HomeMy WebLinkAbout12-07-2009 Minutes
CITY OF SAN BERNARDINO
300 N. "D" Street
San Bernardino, CA 92418
Website: www.sbcity.org
Mayor Patrick J. Morris
Council Members:
Esther Estrada
Dennis J. Baxter
Tobin Brinker
Fred Shorelt
Chns Kelley
Rikke Van Johnson
Wendy McCammack
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MINUTES
MAYOR AND COMMON COUNCIL AND
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO
JOINT REGULAR MEETING
DECEMBER 7,2009
COUNCIL CHAMBERS
The joint regular meeting of the Mayor and Common Council and Community
Development Commission of the City of San Bernardino was called to order by
Mayor/Chairman Morris at 1:44 p.m., Monday, December 7, 2009, in the Council
Chambers of City Hall, 300 North "D" Street, San Bernardino, California.
Roll Call
Present:
Mayor/Chairman Morris; Council Members/Commissioners Estrada,
Shorett, Kelley, Johnson, McCammack; City Attorney Penman; City
Manager McNeely; City Clerk Clark.
Absent:
Council Members/Commissioners Baxter, Brinker.
Council Member/Commissioner Brinker arrived at 3:15 p.m.
1. Closed Session
Pursuant to Government Code Section(s):
A. Conference with legal counsel - eXlstmg litigation - pursuant to
Government Code Section 54956.9(a):
Belinski, Paul v. City of San Bernardino, et al. - United States District
Court Case No. CV08-8571PSG(MANx);
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Batey, Jane, et al. v. City of San Bernardino, et al. - San Bernardino
County Superior Court Case No. SCVSS 141503;
In the Matter of the Industrial Disability Retirement Application of
Garrett Zimmon and City of San Bernardino. OAH Case Number
2007080890.
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:
Inland Communities Corp. v. City of San Bernardino (Paradise Hills)
One Case
C. Conference with legal counsel - anticipated litigation - initiation of
litigation - pursuant to subdivision (c) of Government Code Section
54956.9:
City of San Bernardino v. California State University
D. Closed Session - personnel - pursuant to Government Code Section
54957.
E. Closed session with Chief of Police on matters posing a threat to the
security of public buildings or threat to the public's right of access to
public services or public facilities - pursuant to Government Code
Section 54957.
F. Conference with labor negotiator - pursuant to Government Code
Section 54957.6.
G. Conference with real property negotiator - pursuant to Government Code
Section 54956.8.
City Attorney Penman announced that the following additional case would be
discussed in closed session:
Human Potential Consultants, LLC v. City of San Bernardino Mayor and
Common Council, City of San Bernardino Planning Commission, City of
San Bernardino - San Bernardino County Superior Court Case No.
CIVDS 917268.
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City Clerk Clark announced that she had one case under Section 54954.5(c),
Conference with legal counsel - anticipated litigation - under significant
exposure to litigation pursuant to subdivision (b) of Section 54956.9:
One case regarding a proposed petition/charter amendment.
Note: See Agenda Item No. NBl for comments regarding this item.
Closed Session Announcement
City Clerk Clark announced that in closed session Council Member/Commission
Johnson made a motion, seconded by Council Member/Commissioner Estrada, to
confirm the City Manager's decision to dismiss the Integrated Waste Management
Division Manager and decline his attorney's offer of a severance package. The motion
carried with Baxter and Brinker absent.
Reading of Resolutions & Ordinances
Deputy City Clerk Hartzel read into the record the titles of all the resolutions and
ordinances on the regular agenda of the Mayor and Common Council and Community
Development Commission.
Moment of Silence
A moment of silence was observed in memory of community activist Jan Misquez.
Invocation/Pledge of Allegiance
The invocation was given by Minister Harvie Haynes of Ecclesia Christian Fellowship.
The pledge of allegiance was led by the Honor Guard from the San Bernardino Police
Department.
2. Appointment - Evlyn Wilcox - Community Development Citizeus Advisory
Committee - Council Member McCammack
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Johnson, that the appointment of Evlyn Wilcox
to the Community Development Citizens Advisory Committee, as requested by
Council Member McCarnmack, be approved. The motion carried with Baxter
absent.
Council Member/Commissioner McCammack presented Ms. Wilcox with a
proclamation in recognition of being in business in San Bernardino for the past
501/2 years.
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3. Presentations
Mayor Morris unveiled a shadowbox contalmng the Purple Heart and other
military honors earned by James Bert Heap, the son of a pioneer family in San
Bernardino, who served in the United States Navy as a Fireman Third Class and
was killed on September 5, 1918, during World War I. Mr. Heap's surviving
descendent, great niece Christina Perris, presented the shadowbox to Mayor
Morris as a donation to the City's historical archives.
Lynn Valbuena, Vice Chair of the San Manuel Band of Mission Indians, and
other members of the tribe, presented a check in the amount of $30,000 to
Kevin Hawkins, Director of Parks, Recreation and Community Services, and
Deputy Director Robert Lennox, to purchase a new van for the department to
use in their youth and senior programs.
Council Member Brinker presented a commendation to Richardson PREP High
teacher, Marisa Rivas, in recognition of her being selected as the recipient of
the 2009 Milken Educator Award.
Certificates of recognition were presented by Mayor Morris to Reverend Fred
Adams and Pastor Alvarado of The Rock church, and to Tom Coats, Rose
Wolf, and Isaac Choudhry of the Coca-Cola Bottling Company, who recently
worked together to collect clothing and assemble hygiene kits, which were
donated to Project Homeless Connect. Also recognized were Marci Atkins,
Homeless Advocate Officer for the San Bernardino Police Department, and
Isaac Jackson, Homeless Services Coordinator with the County of San
Bernardino, who orchestrated the event.
Rabbi Hillel Cohn, Chairman of the Bicentennial Committee, referred to a
newspaper article written in 1910 about an evening of elegance in our city,
comparing it to the Bicentennial Gala to be held on May 15, 2010. He
introduced former Councilwoman Betty Dean Anderson and Martha Pinckney,
Chairman of the Gala subcommittee, who spoke regarding the upcoming event.
4. Announcements
Announcements were made by the Mayor, members of the Common Council,
elected officials, and a representative from the Chamber of Commerce regarding
various civic, community, and chamber events and activities.
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5. Waive Full Reading of Resolutions & Ordinances
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that full reading of the resolutions and
ordinances on the regular agenda of the Mayor and Common Council and
Community Development Commission, be waived. The motion carried with
Baxter absent.
6. Council Minutes
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that the minutes of the following meeting(s) of
the Mayor and Common CouncillCommunity Development Commission of the
City of San Bernardino be approved as submitted in typewritten form:
November 2, 2009, and November 16, 2009. The motion carried with
Baxter absent.
7. Claims & Payroll
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that the claims and payroll and the
authorization to issue warrants as listed in the memorandum dated November
17, 2009, from Barbara Pachon, Director of Finance, be approved. The
motion carried with Baxter absent.
8. Personnel Actions
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that the personnel actions, as submitted by the
Chief Examiner, dated December 1, 2009, in accordance with Civil Service
rules and Personnel policies adopted by the Mayor and Common Council of the
City of San Bernardino, be approved and ratified. The motion carried with
Baxter absent.
9. Approve Local Appointments List per Maddy Act
Public Comments
Joe Ortiz, San Bernardino, CA, supported denial of the item.
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Shorett, that the Mayor and Common Council approve
the Local Appointments List of all regular and ongoing boards, commissions,
and committees and direct the City Clerk to send a copy of the List to the
Feldheym Library for posting pursuant to Government Code Section 54973.
The motion carried with Baxter absent.
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10. RES. 2009-358 - Resolution of the Mayor and Common Council of the City
of San Bernardino, California, reciting the facts of the Primary Municipal
Election held on the 3rd day of November 2009, declaring the results thereof
and setting forth such other matters as are allowed by law.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that said resolution be adopted. Resolution
No. 2009-358 was adopted with Baxter absent.
11. Resolutions authorizing the execution of Mills Act Preservation Agreements
RES. 2009-359 - Resolution authorizing the execution of a Mills Act
Preservation Agreement with Stephen T, and Denise Dawson. (l1A)
RES. 2009-360 - Resolution authorizing the execution of a Mills Act
Preservation Agreement with Steven and Suzanne Earp. (lIB)
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that said resolutions A and B, be adopted.
Resolution Nos. 2009-359 and 2009-360 were adopted with Baxter absent.
12. RES. 2009-361 - Resolution of the Mayor and Common Council of the City
of San Bernardino ratifying the execution of an agreement with William
Holt for Hearing Officer and/or Administrative Law Officer Services
retroactive to December 1, 2009.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that said resolution be adopted. Resolution
No. 2009-361 was adopted with Baxter absent.
13. Authorize the Director of Development Services to execute Contract Change
Order No. One with A.K. Engineering for Traffic Signal Modification at
Waterman Avenue and Parkdale Drive (TC05-07), per Project Plan No.
11628
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that the Director of Development Services be
authorized to execute Contract Change Order No. One with A.K. Engineering
for Traffic Signal Modification at Waterman Avenue and Parkdale Drive (TC05-
07), per Project Pan No. 11628. The motion carried with Baxter absent.
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14. RES. 2009-362 - Resolution of the City of San Bernardino authorizing and
directing execution of a license and agreement with BNSF Railway
Company for encroachment within that certain north-south alley, known as
Walker Place, west of "J" Street, between West RiaIto Avenue and West
2nd Street in the City of San Bernardino, for installation and operation of a
groundwater monitoring well.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that said resolution be adopted. Resolution
No. 2009-362 was adopted with Baxter absent.
15. An Ordinance of the City of San Bernardino adding Chapter 17.07 to the
Municipal Code as the City of San Bernardino Water Efficient Landscape
Ordinance. FIRST READING
Note: No ordinance was distributed with the backup materials.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that the proposed Ordinance be referred to the
Legislative Review Committee for review and recommendation. The motion
carried with Baxter absent.
16. RES. 2009-363 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the execution of agreements and issuance of
purchase orders with Masters and Associates/Westnet, Inc. and Tiburon for
the purchase and interface of a fire station alerting system; and award a bid
for lease purchase financing to Bank of America for the purchase of a fire
station alerting system.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that said resolution be adopted. Resolution
No. 2009-363 was adopted with Baxter absent.
17. RES. 2009-364 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the execution of an agreement and issuance
of a purchase order to Mallory Fire in the amount of $31,600 for the New
Generation Fire Shelters and rescinding Resolution 2009-293.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that said resolution be adopted. Resolution
No. 2009-364 was adopted with Baxter absent.
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18. 2009 and 2010 Holiday Closure Days
Public Comments
Joe Ortiz, San Bernardino, CA, supported denial of the item.
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Shorett, that the Mayor and Common Council authorize
the closure of City Hall for the Christmas Eve/Christmas Day on Wednesday,
December 23, 2009 and Thursday, December 24, 2009; and New Year's
Eve/New Year's Day on Wednesday, December 30, 2009 and Thursday,
December 31,2009. The motion carried with McCammack voting "no" and
Baxter absent.
19. Resolution of the Mayor and Common Council of the City of San
Bernardino approving the destruction of certain records no longer required
to be maintained by the San Bernardino Parks, Recreation and Community
Services Department.
Note: No resolution was distributed with the backup materials.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that the matter be continued to the
Council/Commission meeting of December 21, 2009. The motion carried with
Baxter absent.
20. RES. 2009-365 - Resolution by the Mayor and Common Council to execute
Amendment No. 2 to the agreement with the RedIands Unified School
District to equally share the cost of crossing guard service at Victoria
Elementary School.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that said resolution be adopted. Resolution
No. 2009-365 was adopted with Baxter absent.
21. RES. 2009-366 - Resolution of the City of San Bernardino authorizing the
City Manager of San Bernardino to execute Amendment No. 5 to the
Services Agreement with the San Bernardino City Unified School District
for the operation of the School Crossing Guard Program by the Police
Department.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that said resolution be adopted. Resolution
No. 2009-366 was adopted with Baxter absent.
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22. RES. 2009-367 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the execution of an agreement and issuance
of a purchase order in the amount of $369,000 with four (4) one-year
extensions at the City's option to Rehrig Pacific Company for the purchase
of automated carts for residential refuse services.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that the Director of Finance be authorized to
amend the FY 2009110 budget and transfer $156,000 from Account No. 527-
412-5179 (Dump/Waste Fees) to Account No. 527-412-5112 (Small Tools and
Equipment); and that said resolution be adopted. The motion carried and
Resolution No. 2009-367 was adopted with Baxter absent.
23. RES. 2009-368 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the execution of an agreement and issuance
of a purchase order in the amount of $62,181.60 to Iromnan Parts &
Services of Corona pursuant to Section 3.04.010-B3 of the Municipal Code,
for the purchase and installation of four (4) diesel particulate filters to be
installed on four (4) Street Division trucks, per the California Air Resources
Board (CARB) regulations.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that said resolution be adopted. Resolution
No. 2009-368 was adopted with Baxter absent.
24. RES. 2009-369 - Resolution of the City of San Bernardino ratifying the
submittal of a grant letter of interest to Kaiser Permanente for funding in
the amount of $25,000 to augment the Parks, Recreation and Community
Services Department swim program for the 2010 summer season.
Council Member/Commissioner McCarnmack made a motion, seconded by
Council Member/Commissioner Brinker, that said resolution be adopted.
Resolution No. 2009-369 was adopted with Baxter absent.
25. RES. 2009-370 - Resolution of the Mayor and Common Council of the
City of San Bernardino authorizing the San Bernardino City Fire
Department to apply for and administer the FY 2009 Staffing for
Adequate Fire and Emergency Response (S.A.F.E.R.) grant submitted to
the Department of Homeland Security Federal Emergency Management
Agency.
Public Comments
Jay Lindberg, San Bernardino, CA, supported denial of the item.
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Council Member/Commissioner McCarnmack made a motion, seconded by
Council Member/Commissioner Brinker, that said resolution be adopted.
Resolution No. 2009-370 was adopted with Baxter absent.
26. Request for waiver of fees - YMCA Children's Christmas Parade -
December 5, 2009
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Estrada, that the request for a waiver of fees in the
amount of $8,912.54 for department personnel and equipment costs associated
with the 32"d AmlUal YMCA Children's Christmas Parade scheduled for
December 5, 2009 be approved; and that $8,912.54 be transferred from the
Civic and Promotion Fund into the various City departmental accounts as listed
in the staff report from the City Manager to recover their costs incurred in
assisting with the parade. The motion carried with Baxter absent.
27. Public Hearing - Resolution regarding the allocation of Citizens Option for
Public Safety (COPS Option) monies.
RES. 2009-371 - Resolution of the City of San Bernardino authorizing the
obligation and expenditure of the allocated Citizens Option for Public Safety
(COPS Option) monies for FY 09/10 to supplement front-line law
enforcement support services.
Mayor/Chairman Morris opened the hearing.
No public comments were received.
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Estrada, that the hearing be closed; and that said
resolution be adopted. The motion carried and Resolution No. 2009-371 was
adopted with Baxter absent.
28. Norton Space and Aeronautics Academy - Reimbursement Agreement for
waiver/reimbursement of fees. (Continued from July 6,2009.)
Staff requested a continuance to February 16, 2010.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Brinker, that the matter be continued to the
Council/Commission meeting of February 16, 2010. The motion carried with
Baxter absent.
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29. RES. 2009-372 - Resolution of the City of San Bernardino amending the
boundaries of the Second Ward and the Fourth Ward to include certain
areas annexed within City of San Bernardino Annexation No. 360,
Arrowhead Springs area, and Annexation No. 361, portions of various
islands generally lying north of Pacific Street, east of Valencia Avenue,
south of Piedmont Drive and west of Victoria Avenue.
Public Comments
Sue Hulse, San Bernardino, CA, supported denial of the item and requested that
her house number remain the same if the item was approved.
Mayor Morris asked the City Manager's office to meet with Ms. Hulse
regarding her request.
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Shorett, that said resolution be adopted. Resolution
No. 2009-372 was adopted with McCammack voting "no" and Baxter
absent.
COMMUNITY DEVELOPMENT COMMISSION
Present:
Mayor/Chairman Morris; Council Members/Commissioners Estrada,
Brinker, Shorett, Kelley, Johnson, McCammack; Senior Deputy City
Attorney Wilson; Economic Development Agency Interim Executive
Director Marzullo and Agency Counsel Sabo; City Clerk Clark.
Absent:
Council Member/Commissioner Baxter.
R30. Public Hearing - The Five-Year Implementation Plan (2009-2010 through
2013-2014) and Ten-Year Housing Compliance Plan (2009-2010 through
2018-2019) for the Agency's 14 Redevelopment Project Areas (All Project
Areas)
RES. CDC/2009-65 - Resolution of the Community Development
Commission of the City of San Bernardino adopting the Redevelopment
Agency of the City of San Bernardino ("Agency") 5- Year Implementation
Plan 2009-2010 through 2013-2014 and 10-Year Housing Compliance Plan
2009-2010 through 2018-2019 for the Agency's Redevelopment Project
Areas except for the Uptown Redevelopment Project Area and including the
Inland Valley Development Agency ("IVDA") Redevelopment Project Area
(Low-Moderate Income Housing Component). (R30A)
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RES. CDC/2009-66 - Resolution of the Community Development
Commission of the City of San Bernardino adopting the Redevelopment
Agency of the City of San Bernardino ("Agency") 5- Year Implementation
Plan 2009-2010 through 2013-2014 and 10-Year Housing Compliance Plan
2009-2010 through 2018-2019 for the Agency's Uptown Redevelopment
Project Area. (R30B)
Mayor/Chairman Morris opened the hearing.
Agency Interim Executive Director Marzullo provided an overview of the staff
report.
Ken Lee, Senior Associate, and Tara Howard, Associate/Project Manager,
RSG, distributed hard copies and provided a PowerPoint presentation of the
document titled, San Bernardino Redevelopment Agency, FY 2009-10 through
FY 2013-14 Implementation Plan, December 7,2009.
Council Member/Commissioner Estrada requested a report on the number of
square miles that make up the City of San Bernardino, and of that number, how
many square miles are in Redevelopment Project Areas.
No public comments were received.
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Johnson, that the hearing be closed; and that said
Resolution A, be adopted. Resolution No. CDC/2009-65 was adopted with
McCammack voting "no" and Baxter absent.
Council Member/Commissioner McCarnmack stated she would abstain on
Resolution "B" because she owns property in the Uptown Redevelopment
Project Area. She left the Council Chambers and returned after the vote was
taken.
Council Member/Commissioner Estrada made a motion, seconded by Council
Member/Commissioner Brinker, that said Resolution B, be adopted.
Resolution No. CDC/2009-66 was adopted with McCammack abstaining and
Baxter absent.
R31. Public Hearing - Affordable Housing Solutions of San Bernardino (" AHS")
- Amendment to the 2009-2010 City of San Bernardino Annual Action Plan
authorizing the use of HOME Funds by AHS
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Resolution of the Community Development Commission of the City of San
Bernardino approving an amendment to the City's 2009-2010 Annual
Action Plan and authorizing the use of HOME Investment Partnership
Funds by Affordable Housing Solutions of San Bernardino for the purpose
of mitigating residential foreclosures and related blighting influences.
Note: No backup materials were distributed.
Mayor/Chairman Morris opened the hearing.
Council Member/Commissioner McCarnmack made a motion, seconded by
Council Member/Commissioner Johnson, that the hearing and the matter be
continued to the CouncillCommission meeting of December 21, 2009. The
motion carried with Baxter absent.
R32. Neighborhood Housing Services of the Inland Empire ("NHSIE") Quarterly
Update of Program Activities
Council Member/Commissioner McCarnmack stated she would abstain because
NHS is a business client.
Council Member/Commissioner Estrada made a motion, seconded by Council
Member/Commissioner Brinker, that the Redevelopment Committee recommend
to the Community Development Commission to receive and file the Quarterly
Update of NHSIE program activities. The motion carried with McCammack
abstaining and Baxter absent.
R33. California Theatre of the Performing Arts - Approval of Funding for
additional National Touring Performances (2009-2010 Theatre Season)
RES. CDC/2009-67 - Resolution of the Community Development
Commission of the City of San Bernardino approving the funding of certain
expenses in furtherance of the California Theatre of the Performing Arts
and authorizing the expenditure of funds from various redevelopment
project areas.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution
No. CDC/2009-67 was adopted with Baxter absent.
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PLANNING ITEMS
34. Appeal Hearing - Appeal of the Planning Commission's approval of
Tentative Tract Map (TTM) No. 16794 and Variance No. 09-02. The
project is a 44-lot single family residential subdivision on 18.45 acres, with a
variance to permit a retaining wall up to 26 feet in height on the west side of
Palm Avenue, 200 feet north of Verdemont Drive in the RL, Residential
Low land use district. (Appeal No. 09-02)
Mayor/Chairman Morris opened the hearing.
Terri RalIhal, Deputy Director/City Planner, stated that the Planning
Commission approved Tentative Tract Map No. 16794, a 44-lot subdivision
with a minimum lot size of 10,800 square feet, on September 23, 2009; and this
was an appeal of that action by the Planning Commission. She stated that the
project site is located on the west side of Palm Avenue across from Melvin
Avenue and Huntington Drive in the Residential Low land use district in the
Verdemont area. The applicant on the project is Borstein Enterprises, and they
are represented by MAPCO.
She advised that the appeal that has been filed on this project was filed by Mr.
Richard Hernandez; and the specific items mentioned in the appeal have to do
with procedural issues regarding the Planning Commission hearing itself. One
of the things was some confusion that arose from the first vote that the Planning
Commission took on the item, and it was the last item considered as a public
hearing that evening.
The first motion by the Planning Commission to approve the project actually
failed with a vote of 4 in favor of approval, 3 opposed, and 2 abstentions. That
did not constitute a majority of the members present, and so the Planning
Commission had to reconsider the item; and at that time a motion to approve on
reconsideration did carryon a vote of 5 in favor, 2 opposed, and the 2
abstentions. She noted that the Planning Commission hearing was never
actually adjourned during this time, and so the final action taken by the Planning
Commission on the tentative tract map was completed before the meeting
adjourned.
Aside from the technical issues on the procedures of the Planning Commission,
which are addressed in the staff report, the main subject of the public comments
on this project-the testimony at the Planning Commission and some public
comments that have already been made to the Council, have centered around the
proposed retaining wall along the southern boundary of the project site. This
retaining wall is the subject of the variance that was approved by the Planning
Commission to have a maximum height of up to 26 feet. (Note: A wire bound
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document titled, Tentative Tract Map-16794, City of San Bernardino Mayor and
Common Council Meeting, December 7, 2009, had been distributed to the
Mayor and Council and was referred to by Ms. RalIhal.)
Ms. Rahhal stated that the proposed retaining wall is a Verdura retaining wall
system, which incorporates planter soil and a built-in irrigation system as the
wall is constructed for ultimate full coverage of the wall with landscaping; and
the wall is supposed to be maintained by a landscape maintenance district. The
appearance of the retaining wall and the coverage of vegetation was one of the
primary issues of concern at the Planning Commission hearing, and it was one
of the major concerns voiced by the Planning Commissioners. So much so, that
the Planning Commission modified one of the proposed conditions of approval
and made it part of the conditions.
She stated that Condition of Approval No. 12 was amended to say, "The
retaining wall along the south property boundary shall conform to the exhibits in
the staff report. Landscaping and drip irrigation shall be installed with suitable
soil to support drought tolerant, fire resistant landscape material as the wall is
constructed. Uniform coverage of 50 percent of the wall shall be established
prior to acceptance of the walls and grading. A detailed planting plan for the
Verdura Wall shall be submitted for approval with the Development Permit for
the project site."
To explain that condition of approval, Ms. RalIhal pointed out that the project
before the Council tonight was a subdivision map; and prior to development of
the project there is still another step in the process, and that is a Development
Permit for the homes to be submitted for approval by the Planning Commission.
Along with the Development Permit, additional design details for fences, walls,
the detailed landscape and irrigation plan, and the architectural design for the
homes will be submitted for approval also.
The original plans for Tentative Tract Map No. 16794 and the environmental
initial study that was prepared for the project describe the proposed retaining
wall as ranging from 11 to 26 feet in height. That range represented a
conservative worst -case scenario for the wall height for the purpose of
environmental review and to make sure that the worst case was analyzed. Since
that time more detailed engineering and design work has been completed, which
now sets the maximum height at 22 feet, and that height is only at the southwest
corner of the project site.
Ms. RalIhal stated that one of the last exhibits in the pamphlet that the Council
members had been given was an exhibit that presents the various wall height
elevations corresponding to the lots at the southern boundary of the site, and
those are lots 16 through 26. The height along that south-facing elevation,
based on these corner elevations given, would average approximately 10 feet
just along that southern boundary; and the average of 8 feet overall that's noted
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at the bottom includes where the wall wraps around to the north on both sides
and eventually tapers down to nothing.
The variance application was required for the wall to exceed 8 feet in height,
which is the maximum height for a permanent wall or a retaining wall. The
length of the wall that requires this variance is approximately 650 linear feet.
That is the portion of the wall that exceeds 8 feet and requires a variance.
Upon hearing the concerns of the residents in the area that were brought up at
the Planning Commission and some of the public comments made to the
Council, and also after seeing the petition that was distributed and some other
materials in the community, the applicant conducted his own neighborhood
outreach. All of the residents were invited to attend a community meeting on
Saturday, November 21, which was held and hosted by two of the residents on
Palm Avenue, across the street from the project site. The turnout was
approximately 50 people. They came out to see the project site and to be able to
ask questions and hear from the developer what is being proposed. In addition,
they did have a few of the residents come and meet with Planning staff. Staff
reviewed the background documents on file with these residents and answered
their questions to the best of their ability.
In conclusion, Ms. RalIhal stated that Tentative Tract Map No. 16794 does
conform to all of the development standards of the Residential Low land use
district with the exception of the height of the retaining wall, which does require
the variance. The variance for the wall height is justified based on the existing
topographic conditions of the site, especially relating to the existing Palm
A venue, which is already set, and the grades of the existing tract on the east
side of Palm A venue, the Skyline Tract.
The uniform design and the ongoing care that is provided by a landscape
maintenance district will ensure the long-term maintenance of this wall. In
addition to that, after the wall is initially constructed, the developer is required
to post a security with the City to guarantee the survival of the landscaping.
That would include the cost of potentially having to replace all of the
landscaping if it did not survive. That security is kept on deposit for at least one
year and until that point when the City accepts it as well-established landscaping
that can continue to be maintained by the landscape maintenance district.
Staff's recommendation is that the Mayor and Council deny Appeal No. 09-02
and uphold the action of the Planning Commission to approve Tentative Tract
Map No. 16794 and Variance No. 09-02. With that action, staff would also
recommend that the Council modifY the Condition of Approval No.1, to specifY
the maximum height of the retaining wall at 22 feet, as now proposed; and to
require conformance to the design details as presented to the Council and for
approval of the development permit by the Planning Commission and detailed
landscaping irrigation plans prior to construction of the Verdura Wall. Those
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are normal procedures, but staff would recommend that that be added so there is
no confusion.
Mayor/Chairman Morris stated that with regard to the posted security, to be
sure that they have a landscaping plan that actually is maturing as depicted in the
plans as a plant covered wall-what is the amount of that security and the
rationale for one year forfeiture as opposed to a longer term.
Ms. RalIhal stated that the amount of the security is determined after the details
of plans for landscaping and irrigation are completed by a licensed architect.
That person estimates the cost of all the plant materials and what would be
required to replant the wall and reestablish it, if need be. One year is typically
a standard factor, at which time you can see if the landscaping is in good
condition or not. If, after one year, the City does not see that it is well
established and needs to keep the security longer, that would be an option.
Council Member/Commissioner McCarnmack stated that the biggest issue that
she kept reading about in all the comments that have been submitted to the
Council office is that the developer can do better than this. She asked what else,
besides this, could the developer do. It was her understanding that the
developer owns that property, they have a right to develop it, so what else could
they do besides that wall that would be better?
Ms. Rahhal stated that the alternative to constructing a wall would be to have,
for instance, a 2 to 1 slope. However, that would end up with an even greater
area at the perimeter that has to be landscaped and maintained. She stated that
staff sees it as a good economical way to have a nice landscaped frontage to the
property.
Council Member/Commissioner Estrada asked if there was any reason they
couldn't do a two-year or three-year bond.
Ms. RalIhal responded that they have required a bond security for at least one
year, or until the City determines that it's not necessary anymore.
Ms. Estrada stated that she thought it was important because some of the
questions that have been raised to her were about what assurances are there that
there will be vegetation there at some point.
Ms. RalIhal stated that the condition of approval that was modified by the
Planning Commission already requires a 50 percent uniform coverage by the
landscaping before the wall is even accepted and signed off for its permit. From
that point on, the bond is still in place to make sure that 100 percent fills in and
that the City is comfortable with the maintenance district being able to maintain
it.
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Ms. Estrada asked if there was going to be water for the vegetation on the wall.
Ms. RalIhal responded that, yes, it is a built-in system, and each cell has drip
irrigation to it.
Ms. Estrada asked about the pressure from the wall-was the hydrostatic
pressure based on our engineer's review.
Ms. RalIhal stated that there will be an engineering review, just as there would
be for any retaining wall, but specifically this wall will have those
characteristics of the irrigation on it; and yes, that would be part of their
engineering review.
Council Member/Commissioner Estrada asked at what point do they know that
in fact the wall can be built versus moving forward with the project.
Ms. RalIhal responded that the grading plan would not be approved until the
specifications for the wall are accepted by the City Engineer. So if the grading
plan is not approved, no construction would take place on the site.
Council Member/Commissioner Brinker stated that one of his concerns is that
this is a big wall, and it presents itself a little differently than a wall that is
completely vertical because it's got a little bit of a grade to it. He thought it
would be imminently climbable because of the way it is designed-and so he
worries about that a little bit and had a couple of questions about that.
One is, how do they block access to the wall. He knows that there is a 3-foot
wide area. Do they have some sort of fence that blocks that access that only
City personnel can get in to go back in there to do service, if necessary. If a kid
gets back in there, climbs the wall, gets injured-what about liability? And how
do they get back in there with only a 3-foot wide area in terms of emergency
service? Would it be more feasible to have a slightly wider area so they could
drive a vehicle back in there?
Ms. RalIhal stated that the question of climbing the wall really hasn't come up in
any conversations. However, the access at the bottom has come up, and
initially staff was concerned that there wasn't enough room to do anything;
however, they were told by the City's own Parks and Recreation Department,
that it's not unusual and it is sufficient, and they were satisfied with it for being
able to get in and do maintenance.
Mr. Brinker stated that for maintenance, he would agree that it is sufficient;
but more problematic is that very rare situation when someone gets back up in
there and it creates a problem-how do they deal with that and what does that
mean for the City?
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Ms. RalIhal answered that the site could be fenced off, but on the other hand,
the type of fencing that you would use, if a young person is willing to scale a
vertical wall, they can easily go over a fence also. So she was not sure that a
security fence was the answer to that.
Council Member/Commissioner Johnson stated that his question was really
concerning the property that is south of the wall. How will the wall impact the
value of the property to the south of the wall-will it increase it, decrease it, or
will it remain the same?
Ms. RalIhal responded that the same owners own the property immediately
south of this site and the property that will be on the south side of the future
Verdemont Kai. That property owner will still have the same building rights as
any other in the district. She stated that she thought the improvement of any
property with nice new homes, tends to enlIance development. There will be
new infrastructure completed on Palm Avenue, which would also abut property
to the south. It would not impede development to the south-it wouldn't
damage it.
Mr. Johnson asked if there was any way she could really make a determination
of value; and she responded that it would be hard for her to calculate that.
Council Member/Commissioner McCarnmack stated that in regards to the drip
system-let's just say 10 years from now some of the drip system itself starts to
deteriorate within the wall. How would one go about fixing a drip system,
when the blocks are already there?
Ms. RalIhal stated that they are installed in a way that they can be maintained
after the fact, and part of the assessment that goes to the maintenance includes
repairs that will happen over time.
Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to
the following individuals that they would provide true and honest testimony.
The following individuals spoke in support of granting the appeal:
Anthony Blacksher, San Bernardino, CA.
Richard Hernandez, San Bernardino, CA.
Michael Craft, San Bernardino, CA.
Jay Lindberg, San Bernardino, CA.
Jim MulvilIill, San Bernardino, CA.
Kim McNair, San Bernardino, CA.
Beth Backer, San Bernardino, CA.
Jay McNair, San Bernardino, CA.
Rebecca Wilson, San Bernardino, CA.
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12/07/2009
Don Haggard, San Bernardino, CA.
Tiffany McNair, San Bernardino, CA.
Tanis Hazlett, San Bernardino, CA.
The following individuals spoke in favor of denying the appeal:
Joe Ortiz, San Bernardino, CA.
Perry Atkins, San Bernardino, CA.
Eric Borstein, Los Angeles, CA.
The following individual held no position on the matter but expressed
various concerns:
Shirley Harlan, San Bernardino, CA.
Council Member/Commissioner Shorett inquired about the watering system and
whether it would be hidden within the wall structure. He also asked whether the
wall was safe and could withstand seismic stress.
Dave Mlynarski of MAPCO advised that the watering system would not be on
the outside of the wall, but would be a drip system installed by the contractor
and maintained by the City. He stated that this wall would be designed to the
same standard as any other structure per UBC requirements.
Eric Borstein stated that different cities have different requirements as to
conditions on their maps. This Planning Commission commissioned him to
plant this wall and have at least 50 percent coverage before any building permits
would be pulled. He stated that these walls can be seeded, and if they are
seeded they can take upwards of 24 to 36 months to start getting growth.
However, they have not been commissioned to seed their walls-they have been
commissioned to actually plant the walls with real plant material.
The Council inquired whether the project could be built without the wall.
Mr. Mlynarski stated that he could try to redesign the wall with a 2oo-foot
slope, but he didn't know how that would affect the lot count. The lot count
would change, but the infrastructure would also be altered. They are trying to
complete something that was started with the subdivisions to the east and the
south.
Council Member/Commissioner McCarnmack stated that her concern was that if
the homeowners had the expectation that the wall would be 8 feet, or no larger
than the currently existing law allows, then she understood that. Her thinking is
that if you placed an 8-foot wall and then you sloped it, how many pads would
you actually lose? She stated that she needed an answer to that.
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Mr. Mlynarski stated that he didn't know if they would necessarily lose any
lots. He explained that when you design a pad and you want to put a house on
it, you want to have a useable rear yard; and they were trying to provide 25-foot
useable rear yards.
Mr. Brinker asked about the idea of changing the landscape to something that is
cheaper to maintain. He noted that the Council just passed an ordinance for
people who want to go to a dryer type of landscaping in front of their home, and
there is a state law that he thought they would be discussing soon that will
require them to provide that in new developments.
Council Member/Commissioner Kelley stated he would like to continue this
item so that the full Council is informed by staff and their legal advisors as to
the best way to proceed on this and to ensure that they are making the right
decision for the City. He stated that he wanted to ensure that the residents who
have signed this petition know that their voices have been heard, that the
Council has reviewed it, and that they are aware of their concerns regarding this
appeal for a variance. He stated that he thought they should be deliberate in this
process, they should get answers to those questions that this Council has asked,
they should answer some of the questions that the residents have raised tonight,
and he thought it would be prudent to give staff an opportunity to address these
questions.
Council Member/Commissioner Johnson noted that this is a precedent setting
agenda item-they haven't had anything like this in the City, so he didn't think
the discussion should be germane just to the Verdemont area.
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Kelley, that the matter be continued to the
Council/Commission meeting of December 21, 2009. The motion carried with
Baxter absent.
Senior Assistant City Attorney Wilson advised that an effort will have to be
made to ensure that the questions asked and the answers given are made a part
of the record of these proceedings.
35. Public Comments
Karen Serrano, San Bernardino, CA, invited everyone to Congressman Joe
Baca's annual holiday open house on Thursday, December 17, from 5-9 p.m.,
to be held at 201 North "E" Street, Third Floor.
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12/07/2009
Don Parnell, San Bernardino, CA, Cal State San Bernardino baseball coach,
spoke regarding the school's baseball program, the investment they have made
in Fiscalini Field, and their desire to continue sharing Fiscalini Field with the
City of San Bernardino.
Betty Long, San Bernardino, CA, spoke regarding love and forgiveness of
various individuals.
Joe Ortiz, San Bernardino, CA, forfeited his three minutes in honor of Ms.
McCammack's birthday.
Zettie Epps, San Bernardino, CA, spoke regarding the criminal activities taking
place in the area in which she lives and questioned how long this would be
allowed to go on.
Jay Lindberg, San Bernardino, CA, spoke regarding the high cost of financing
the City's firefighting and law enforcement personnel.
Shirley Harlan, San Bernardino, CA, forfeited her three minutes in honor of
Ms. McCammack's birthday and the lateness of the hour.
NB 1. Authorization to seek outside legal counsel
City Clerk Clark advised that this was a request that the Council authorize her to
seek outside legal counsel if, in fact, the proponents of a proposed Charter
amendment come forward and request that a ballot title and summary be
prepared.
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Shorett, that the matter arose subsequent to the posting
of the agenda. The motion carried with Baxter absent.
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Shorett, that the City Clerk be authorized to seek
outside legal counsel in the event a proposed charter amendment is submitted to
her office to change the form of how the City Attorney, City Clerk, and City
Treasurer are chosen from elected to appointed.
Council Member/Commissioner McCarnmack stated that whether Ms. Clark has
a bias one way or the other, it still is a bias, whether it supports her or opposes
the charter change, and she believed that because it has to do with her office that
she needs to recuse herself as well.
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12/07/2009
Council Member/Commissioner McCarnmack made a substitute motion that the
Mayor and Council ask the County Registrar of Voters to handle the entire
issue. The motion failed for lack of a second.
Mayor/Chairman Morris expressed concern that the County has no
jurisdiction-it is a City matter that needs to be handled by the City. He noted
that the Clerk had not recused herself.
City Attorney Penman stated that this was part of the City Clerk's
responsibilities and it should be her decision rather than the Council's. He
stated that he could understand that some people might feel the way Ms.
McCammack feels, but it is the Clerk's decision.
He reiterated his comments made earlier in the meeting that he would disqualify
himself and his office from any involvement with this proposed Charter
amendment because he thought it would be unethical for his office to be
involved since it proposes to change the form of how the City Attorney is
chosen from elected to appointed. He hoped the Council would support the
recommendation that came independently from both the City Clerk and the City
Attorney that she be authorized to engage an attorney of her choosing, and he
would sign off as called for by the Charter.
City Clerk Clark advised that she would prefer not to seek outside legal counsel;
and, had it not been for the article that appeared in the previous day's
newspaper where Mr. Penman clearly indicated that he was against the measure,
she would have no problem with Mr. Penman preparing the ballot title and
summary. Given the City Attorney's public opposition to the prepared measure,
she believed that she should seek outside legal counsel.
Mr. Penman explained that the conflict arose regardless of whether he took a
position-the conflict is inlIerent in the fact that the proposal would change the
method of selecting the City Attorney from elected to appointed. Therefore,
regardless of whether he was for it, against it, or neutral on it, he would have to
disqualify himself.
The original motion made by Council Member/Commissioner Brinker, seconded
by Council Member/Commissioner Shorett, carried with Baxter absent.
NB2. Authorization to assign case to outside attorney James Odium
City Attorney Penman advised that the City had been served this date with a
lawsuit by Steve Lowes against former Police Chief Michael Billdt and the
Council needed to authorize that the case be assigned out to Attorney James
Odium, who has handled previous lawsuits.
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Council Member/Commissioner McCarnmack made a motion, seconded by
Council Member/Commissioner Kelley, that the matter arose subsequent to the
posting of the agenda. The motion carried with Baxter absent.
Council Member/Commissioner McCarnmack made a motion, seconded by
Council Member/Commissioner Kelley, that the following case be assigned to
outside attorney James Odium - Steve Lowes, plaintiff v. Michael Billdt & the
City of San Bernardino - U.S. District Court Case No. EDCV 09-2215V AP
(OPx). The motion carried with Baxter absent.
36. Adjournment
At 8:49 p.m. the meeting adjourned. The next joint regular meeting of the
Mayor and Common Council/Community Development Commission is
scheduled for Monday, December 21,2009.
By:
RACHEL G. CLARK
\. /;.' C :nity. Clerk
~p~
Linda E. Hartzel
Deputy City Clerk
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