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HomeMy WebLinkAbout11-01-2011 Adopted CC Min MINUTES OF THE CITY COUNCIL OF THE CITY OF DUBLIN REGULAR MEETING - NOVEMBER 1. 2011 A regular meeting of the Dublin City Council was held on Tuesday, November 1, 2011, in the City Council Chambers of the Dublin Civic Center. The meeting was called to order at 7:04:35 PM by Mayor Sbranti. .~ ROLL CALL PRESENT: ABSENT: Councilmembers Biddle, Hart, Hildenbrand, Swalwell, and Mayor Sbranti .. PLEDGE OF ALLEGIANCE The pledge of allegiance to the flag was recited by the City Council, Staff and those present. .--&':.. ~ ORAL COMMUNICATIONS Proclamations to Girl Scouts Gold Award Recipients 7: 1 0:25 PM 3.1 (610-50) The City Council presented proclamations to two Girl Scouts Gold Award recipients: Rachel Reed and Charlette Tanner. .. RecoQnition of Inside Dublin 2011 Participants 7:15:12 PM 3.2 (150-80) Assistant City Manager Chris Foss presented the Staff Report and advised that the City Council would recognize the Inside Dublin 2011 participants. DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 1 The City Council recognized the participants. .~ Acceptance of Gifts from 2011 Dublin Community Golf Tournament Sponsors 7:25:05 PM 3.3 (150-70) Recreation Supervisor Rich Jochner presented the Staff Report advised that the City Council would receive a report on the donations made for the 2011 Dublin Community Golf Tournament from Dublin businesses and organizations to support the City's Youth Fee Assistance Program. On motion of Vm. Hart, seconded by Cm. Biddle and by unanimous vote, the City Council recognized the sponsors and formally accepted the contributions. ~~ Public Comments 7:07:52 PM 3.4 Alameda County Supervisor Scott Haggerty stated he now represented the City of Dublin through the recent redistricting and introduced himself to his new constituents. Steve Lockhart, Dublin resident and President of Dublin Heritage Preservation Association, thanked City Staff for the work done at the recent City Heritage events. A.."- .~. RECESS 7:30:23 PM Mayor Sbranti called for a brief recess. The meeting reconvened with all City Councilmembers present at 7:38 p.m. ~'- .~ CONSENT CALENDAR 7:38 p.m. Items 4.1 through 4.4 On motion of Cm. Hildenbrand, seconded by Cm. Swalwell and by unanimous vote, the City Council took the following actions: DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 2 Approved (4.1) Minutes of Regular Meeting of October 18, 2011; Adopted (4.2 210-30) RESOLUTION NO. 184 - 11 APPROVING THE APPLICATION FOR GRANT FUNDS FOR THE URBAN GREENING GRANT PROGRAM UNDER THE SAFE DRINKING WATER, WATER QUALITY AND SUPPL V, FLOOD CONTROL, RIVER AND COASTAL PROTECTION BOND ACT OF 2006 (PROPOSITION 84) Accepted (4.3 600-35) the improvements under Contract No. 11-07, 2010-2011 Annual Street Overlay Program, with MCK Services, Inc., and authorized the release of retention after 35 days if there are no subcontractor claims. Approved (4.4 300-40) Check Issuance Reports and Electronic Funds Transfers. .. WRITTEN COMMUNICATIONS Lincoln Sian Hiahwav Proposal 7:38:53 PM 5.1 (800-30) Heritage Center Director Elizabeth Isles presented the Staff Report and advised that the City Council would receive a report on a request from the Dublin Historical Preservation Association (DHPA) to install four historic "Lincoln Highway" signs at strategic locations on Dublin Boulevard. em. Hart asked if there was a sample of the sign being discussed. Ms. Isles displayed a sample of the sign. Steve Lockhart, President of Dublin Historical Preservation Association (DHPA), stated a gentleman from the Lincoln Highway Association had spoken to the DHPA about the signs. On motion of Vm. Hart, seconded by Cm. Hildenbrand and by unanimous vote, the City Council approved the Lincoln Highway Sign Proposal. ... DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 3 . PUBLIC HEARINGS Appeal of Planning Commission Denial of the All American Label Site Development Review for a 4.456 Square Foot Addition to an Existina Buildina 7:44: 13 PM 6.1 (410-30) Mayor Sbranti opened the public hearing. Principal Planner Kristi Bascom presented the Staff Report and advised that the City Council would consider an appeal of the Planning Commission's denial of a Site Development Review (SDR) Permit for a 4,456 square foot addition to an existing 23,994 square foot building at 6958 Sierra Court. The Proposed Project was determined to be inconsistent with the General Plan in that the addition would cause the building to exceed the maximum floor area ratio (FAR) established by the General Plan Business Park/Industrial land use category. This item was continued f~om the October 4,2011 City Council meeting. City Attorney John Bakker stated this item was about what the General Plan required now. The next item involved what the City Council might want the General Plan to entail. If the City Council were to find tonight that the General Plan did establish a maximum FAR of .40, the result should be that the appeal was denied because the property SDR project exceeded the FAR. That did not mean in the future, if the General Plan was reviewed, the applicant could not come back and seek approval of their project. He reiterated his opinion that the current General Plan did establish a maximum FAR of .40. The reason for that w.as State law required General Plan use designations establish a population density / building intensity standards and that was the purpose for which the amendments were made in 1992, to clean up some General Plan language that did not contain those General Plan building intensity and population standards. Cm. Swalwell asked if it was possible this evening, separate from the Planning Commission's decision, and separate from the City Council directing Staff to initiate a General Plan amendment study, to bump the FAR to .50. Was it possible to make an amendment tonight to the General Plan for that area, and separately have Staff work on a study for that area and then make the Planning Commission moot and not have to decide if they were right or wrong? Mr. Bakker stated there were two issues with that. One was that, in order to do a General Plan amendment, you have to follow a certain process. It had to go to the Planning Commission and be noticed. Tonight, the City Council could not do a General Plan amendment. The City Council could direct Staff to do a General Plan amendment. But even then, because the status quo for many years had been. an understanding that the maximum FAR was .40, the City at least needed to look at an environmental review. There had to be an environmental baseline to start from. If the environmental baseline was .40 maximum FAR, then the City needed to do an environmental review to go beyond .40 FAR and an environmental analysis had not been done. DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1,2011 4 Cm. Swalwell asked, if it was the will of the City Council to determine that this area should be .50 FAR, and the City Council wanted to do that tonight, and separately wanted to study what could be done to make it more industrial or research and development friendly - how could they do that? Mr. Bakker stated they could not do that tonight. Mayor Sbranti stated it could not be done tonight because there had to be a legal process. The process required it to go through the Planning Commission, and an environmental review needed to be completed. If it were the direction that City Council provided Staff, then those were the steps Staff would follow. Mr. Bakker stated, in addition, it would have to be noticed. Cm. Swalwell asked Mr. Bakker if the City Council could not interpret this evening that the FAR " was discretionary rather than mandatory. Or was it his opinion that it was mandatory but the City Council could decide otherwise. Mr. Bakker stated the Staff recommendation did include the ability for the City Council to interpret it. If the City Council was going to interpret it, they were going to have to do so in a way that worked around the fact that the City Attorney had offered an opinion that the FAR maximum was .40. If the City Council provided direction that indicated how their interpretation fit within State law, then Staff would bring back findings that supported that interpretation. Guy Houston, applicant representative, stated he would like to hear Item 7.1 first to hear the direction of the City Council. It was a key part of this discussion. Cm. Swalwell made a motion to defer Item 6.1 and move onto Item 7.1. The motion died. Mr. Houston stated the current General Plan was ambiguous. The current language was confusing. There were other properties that exceeded the current FAR. There were ramifications to property owners that had non-conforming properties on what could or could not be done with these properties. Ms. Bascom stated the City Council needed to disclose ex parte contacts. City Attorney stated if the City Council wanted to defer the item until after hearing Item 7.1, they would need to disclose the ex parte contacts and then re-open the public hearing to give the public an opportunity to comment on the ex parte contacts. Mayor Sbranti stated there was a request to defer this item until after hearing Item 7.1. Cm. Swalwell stated he did not have a problem with deferring this item. Mayor Sbranti stated he was fine with deferring this item. DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 5 Vm. Hart stated he was not opposed to deferring the item, but there was a reason why he was suggesting it. The City Council needed to be sure they were fair and objective in the discussion of both items. He was not necessarily sure he would support the issue because he was interested in the motive behind it. . Cm. Biddle stated he would rather do Item 6.1, but it did not matter. At 8:05 p.m., by consensus, the City Council agreed to continue this item and move forward to Item 7.1. The item was brought back for discussion at 8:41 p.m. Mr. Bakker stated what needed to be done was do the ex parte contact statements. If there were any, then the public hearing needed to be re-opened to give the public the opportunity to respond to those comments. Cm. Swalwell disclosed that he received an email from the applicant through Guy Houston, essentially exactly what had been passed out to the City Council today. The email was received today. Cm. Hildenbrand stated she received the same. Mayor Sbranti stated he received the same. Also, he had conversations with Guy Houston as well as one form of communication or another with every Planning Commissioner. Vm. Hart stated he received the same packet of information from the applicant that the other City Councilmembers received, as well as he toured the site. He had conversations with the applicant, as well as Guy Houston who was representing the applicant. Mayor Sbranti stated he has also spoken to the applicant, although not on this issue, several months ago. Cm. Swalwell stated the email was a follow-up of a conversation with Guy Houston. Cm. Biddle stated he had the same contacts as Vm. Hart. Mayor Sbranti reopened the public hearing for any member of the public to address the City Council on the ex parte contacts. Mr. Houston stated he spoke to each City Council member about this issue at one time or another. He also sent emails. He asked what the action was taken in regard to Item 7.1. Mayor Sbranti stated the direction to Staff was to bring back information on a broader study that would look at Sierra Court, Trinity, Dublin Boulevard, and all business park/industrial areas. DUBLIN CITY COUNCIL MINUTES 6 VOLUME 30 REGULAR MEETING November 1, 2011 Mr. Houston stated, in regard to Item 6.1, he would ask to hold, until such a time that City Council decided to have that study. They wanted to get the advantage of the latest information the City Council would decide upon. Any other action would be detrimental to their cause. Mr. Bakker stated, in regard to that request, the Zoning Ordinance said if the City Council did not take an action on an appeal within the set time period, it affirmed the Planning Commission decision. The appeal would be denied if the decision were delayed. If the applicant was saying they were willing to withdraw their SDR application and they would resubmit it at the point at which the General Plan amendment was completed, that might do the same thing, on a practical basis. Otherwise, if the City Council did nothing, the result was the appeal would be denied. Mayor Sbranti stated he understood if the City Council did not make a decision, then the Planning Commission decision was affirmed. The City Council could not continue an item - was that correct? Mr. Bakker stated there was no real process set up in the Code for dealing with that. It only said the City Council was to either affirm or reverse the decision. Cm. Swalwell asked about the timeline. Mr. Bakker stated it was 75 days from the date the appeal was submitted. Cm. Biddle stated the 75 days would be up on November 15. Mr. Bakker stated, if he understood Mr. Houston correctly, they wanted to wait until the process was done. They could get to the same place if the SDR application was withdrawn. Vm. Hart stated he understood what was coming back in a few months was consideration for submission as an initiative; not anything specifically about the General Plan or the specific plan. City Manager Pattillo stated what would come back in front of City Council would be more description of a specific plan proposal, taking all the elements that were discussed today and doing a cost estimate associated with it. A specific plan would be more prescriptive from the City Council. It could be anywhere from 12-18 months.. Vm. Hart stated they needed to proceed one way or another. They had an obligation to the Planning Commission and the applicant. His concern was costs that the City would have to bear. This specific action was in front of them. Cm. Swalwell stated he disagreed with the City Attorney interpretation of the language. He believed it was descriptive. He would move, in a moment, that the City Attorney prepare findings to reverse the Planning Commission's actions. Not because he believed they were wrong. He believed they appeared to be confused about what exactly that FAR requirement DUBLIN CITY COUNCIL MINUTES 7 VOLUME 30 REGULAR MEETING November 1, 2011 was. He was not comfortable putting this into perpetuity and waiting for the City to fix this in the future and leave all these properties as non-conforming. He would like to interpret the FAR to be .50 for now, until the City made any General Plan amendments or completed any studies, as so directed to Staff. It would send the wrong message if the City said those businesses were out of compliance and they were not even in accord with what neighboring cities were doing. He was more comfortable interpreting it, and make the findings and directing the City Attorney to find the FAR at .50 for now and then allow the study to take place. Mayor Sbranti asked about the implications, from a Staff's perspective, of a business that was legally non-conforming. Second, was there anywhere else in the City that had as many non- conforming uses as they were speaking of right now? Ms. Bascom stated she did not know. In terms of legal, non-conforming, they could be legal, non-conforming for so many reasons including: Not have enough parking spaces; a sign could be larger than what the City would permit today; and building setbacks could be less than what was permitted today under the City's standards now. Uses could be legal, non-conforming. There were many reasons. They were hard to assess. Mayor Sbranti stated, near West Dublin BART, if those businesses wanted to expand, they might not be in conformance. Ms. Bascom stated there was a difference between a legal, non-conforming use and a legal, non-conforming structure. There could be legal, non-conforming uses that were not allowed today, but the structure they were in could be perfectly conforming. The structure would be able to be expanded. Cm. Hildenbrand stated they vetted this out at the last meeting. There was a part of the City Council that was tainted by another issue that was at hand with this building and they were two separate issues. She was willing to consider looking at the FAR as descriptive in nature but there were other issues at hand with this particular building. She was trying not to let that influence her decision. Vm. Hart stated he had indicated he met with Mr. Houston, the applicant's representative and the applicant. He had to look at this a couple of different ways. First, it had an impact on why they were here. They were here, specifically, because the applicant built an illegal building. No one in that area had filed for a General Plan amendment. The City would have to pay for it if they initiated a General Plan study. The City Attorney specifically said it was something they should not do. He was not interested in second guessing him in regard to what they should do. The City had litigation relative to the building that was illegally built. It was not as easy as trying to help this business man. The issue was did the Planning Commission follow the general plan. Yes, they followed the Plan they had. The FAR was always a maximum .40. He was not inclined to fix that problem when there was not a problem. The Planning Commission did everything right, pursuant to the General Plan. Why were they, right now, debating and arguing? He agreed it should be looked at He would like to take it out of context to find a solution, but there were other mitigating factors and implications to the Building Code violations, DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 8 to all the different ordinances the applicant violated by building an illegally building. He could not get past that. They needed to try to work with the applicant, but there were too many factors that involved litigation. They had no choice but to affirm the Planning Commission's decision. Cm. Biddle stated what was approved in 2008 was an unenclosed structure suitable for storage. The applicant went ahead and built an illegal structure. The solution was to convert that building to an unenclosed structure suitable for storage. If the applicant cared to have it enclosed, then they could pursue the General Plan amendment. Vm. Hart stated he did not believe the applicant was able to go back to what was proposed in 2008. Mayor Sbranti asked, if the City Council affirmed the Planning Commission decision, about the next step. Mr. Bakker stated, if the appeal were denied, the City Council would be finding that there was a .40 FAR cap. Mayor Sbranti asked what was the next step if the City Council were to follow Cm. Swalwell's proposal. Mr. Bakker stated, if the appeal were denied, the applicant's SDR application would be denied. That would not preclude them later from submitting a new SDR application if at some point in the future the General Plan were amended in a way that allowed them to build their structure. Obviously, there was pending litigation concerning that structure. It may not be there forever. At some point in the future they could apply for an SDR after the General Plan were amended. Under Cm. Swalwell's suggestion, he would have to go back and prepare findings to reverse the Planning Commission decision. Findings would be brought back to the City Council to support an appeal to reverse the Planning Commission decision. What happened at the Planning Commission was, instead of reviewing the SDR application as an entire package, Staff took it straight to the Planning Commission on a summary denial basis because they found it was not consistent with the General Plan. Staff and the Planning Commission did not do the full review they would ordinarily do. Therefore, the application would be remanded back to the Planning Commission, and it would go back through the full review that would ordinarily occur in the course of the SDR application. Staff would perform the environmental review, if necessary. They would send it to all the departments and get feedback. Vm. Hart asked about the specific implications of ruling against the Planning Commission. Mr. Bakker stated it left them a scenario of uncertain FAR requirements in that business park/industrial area. It was based on the standards set out in the parking standards and also the landscaping standards. It left the City not understanding what the standards were in that business park/industrial area. That was the concern or implication. Staff had always understood the General Plan to have minimum and maximum density standards, both in the DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 9 residential and non-residential land use designations. If the City Council were to find that there was not a minimum. and a maximum in each of the land use categories and, in some cases, there was an uncertain density range, that created an implication that Staff did not know what the density standard was. Vm. Hart asked if that would trigger an environmental review. Mr. Bakker stated if it was an interpretation, it was hard to say that an environmental review was required. He was going to have to go back and prepare the findings and sort through that and decide if an environmental review was necessary. If it was, then they were not going to be able to do it in the timeframe that it needed to be done in order to meet the requirements of the appeal chapter of the Zoning Ordinance. Cm. Hildenbrand stated she was passionate about the fact that this was illegally built and would not be here if this was not illegally built. Could they address the fire issue separately, outside of this? Mr. Bakker stated the fire issue would be addressed separately outside of this in order to get the structure approved/permitted. They were going to need to comply with the fire apparatus access road requirements at some point. Cm. Hildenbrand stated there was still an issue at hand here. Mr. Bakker stated, if the City Council were looking for a constraint that would prevent them from getting the structure legalized, the fire access road issue might end up being the issue that prevented the project from being approved. Mayor Sbranti stated there were a lot of issues here: Building Codes, Health and Safety Codes, Fire Codes and fire access, which are all separate from this. If he were just looking at the language as it was written, Employee Density, was written into the code. He did not see where any employer would fall within this concept of certain square feet per employee. There was enough ambiguity he could see in the language, in looking at it differently than the Planning Commission. Cm. Swalwell made a motion to direct the City Attorney to prepare findings for the City Council to reverse the Planning Commission's action and to find the language to be descriptive and set at .50. Vm. Hart stated he did not believe that could be done legally. He stated what you were doing was arbitrarily changing the General Plan, in the sense of a motion that has not even been noticed. Mayor Sbranti stated there was a motion and a second. DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 10 Mr. Bakker stated the motion should not go quite as far as what Cm. Swalwell was suggesting. The concern he had with the motion by Cm. Swalwell was establishing a cap at .50 FAR, because the language in the General Plan asserted ambiguity was spoke about the FAR being controlled by landscaping and parking. Cm. Swalwell withdrew the motion, and moved to direct the City Attorney to prepare findings for the City Council to reverse the Planning Commission's action and find the FAR requirement in that area to be descriptive until the City Council took further action on an FAR. Motion seconded by Cm. Hildenbrand. Vm. Hart stated they were walking on very thin ice. It was unfair to Staff and the City's legal counsel. It was the wrong thing to do. He would vote no. Cm. Biddle stated he agreed. The fact was that they had been dealing with this since 2008. What was built was not approved in 2008. What was built was illegal. It needed to be removed or modified. He could not vote yes for this motion,. Mayor Sbranti stated, if it was not illegal, it would not be before the City Council. The City Attorney would come back to the City Council. He had a hard time relying on this code as it was written and the FAR issue alone. City Manager Pattillo stated they were going to have to re-visit Item 7.1. Right now, there was nothing. If the City Council's decision was to move forward, right now, they were going to have revisit Item 7.1 . . Cm. Hildenbrand asked if the City Council could put a moratorium on any buildings until the time the City does the study? Cm. Swalwell stated they could find it to be descriptive and also direct Staff, in the motion he made, to come back with what the Mayor suggested on Item 7.1. City Manager Pattillo stated it would take 12-18 months as it related to a specific plan. Cm. Hildenbrand stated then it left the area as a question mark until that time. Mayor Sbranti asked for clarification. City Manager Pattillo stated right now, the way that it stood, with Item 7.1, the City Council wanted to go with a more global specific plan. It did not address the issue at hand. Mayor Sbranti stated if they were to vote on em. Swalwell's motion, and brought back Item 7.1, they could then go with potentially Option 1 at that point because it would be the least costly option. That way it took out the ambiguity. The City Council would have ruled that there was ambiguity at the time of this appeal. How would that affect any of the non-conforming DUBLIN CITY COUNCIL MINUTES 11 VOLUME 30 REGULAR MEETING November 1, 2011 properties? He wanted to get clarity. They could not afford to go 12-18 months with no certainty. In other words, there was a potential to say there was some ambiguity here. So there were some non-conforming uses. But they were going to tighten up those uses after the fact. He did not want to spend $100,000 on just the .50 FAR and then look at this broader study for this entire area. That just did not make any sense. He would rather look at the broader study. He was assuming they could vote on the matter before them tonight, then take up Item 7.1, and then say there had been some confusion. They were going to make sure there was no confusion. They wanted to tighten up this language at least from this point until the study was concluded. He did not want to have 18 months where there were questions. He did not want the City Council's action to create those questions. In Staff's mind, it was clear. It was a 3-1 Planning Commission vote, it was not unanimous. He would like to vote on the issue, and then go back to Item 7.1 and tighten it up until the study was done. Mr. Bakker stated if they did that, on November 15th, Staff would bring back the findings which would send the SDR back. Staff would start processing it. If the City Council went with Option 1, with Item 7.1, which was to actually clean up the language and clarify that it was a .40 maximum FAR, by the time the SDR application got back, the General Plan Amendment would probably be completed and the project would have to be denied, if it ever went back to the Planning Commission. He wanted to make sure the City Council understood that. Cm. Swalwell stated he disagreed. What the City Council was directing the City Attorney do, whether it was agreed upon by the City Attorney or not, was that they believed it was descriptive. They wanted findings to express that and once those finding were made, any future applications that came forward would be taken on a case-by-case _ basis with a descriptive interpretation. Once the City established what the FAR was, that would change again. Regardless of this applicant who they all had strong feelings about, if other applicants who were non-conforming right now came forward and wanted to expand, they were saying the City would analyze it as being descriptive language, as far as FAR. That was what he understood. Mr. Bakker stated that was what he understood Cm. Swalwell's original motion to be, but when the suggestion was made that Staff bring back Option 1 from Item 7.1, that was actually establishing a cap at .40 FAR. Cm. Hildenbrand stated she was not in agreement with leaving this ambiguous for Staff for 18 months. She was not comfortable with that at all. Could she see that this was ambiguous - yes. But she did not want to leave it for Staff, anytime in those 18 month, that they came forward and they wanted to build and they were non-conforming. Did the City Council have the option to say there was no building it until they had an answer to that question? They had to give Staff some sort of direction. They could not say that everything was descriptive because then everything would be subjective. They would not be able to do their jobs. They were stuck. They did not have a good solution. Vm. Hart stated they did have a solution. Based on what Staff had been doing for a number of years in the City, at a minimum, since 1992. They had tried to work with the applicant within the DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR -MEETING November 1, 2011 12 confines of the current statute and the current ordinance. But they were going to do a disservice to Staff, to the City's potential litigation, by voting against it. Cm. Biddle stated the ambiguity was basically affirming the Planning Commission's resolution. If the applicant was interested in keeping the enclosed structure, he should have followed the normal process of going through the General Plan amendment. That was the way the City operated. Cm. Swalwell stated keeping it as descriptive meant that Staff was operating without any guidelines. There were still guidelines. It would only say that they had more flexibility than capping it at .40 FAR. Staff were the experts that had built excellent projects in the City. Vm. Hart stated, yes, Staff were the experts. But now Cm. Swalwell was disagreeing with his own comment. Cm. Hildenbrand stated this allowed the applicant to hire someone to say that they disagreed with the subjectivity and therefore, the City would have another problem. That was why she wanted to find a solution that gave Staff assurance that they could do their job. Cm. Swalwell stated why did they not direct the City Attorney to prepare findings to reverse the Planning Commission's action because they believed it to be descriptive and then set a moratorium on any future buildings. Anything that happened to this point was descriptive. Anything, until they changed it, was on a moratorium. So this project, at least for the FAR, because he believed when it was built, was built with a descriptive mind set. They say fine. This was descriptive. Vm. Hart asked who's mindset. Cm. Swalwell stated he was not taking this personally with the applicant. Vm. Hart stated it had to be looked at. Cm. Swalwell stated that for this project, they interpret it as descriptive and anything in the future, there was a moratorium. Mayor Sbranti asked if there was a moratorium, would that limit any property owner from doing anything for a period of 18 months. Mr. Bakker stated that moratorium that was included with the item simply said no development over .40 FAR. But anything else that Staff previously understood was allowed would continue to be allowed. Cm. Swalwell moved that this project was descriptive, moratorium at .40 FAR for any future projects. DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 13 Mr. Bakker stated these were separated into two separate items, so they would have to go back to Item 7.1. Mayor Sbranti stated he did not want to single out this one property. Cm. Swalwell stated no other properties had pending projects. They were saying anything built up until today was descriptive. It happened to be the case that it was only one property. Mayor Sbranti stated they would take Item 7.1 in a minute. City Manager Pattillo stated she would recommend they go back to Item 7.1 and decide how they wanted to do the hybrid about the moratorium. Cm. Swalwell stated he would make the motion with the understanding, and the promise that, he would also move, on Item 7.1, a moratorium for future development. He felt it was cleaner to get this out of the way now. Cm. Swalwell made a motion to direct the City Attorney to prepare findings to reverse the Planning Commission's action, interpret this action only, as descriptive. He withdrew this motion. Cm. Swalwell made a motion to find this action only as a descriptive interpretation. Mayor Sbranti stated he had a problem calling out this one issue. He did not like tying the motion in to the Planning Commission. On motion of em. Swalwell, seconded by Cm. Hildenbrand and by majority vote (Vm. Hart and Cm. Biddle voting no), directed the City Attorney to prepare findings for the City Council to reverse the Planning Commission's action. The City Council returned to Item 7. 1. ... UNFINISHED BUSINESS Business Park/Industrial General Plan Amendment Study 8:06:11 PM 7.1 (420-30) Principal Planner Kristi Bascom presented the Staff Report and advised that the City Council would consider the initiation of a General Plan Amendment Study and accompanying Urgency Ordinance (Development Moratorium) for either a portion of, or all properties in Dublin with a Business Park/Industrial General Plan land use designation. DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 14 Vm. Hart asked if Staff considered the language confusing. Ms. Bascom stated Staff had never interpreted the language as being confusing. It had always been minimum and maximum FAR ratios, maximum of .40. There had never been a challenge on it. There had never been any confusion there. Mayor Sbranti asked about the employee density which involved square feet per employee. He asked how it was factored into the discussion, in terms of any kind of analysis. Ms. Bascom stated the City used the FAR in terms of assessing the building intensity and density of the site. State law and the 1992 General Plan amendments required that land use intensity be contained in the General Plan. That could be described as a floor area ratio in terms of overall development intensity. It could be described as how many residential units per acre. How many persons per household? How many employees in any given building size? When they were looking at overall development intensity, there was no verification of how many employees were in a building of a certain size. The size of the building gave a sense of what type of business could there, how many employees could be there and the overall development intensity of any given site. Mayor Sbranti stated Staff typically looked at the first part of the specifics, the FAR, but did not typically look at the employee density. Ms. Bascom stated Staff used the FAR as being able to understand the overall development intensity that was allowed at a site. In the business park/industrial land use category, there were a wide range of different types of uses: manufacturing, warehousing, light industrial, research and development. All of those had very different employee generation. That was not something the City regulated from a Planning perspective. When Staff was looking at a development application, the floor area ratio was a very real, measurable tool that Staff could use to understand if a site was being developed too intensively or not. Ms. Bascom continued with the Staff Report. Mayor Sbranti asked if, in regard to alternatives, the cost associated with each included the environmental review. Ms. Bascom stated yes. Mayor Sbranti asked if the City would have to establish a moratorium to move forward with any of the options in the Staff Report. Mr. Bakker stated there did not have to be a moratorium established. Vm. Hart asked about the net gain in reference to what the benefit would be to the property owners. DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 15 Ms. Bascom stated the benefit to the property owners would be part of the analysis and the study. Right now, there were properties in the business park/industrial land use category that had FARs on the ground today of .17 and some were .57, so it would be assessing what would be allowed today under today's maximum FAR, .40. They would be studying what the square footage difference would be between .40 and .50. That would let the City know how much additional development potential each property would have. That would be the benefit in terms of possible additional square footage, as well as Staff taking a look at additional uses that might be permitted in the area. There were properties there that could benefit from not only from having more development potential, but also a wider range of allowable uses on their property. Vm. Hart asked if anyone had applied for the amendment other than this applicant. Ms. Bascom stated no. There had been no development applications for properties in this land use designation that she could remember. There had been a number of Conditional Use Permits (CUP), but nothing to expand properties or to increase the development potential of the properties. Ms. Bascom continued with the Staff Report. Vm. Hart asked, who would pay for the study. Ms. Bascom stated there was no application in for the General Plan amendment study, so the cost would be borne by the City unless the City Council directed otherwise. Ms. Bascom continued with the Staff Report. Cm. Swalwell asked, if the City Council could find that although the City Attorney did not believe that there was discretion, could the City Council determine the requirement was descriptive and make the urgency ordinance at .50 maximum FAR until the General Plan amendment study was completed. Mr. Bakker stated this would still require an environmental review. As it stood, Staff had always interpreted it as a .40 FAR cap. If the City were to adopt a moratorium up to .50 FAR, at least arguably, you were increasing the General Plan standard. The policy could face challenges in not complying with the General Plan statute. Cm. Swalwell stated it would be the City Council's respective disagreement with Staffs interpretation. Cm. Biddle stated it had been pointed out earlier that in the western part of town there were basically three areas that were in this zoning. Those three were all built-out, basically. Ms. Bascom stated she could not think of any vacant properties in those. They all had some type of structure on them. DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 16 Cm. Biddle stated, on the east side of the City, there was still the industrial park area. There was no planning in that area at all. Ms. Bascom stated right now there was a land use designation that allowed industrial lands to be up to .35 FAR. To go up to .50 FAR, they would need approval of the City Council and it would be restricted to warehouse use. No one had taken advantage of that option yet. That would also entail plan development zoning that allowed one use, warehouse. Mayor Sbranti stated he would like to take a look at this area, Dublin Boulevard from Village Parkway to Dougherty Road, as part of a specific plan. He did not know what the full cost implications would be. Maybe there had not been requests on FAR, but there had been conditional use permit requests. He wanted to take a look at the older areas and what was the plan. He knew it was not one of these five options and not something that could be decided tonight. Cm. Biddle stated what Mayor Sbranti was talking about was not a General Plan amendment, but a study. Mayor Sbranti stated it was more of a specific plan. This General Plan amendment issue needed to be addressed. This started with an appeal and a focus on one business, but maybe the City just needed to study this area. He asked if this was something that would have to be decided as part of Strategic Initiatives. He asked if it was something that had to be done tonight. City Manager Pattillo stated what she heard was this would be looked at on a macro level, the Dublin Boulevard spine in particular. Staff would bring something back for City Council consideration. Staff would put cost associated with the initiative discussion, as well as the parameters. It would happen in late winter or early spring. Cm. Swalwell stated he believed this was an investment in the City's future. The potential for diversity of jobs in that area was great. Having that as a tool to recruit employers in the area would benefit the City. He was interested in it. Cm. Biddle stated the areas in the west part of Dublin were built-out. The areas in the east did not have any interest shown. The City did not have an applicant at this time to do anything. To proceed with Options 2, 3 and 4 was to solve a problem that did not exist. With the normal process, if an applicant came forward to make a request, then they would go through the study process. The City should stick with Option 1 and clean up the language. Proceeding with any of the other three options to spend $100,000 did not make sense to him at this time. Cm. Swalwell asked Mayor Sbranti if he was proposing to scrap this. DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 17 Mayor Sbranti stated, yes that was one option. He wanted to do a broader study. One option was to take a broader look at all these issues beyond FAR, in terms of a specific plan study and a General Plan amendment study. Cm. Biddle stated they could not vote on that tonight. City Manager Pattillo stated what was in front of the City Council was Item 6.1, a decision to either uphold the Planning Commission decision or deny it. The recommendation by the applicant was to hear this item as if it were to be a trigger point to the discussion on Item 6.1. That was why this was taken out of order. This new proposal was to take a look at a specific plan that would be brought back for City Council consideration in late winter or early spring, with costing implications. Mayor Sbranti stated these two items were related but were really two different things. They could make a decision on which option they wanted for this item, but still get information back on the broader piece. City Manager Pattillo stated they were here to discuss Item 6.1, the appeal. The subsequent action was to find out what it would take to bring them into conformance. Cm. Swalwell asked why would the City start this process and then start the Mayor's requested process which would have overlap of this process. Why not just do it all at once? City Manager Pattillo stated absolutely. What that meant was all the options were moot, and not accept any of those. Cm Biddle stated they could go ahead with Option 1 because it had no implications to the Mayor's proposal. Cm. Hildenbrand stated if they were going to study something' and possibly allow for some changes in the area, and they went ahead and did this, they would be contradicting themselves even before they studied it. She liked the idea at a broader level. She agreed with the Mayor at looking at it as a whole. Vm. Hart stated no one would argue that they could look at it and study the area. But was there a problem here? Were they addressing a problem that was not there? The area needed to be evaluated and surveyed but he was not sure it was feasible, at the City's cost. They could look at it in the big picture of the City's Initiatives and how to proceed and reference it. He would be leery of spending $109,000 for something that had not been a problem for a number of years in the City. They needed to address the one applicant issue, if it was feasible, and then ask Staff to consider it in the Initiative process. He was not interested in spending $109,000 for a study that might not have any impact on the City in five to ten years. DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1,2011 18 Mayor Sbranti stated he would argue that there was an issue because there had been so many Conditional Use Permits requests over the years. There were grants Staff could look into in terms of costs. City Manager Pattillo stated, if direction was to do that at the Initiatives Session, Staff would come back and clarify with the City Council the expectations. Cm. Biddle stated he saw no reason to go ahead with Options 2, 3,4 or 5, if they were going to go ahead with a broader picture. Mayor Sbranti stated he believed they were not going with any of the options. Vm. Hart stated he was not opposed to going with Option 1 if the issue was that they needed to clean up some of the language in the General Plan. City Manager Pattillo stated it was a recognition that it was confusing for the applicant. It was not Staff's confusion. This was a new feature, and enhancement being brought up by the Mayor, a Specific Plan that was bigger than Sierra Court; looking at all the business park/industrial properties. The clarification was not something needed by Staff, but in order to get the feedback that brought up this issue, it was one of the options for consideration. But the City Council was not obligated to go with any of these. By consensus, the City Council decided to do nothing. By consensus, the City Council returned to Item 6. 1 At 9:25, the City Council took up this item again. Mayor Sbranti asked Cm. Hildenbrand what the moratorium would look like. Cm. Hildenbrand stated it gave Staff the opportunity, during the time they were studying the broader perspective of a General Plan in that area, to use that number if there was any type of development coming in. It gave them something to work with, rather than something that was ambiguous in nature. Staff could not do their job that way. It was not how City planners planned projects. Mayor Sbranti asked how that would work from a Staff perspective. What would that look like? City Manager Pattillo stated they would use the .40 maximum FAR as the ceiling. Mayor Sbranti stated that would be the Staff interpretation. Vm. Hart stated this was not the way to do City business. They had heard it from the City Attorney. He was not inclined to vote for any of the options right now because they had not DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 19 done the right thing with Item 6.1. He was very concerned with moving forward on something now that would just continue to muddy the water. Cm Hildenbrand made the motion to adopt an urgency ordinance making findings and establishing a moratorium on the development of any property with a business park/industrial general plan land use designation in excess of a .40 FAR pending the completion of a specific plan. . Cm. Swalwell asked, if they moved this moratorium now, had they now directed the City Attorney, under Item 6.1, to reject the Planning Commission's findings. Once the City Council's sets this moratorium, did it reinitiate the applicant's process through the Planning Commission and now they were going to be interpreting it at the .40 FAR? Mr. Bakker stated what would happen was the application would be remanded back down to the Planning Commission. Presumably, throughout the entire time period that the application was pending, the moratorium would be in effect. It would create a cap at .40 FAR so the Planning Commission would not be able to approve the project. However, once the General Plan amendment was done, the project could be approved. It would create a scenario where the application was being processed but it was not going to be able to be approved. Cm. Swalwell asked if any action would be taken by the Planning Commission before the study was done. Mr. Bakker stated they would not be able to approve it, but the City would continue to process it but they were not going to take it to approval because the applicant would not be in a position to demand that they do it and they would not be in a position to present it because it was not ready. Vm. Hart stated it was not fair to the applicant. He would want to see the City work with the applicant as much as possible but now they would not be able to because the FAR was still the same as before. The applicant could not proceed. Now they were talking 12-18 months. Cm. Hildenbrand stated the applicant had already proceeded. Vm. Hart stated the City had pending litigation. The applicant still did not know what was going on. H~ was not in favor of supporting this. He wanted to figure out a resolution to this problem, the right way, with that applicant, with the City Staff, with the fire code and fix the problem rather than not solve anything. Cm. Hildenbrand stated there was a motion on the floor, and she called for a vote. Mayor Sbranti restated that he seconded the motion. Vm. Hart asked to reconfirm the motion on the floor. DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 20 Cm. Hildenbrand stated the motion on the floor was to adopt an urgency ordinance making findings and adopting a moratorium on projects that would result in a floor area ratio gr~ater than .40 FAR and any property with a general plan land use designation for business park/industrial. Vm. Hart asked if she was authorizing the expenditure of $109,440. Mayor Sbranti stated that was not accurate because that would come back later. City Manager Pattillo stated it would come back. Mayor Sbranti stated it kept a holding pattern at least for now until they could get the study done which was really his broader goals were overall. Cm. Biddle asked about the time frame for the study. City Manager Pattillo stated it had not been established. She was giving them a range. They could not compare it to the Downtown Specific Plan because there had been other complications, but it could take anywhere from 12-18 months. Vm. Hart asked what would happen if someone came in with a .49 FAR application. Cm. Hildenbrand stated the City could not do anything during that time. Mr. Bakker stated they would accept the application, presumably, and process it but, again it could not be approved because there was a moratorium. Mayor Sbranti stated that would be the same case as it currently was Staff's interpretation. In reality, there was not much of a difference. It would have been denied before, and it would be denied now. The only difference was it was not completely denied. It was just in a holding pattern waiting for the General Plan study. em. Biddle asked if the building would sit empty for all that time frame. Mr. Bakker stated pursuant to the court order, he did not know if it was empty, but the court order indicated it was supposed to be vacated. Cm. Swalwell stated he was voting against this because he believed the language should be descriptive. He did not like what this did to businesses or the applicant. He would vote no. On motion of Cm. Hildenbrand, seconded by Mayor Sbranti and by a majority vote (Vm. Hart and Cm. Swalwell voting no), the City Council adopted URGENCY ORDINANCE NO. 13 - 11 DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 21 MAKING FINDINGS AND ADOPTING A MORATORIUM ON PROJECTS THAT WOULD RESULT IN A FLOOR AREA RATION GREATER THAN .04 FAR AND ANY PROPERTY WITH A GENERAL PLAN LAND USE DESIGNATION FOR BUSINESS PARK/INDUSTRIAL ~-', _-0-"- " Amendment to the City of Dublin/County of Alameda Agreement regarding the Enforcement of Conditions of Approval for the East County Hall of Justice (Alameda County Courthouse) 9:34:24 PM 7.2 (600-40) Cm. Hildenbrand left the dais and the meeting at 9:35 pm Principal Planner Kristi Bascom presented the Staff Report and advised that the East County Hall of Justice (ECHOJ) Site Development Review approval was granted by the City Council on December 15, 2009. The Conditions of Approval and associated City/County Agreement state that the approval is valid for twenty-four (24) months. The County was moving forward with the construction of the project, but would not be underway before the SDR approval expires on December 15, 2011. The County was requesting an eighteen (18) month extension, which necessitates an amendment to the City/County Agreement. Cm. Swalwell stated he was an Alameda County employee, for the record. Vm. Hart stated he was also an Alameda County employee. But he asked, as a resident, about the delay. David Savellano, Alameda County representative, stated during the geotechnical survey, they discovered pipes under the site that contained hazardous materials and now needed to remove them. They were in bridging design and were 75% complete. The project would go out for approval in January of 2012. Ms. Donna Linton, Deputy Alameda County Administrator, stated other activities were taking place. The Board of Supervisors supported the project. The new scheduled completion date would be May 2014. On motion of Vm. Hart, seconded by Cm. Swalwell and by unanimous vote (Cm. Hildenbrand absent), the City Council adopted RESOLUTION NO. 185 - 11 APPROVING AN AMENDMENT TO THE CITY/COUNTY AGREEMENT REGARDING THE ENFORCEMENT OF CONDITIONS OF APPROVAL FOR THE EAST COUNTY HALL OF JUSTICE (ALAMEDA COUNTY COURTHOUSE), PA 02-030 DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 22 .~. City Manager Pattillo asked if the City Council would like to move two items from tonight's agenda to the November 15, 2011 City Council meeting. . By consensus, the City Council moved Items 8.1 and 8.2 to the November 15, 2011 City Council meeting. -. RECESS 9:47:59 PM Mayor Sbranti called for a brief recess. The meeting reconvened with all City Councilmembers (Cm. Hildenbrand having left the meeting earlier) present at 9:56:14 PM. .~ Draft Food and Wine Festival Event Plan 9:56:35 PM 7.3 (950-40) Recreation Coordinator Stephanie Mein presented the Staff Report and advised that the City Council would receive a report on a Draft Food and Wine Festival Event Plan for September of 2012 at Emerald Glen Park, which would replace the discontinued Day on the Glen Festival. The City Council suggested extending the ending time of the event. On motion of Cm. Biddle, seconded by Vm. Hart and by unanimous vote (Cm. Hildenbrand absent), the City Council approved the Food and Wine Festival. .. Update on the First Year of the City's Website 10:17:05 PM 7.4 (150-30) Economic Development Director/Public Information Officer Linda Smith presented the Staff Report and advised that, in September 2010, the City launched its new website .... www.dublin.ca.Qov. Staff would make a presentation on the success of the new website to the City Council. DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 . 23 The City Council rec~ived the presentation. <>- NEW BUSINESS Semi-Public Facilities 8.1 (420-30) By consensus, this item was moved to the November 15, 2011 City Council meeting. .A,.'o,. ~ Update on Small Business Activities and Partnership Opportunities with the Dublin Chamber of Commerce 8.2 (470-50) By consensus, this item was moved to the November 15, 2011 City Council meeting. .. Report on Proposed StopWaste.Org Mandatory Recyclina and Sinale-use Ban Ordinances 10:36:16 PM 8.3 (810-60) Assistant to the City Manager Roger Bradley presented the Staff Report and advised that the City Council would receive a report on two proposed Countywide ordinances being prepared by the Alameda County Waste Management Authority (StopWaste.org). The first ordinance would place a mandate on businesses and multi-family dwellings to recycle all recyclable and compostable materials, and prohibit them from placing such materials in a garbage container. The second ordinance would ban single-use bags from being used within the County and require that businesses begin charging their customers a fee for giving out reusable bags. City Council received the report and discussed the potential impacts of said ordinances on the City of Dublin. . ... DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 24 Appointments to Citizens/Oraanization of the Year Ad-Hoc Committee 10:52:02 PM 8.4 (610-50) Mayor Sbranti advised that each year, the City of Dublin recognized a citizen, young citizen and organization of the year at its Volunteer Recognition Event. As part of this process, an Ad Hoc Committee comprised of two Dublin City Councilmembers was needed to perform duties including arranging for impartial judging and selection of winners. The City Council would consider appointment of two City Councilmembers to the Ad Hoc Committee. On motion of Mayor Sbranti, seconded by Vm. Hart and by unanimous vote (Cm.Hildenbrand absent), the City Council confirmed the appointment of Councilmember Biddle and Councilmember Swalwell to the Citizens/Organization of the Year Ad Hoc Committee. ~.' 'w- OTHER BUSINESS Brief /NFORMA T/ON ONLY reports from Council and/or Staff, including Committee Reports and Reports by Council related to meetings attended at City expense (AB 1234) 10:52:30 PM Cm. Biddle stated he attended the Chamber of Commerce Mixer, the Harvest Festival, a City Council Special meeting on October 24, the Chamber of Commerce bus tour, and a Waste Management meeting. Vm. Hart stated he had nothing to report. Cm. Swalwell stated he attended the Harvest Festival. Mayor Sbranti stated he attended the Chamber of Commerce Mixer, the Harvest Festival, a City Council Special meeting on October 24, the Chamber of Commerce bus tour, and the IGA TE Mayor's Advisory Committee meeting. He asked Staff to agendize a discussion, between now and December 16, on the Alameda County Transportation Commission's (ACTC) ten year strategic expenditure plan. It would be voted on by ACTC on December 16, 2011. City Manager Pattillo stated it would be on the November 15, 2011 City Council agenda. . DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 25 ADJOURNMENT 10.1 There being no further business to come before the City Council, the meeting was adjourned at 10:59: 12 PM in memory of Staff Sgt. Sean Diamond and our fallen troops. Minutes prepared by Caroline P. Soto, City Clerk. ATTEST: (L{ f?~ City Clerk f(~, Mayor DUBLIN CITY COUNCIL MINUTES VOLUME 30 REGULAR MEETING November 1, 2011 26