Loading...
HomeMy WebLinkAbout11-06-1997 Minutes MINUTES MAYOR AND COMMON COUNCIL AND COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO JOINT ADJOURNED REGULAR MEETING NOVEMBER 6, 1997 COUNCIL CHAMBERS This is the time and place set for a joint adjourned regular meeting of the Mayor and Common Council. and Community Development Commission of the City of San Bernardino from the joint regular meeting held at 7:59 a.m., Monday, November 3, 1997, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. The City Clerk has caused to be posted the order of the adjournment of said meeting held on Monday, November 3, 1997, and has on file in the Office of the City Clerk an affidavit of said posting together with a copy of said oraer which was posted at 8:00 a.m., Tuesday, November 4, 1997, on the door of the place at which said meeting was held. The joint adjourned regular meeting of the Mayor and Common Council and Community Development Commission was called to order by Mayor Pro Tern Devlin at 1:04 p.m., Thursday, November 6, 1997, 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 Pro Tern Devlin; Council Members Negrete, Arias, Devlin, Anderson, Miller; City Attorney Penman, City Clerk Clark, City Administrator Wilson. Absent: Council Members Curlin, Oberhelman. (Note: Agenda Item Nos. 1, 2, ana 3 are related to the same subject and were discussed and voted on together; therefore, they are reported as such in the minutes.) AN ORDINANCE OF THE CITY OF SAN BERNARDINO REPEALING CHAPTER 3.52 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 3.54 TO THE SAN BERNARDINO MUNICIPAL CODE RELATING TO TRANSIENT LODGING TAX. (Continued from November 3, 1997) (Discussed later in the meeting - page 9) First (1) RES. 97-339 - RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO SUBMITTING TO THE VOTERS A BALLOT MEASURE RELATING TO THE CITY'S TRANSIENT LODGING TAX. (Continued from November 3, 1997) (2) 1 11/6/1997 RES. 97-340 - RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO CALLING A GENERAL MUNICIPAL ELECTION TO SUBMIT TO THE ELECTORS FOR THEIR APPROVAL A BALLOT MEASURE RELATING TO THE CITY'S TRANSIENT LODGING TAX. (Continued from November 3, 1997) (3) City Attorney Penman explained that the City has collected its Transient Occupancy Tax for many years; however, the Fourth District Court of Appeals recently indlcated that it has serious legal reservations regarding said tax. He also pointed out that as a result of Proposition 218, any general tax which is imposed, extended, or increased on or after Jan~ary 1, 1995, is subject to approval by a majority vote of the electorate. Mr. Penman noted that most likely the court's tentative opinion would become a final decision and the City's Transient Occupancy Tax would be declared unco:lstitutional. This would necessitate the City placing a measure before the electorate to reimpose the tax. He pointed out ::hat the City is already committed to holding a mayoral run-off election in February 1998, therefore, staff was proposing adoption of said ordinance and resolutions which would place the matter on the February 3, 1998 general municipal election ballot, thereby eliminating a potential break in the stream of revenue generated by this tax. Council Member Miller made a motion, seconded by Council Member Negrete, that said ordinance be laid over for final adoption and said resolutions be adopted. (Note: There was no vote taken.) City Clerk Clark noted that her office had not had an opportunity to review said documents, as she had just been provided with a copy. Since the City Clerk's Office would be administering the ordinance and conducting the election, she requested time for her staff to review both the ordinance and the resolutions for content and accuracy. Senior Assistant City Attorney Carlyle informed the Council that the current transient occupancy tax rates would remain the same. and only those staying in local hotels and motels would be taxed. Council Member Anderson made a substitute motion, seconded by Council Member Arias, that said ordinance be laid over for final adoption and that said resolutions be adopted, with the stipulation that the City of San Bernardino's ordinance would have the same wording as the ordinances of other cities and that any changes to be made would not affect the content and message of the documents. City Attorney Penman pointed out that the proposed ordinance was in fact different from the ordinances of all other cities, because the ordinances that San Bernardino and other cities currently have on their books have been declared unconstitutional. 2 11/6/1997 He stated that he did not know what kind of leeway could be left in the motion that would allow a change which would not have to come back before the Council for approval. He requested that the makers of the motion and the second include i:l the motion that the City Attorney be directed to prepare an :.mpartial analysis of the ordinance for ballot presentation to the electorate. Council Member Anderson restated her substitute motion seconded by Council Member Arias, that said ordinance be laid ove~ for final adoption, that said resolutions be adopted, and that the City Attorney be directed to prepare an impartial analysis of the ordinance for ballot presentation to the electorate. The substitute motion carried, and Resolution 97-340 were adopted by the following vote: Ayes: Negrete, Arias, Devlin, Anderson, Miller. Nays: Council Members Curlin, Oberhelman. Nos. 97-339 and Council Members None. Absent: RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO REPEALING RESOLUTION NO. 97-199 AND SUBMITTING TO THE VOTERS A BALLOT MEASURE RELATING TO THE CITY'S SERVICE USERS TAX. (Continued from November 3, 1997) (4) RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO REPEALING RESOLU~ION NO. 97-200 AND CALLING A GENERAL MUNICIPAL ELECTION TO SUBMIT TO THE ELECTORS FOR THEIR APPROVAL A BALLOT MEASURE RELATING TO THE CITY'S SERVICE USERS TAX. (Continued from November 3, 1997) (5) Council Member Miller made a motion, seconded by Council Member Anderson, that said resolutions be tabled. (Note: The vote was taken after the discussion.) Council Member Anderson removed her second for purposes of discussion. City Attorney Penman explained that one-half percent of the Service User's Tax would expire on Jur:e 30, 1998, unless it was placed on the February ballot and approved by the electorate. He pointed out that the Transient Occupancy Tax, which the Council had just voted to place on the February ballot, is a tax which is paid for by those individuals using the motels and hotels throughout the city, whereas the Service Users Tax is a tax of city residents. He stated that staff believed that plac~ng two taxes on the same ballot was unwise, and that the Transient Occupancy Tax would have a better chance of passing if the City gave up the one-half percent of the Service Users Tax. 3 11/6/1997 Council Member Anderson reinstated her second, and the motion unanimously carried. COMMUNITY DEVELOPMENT COMMISSION & MAYOR AND COMMON COUNCIL - JOINT ADJOURNED REGULAR MEETING At 1:15 p.m., Chairman Devlin called the joint regular meeting of the Community Development Commission and Common Council to order. adjourned and Mayor At this time, the Mayor and Common Council, Community Development Commission, took action Development Commission items. acting as the on Community CITY ADMINISTRATOR WILSON EXCUSED At 1:25 p.m., City Administrator Wilson left the Council meeting and was replaced by Director of Planning and Building Services Hays. APPEAL HEARING - PLANNING COMMISSION ACTION TO UPHOLD DEVELOPMENT REVIEW COMMITTEE'S APPROVAL OF DEVELOPMENT PERMIT TYPE II NO. 97-13 INLAND CENTER MALL 500 INLAND CENTER DRIVE - CENTRAL CITY COMPANY/CAROUSEL MALL (Continued from November 3, 1997) (6) Robert D. Curci, Asset Manager, :::entral City Company, 295 Carousel Mall, San Bernardino, CA, submitted a letter dated November 6, 1997, requesting a continuance of the appeal hearing to November 17, 1997. City Attorney Penman stated that as a matter of procedure the Council should hear the request for a continuance first, because if the continuance was granted it would alleviate holding the appeal hearing at this time. Attorney Michael Lewin of Mirau, Edwards, Cannon, Harter & Lewin, 599 North "E" Street, San Bernar6ino, CA, stated that he was not knowledgeable regarding said case; however, he was representing Marlene Fox, attorney for the appellant, and requesting a continuance on her behalf. He also read into the record the letter from Mr. Robert Curci requesting a continuance. Mark Ostoich of Gresham, Savage, Nolan & Tilden, LLP, 600 North Arrowhead Avenue, San Bernardino, CA, representing Inland Center Mall, expressed opposition to the continuance and introduced Mr. Carroll Quin, Divisional Vice President in charge of store planning and construction for the May Realty Company, Robinsons- May, North Hollywood, CA. 4 11/6/1997 Mr. Quin informed the Council that the steel for the project could not be ordered until the development permit was approved. He stated that the building pad would be graded and construction was scheduled to begin in February 1998, and if the steel was not ordered by November 10, it would not be delivered by this date. The Council discussed the dates and ordering materials and accomplishing various and questioned Mr. Quin regarding same. time limitations for aspects of the proj ect Mr. Ostoich strongly urged the Council to deny the request for a continuance and submitted a letter his company had sent to Attorney Marlene Fox dated November 4, 1997, in which she was informed that they intended to strongly oppose any request for a continuance. He stated that it seemed very strange to him that knowing their request for a continuance was going to be opposed, that the only representative present for the appellant was an attorney who by his own admission was unfamiliar with the case. Director of Planning and Building Services Hays presented an itemized chronology of the dates and circumstances surrounding the appeal filed by Attorney Fox and her subsequent request for a continuance and submitted a document dated November 6, 1997, titled, Response to 11/03/97 Comments from Appellant. He noted that Ms. Fox had received timely notification in all instances, and that the Planning and Building Services Department had tried to accommodate her needs as best they could. Council Member Arias made a motion, seconded by Council Member Negrete, that the hearing be closed; and that the Mayor and Common Council deny the appeal and approve Development Permit Type II No. 97-13, based on the findings of fact attached to the Staff Report dated October 23, 1997, from Michael Hays, Director of Planning and Building Services. (Note: There was no vote taken.) Mr. Lewin proyided a rebut tal to Lle remarks made by Mr. Quin and reiterated some of the comments made by Ms. Fox in her letter dated October 30, 1997, in which she requested a continuance. He pointed out that if the Council proceeded with the hearing this date it would be a travesty since the Central City Company would have no representation. City Attorney Penman stated that the appropriate motion at this time would be to grant or deny the continuance. He pointed out, however, that this application from Inland Center Mall had already resulted in two lawsuits being filed by the Central City Company and advised the Council that there was some legal information that needed to be discussed. He noted that one of the cases was still pending, and they should recess to closed session if the Council had any questions on this matter. 5 11/6/1997 Attorney Ostoich contended that the time had passed for any further delay on this application. He stated that Inland Center Mall had a contract with Robinsons-May to deliver a graded pad no later than February 1, 1998, that there was a lot of work yet to be done, and that Robinsons-May had indicated that unless the pad was ready and the steel delivered by that date they would be unable to open the store by November 1998. He added that Robinsons-May had indicated they would terminate their deal with Inland Center Mall if the project could not be completed within this time frame. He stated that he felt the appellants had an obligation to present their appeal on the appointed day. City Attorney Penman noted that there were two court reporters present--one for each side--and reiterated that the City was currently in litigation with Central City Company. He stated that the original agenda posted for this ;neeting included a closed session item for existing litigation and significant exposure to litigation, and he felt it appropriate to recess to closed session at this time. RECESS MEETING At 2:12 p.m., Commission recessed - CLOSED SESSION the Common Council and Community Development to closed session for the following: A. Conference with legal counsel existing litigation pursuant to Government Code Section 54956.9(a): Central City Company vs. City of San Bernardino, et al., Superior Court Case No. SCV 30704. B. Conference with legal counsel - anticipated litigation - significant exposure to litigation pursuant to Government Code Section 54956.9(b). CLOSED SESSION At 2:12 p.m., Mayor Pro Tern Devlin called the closed session to order in the conference room of the Council Chambers of City Hall. ROLL CALL Roll call was taken by City Clerk Clark with the following being present: Mayor Pro Tern Devlin; Council Members Negrete, Arias, Devlin, Anderson, Miller; City Attorney Penman, City Clerk Clark, Director of Planning and Building Services Hays. Absent: Council Members Curlin, Oberhelman. Also present: Deputy City Attorney Empeno. ADJOURN CLOSED SESSION At 2:27 p.m., the closed adjourned regular meeting in the session adjourned to the joint Counc~l Chambers of City Hall. 6 11/6/1997 RECONVENE MEETING At 2:27 p.m., Mayor Pro Tern Devlin reconvened the joint adjourned regular meeting of the Mayor and Common Council and Community Development Commission of the City of San Bernardino. ROLL CALL Roll call was taken by City Clerk Clark with the following being present: Mayor Pro Tern Devlin; Council Members Negrete, Arias, Devlin, Anderson, Miller; City Attorney Penman, City Clerk Clark, Director of Planning and Building Services Hays. Absent: Council Members Curlin, Oberhelman. APPEAL HEARING - PLANNING COMMISSION ACTION TO UPHOLD DEVELOPMENT REVIEW COMMITTEE'S APPROVAL OF DEVELOPMENT PERM I T TYPE II NO . 97 - 13 I NLAND CENTER MALL 500 INLAND CENTER DRIVE - CENTRAL CITY COMPANY/CAROUSEL MALL (Continued from November 3, 1997) (6) Council Member Arias made a substitute motion, Council Member Negrete, and unanimously carried, that for a continuance be denied. seconded by the request CITY ATTORNEY PENMAN EXCUSED At 2:29 p.m., City Attorney Penman left the Council meeting and was replaced by Deputy City Attorney Empeno. Mayor Pro Tern Devlin opened the hearing. Michael Hays, Director of Planning and Building Services, responded to various grounds of the appeal by presenting a detailed overview of the contents of the Staff Report dated October 23, 1997, which was submitted as backup for the Noyember 3 meeting of the Mayor and Common Council. Deputy City Attorney Empeno addressed the second and third grounds of the appeal as listed in the Staff Report. (Note: His comments are contained in a memorandum dated September 30, 1997, which is included as Exhibit "2" in the Staff Report.) DEPUTY CITY ATTORNEY EMPENO EXCUSED At 2:41 p.m., Deputy City Attorney Empeno left the Council meeting and was replaced by City Attorney Penman. City Attorney Penman provided rebuttal to the charge by the appellant that the City Attorney had a conflict of interest in this matter since he had accepted a donation from the agents responsible for submitting the development permit application. He noted that when this same allegation was presented by Ms. Fox in the matter of Central City Company vs. City of San Bernardino. et al., Superior Court Case No. SCV 30704, on October 23, 1997, Superior Court Judge James A. Edwards sustained an objection to the allegation as irrelevant. 7 11/6/1997 Discussion ensued regarding various aspects of the proposed expansion. It was noted that no aew information had been forthcoming on this project since it was last heard before the Council, and that all pertinent information was included in the Council's backup material. Attorney Ostoich submitted copies of the transcript of the Planning commission meeting held on October 7, 1997, which included the remarks and comments made by Marlene Fox, attorney for the appellant. He suggested that the Council might want to review this material prior to rendering a decision on this matter. RECESS MEETING At 2:58 p.m., Mayor Pro Tern Devlin declared a 15-minute recess to allow the Council time to review said transcript. RECONVENE MEETING At 3: 17 p. m., Mayor Pro Tern Devlin reconvened the joint adjourned regular meeting of the Mayor and Common Council and Community Development Commission of the City of San Bernardino. ROLL CALL Roll call was taken by City Clerk Clark with the following being present: Mayor Pro Tern Devlin; Council Members Negrete, Arias, Devlin, Anderson, Miller; Deputy City Attorney Empeno, City Clerk Clark, Director of Planning and Building Services Hays. Absent: Council Members Curlin, Oberhelman. Arun Parmar, Manager, Inland Center Mall, 500 Inland Center Drive, San Bernardino, CA, stated that they believed the Inland Center could be a more fashionable mall and this project would serve to accomplish this goal. Attorney Ostoich submitted the following two documents into the record: (1) A document entitled, ROBINSONS-MAY DEPARTMENT STORE, Prepared for the San Bernardino City Council, which contained a collection of significant information arranged bullet style relative to the proposed development proj ect; and (2) a notebook of legal documents pertaining to the project, including the Development Agreement and Judge Edwards judgment approving the Environmental Impact Report for the Inland Center expansion. Mr. Ostoich stated that all they were asking for was a development permit to build a Robinsons-May department store and parking structure, which represents economic development at its best. He pointed out that there has been no opposition except for Carousel Mall, whose real issue, he believes, is competition. 8 11/6/1997 City Clerk Clark stated that the following individuals had called the City to voice approval of tee proposed project: Cathy Toi, 4995 David Way, San Bernardino, CA; Mrs. George White, a resident of San Bernardino. Council Member Anderson made a motion, seconded by Council Member Arias, and unanimously carried, that the hearing be closed; and that the Mayor and Common Council deny the appeal and approve Development Permit Type II No. 97-13, based on the findings of fact attached to the Staff Report dated October 23, 1997, from Michael Hays, Director of Planning and Building Services. DEPUTY CITY ATTORNEY EMPENO & DIRECTOR OF PLANNING AND BUILDING SERVICES HAYS EXCUSED At 3:49 p.m., Deputy City Attorney Empeno and Director of Planning and Building Services Hays left the Council meeting and were replaced by Senior Assistant City Attorney Carlyle and City Administrator Wilson, respectively. AN ORDINANCE OF THE CITY OF SAN BERNARDINO REPEALING CHAPTER 3.52 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 3.54 TO THE SAN BERNARDINO MUNICIPAL CODE RELATING TO TRANSIENT LODGING TAX. (Continued from November 3, 1997) (Discussed earlier in the meeting - page 1) First (1) Council Member Anderson made a motion, seconded by Council Member Negrete, and unanimously carried, to reconsider the previous action taken that said ordinance be laid over for final adoption. Senior Assistant City Attorney Carlyle stated that there were two minor changes to the ordinance on page 4, as follows: (1) Under Section 3.54.040 B., the reporting requirement was changed from the first day of each month to the 25th day of each month; and (2) paragraph D., which required quarterly reports, was deleted. Council Member Anderson made a motion, seconded by Council Member Negrete, and unanimously carried, that said ordinance, as amended, be laid over for final adoption. 9 11/6/1997 ADJOURNMENT (7) At 3: 52 p. m. the meeting was adj ourned. The next regular meeting of the Mayor and Common Council and Community Development Commission will be held at 8:00 a.m., Monday, November 17,1997, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. RACHEL CLARK CITY CLERK By ~ !!41 Linda Hartzel Deputy City Clerk No. of Items: 7 No. of Hours: 3 10 11/6/1997