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HomeMy WebLinkAbout12-01-2008 Minutes CITY OF SAN BERNARDINO 300 N. "D" Street San Bernardino, CA 92418 Website: www.sbcity.org Mayor Patrick J. Morris Council Members: Esther Estroikl Dennis J. Baxter Tobin Brinker 4h Ward -VacatU Chas Kelley Rikke Van Johnson Wem!Y McCommack ~ MINUTES MAYOR AND COMMON COUNCIL AND COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO JOINT REGULAR MEETING DECEMBER 1, 2008 COUNCIL CHAMBERS The joint regular meeting of the Mayor and Common Council and Community Development Commission of the City of San Bernardino was called to order by Mayor/Chairman Morris at 1:37 p.m., Monday, December 1, 2008, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. Roll Call Present: Mayor/Chairman Morris; Council Members/Commissioners Estrada, Baxter, Johnson, McCammack; City Attorney Penman, Interim City Manager Weinberg, City Clerk Clark. Absent: Council Members/Commissioners Brinker, Kelley. Vacant: Fourth Ward Council Member/Commissioner Kelley arrived at 2:03 p.m. Council Member/Commissioner Brinker arrived at 3:18 p.m. 1 12/011200S 1. Closed Session Pursuant to Government Code Section(s): A. Conference with legal counsel - eXlstmg litigation - pursuant to Government Code Section 54956.9(a): Marl!;aret Spears v. City of San Bernardino, et al. - San Bernardino Superior Court Case No. CIVSS 802927; Desrochers, Michael & Lowes, Steve v. City, et al. - San Bernardino Superior Court Case No. CIVSS 708367 and United States District Court Case No. EDCV 06-1408 VAP (JCRx). 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: Public Counsel Law Center/Human Potential Community LLC v. City of San Bernardino Inland Communities Corp. v. City of San Bernardino (Paradise Hills) Two (2) cases California Aviation Services, Inc. v. City of San Bernardino City v. Gage Canal C. Conference with legal counsel - anticipated litigation - initiation of litigation - pursuant to subdivision (c) of Government Code Section 54956.9: City of San Bernardino v. California State University D. Closed Session - personnel - pursuant to Government Code Section 54957: Director of Code Compliance 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. 2 12/0 I/200S G. Conference with real property negotiator - pursuant to Government Code Section 54956.8: 1. Property Address: 450 North "E" Street APN: 0134-121-24 Negotiating Parties: Emil A. Marzullo, Interim Executive Director, on behalf of the Redevelopment Agency, Scott Bailey on behalf of CinemaStar Luxury Theaters, Inc. Under Negotiation: Terms and conditions of lease and occupancy arrangements. 2. Property Address: 450 North "E" Street APN: 0134-121-24 Negotiating Parties: Emil A. Marzullo, Interim Executive Director, on behalf of the Redevelopment Agency, and Moctesuma Esparza, CEO and Founder on behalf of Maya Cinemas. Under Negotiation: Purchase price, terms and conditions. City Attorney Penman announced that Agenda Item No. 1G would be continued to December 15, 2008, to be discussed in both closed and open sessions, and that the following additional cases would be discussed in closed session: Under Agenda Item No. lA, existing litigation: Richard "Scott" Moss, et aI. v. City of San Bernardino, et al. - United States District Court Case No. EDCV 07-01027 SGL (Opx); Under Agenda Item No. 1B, significant exposure to litigation, the Legislative Review Committee Agenda for December 2,2008. Reading of Resolutions & Ordinances Deputy City Clerk Sutherland 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. 3 12/0112008 Moment of Silence Mayor Morris extended condolences to the families and requested a moment of silence in memory of Alfred Navor, Robert "Bob" Clark, Josh C. Carter, Jr., Tula Davis, and Russ Lackner. Invocation/Pledge of Allegiance The invocation was given by Reverend Arul lrudayaraj, Chaplain at San Bernardino Community Hospital. The Pledge of Allegiance was led by Aliyah Sanchez, a fifth grade student at Ramona Alessandro School. 2. Appointments There were no commission appointments. 3. Presentations There were no presentations. 4. Announcements 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. 5. Waive Full Reading of Resolutions & Ordinances Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that full reading of the resolutions and ordinances on the regular agenda of the Mayor and Common Council and Community Development Commission, be waived. The motion carried unanimously with the Fourth Ward vacant. 6. Council Minutes Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that the minutes of the following meeting(s) of the Mayor and Common Council/Community Development Commission of the City of San Bernardino be approved as submitted in typewritten form: November 3,2008. The motion carried unanimously with the Fourth Ward vacant. 4 1210112008 7. Claims & Payroll Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that the claims and payroll and the authorization to issue warrants as listed in the memorandum dated November 19, 2008, from Barbara Pachon, Director of Finance, be approved. The motion carried unanimously with the Fourth Ward vacant. 8. Personnel Actions Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that the personnel actions, as submitted by the Chief Examiner, dated November 21, 2008, 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 unanimously with the Fourth Ward vacant. 9. RES. 2008-438 - Resolution of the Mayor and Common Council of the City of San Bernardino accepting the resignation of Fourth Ward Council Member, Neil Derry; calling a special election in the Fourth Ward of the City for March 17, 2009 to fill the vacant council seat in said ward, calling the special election to be conducted wholly by mail ballots; and other related matters. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. Resolution No. 2008-438 was adopted unanimously with the Fourth Ward vacant. 10. Request for waiver of fees - YMCA Children's Christmas Parade - December 6, 2008 Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that the request for a waiver of fees in the amount of $7,145 for department, personnel and equipment costs associated with the 31" Annual YMCA Children's Christmas Parade scheduled for December 6, 2008 be approved; and that $7,145 be transferred from the Civic and Promotion Fund into various City departmental accounts as listed in the staff report from the City Manager, dated November 5, 2008, to recover the costs incurred in assisting with the parade. The motion carried unanimously with the Fourth Ward vacant. 5 12101/2008 11. ORD. MC-1291 - An Ordinance of the City of San Bernardino amending Chapter 19.10 (Special Purpose Districts) of the San Bernardino Municipal Code (Development Code) related to the University Hills Specific Plan. FINAL READING (Continued from November 17,2008) Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said ordinance be adopted. Ordinance No. MC-I291 was adopted unanimously with the Fourth Ward vacant. 12. RES. 2008-439 - Resolution of the Mayor and Common Council of the City of San Bernardino awarding a contract to AK Engineering for traffic signal modifications at Waterman Avenue and Parkdale Drive (TC05-07) per Project Plan No. 11628. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. Resolution No. 2008-439 was adopted unanimously with the Fourth Ward vacant. 13. RES. 2008-440 - A Resolution of the Mayor and Common Council of the City of San Bernardino declaring its intention to authorize the annexation of territory generally located between Palm Avenue and Olive Avenue southwesterly of Belmont Avenue (Annexation No. 7) to Community Facilities District No. 1033, and adopting an annexation map showing the territory of Annexation No.7. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that the Director of Development Services and the City Clerk be authorized to proceed under Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California, as amended, with Community Facilities District No. 1033 Annexation No.7 for property consisting of a commercial development (CUP No. 07-31, First Assembly of God Church), located on the southwesterly side of Belmont A venue southeasterly of Palm Avenue (APN 0261-151-07); and that said resolution be adopted. The motion carried and Resolution No. 2008-440 was adopted unanimously with the Fourth Ward vacant. 14. RES. 2008-441 - Resolution of the City of San Bernardino canceling a Historic Property Preservation Agreement (Mills Act Contract) for property located at 783 North Mountain View Avenue. City Attorney Penman abstained because the subject property is owned by the San Bernardino City Unified School District and his wife is a member of the Board of Trustees. He advised that Mr. Sabo had reviewed and signed the resolution. 6 12/01/2008 Council Member/Commissioner McCarnmack abstained due to the fact that the school district is one of her business clients. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. Resolution No. 2008-441 was adopted. Ayes: Estrada, Baxter, Brinker, Kelley, Johnson. Nays: None. Abstentions: McCammack. Vacant: Fourth Ward. 15. 2008 and 2009 Holiday Closure Days Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that the Mayor and Common Council authorize the closure of City Hall on Friday, December 26, 2008 and Friday, January 2, 2009 and require affected employees to take off those days, using their own accrued leave. The motion carried unanimously with the Fourth Ward vacant. 16. RES. 2008-442 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the City Manager to submit the Juvenile Accountability Block Grant (JABG) Program Gang Intervention Grant and execute the Grant Agreement with the Corrections Standards Authority. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. Resolution No. 2008-442 was adopted unanimously with the Fourth Ward vacant. 17. RES. 2008-443 - Resolution of the Mayor and Common Council of the City of San Bernardino ratifying the submittal of two FY 2007-08 COPS Technology Grant applications and authorizing the Police Department to administer the awarded grant funds in accordance with the grant expenditure plans. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. Resolution No. 2008-443 was adopted unanimously with the Fourth Ward vacant. 18. RES. 2008-444 - Resolution of the City of San Bernardino authorizing the purchase of digital voice recorders and supporting hardware and software for the Police Department. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. Resolution No. 2008-444 was adopted unanimously with the Fourth Ward vacant. 7 12/01/2008 19. RES. 2008-445 - A Resolution authorizing the execution of an agreement and issuance of a purchase order in the amount of $73,248.61 to Cook Equipment Company pursuant to Section 3.04.0IO-B3 of the Municipal Code for a JCB 3CX14 4WD backhoe/loader to be utilized by the Public Services Department Street Division Sewer Maintenance crew. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted; and that the Director of Finance be authorized to amend the FY 2008/09 Budget by transferring $73,300 from Account No. 132-431-5704 (Miscellaneous Equipment), to Account No. 132-431-5701 (Motor Vehicles). The motion carried and Resolution No. 2008-445 was adopted unanimously with the Fourth Ward vacant. 20. Appeal hearing - Variance No. 08-01 (Appeal No. 08-03) - An appeal of the Planning Commission's denial of a variance to permit construction of one double-face illuminated pole sign for the business located at 285 East 9th Street at the southwest comer of 9th Street and Waterman Avenue in the CG-l, Commercial General, land use district. Mayor/Chairman Morris opened the hearing. Terry Rahhal, Deputy Director/City Planner, Development Services Department, stated that this request was for an additional free-standing pole sign at the southwest corner of 9th Street and Waterman Avenue. She stated that the project site is the Warehouse Shoe Sale store and noted that additional site photos and an aerial view had been distributed to the Council. Warehouse Shoe Sale occupied the site and obtained sign permits and installed signage on the building in the summer of 2007. At that time, they also proposed installation of the new free-standing pole sign directly on the corner to identify Warehouse Shoe Sale. That particular sign was not permitted based on the fact that the site is part of a shopping center that is located on the southwest corner of 9th Street and Waterman Avenue, anchored by Fiesta Foods. The shopping center has two free-standing shopping center identification signs- one on Waterman Avenue and one on 9th Street. The Fiesta Foods shopping center development plans were approved in 1981 and included the site directly at the corner of 9th and Waterman where plans were approved separately for a 7,920 square foot shoe store in 1982. Ms. Rahhal stated that the plans for this building, which is currently occupied by Warehouse Shoe Sale, specifically identified the building as part of the greater 8 12/0 I/2008 shopping center and acknowledged the reciprocal parking and access easements as it was one of three parcels comprising the existing shopping center. San Pedro Sign Company is the applicant in this case and applied on behalf of Warehouse Shoe Sale for a variance from the shopping center sign regulations in order to request an additional free-standing sign to identify Warehouse Shoe Sale. The variance was requested on the basis that Warehouse Shoe Sale is not affiliated with Fiesta Foods and is on a separate parcel, not under the same ownership, and also is not part of the Fiesta Foods Management. Ms. Rahhal stated that the Planning Commission considered the variance on June 17, 2008, and first made recommendations to the applicant to seek identification on the existing shopping center signs. The applicant at that time stated that either the space would not be made available to them or that it would not suit the needs of Warehouse Shoe Sale. The findings that were made by the Planning Commission on a unanimous vote did not support approval of the variance and they denied Variance No. 08-01, based on the fact that there were no unique circumstances at this site or characteristics about the project site that would warrant granting a variance as requested. Since the action of the Planning Commission, some additional small signs have been added to the building and some wall panels depicting sports and/or sporting events have been added also that do a good job of attracting attention to the building. However, the applicant still seeks approval of a variance to install a 25 foot pole sign in addition to this signage on the southwest corner of 9th Street and Waterman Avenue. Ms. Rahhal stated that it was staff's recommendation that the Mayor and Common Council deny this appeal and uphold the action of the Planning Commission to deny Variance No. 08-01, based on the Findings of Fact contained in the Planning Commission staff report. Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to the following individual that he would provide true and honest testimony: Gus Navarro, President of San Pedro Electric Sign Company, 701 Lakme Avenue, Wilmington, CA, stated that this lot is independent from the shopping center, which has three separate parcels and three different owners. He stated that this parcel has more than enough frontage to qualify for a pole sign. The owners signed the lease and upon applying for the permit from the City of San Bernardino they were denied the permit because they were told that it was part of the shopping center. Mr. Navarro stated that he went to the County of San Bernardino and there are no records indicating that it was part of the shopping center-it's a totally separate parcel. Under the City of San Bernardino's 9 12/0 I/200S Municipal Code, a pole sign is allowed because they have the proper amount of frontages and there is enough area to install a pole sign. Deputy City Attorney Empefio stated that this parcel was part of the project in 1981 and was reviewed again in 1982, wherein the specific development of this parcel was proposed and was approved in a review of plans with applications for signage, which included the wall signs that could be placed on the building. He stated that the existing pole signs were abandoned from the site as a whole in 1981. Mr. Empefio stated that this parcel could not stand alone in a separate application for the pole sign that is being requested. He advised the Mayor and Common Council that under Section 19.72.050 of the City's Municipal Code, six findings have to be made to support the variance. He cited one finding in particular that needed to be made by the Council that states: "There are special circumstances applicable to the property including size, shape, topography, location, or surroundings, the strict application of this Development Code deprives such property of privileges enjoyed by other property in the vicinity and under identical land use district classifications. " Mr. Empefio stated that as noted on page 4 of the Planning Commission staff report dated June 17, 2008, "There are no special circumstances applicable to this property looking at the size, shape, topography, location or surroundings. The subject site is flat, rectangular, fully developed and located at a major intersection. The building is located on the corner, with excellent visibility from Waterman Avenue and 9th Street. There are no disadvantages associated with the site that would require additional signage to have the same exposure as other businesses in the vicinity or in the CG-l land use district." Mr. Empefio added that it was staff's belief that the findings could not be made to support this variance. Council Member/Commissioner McCarnmack asked staff to explain why this parcel is not being considered a stand-alone parcel. Ms. Rahhal stated that the sign code addresses two circumstances. One would be a shopping center with multiple buildings or a large multi-tenant building and typically those centers are approved under a conditional use permit, or a similar process, and it involves making sure there is adequate parking, access, and signage, and many time those are shared. She stated that a stand-alone building is one that is on its own, on a separate parcel, for which they have separate sign codes that would apply. This parcel is a separate parcel; however, that is not unusual because very often in a shopping center there are several parcels where the ownership is split up several ways and there may even be pads reserved for future purchase and development, but the overall shopping center plan would 10 12/OI/200S already be approved for those separate pads, which is what happened in 1981. There was an overall plan for the shopping center that included several parcels and this particular parcel was called out as a pad that would support the certain size of building that would come in for separate plans, but would need to be consistent with the shopping center plan, and that is what happened in 1982. Mr. Navarro stated that he researched this at the County of San Bernardino and this has always been a separate parcel and there were no covenants and agreements. Usually when a center gives up its rights on something, there are usually covenants and agreements or some kind of affidavit that is notarized and filed with the County in case it comes up in the future. He stated that he has never seen any documentation that has given up the sign rights for this corner building. He stated that under the City's Municipal Code, they have two frontages, one on Waterman and one on 9th Street, that qualifies them to have a pole sign. Mr. Empefio stated that often there are recorded documents-reciprocal parking easements as well as reciprocal access easements for this shopping center. He stated that he has also seen recorded documents by way of recorded agreements where signage is also agreed to and certain signs on the property have display rights vested with property owners of certain parcels. If that didn't occur here, then that was the property owner's choice at that time of not recording that document. But, for any business owner who comes into a shopping center, those reciprocal parking and access agreements are very important, as well as signage agreements. This property may be able to try to assert a right by contract to the other parcel owner in terms of using that existing pole sign in the spaces that are advertised on it, but that is something a business owner should research prior to entering into an interest in the property. Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to the following individual that she would provide true and honest testimony: Cynthia Patience Summers, 868 E. Rialto Avenue, San Bernardino, CA, asked why anyone would want to stand in the way of a business prospering in the City of San Bernardino given the current economy. She urged the Council to allow the applicant to erect a sign. Council Member/Commissioner McCarnmack asked if there were covenants related to reciprocal parking agreements on these parcels. Ms. Rahhal stated that reciprocal parking and access were required at the time of development of the project site and those were defmitely confirmed by staff in the early 1980s. She stated that there was no requirement to have covenants on signage and staff does not have anything in their files regarding the covenants on II 12/011200S the property. She stated that the reciprocal parking agreements may be recorded as easements as separate instruments. Ms. Rahhal stated that they have not reviewed the original covenants on the property in detail other than what was required through the Planning process. She stated that they may exist, but she didn't know. City Attorney Penman stated that the issue before the Council today is a variance. He stated that Mr. Navarro could file an appeal claiming that staff is incorrect in their interpretation of documents and whether or not they are entitled to have a sign, which is separate from the variance. What he is appealing is the denial of a variance, and the Council, sitting in a quasi-judicial capacity, is limited to making a determination whether or not a variance is permissible. Council Member/Commissioner McCammack asked why the applicant was counseled by someone to even file for a variance. Ms. Rahhal stated that this sign application and the appeal that followed and the variance that was filed has taken many months, and she could recall being involved in several e-mails going back and forth trying to explain the situation and actually trying to dissuade the applicant from filing a variance application, but ultimately saying that it was his right if he chose to do so. Council Member/Commissioner Estrada made a motion, seconded by Council Member/Commissioner Brinker, that the hearing be closed; and that the Mayor and Common Council deny Appeal No. 08-03 and uphold the Planning Commission's denial of Variance No. 08-01, based upon the Findings of Fact contained in the Planning Commission Staff Report dated June 17, 2008. The motion carried. Ayes: Estrada, Brinker, Johnson, McCammack. Nays: Baxter, Kelley. Vacant: Fourth Ward. 21. Norton Space and Aeronautics Academy - Reimbursement Agreement for waiver/reimbursement of fees (Continued from August 4, 2(08) Council Member/Commissioner McCarnmack made a motion, seconded by Council Member/Commissioner Baxter, that the Mayor and Common Council continue consideration of a reimbursement agreement to the Council/Commission meeting of March 16, 2009. The motion carried unanimously with the Fourth Ward vacant. 12 12/01/2008 COMMUNITY DEVELOPMENT COMMISSION Present: Mayor/Chairman Morris; Council Members/Commissioners Estrada, Baxter, Brinker, Kelley, Johnson, McCarnmack; City Attorney Penman, Economic Development Agency Interim Executive Director Marzullo, City Clerk Clark. Absent: None. Vacant: Fourth Ward R22. RES. CDC/2008-45 - Resolntion of the Community Development Commission of the City of San Bernardino approving and authorizing the Interim Executive Director of the Redevelopment Agency of the City of San Bernardino ("Agency") to execute a Professional Services Agreement by and between the Agency and MAPCO Corporation for professional consulting and engineering services of the Agency owned properties in the North Arden Guthrie Area (IVDA Redevelopment Project Area). City Attorney Penman stated that his office had received an e-mail inquiry from a member of the public asking whether or not there is a conflict because David Mlynarski, one of the principal officers of MAPCO Corporation, is a member of the Planning Commission. Council Member/Commissioner McCammack stated that Mr. Mlynarski is on two commissions-the Bureau of Franchises and the Board of Building Commissioners. Mr. Penman stated that neither commission was directly related to this matter, therefore, he did not believe there was a conflict. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Estrada, that said resolution be adopted. Resolution No. CDC/2008-45 was adopted unanimously with the Fourth Ward vacant. 23. Public Comments C. Patience Summers, 868 E. Rialto Avenue, San Bernardino, CA, stated that Vice President Dick Cheney has been indicted on charges where he was invested in a private prison and used his position to stop an investigation on it much the same way as our CPS judges are invested in adoption agencies and are profiting from it. 13 12/0 I/200S David McCammack, 634 E. Parkdale Drive, San Bernardino, CA, stated that it is getting tough to do business in San Bernardino. He stated that last weekend when they were gone, they returned to find out that their $7,000 trailer had been stolen. He stated that he has had glass broken out of cars, radios stolen out of cars, air-conditioners stolen off buildings, murders across the street and up and down Highland Avenue. He asked what the Mayor was going to do about it-that we help everybody on welfare, but what was the Mayor going to do for the business people. 24. Adjournment At 5:14 p.m., the meeting adjourned. The next joint regular meeting of the Mayor and Common Council/Community Development Commission is scheduled for Monday, December 15,2008. RACHEL G. CLARK City Clerk By~1~tJj Linda Sutherland Deputy City Clerk 14 12/0112008