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HomeMy WebLinkAbout04-17-2006 MinutesSan CITY OF SAN BERNARDINO 300 N. "D "Street San Bernardino, CA 92418 Website: www.sbcity.org MINI iTF.S MAYOR AND COMMON COUNCIL AND COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO JOINT REGULAR MEETING APRIL 17, 2006 COUNCIL CHAMBERS Mayor Patrick J. Morris Council Members: Esther Estrada Dennis J. Baxter Gordon McGinnis Neil Derry Chas Kelley Rikke Van Johnson Wendy McCammack The joint regular meeting of the Mayor and Common Council and Community Development Commission of the City of San Bernardino was called to order by Mayor/Chairman Morris at 1:34 p.m., Monday, April 17, 2006, 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 Morris; Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack; City Attorney Penman, City Clerk Clark, City Manager 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): Sequenta Lawrence v. City of San Bernardino, et al. - United States District Court Case No. EDCV 04-00336; San Bernardino City Professional Firefighters Union, Local 891, et al. v. Larry Pitzer, et al. - United States District Court Case No. CV 00473 VAP (SGL); 04/17/2006 Hickman v. City of San Bernardino - San Bernardino Superior Court Case No. SCISS 122422; Abdullah et al. v. City of San Bernardino and San Bernardino Valley Municipal Water District - San Bernardino Superior Court Case No. SCVSS 126706; Adams v. City of San Bernardino and San Bernardino Valley Municipal Water District - San Bernardino Superior Court Case No. SCVSS 126708; H. Roger Wang and Vivine Wang v. Wal-Mart Real Estate Business Trust, Wal-Mart Stores, Inc., LSA Associates, Inc., Hall & Foreman, Inc. Harold Garcelon, City of San Bernardino, California Department of Transportation - San Bernardino Superior Court Case No. SCVSS 129158; Center for Biological Diversity (Petitioner) v. City of San Bernardino; Common Council of the City of San Bernardino, and Judith Valles, Mayor of the City of San Bernardino (Respondents); American Development Group, Inc. (Real Property in Interest) - San Bernardino Superior Court Case No. SCVSS 132463; Phillip Gonzalez v. City of San Bernardino; Filberto Rodriguez, et al. - San Bernardino Superior Court Case No. SCVSS 125528; Rosario Aguilar v. City of San Bernardino - San Bernardino Superior Court Case No. SCVSS 115557. 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: 1. Ramon Hernandez v. City, Agenda Item No. 33 2. Reese Aplin (Panacea Investment Corp.) v. City, Agenda Item No. 34 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. 2 04/17/2006 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: Negotiator: Linn Livingston, Human Resources Director Employee Organization: Police Officers Association G. Conference with real property negotiator - pursuant to Government Code Section 54956.8. Reading of Resolutions & Ordinances Deputy City Clerk Hartzel read into the record the titles of all the resolutions and ordinances on the regular agenda of the Mayor and Common Council and Community Development Commission. Moment of Silence Mayor/Chairman Morris expressed condolences to the families and requested a moment of silence in memory of Irving "Chase" Moore Feldkamp, 10-month-old grandson of Dr. Irving Feldkamp, a prominent businessman in the city of San Bernardino; Ruben Hernandez, who worked for the City's Fire Department for 38 years; and Peter Egan, who retired as a battalion chief from the City's Fire Department after 22 years of service. Invocation/Pledge of Allegiance The invocation was given by Reverend Jose Vindel of St. Paul's United Methodist Church, followed by the pledge of allegiance, led by Crystal Correa of Anderson School. 2. Appointments There were no commission appointments. 3. Proclamations & Presentations Tony Grasso, new executive director of SANBAG, introduced himself and commented on the goals and challenges associated with local transportation issues. 3 04/17/2006 4 5 Council Member Kelley presented a Certificate of Appointment to Lynette Kaplan, who will be serving on the Verdemom Trails Committee. Mayor Morris presented a proclamation designating April 23-29, 2006, as National Crime Victims Rights Week to Agnes Gibboney. Peggi Hazlett, Assistant to the Mayor, announced that Mayor Morris had issued two proclamations, to be presented at a later date, as follows: • A proclamation designating the week of April 23-29, 2006, as Record-A- Thon Week in recognition of the work of Recording for the Blind & Dyslexic (RFB&D); and • A proclamation designating April 27, 2006, as Retired and Senior Volunteer Day. Ms. Hazlett noted that in San Bernardino there are 332 active Retired and Senior Volunteer Program (RSVP) volunteers. The following individuals were presented a service pin award by Mayor Morris in recognition of their many years of dedicated service to the City: Name Hugh Gonthier David Gutierrez Aaron Liang Julito Sio Michael Wolff Carmencita Benitez Michael Miller Tom Rodriguez Announcements Department City Attorney City Clerk Development Services Development Services Development Services Fire Parks, Recreation & Community Services Parks, Recreation & Community Services Years of Service 5 5 5 20 5 5 5 ib7 Announcements were made by the Mayor, members of the Common Council, elected officials, and a representative from the Chamber of Commerce regarding various civic, community, and chamber events and activities. Waive Full Reading of Resolutions & Ordinances Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that full reading of the resolutions and ordinances on the regular agenda of the Mayor and Common Council and Community Development Commission be waived. 4 04/17/2006 The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 6. Council Minutes Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that the minutes of the following meeting of the Mayor and Common Council/Community Development Commission be approved as submitted in typewritten form: February 21, 2006. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 7. Claims & Payroll Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that the claims and payroll and the authorization to issue warrants as listed on the memorandum dated March 31, 2006, from Barbara Pachon, Director of Finance, be approved. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 8. Personnel Actions Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that the personnel actions, as submitted by the Chief Examiner, dated April 10, 2006 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, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 9. ORD. MC-1223 - An Ordinance of the Mayor and Common Council of the City of San Bernardino, California repealing and replacing San Bernardino Municipal Code Section 8.82.050 of Chapter 8.82 regarding recovery of expenses for extraordinary law enforcement services. FINAL READING 5 04/17/2006 Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that said ordinance be adopted. Ordinance No. MC-1223 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 10. 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 distributed. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, 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, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 11. Approve change in regular meeting dates of the Mayor and Common Council and Community Development Commission for the month of July 2006 Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that the Mayor and Common Council and the Community Development Commission approve changing the regular meeting dates of the Mayor and Common Council and Community Development Commission for the month of July 2006, from July 3 & 17 to July 10 & 24, 2006. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 12. RES. 2006-99 - Resolution of the City of San Bernardino approving an Agreement professional Updates. for Services with Jacobson & Wack for the provision of planning consulting services for the Development Code Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that said resolution be adopted. 6 04/17/2006 Resolution No. 2006-99 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 13. RES. 2006-100 - Resolution of the Mayor and Common Council of the City of San Bernardino approving the Final Map for Parcel Map No. 17174, located on the west side of Tippecanoe Avenue between Hospitality Lane and Brier Drive in the CR-3, Commercial Regional - Tri-City/Club land use district, accepting the public dedications as set forth on said map. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that said resolution be adopted. Resolution No. 2006-100 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 14. RES. 2006-101 - Resolution of the Mayor and Common Council of the City of San Bernardino approving the Final Map for Tract Map No. 17524, located on the north side of 71h Street between San Carlo Avenue and San Anselmo Avenue in the RS, Residential Suburban land use district, 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 Johnson, that said resolution be adopted. Resolution No. 2006-101 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 15. RES. 2006-102 - Resolution of the City of San Bernardino preliminarily determining that the public convenience and necessity require the formation of a landscape maintenance assessment district located in the Shandin Hills Drive and Shady Creek Drive area without compliance with the Special Assessment Investigation, Limitation and Majority Protest Act of 1931; declaring its intention to proceed to order work within the district, to be known as Assessment District No. 1042; preliminarily approving the Engineer's Report and giving notice of a public meeting and public hearing. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that the Director of Development Services and the City Clerk be authorized to proceed under SBMC 12.90, with the establishment of a landscape maintenance assessment district in the Shandin 7 04/17/2006 Hills Drive and Shady Creek Drive area (Tract No. 14254), to be known as Assessment District No. 1042; and that said resolution be adopted. The motion carried and Resolution No. 2006-102 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 16. RES. 2006-103 - Resolution of the City of San Bernardino determining the amount of property tax revenues to be exchanged between and among the City of San Bernardino and the County of San Bernardino resulting from the jurisdictional change described by LAFCO 3049 for the annexation of unincorporated territory, generally located north of Highland Avenue, east of Golden Avenue, to be known as Annexation No. 359. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that said resolution be adopted. Resolution No. 2006-103 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 17. RES. 2006-104 - Resolution of the City of San Bernardino authorizing and directing the execution of a quitclaim deed to Richmond American Homes of California, Inc., for abandoned waterlines located generally southwesterly of Northpark Boulevard and southeasterly of Campus Parkway. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that said resolution be adopted. Resolution No. 2006-104 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 18. RES. 2006-105 - Resolution of the City of San Bernardino authorizing the purchase of 74 Motorola XTS 5000 portable radios. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that said resolution be adopted. Resolution No. 2006-105 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 8 04/17/2006 19. RES. 2006-106 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the Purchasing Manager to increase the annual purchase order for threat level II ballistic vests (Adamson Police Products #206391) from $32,000 to $50,000 for FY 05/06 with two remaining optional renewal years. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that said resolution be adopted. Resolution No. 2006-106 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 20. RES. 2006-107 - Resolution of the City of San Bernardino authorizing the purchase of a replacement SWAT/CBRNE vehicle for the Police Department from Los Angeles Freightliner in Fontana, CA and the conversion of the vehicle by Mattman Company in Escondido, CA. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that said resolution be adopted; and that the Director of Finance be authorized to amend the FY 2005/06 budget, as necessary, to move all funds into Account Object 5701 (Motor Vehicles) for each funding source so that all funds will be capitalized under the SWAT/CBRNE vehicle. The motion carried and Resolution No. 2006-107 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 21. RES. 2006-108 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an increase to an annual purchase order, with three (3) single year renewal options, to Arata Equipment for the purchase of specific Labrie Equipment parts and supplies utilized by the Public Services Fleet Division. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that said resolution be adopted; and that the Director of Finance be authorized to amend the FY 2005/06 Fleet and Refuse budgets as discussed in the staff report dated March 24, 2006, from Ken Fischer, Director of Public Services, to reflect the additional $40,000 in supplies and parts costs. The motion carried and Resolution No. 2006-108 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 9 04/17/2006 22. RES. 2006-109 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing an increase of an annual purchase order to POMA Distributing Company, Inc., for automotive, heavy truck and heavy equipment lubricants. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that said resolution be adopted; and that the Director of Finance be authorized to amend the FY 2005/06 Fleet budget as discussed in the staff report dated March 24, 2006, from Ken Fischer, Director of Public Services, to reflect the additional $10,000 in lubricant costs. The motion carried and Resolution No. 2006-109 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 23. RES. 2006-110 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing an increase to an annual purchase order to Hydraforce Inc., for the manufacture and repair of hydraulic cylinders and supplies for the Public Services Refuse Fleet, utilized by the Public Services Department Fleet Division. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that said resolution be adopted; and that the Director of Finance be authorized to amend the FY 2005/06 Fleet and Refuse budgets as discussed in the staff report dated March 24, 2006, from Ken Fischer, Director of Public Services, to reflect the additional $12,000 in hydraulic cylinder repair costs. The motion carried and Resolution No. 2006-110 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 24. RES. 2006-111 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing an increase to an annual purchase order, to "Y" Tires of Los Angeles for new and recapped tires, tubes and related repair services for City vehicles and equipment, to be utilized by the Fleet Division. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that said resolution be adopted; and that the Director of Finance be authorized to amend the FY 2005/06 Fleet, Refuse, and Police budgets as discussed in the staff report dated March 27, 2006, from Ken Fischer, Director of Public Services, to reflect the additional $76,000 in recap and new tire costs. 10 04/17/2006 The motion carried and Resolution No. 2006-111 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 25. RES. 2006-112 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the increase of combined annual purchase orders, to Fleet Pride and McCray Enterprises for heavy duty vehicle brake and gear work, including purchase of various related parts. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that said resolution be adopted; and that the Director of Finance be authorized to amend the FY 2005/06 Fleet and Refuse budgets as discussed in the staff report dated March 28, 2006, from Ken Fischer, Director of Public Services, to reflect the additional $26,000 in service and parts costs. The motion carried and Resolution No. 2006-112 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 26. RES. 2006-113 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing an increase to an annual purchase order to Fairview Ford, for services and materials to support the City's light vehicle fleet. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that said resolution be adopted; and that the Director of Finance be authorized to amend the FY 2005/06 Fleet and Police budgets as discussed in the staff report dated March 27, 2006, from Ken Fischer, Director of Public Services, to reflect the additional $10,000 in supplies and parts costs. The motion carried and Resolution No. 2006-113 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 27. Public hearing - Resolution authorizing execution of agreement - sale of a portion of City Water Department owned parcel of real property generally located southwesterly of Kendall Drive and Cajon Boulevard 11 04/17/2006 Resolution of the City of San Bernardino directing and authorizing the execution of a Purchase and Sales Agreement and Joint Escrow Instructions and the execution of a Grant Deed for the sale of a portion of City Water Department owned parcel of real property generally located southwesterly of Kendall Drive and Cajon Boulevard in the City of San Bernardino. Mayor/Chairman Morris opened the hearing. City Manager Wilson advised that staff was asking for a two -week continuance. Council Member/Commissioner McGinnis made a motion, seconded by Council Member/Commissioner Johnson, that the matter be continued to the Council/Committee meeting of May 1, 2006. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 28. Request for reimbursement/payment of legal fees — City Attorney Penman City Attorney Penman submitted an interoffice memorandum dated April 12, 2006, addressed to the Mayor and Common Council from Mr. Penman regarding his Request for Reimbursement/Payment of Legal Fees. Mr. Penman reviewed the contents of the memo with the Mayor and Council, stating that in December 2005, Judith Valles, acting as an individual, had filed a complaint with The State Bar of California, basically alleging that while advising the Mayor and Council at a regular meeting of the Mayor and Council held on September 19, 2005, he committed some violation of the Rules of Professional Conduct. Mr. Penman advised that also included in the backup materials was a letter from The State Bar to his attorney, Erica Tabachnick, stating, "We have reviewed and evaluated the above referenced matter. The determination has been made that there are insufficient grounds for disciplinary action. Therefore, we are closing our file at this time, without prejudice." According to Mr. Penman, in the past, when complaints have been filed by citizens against attorneys in the City Attorney's office, the Mayor and Council have either reimbursed the attorneys or hired counsel for them. Therefore, he was making the same request verbally as he had made in writing —that he be reimbursed for the retainer fee paid to his counsel ($3,000), and that she be paid, upon submission of a bill, an amount not to exceed $900 without further approval of the Mayor and Council, to be taken from the City Attorney Outside Counsel budget. 12 04/17/2006 Mr. Penman noted that he had spoken with the Mayor and the City Manager relative to malpractice insurance for the City for situations such as this. Although such insurance is available, either as an appropriate part of the policy, or through a rider to the policy, it is somewhat expensive. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Derry, that the Mayor and Common Council allocate the sum of up to $3,900 from the City Attorney Outside Counsel budget (Line Item 001-051-5503) to reimburse City Attorney James F. Penman for his payment of $3,000 to attorney Erica Tabachnick, and that any remaining fees due Erica Tabachnick be paid to her from the same account in an amount not to exceed $900, without further approval of the Mayor and Common Council. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, McCammack. Nays: Council Member/Commissioner Johnson. Absent: None. 29. Adopt a Mitigated Negative Declaration and Mitigation Monitoring/ Reporting Program for the Victoria Avenue Street Improvement and Beautification Project and authorize the preparation of the final Plans, Specifications and Cost Estimate for Phase I construction Council Member/Commissioner McCammack stated that she would abstain on this matter because the San Manuel Tribe is a business client and it was the Tribe who donated the $5.5 million for this improvement project. She left the Council meeting, returning after the vote was taken. Mark Lancaster, Deputy Director/City Engineer, stated that this particular item was to basically approve the environmental document which had been determined, through an initial study, to be a mitigated negative declaration. He stated that it will involve some monitoring —some mitigations that will be included in the construction documents. He noted that construction of the project would be done in two phases, and the Council was being asked to give staff the go-ahead to finalize the plans for Phase I, which does include the construction of sound walls and landscape median, as well as meandering sidewalks on the north half of the project from 28`h Street north to Lynwood Drive. He stated that there would be a new signal at Lynwood and Victoria, as well as a new signal at Mirada Road and Victoria. Mr. Lancaster stated that also included with this project, at Lynwood and Victoria, is some channelizing designed to get the traffic that is going to the casino not to use Lynwood, Del Rosa, Arden and some of the other local streets that people have been using as a bypass for Victoria —to channelize that traffic so that people driving on Lynwood can no longer turn into the casino at 13 04/17/2006 Victoria. He stated that this was a very important part of the project, designed to keep the traffic on Highland Avenue until it gets to Victoria, and then proceed north on Victoria, if it is in fact heading to the casino. Tom Masterson of the San Manuel Project Development Office, 26569 Community Center Drive, Highland, CA, stated that the Tribe is focused on investing in and supporting the communities of San Bernardino and Highland. Council Member/Commissioner Derry stated that he did have concerns with Phase II of the project and would address that at the appropriate time. He stated that this is the most important part of the project as far as the residents are concerned, which is the actual mitigation of traffic and traffic impacts. He noted that when the Council approved acceptance of the funds, at that time there was the understanding that changes could be made, and he expected the Council would have that opportunity during Phase II, where there are some issues. Council Member/Commissioner Estrada made a motion, seconded by Council Member/Commissioner Derry, that the Mayor and Common Council independently review, analyze, and exercise independent judgment in reviewing the Initial Study and adopt the Mitigated Negative Declaration, and the Mitigated Monitoring/Reporting Program for the Victoria Avenue Street Improvement and Beautification Project; and authorize the preparation of the final Plans, Specifications and Cost Estimate for Phase I construction. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson. Abstentions: Council Member/Commissioner McCammack. Nays: None. Absent: None. 30. Resolution of the Mayor and Common Council of the City of San Bernardino amending Resolution Number 2005-147 deleting EMS User Fees and authorizing the Fire Chief to terminate the Billing Services Agreement. Ordinance of the Mayor and Common Council of the City of San Bernardino repealing Chapter 3.72 of the San Bernardino Municipal Code. FIRST READING Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Derry, that said resolution be adopted; and that said ordinance be laid over for final adoption. (Note: No vote was taken.) Council Member/Commissioner Estrada stated that she would reluctantly vote for this item; however, she did not think this was the best way to handle the matter. 14 04/17/2006 Council Member/Commissioner Baxter stated that he agreed with Ms. Estrada, and he believed this matter would come back to the Mayor and Council at a later time. He stated that a quarter of a million dollars is a large sum of money to be losing every year, and he believed that efforts would be made to put the program back on track. Council Member/Commissioner Kelley stated that he knew it was a great deal of money the City would be losing; however, he was mindful that this money was being paid by only 8 percent of the people receiving service. He stated that he looked forward to the fee being permanently removed. City Attorney Penman advised that due to a procedural problem, he would suggest that the resolution be continued until the final reading of the ordinance. He explained that if the ordinance was laid over today and adopted at the next meeting, it would go into effect 30 days following the Council meeting of May 1, 2006. However, if Resolution No. 2005-147 was amended today, the City would be in the difficult position of having the ordinance in effect to collect the fee and no fee on the books. By continuing the resolution to the next Council/Commission meeting and including in the language a date specific for it to be effective, the ordinance and resolution would go into effect simultaneously. Council Member/Commissioner McCammack amended the motion, seconded by Council Member/Commissioner Baxter, that said resolution be continued to the Council/Commission meeting of May 1, 2006; and that said ordinance be laid over for final adoption. (Note: No vote was taken.) Council Member/Commissioner McGinnis asked whether at any point during this process, if there was a 4 to 3 vote, could the Mayor veto this resolution. City Attorney Penman answered in the affirmative. Mayor/Chairman Morris advised that he had five days from the Council's action to veto the resolution. He added that he thought it was extremely unwise for the Council to take away an opportunity, in a very difficult budget year, to assess the fees that we assess for EMS services in this city. He stated that he thought the wiser course of action would be to look at the issue anew for possible amendment, but he thought to simply delete it would be extremely unwise. He stated that it would be his intention to veto this if it remained a 4 to 3 vote. Council Member/Commissioner McCammack stated that anytime a political body such as the Council is asked to delete a fee, they may feel an obligation to their constituency to do such a thing, if the fee is being unfairly imposed. She stated that she believed the fee itself was just structured improperly, and if the fee were to stay intact because there were not enough votes to delete the fee, or the deletion of the fee would be vetoed, her concern would still exist. 15 04/17/2006 She noted that the reason we have emergency medical teams in our fire department is to save lives; however, saving a life and serving as someone's doctor are two very different things. She stated that she thought that part of the problem was that there has been an abuse of the program going on for a very long time with folks who don't have the financial means to get themselves to an emergency room, or to go see their doctor. She stated that according to the statistics that she has received from the Fire Department, 80 percent of their calls for service are emergency medical calls, with very few of the patients going on to the hospital for a serious medical problem. However, she believes that there is a structural problem with the fee, and even if it is not deleted, either through Ways and Means or through the Mayor's budget ad hoc committee, somehow staff needs to come up with a way to fix the structural problem. Mayor/Chairman Morris stated that his intention would be to follow those recommendations if there was a 4 to 3 vote; and if he vetoed this, he would pursue taking a strong hard look at the issue. He reiterated that it is an important point of return in the City's budget, and to simply delete a quarter of a million dollars from the City's budget made no sense to him. Council Member/Commissioner Kelley stated he was clear in his position —he thought the fee was unfair no matter how it was restructured, or how staff decided who was to pay, or who was not to pay. He stated that the system is broken, and when he hears the word fee, he hears the word tax; and the residents of San Bernardino are already paying enough taxes, and he was not going to change his position on this issue. Council Member/Commissioner Derry stated that this fee creates a Catch 22 for Council members. He stated that he has an obligation to tell the truth to his constituents if he is called and asked about this fee; and he will have to tell them that only 8 percent of the people actually pay it and there is no collection for those who don't and there is no second contact. He stated that he couldn't tell them honestly to pay something that nobody else is paying. Council Member/Commissioner McCammack noted that the motion was to lay over the ordinance, which was to delete the fee; however, the motion also included language to continue the resolution, so the Council was again in a Catch 22 for this vote. Ms. McCammack stated that since she made the substitute motion, she would suggest that the whole matter be continued, so that it could be done properly and congruently, with both the ordinance and the resolution being amended and/or repealed in a procedurally proper manner. 16 04/17/2006 Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that the matter be continued to the Council/Commission meeting of May 1, 2006. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Baxter, Derry, Kelley, Johnson, McCammack. Nays: Council Member/Commissioner McGinnis. Absent: None. 31. Item Deleted COMMUNITY DEVELOPMENT COMMISSION Staff Present Mayor/Chairman Morris; Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack; Senior Assistant City Attorney Calkins, City Clerk Clark, Economic Development Agency Executive Director Pacheco. Absent: None. R32. Hearing - Resolution of public interest and necessity for acquisition of real property - 708 and 720 West 41h Street RES. CDC/2006-11 - 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 708 and 720 West 4`h Street, San Bernardino, California (APN: 0134-093-45) in the Central City North Redevelopment Project Area. Economic Development Agency Executive Director Maggie Pacheco provided an overview of the staff report. She advised that the property owner is willing to work with the Agency and sell the property; however, she is unable to meet the conditions contained in the Agency's Purchase and Sale Agreement. Ms. Pacheco noted that the resolution allows for Agency special counsel and the executive director to continue to negotiate with the property owner. No public comments were received. Council Member/Commissioner McCammack asked her colleagues to remember that low- to moderate -income housing money was being used, and they would be hard pressed to legally replace whatever it is that the City entity or the EDA entity is buying with any type of commercial property. 17 04/17/2006 Council Member/Commissioner Derry stated that he has had his concerns about the project —that one of his concerns is the use of eminent domain in an unfriendly manner, where the City detects a need and moves forward with that. He stated that in this situation, he has concerns about the overall project, but he was not going to oppose this measure, as he felt the City could do better than what is currently occupying the property, so he would vote in favor. Council Member/Commissioner McGinnis made a motion, seconded by Council Member/Commissioner Estrada, that said resolution be adopted. Resolution No. CDC/2006-11 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Baxter, McGinnis, Derry, Johnson. Nays: Council Members/Commissioners Kelley, McCammack. Absent: None. 33. Building Permit No. B0503040 - an appeal of the Building Official's revocation of a permit to construct a second dwelling unit on a 3-acre property located at 3923 W. Meyers Road in the RE, Residential Estate, land use district Mayor/Chairman Morris opened the hearing. Valerie Ross, City Planner/Deputy Director of Development Services, advised that the appellant, Mr. Ramon Hernandez, had submitted a parcel map application to subdivide his three -acre property into three lots of one acre each in order to build a house on each lot. He was told by Planning staff that they would not support that application because it was inconsistent with the Development Code requirements because there is no infrastructure —no water, sewer, or access. Ms. Ross stated that Mr. Hernandez was then given the option of proceeding in spite of the recommendation for denial, or withdrawal; and he chose to withdraw the parcel map application. He then submitted plans to Building Plan Check. Those plans were sent outside for review, and permits were issued with no review by City staff. She noted that the permits were issued on November 14, 2005; however, on November 17 one of the permits was revoked because it was not consistent with the Development Code provisions for second units — provisions established to specifically preclude second units in areas such as Verdemont where there is no infrastructure and where adding a second unit compromises health and safety. Subsequently, Mr. Hernandez appealed the revocation of the permit to the Planning Commission, and the Planning Commission unanimously denied his appeal. Ms. Ross advised that it was staff's recommendation that the Mayor and Council also deny the appeal. 18 04/17/2006 Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to the following individuals that they would provide true and honest testimony: Ramon Hernandez, 2447 Ogden Street, San Bernardino, CA, owner/appellant, stated that all the information he had obtained from the Planning Department led him to believe that he could do this. He stated he questioned whether he could build three houses on this one parcel because he has three acres, and they said that he could. He stated that they read Table 4.02 and it says that you are allowed to build one house per acre. Based on that information he proceeded with his grading plan. He then received approval from the Engineering Department and the Planning Department which only showed two houses at the site. After that he went ahead and submitted plans for two septic tanks with the County and obtained permits for two septic systems. He stated that the revocation was for lack of sewer; however, there are two types of sewers — public and private —and he does have a private sewer system which is allowed by the state and by the County and City of San Bernardino. He stated that he did not think he was out of the land use district shown on Table 4.02 which would allow him to build three houses on three acres —that he had done everything he was supposed to do and he was issued the permits —then after that they revoked his permit. The following individuals spoke in support of denying the appeal: Richard Kaplan, 3793 W. Meyers Road, San Bernardino, CA; Lynette Kaplan, 3793 W. Meyers Road, San Bernardino, CA; Hank Mitchell, 3766 Belmont Avenue, San Bernardino, CA; Judy Martinez, 2117 Meyers Road, Devote Heights, CA; Steve O'Neill, 7465 Martin Ranch Road, San Bernardino, CA; Arlean Potter, 3783 W. Meyers Road, San Bernardino, CA. The speakers cited lack of infrastructure, low water pressure, density issues, and the possibility of setting a precedent and opening "Pandora's Box" in their arguments to deny the appeal. Ms. Ross stated that Mr. Hernandez did meet with Planning staff, and he was told that per the zoning, which is RE, Residential Estate, and allows one unit per acre, if he could subdivide he could have one house on each of the three parcels of one -acre each, but that there was no infrastructure and staff could not support the subdivision. However, he could have a permit for one house for the existing lot of record. She stated that she was clear regarding the fact that that is what was told to Mr. Hernandez. 19 04/17/2006 Ms. Ross stated that she had double checked with the Water Department, and Mr. Hernandez had requested fire flow and a 1-inch main extension in March 2005. She pointed out that the City does not allow the 1-inch main extension, but that was irrelevant because there is no main in place to extend, so there is no fire flow in front of the parcel. Hence, the Water Department indicated that they could not provide service, which means the one house on the lot of record would have to go in on a well and have pumps. Council Member/Commissioner Johnson inquired about the average size of parcels in the area. Ms. Ross stated that she didn't know if there was an average size —that the parcels vary anywhere from one acre to 20 or more acres. Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner McCammack, that the hearing be closed; and that the Mayor and Common Council deny the appeal and uphold the Building Official's revocation of Building Permit No. B0503040 to construct a second dwelling unit on a 3-acre property located at 3923 W. Meyers Road. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Baxter, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 34. Appeal No. 06-04 - an appeal of the Planning Commission's determination that an apartment building located at 1227 West Huff Street in the RS, Residential Suburban, land use district has lost its legal non -conforming status Mayor/Chairman Morris opened the hearing. Valerie Ross, City Planner/Deputy Director of Development Services, advised that prior to 1989 this parcel and the surrounding area were designated multi- family. However, with adoption of the General Plan in 1989 the designation of these properties was changed from multi -family to single-family and, currently, the area contains a mix of both uses. She pointed out that by designating it single-family, all the multi -family in that area became nonconforming uses; and they could continue as such, but if they became vacant for a period of one year or more they would lose their nonconforming status. According to Ms. Ross, the City's files indicate that the property at 1227 West Huff Street has been vacant since at least 2000, therefore, losing its nonconforming status. She stated that when Panacea Investment Corporation acquired the property, apparently they did not check with the City because 20 04/17/2006 Planning and Building files, as well as Code Compliance files, document the vacancy and the loss of nonconforming status. Subsequently, in the process of Panacea selling the property to Mr. Corona, he came to City Hall and checked the files and found out that the City had made a determination that the property had lost its nonconforming status. At that point, Panacea Investment filed the appeal. She stated that the appeal was considered by the Planning Commission on February 8, 2006, and was unanimously denied. She added that at this point, there had been no evidence provided to staff to indicate that the property had not lost its nonconforming status; and it was staff's recommendation and the Mayor and Council also deny the appeal. Ms. Ross suggested that Panacea Investment Corporation could submit an application, along with the requisite processing fees, and request an amendment to the General Plan to change the underlying land use designation from single to multi, and then their intended use of the property would no longer be a nonconforming use. Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to the following individuals that they would provide true and honest testimony: Attorney Thomas P. Aplin, 535 Anton Boulevard, Suite 1150, Costa Mesa, CA, acting as Panacea's counsel, stated that they had submitted an appeal and he assumed all the Council members had read it. He suggested that the statement made by Ms. Ross that Panacea did not review the City's records was untrue. According to Mr. Aplin, the City's own records revealed that the City itself has never treated this property as a single-family property; that as recently as January of this year, the City had continued to treat it as a multi -family property. Therefore, even if the law says that there was supposed to be a reverse or loss of exemption back in the year 2000, the City has never treated the property in that manner —and they have provided numerous examples of that. He stated that the City's records refer to this property as a multi -unit property —it refers to four units —and that reference is in the City's file and in the County Recorder's Office. Mr. Aplin stated that it was suggested at the Planning Commission, and in fact the Planning Commission used the argument to support its position, that somehow Panacea did not use due diligence, or enough due diligence, in purchasing this property because if they had gone to the City records they would have understood that this was no longer a multi -unit property. 21 04/17/2006 He stated that that argument failed on two counts. First, from personal experience we all know that when we buy residential properties we don't refer to City records —we refer to the County records —and it's the County records that reflect in this case that the property is a multi -unit property. He noted that it is evidenced that way on the grant deed that was recorded as recently as 2004, and in every single document that is in the County record it is referred to as a multi -tenant property, with not one single reference to the loss of that character. Secondly, the City's own records also refer to that; for example, in a San Bernardino City Fire Department Apartment Unit Inspection document that is dated 10/18/05 and is part of their appeal, it says, Ensure all units have operable detectors, and it talks about the multiple units. This is on the City's own fire inspection report. Also, an invoice was submitted to Panacea on January 24, 2006, in which Panacea was billed $133.40 for the annual multi -family rental housing inspection, dated 10/17/05. Mr. Aplin asked why, if this property had lost its nonconforming use status, did the City in 2005 conduct an annual multi -family rental housing inspection. He ascertained that it made no sense; and the reason it happened was because the City itself did not acknowledge the loss of the exemption. According to Mr. Aplin, for some political reason, and he wanted to stress that there was either a political reason or a political agenda in play here, the City Attorney, Mr. Penman, doesn't like apartments —doesn't want multi -units in this city —and has made a decision in this particular case to go to war with Panacea. Or, he recognizes that his own office failed to follow the law, and now is trying to avoid some kind of embarrassment because his own records reveal that the City Attorney's office itself did not treat this property as a single-family residence as recently as 2005. Mr. Aplin stated that as the executive branch of City government, the Council was not beholding to what the City Attorney tells them they ought to do. He suggested that they ought to take a stand out of conscience and out of doing what is right; and if the City Attorney is going to threaten a lawsuit or an injunction, or anything else, let him do it —they were prepared to meet that head on. Reese Aplin, 2016 Horse Trail Drive, Redlands, CA, submitted a property profile and several other documents, including an area map which showed his property at 1227 West Huff. He pointed out that the properties colored in red represented properties that are multi -family (two houses per lot or multi -units), the properties colored in green represented single-family residences, and the properties colored in yellow represented vacant land or anything other than single-family or multi -unit properties. 22 04/17/2006 Mr. Aplin stated that when Panacea purchased the property it was very apparent that this property was not out of place. It was four units amongst several properties that have multi -use capability. Also, when they had the property sold, the appraisal deemed it the best use of this property as a four -unit multi- family. With that in mind, he stated he just wanted to reiterate what his attorney had already said. No other public comments were received. Council Member/Commissioner McGinnis asked Senior Deputy City Attorney Empeno if the City was in fact treating this property like a multi -family property —even though it has this rule about losing its nonconforming status after being vacant for a year —was that reason enough to be able to uphold the appeal —could the Council legally do that even though it is contrary to what the ordinances are about the General Plan and what they say regarding the loss of nonconforming status. Attorney Empeno stated that there was no contradiction between the General Plan and the statements by the department and the issues that had been presented to the Council regarding the loss of legal nonconforming use. The section of the Development Code that was mentioned in the staff report, Section 19.62.030 (2), states that, "If a nonconforming use is discontinued for a period of 12 or more consecutive calendar months, it shall lose its legal nonconforming status, and the continued use of the property shall be required to conform with the provisions of this Development Code." He stated that the facts have been shown to the Council, and they have not been contradicted by the property owner, that the property has been vacant at least since the year 2000 and, therefore, has been vacant for more than 12 or more consecutive calendar months. Council Member/Commissioner McGinnis asked whether Mr. Empeno could give him a definition of occupancy —what the Development Code says about occupancy and how it defines occupancy. Mr. Empeno stated that occupancy of these units consists of lawful residents — lawful occupants that reside at the premises —and that is the common layperson's understanding of the word. Council Member/Commissioner McGinnis stated that he would think the same thing, but he questioned whether that was the way it was written in the Development Code, or whether the Development Code even speaks to what occupancy actually means. 23 04/17/2006 Mr. Empeno stated that there is no statement of occupancy in the rule that he just mentioned —the rule is whether the use has been discontinued for 12 or more consecutive calendar months. In this case, its use is a residential use —it's a fourplex—and in this case it has not been resided in for over 12 consecutive months. Council Member/Commissioner McGinnis questioned whether a squatter or somebody living on the property was a legal occupant —would such a situation meet the definition of occupancy. Mr. Empeno stated that he was referring to a statement that is in the rule —that occupancy was not an issue here. He stated that there hasn't been any allegations of squatters, so Mr. McGinnis was talking in a hypothetical that he didn't think applied. Council Member/Commissioner McGinnis stated that he thought it was unfortunate that the City was not allowed to take this particular ordinance on a case by case basis, because there are certain instances such as this, where the appellant has shown that a good 50 percent of the area is multi -family tenants, that it would be beneficial to the community. He stated that the idea that the City is ever going to take this area and convert it back to single-family is not realistic —he did not think it would ever happen. He noted that Ms. Ross had suggested that the area might be able to be rezoned through a General Plan amendment, and he thought that might be the best bet for this particular parcel in order to allow these particular structures to remain intact. He stated that he believed they would be doing a service for the City, as it could take several hundred years before all of these parcels would become vacant and convert to single-family dwellings. Council Member/Commissioner Derry stated that having served on the Planning Commission and having dealt with these issues before, he does understand the complexities to a certain extent. He noted that the fire inspection program for multi -family units is relatively new; and the quandary is that we are sending them a bill and doing an inspection for something that we no longer recognize as a multi -family project under out General Plan because it has lost its legal nonconforming status. He stated that he had some concerns that the City is charging them a fee for something that is no longer a legal use, and he also had a concern that staff may be identifying the property incorrectly by doing so. With that said, he thought the issue needed to be clarified, but not today. He did think the appellant had brought up an interesting question and he shared Mr. McGinnis' concern about that. 24 04/17/2006 Council Member/Commissioner McCammack noted that the Council had asked that the Fire Department inspect multi -family units to keep the tenants safe from negligent landlords. She pointed out that there was no way for the Fire Department to know whether someone lived in there a month prior, or four families lived in there two month, or six months, or nine months, or eleven months prior. It was simply their job to inspect multi -family units. She noted that Panacea's own appraisal report specifically checked the box saying nonconforming. So the appellant had received documents that said it was a nonconforming piece of property when they had it appraised, if in fact this was their appraisal. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that the hearing be closed; and that the Mayor and Common Council deny the appeal and uphold the Planning Commission's determination that the apartment building located at 1227 West Huff Street in the RS, Residential Suburban, land use district has lost its legal non -conforming status, based on the supporting data considered by the Planning Commission. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Baxter, Derry, Kelley, Johnson, McCammack. Nays: Council Member/Commissioner McGinnis. Absent: None. 35. Public Comments Jan Misquez, 255 North "D" Street, Suite 402, San Bernardino, CA, policy director for the Center for Community Action and Environmental Justice, invited the constituents of San Bernardino to attend Legislative Advocacy Training on April 29, 2006, at the Villaselior Library from 10 a.m. to 3 p.m. to learn how the legislative process works and how to lobby and talk to congressional, federal, state and local leaders. Herbert Blair, 3049 North "I"' Street, San Bernardino, CA, stated that he was trying to get George C. Blair's name on a plaque at the park located at Little Mountain and Marshall, and he needed permission from the City. Jay Lindberg, 6340 Orange Knoll, San Bernardino, CA, distributed a document titled, Surviving the Nuclear Age, and expressed his concerns about nuclear weapons and radioactive waste being transported through San Bernardino. 25 04/17/2006 36. Adjournment At 6:40 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, May 1, 2006, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. No. of Items: 36 No. of Hours: 4 RACHEL G. CLARK City Clerk 1 By: ,�°� , 14zt" v Linda E. Hartzel Deputy City Clerk 26 04/17/2006