Conservancy, a nonprofit organization, and the
University in helping the City define its own vision for its segment of the river.
Council Member/Commissioner Longville noted that it had only taken the City
of Riverside task force four meetings to create a vision of the trail in their area.
She stated that the meetings would be public and she would be working with the
Mayor to identify appointees to the task force.
36 5/17/2004
30. Adjournment
At 10:01 p.m., the meeting adjourned. The next joint regular meeting of the
Mayor and Common Council/Community Development Commission is
scheduled for 1:30 p.m., Monday, June 7, 2004, in the Council Chambers of
City Hall, 300 North "D" Street, San Bernardino, California.
No. of Items: 32
No. of Hours: 8
RACHEL G. CLARK
City Clerk
By. ��1.
Linda E. Hartzel
Deputy City Clerk
37 5/17/2004