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HomeMy WebLinkAbout09-21-1994 City Council Minutes MINUTES SARATOGA CITY COUNCIL TIME: Wednesday, September 21, 1994 PLACE: Civic Theater, 13777 Fruitvale Ave. TYPE: Regular Meeting At 6:00 p.m. the Mayor announced that, pursuant to Government Code Section 54956.9 (b), the closed session would be to confer with the City Attorney on anticipated litigation. A point has been reached where, in the opinion of the City Attorney, based on existing facts and circumstances, there is a significant exposure to litigation against the City, in that Baykeeper and Friends of Santa Clara County Creeks have filed a formal notice of intent to initiate litigation over alleged violations of the Federal Clean Water Act and of NPDES Permit. CLOSED SESSION FOR THE PURPOSE OF CONFERENCE WITH LEGAL COUNSEL PENDING LITIGATION - 6:00 p.m. in Public Works Conference Room Pursuant to. Government Code Section 54956.9(a) to confer with the City Attorney on pending litigation which has been initiated formally and to which the City is a party. The title of the litigation is San Francisco Bay Keepers, et al. v. City of Saratoqa, et al. and, immediately following in the same location: CLOSED SESSION FOR THE PURPOSE OF PUBLIC EMPLOYEE PERFORMANCE EVALUATION Pursuant to Government Code Section 54957, to evaluate the performance of the City Manager Pledge of Allegiance - 7:35 p.m. - Led by Mr. Don Miller 1. ROLL CALL Councilmembers Present: Jacobs, Moran, Wolfe, Mayor Burger Staff Present: City Manager Peacock; City Attorney Riback; City Engineer Perlin; Joseph Oncay, City Codes Administrator; Irene Jacobs, Administrative Analyst City Attorney Riback reported on the closed session, noting the City Council took no action in reference to the two items listed on the agenda. He noted the City Council voted unanimously that there is a need to take immediate action on the matter of the Nelson property negotiations by way of correspondence received just prior to the meeting. He stated the Council did discuss the issue of negotiations with the Community Foundation of Santa Clara County regarding the possible purchase, sale, exchange, lease of property known as Nelson Gardens. He stated no action was taken on this item. 2. CEREMONIAL ITEMS A. Proclamatlon On Pollutlon Prevention Week B. Proclamation concerning the 10thAnniversary of the Sister city Relationship with the City of Muko-Shi, Japan 3. ROUTINE MATTERS A. Approval of Minutes - 9/7; 9/13 The above minutes were approved as submitted. B. Approval Of Warrant List MORAN/WOLFE MOVED TO APPROVE THE WARRANT LIST. PASSED 4-0-1 (Tucker absent) C. Report of City Clerk on Posting of Agenda Pursuant to Government Code 54954.2, the agenda for this meeting was properly posted on September 16. City Council Minutes 2 September 21, 1994 4. CONSENT CALENDAR A. Previously-Discussed Items 1) Ordinance 71-145 amending Article 10-10 of the City Code relatlng to Special Event Permits (second reading and adoption) Councilmember Wolfe asked if there is an appeal process regarding Special Event Permits. City Attorney Riback stated there will be the same appeal process that is available with every other administrative action. MORAN/JACOBS MOVED TO APPROVE CONSENT CALENDAR ITEM 4A1. PASSED 4-0- I (Tucker absent). B. New Items 1) Planning Commission Actions, 9/14 - Note and file. 2) Parks and Recreation Commission Minutes, 7/11 - Note and file. 5) City Financlal Reports for August: a) Treasurer~s Report - Receive and file. b) Investment Report - Receive and file. c) Financial Report - Receive and file. 7) Construction Acceptance of Improvements and Release of Bonds for SD92-006, 14350 Douglass Lane (R and Z Development) S) Report concerning Amendments to Conflict of Interest Codes of City of Saratoga~ Saratoga PUblic Finance Authorlty~ Saratoga Parking Authority Councilmember Moran and Wolfe requested the removal of items 3, 4 and 6. MORAN/WOLFE MOVED TO APPROVE CONSENT CALENDAR B WITH THE EXCEPTION OF ITEMS 3, 4 AND 6. PASSED 4-0-1 (Tucker absent). 3) Amendment to Publlc Participation Policy concerning Referrals to Staff Councilmember Moran requested that the wcrding "at the Council~s discretion" be changed to "at the Council~s direction." MORAN/WOLFE MOVED TO APPROVE CONSENT CALENDAR B ITEM 3 WITH THE WORDING CHANGE. PASSED 4-0-1 (Tucker absent). 4) Status Report on 1992 Hillslde Fire Safety Task Force Recommendations -Note anti file Councilmember Moran commended staff for the great job and noted she artended a homeowners meeting and staff gave a presentation which was very informative and well done. MORAN/WOLFE MOVED TO APPROVE CONSEI~I' CALENDAR B ITEM 4. PASSED 4-0 (Tucker absent). Resolution 2309.1 revising the Order of Business at Regular Meetings Councilmember Wolfe thanked Councilmember Moran for bringing this to the attention of the Council. He noted the changes in the order of business will be for the convenience of the public. WOLFE/JACOBS MOVED TO APPROVE CONSEli CALENDAR B ITEM 6. PASSED 4-0- I (Tucker absent). City Council Minutes 3 September 21, 1994 City Manager Peacock stated the new agenda will go into effect the second meeting in'October. 5. COMMUNICATIONS FROM COMMISSIONS ~ THE PUBLIC A. REPORT FROM STAFF: FOLLOWUP ON PREVIOUS ORAL COMMUNICATIONS - None. B. ORAL COMMUNICATIONS Mr. Steve de Keczer, 13415 Pierce Rd., got up to speak and Councilmember Jacobs informed Mr. de Keczer that the Council had received his letter and spoke to the City Manager. He noted this item will be on the October 5th agenda. City Engineer Perlin stated staff have looked into this issue and if this item can be accomplished for less than $5,000 he would be prepared to send the purchase order on through staff to have the work done without returning the matter to the agenda. There was no objection from the Council. Ms. Ann Waltonsmith, 21060 Saratoga Hills Road, stated she is also representing other families in her neighborhood who could not be present at this meeting. She noted they received notice for the public hearing regarding Nelson Gardens. She requested that other alternatives other than what is listed be open for discussion. She believes there is strong support for the property to be maintained as a park and this aspect should be discussed. Ms. Laurie Pakula, 19689 Northampton Dr., addressed Kevin Moran Park and asked the Council to provide funds to install play equipment at this park. She noted many young families as well as seniors use this park. Ms. Pakula stated the majority of people do not want organized sports at this facility. She noted if there is any redesign for this park she would like to be notified. Mayor Burger stated Ms. Pakula will be notified of any changes. Ms. KarenAnderson, 19887 Sea Gull, representing Greenbriar Homeowners Association, noted that the Greenbriar residents on Cox Ave. are concerned about the possibility that park funds which may be available from Nelson Gardens could be used for ball fields in the neighborhood. She noted the neighborhood has consistently been opposed to additional traffic. She noted they are interested in play equipment and picnic tables at this park, but not in favor of organized sports. Speaking as a citizen, she is opposed to paying off the loan Hakone Foundation owes to the City from the Nelson Gardens negotiations, as has been rumored. Ms. Anderson stated she believes they(Azule Park) are next in line for the development of parks. She alsq spoke in support of the council taking the land choice for Nelson Gardens. Ms. Anderson addressed Redwood School and their problems and noted she was under the impression that the City and School District would form a car-pool plan. She noted this has not happened. Mayor Burger stated staff will respond to Ms. Anderson's questions and concerns by mail regarding carpooling. C. WRITTEN COMMUNICATIONS - None. 6. OLD BUSINESS A. Proposed Changes to West Valley College Use Permit (continued from 9/7) city Manager Peacock noted he talked to the President and Chancellor of West Valley College and the board wants clarification and also to make changes to the draft document which he has not seen. He suggested that this item be taken off calendar at this time until all parties have met and discussed the changes. Mr. Stephen Jackson, 15984 Grandview Ave., Monte Sereno, addressed the City Council Minutes 4 September 21, 1994 Junior Tennis Tournament held at West Valley College. He noted there are over 450 entrants this year and the tournament is held on weekends. He stated the tournament is 15 years old. He added half of the net proceeds from the tournament go to West Valley College Athletic Department and the other half goes to tennis summer camps for needy children. Mr. Jackson stated the tournament is run by volunteers and noted this is a great sport for kids. He encouraged the Council to consider continuing the use of this facility for the tournament. B. Affordable Housing Project proposed by Community Housing Developers City Manager Peacock presented the staff report dated September 21, 1994. Mr. Denis Spanek, 19135 Brook Ln., gave background information on this property at 1552 Johnson Ave. He noted after receiving the proposal for the Senior Housing he talked to neighbors and most neighbors agree that this house is conducive to this type of use. He noted some neighbors had concerns regarding the change in use. He stated any change in use should come before the Council and the neighbors would like to be notified. He stated maintenance and parking were also issues. Mr. Spanek submitted written approvals from neighbors to the Council. Ms. Irene Jacobs, Administrative Analyst, stated the proposed use is for low income seniors and any change in use will 'come before the Council. She also noted that surplus funds from this proposal will remain in the City's funds. MORAN/WOLFE MOVED TO APPROVE THE SITE RELOCATION FOR THE AFFORDABLE SENIOR HOUSING PROJECT PROPOSED BY COMMUNITY HOUSING DEVELOPERS AND AUTHORIZE THE CITY MANAGER'S OFFICE TO EXECUTE THE AGREEMENT. PASSED 4-0-1 (Tucker absent). 7. MEW BUSINESS A. Memo Authorizing Publicity for Upcoming Hearings - Nelson Gardens Proposals MORAN/WOLFE MOVED TO AUTHORIZE THE PUBLICITY FOR UPCOMING HEARINGS. PASSED 4-0-1 (Tucker absent). 9. CITY COUNCIL ITEMS A. Oral Communications (continued) and instructions to staff regarding actions on current oral communications B. Agency Assignment Reports Councilmember Moran reported on the Traffic Authority Policy Advisory Board noting there was an announcement about the nature of parties cities will have for the opening of highway 85. Councilmember Jacobs reported on the Transportation Commission noting they-discussed fares. He stated they also continued the policy to provide $5 passes to the homeless. Mayor Burger reported on the Senior Coordinating Committee noting they will kick off their 1994-95 membership drive. She noted they will also have an information station at the freeway opening celebration and will organize a flu shot day. C. General Council Items 1) Agenda items for joint meeting with Planning Commission 10/11 a. Tree Policy Councilmember Moran stated the Santa Clara County General Plan is under consideration and she suggested proposing that the Planning Commission become involved in the process. City Council Minutes 5 September 21, 1994 Councilmember Jacobs stated at the policy development meeting the Council discussed undertaking a new planning process and design review. He suggested opening this discussion with the Planning Commission on how this could get started. Councilmember Wolfe stated he would request discussion on the Conceptual Development Advisory Committee as addressed at the Policy meeting. 2) Designation of Voting Delegate for LeagueAnnual Conference MORAN/JACOBS MOVED TO NOMINATE MAYOR BURGER AS THE DELEGATE AND COUNCILMEMBER TUCKER AS THE ALTERNATE. Passed 4-0-1 (Tucker absent). 3) Other City Manager Peacock stated the meeting on September 27th should start at 6:30 p.m. in order to accommodate commission applicant interviews. Councilmember Moran addressed the issue of developing a specific plan for Saratoga Avenue between the Lawrence Expressway and the Freeway. Councilmember Jacobs stated this should be part of the General Plan review and discussed at the policy development conference. Mayor Burger concurred with Councilmember Jacobs. City Manager Peacock stated there may be other areas in the City which may need to be discussed with regards to a specific plan. Councilmember Wolfe stated that north Saratoga Avenue is the entryway into the City and long term planning should be considered. He concurred that this should be discussed at the policy development conference. Mayor Burger noted she will have office hours at City Hall on Monday from 2 p.m. to 5 p.m.. She noted October 1, 1994 will be direct contact. 8. PUBLIC HEARING8 - 8:30 p.m. A. Abatement of Nuisance and Fixing of special Assessment in connection with costs of cleanup performed as a result of removal of hazardous waste stored at 13484 Holiday Drive, Saratoga Callfornla, (APN 389-37-025) Staff recommends that the City Council adopt the resolution confirming report and assessments. Mayor Burger stated that the subject for discussion at this hearing is the fixing of the assessment in connection with the cost of clean up. City Manager Peacock presented the staff report dated September 21, 1994, noting the public hearing is to discuss the recovery of costs for the clean up of the hazardous materials. He noted the Council has the · ability to establish a lesser amount at this time. Mr. Joseph Oncay, City Codes Administrator, stated as part of the initial response to the 911 call to the Saratoga Fire Department, it was that response that promoted the Fire Department to contact the County's Hazardous Materials Department. He noted there are representatives from both the Fire Department and the County present at this meeting. He noted there was a concurrence of all the responding agencies that the storage and handling of the chemicals was in violation of County and City codes. He noted there was a health and safety issue to the community and the removal of the materials needed to take place immediately. He noted a list of companies who would remove the chemicals was given to the resident and if the resident would not remove them, the City would order removal and the costs would be incurred by the property owners. He stated if the costs were not recovered by the City an assessment would be levied against the property. city Council Minutes 6 September 21, 1994 City Manager Peacock stated notice of abatement and nuisance and fixing the special assessment was mailed ls't class on August 22, 1994 and the property was properly posted on August 29, 1994. Councilmember Wolfe questioned the storage permit for residential areas. Mr. 0ncay stated the City would not have issued a permit for the amount and way these chemicals were stored. Councilmember Jacobs addressed the costs to the City and asked which costs would have been incurred by the City regardless of this event. Mr. Peacock stated there was no overtime incurred by City staff. Regarding costs which are result of this event, Mr. Peacock stated the Sheriff's Department charged 11 hours for the field sergeant, plus two reserve officers who were in attendance throughout the clean'up. He stated the City Attorney's fees were incurred as a result of this event. Chief Kraule, Saratoga Fire Department, stated their costs are overhead costs which involved bringing in off-duty people and it was an out- of-budget cost. Captain Hal Chase, Santa Clara County Central Fire District, stated their costs are determined by administration and are based on the equipment used and available at the scene. Councilmember Jacobs stated the Hazardous Materials team has come to Saratoga for a number of reasons and asked how these expenses are handled. City Manager Peacock stated in most cases when the response team comes out nothing happens. He addressed one incident.regarding a diesel fuel spill in the hillsides which went into the creek. He noted the property owner was cited and all costs were recovered. Mr. Oncay pointed out that the material removed from Mr. Warfel's residence is being held as evidence and will not be disposed off until the court orders that it be disposed or removed to an appropriate location. He noted the City will receive additional bills for storage and disposal of the chemicals and the Council should consider this. Councilmember Moran asked about the agreement to remove the chemicals and asked if there was a written agreement as well as a verbal agreement. Mr. Oncay stated Mr. Warfel was given the opportunity to remove the materials and given a list of companies who could remove these. He stated Mr. Warfel was offered a document to sign, waiving his rights to the chemicals and authorizing the City to remove such chemicals, but refused to sign this. He noted the chemicals were removed from the site based on the authorization of the Nuisance Abatement Ordinance. City Attorney Riback stated the existence or lack of an agreement, whether written or verbal, is immaterial once the City Manager has declared an emergency situation and has determined to remove these materials because of a health and safety issue. Councilmember Moran noted part of the assessment is from other agencies and asked why the City is the collecting agency. Mr. Oncay stated it is standard policy for both fire districts to ask the City to request reimbursement of fees. He stated if the City does not do this both districts will pursue this on their own. Mayor Burger opened the public hearing at 8:55 p.m. Mr. Charles Warfel, 13484 Holiday Dr.., stated there was no discharge. He stated the chemicals were not involved in the fire and were stored properly given his education and work experience. Mr. Warfel addressed the following sections oflthe code: City Council Minutes 7 September 21, 1994 Section 3-20.020 - he noted there was no threat to City structures and the only possible violation would have been a discharge into the storm system, and this did not occur. Section 8-30.020 - No clean up responsibility is evident because there was no discharge. Section 8-30.030 - No indemnity responsibility because there was no discharge. Section 8-10.02(b) - he read this section and noted these chemicals were purchased in retail stores. Mr. Warfel presented exhibits to the Council. Mayor Burger closed the public hearing at 9:00 p.m. Councilmember Jacobs requested the city Attorney's opinion regarding Mr. Warfel~s comments. City Attorney Riback stated Mr. Warfel's defenses were not raised before this meeting. Regarding section 3-20.020, Mr. Warfel~s reading of this section is accurate, the issue he raised is whether or not this created a nuisance that could be abated under the Emergency Nuisance Abatement Provision, and in the notice that went out to Mr. Warfel, describing the nuisance, was that it created an immediate hazard to public health and safety and release into the storm drain system, therefore constituted a public nuisance. He noted the City has the police power authority to take immediate emergency action to abate a health and safety hazard. He stated state law authorizes this type of action in many different ways. Regarding Section 8-10.020, regarding the hazardous materials being retail products used by the general public, Mr. Riback stated he would have to defer to other experts as to whether the products found on the property fall under this category. Mr. Oncay stated that, although the products were purchased over the counter in retail quantities, storage and usage of the materials was not that which is used by the general public. He stated clearly the types and amount of chemicals were not for residential use. He also noted there was no signage. Councilmember Jacobs asked whether the chemicals are considered hazardous under state law. Captain Chase stated approximately 80% were regulated materials and if stored in a business would be required to have a permit and stored correctly. He noted chlorine gas is required to be secondarily contained. He stated the intent of the ordinance is to exempt products that are packaged for retail sale for the benefit of small businesses to purchase and then resell. Councilmember Wolfe stated the Councilmembers~ questions and concerns are not to question the decision of the City Manager regarding this matter, as there was a concern regarding these chemicals. He noted Mr. Warfel did volunteer the term "his laboratory". He asked whether, if the City does not act as a collection agent for the County, they would then bill the property owner and place a lien on their property. Captain Chase stated this question would have to be directed to administration. Mr. Peacock stated it is not an uncommon practice for the City to be the collection agency for the various agencies. He addressed an issue which involved the City and the Sanitation District. Mr. Oncay stated this is an unusual situation and in the spirit of cooperation from the other agencies, there should be consideration given to the collection of fees in an attempt to assure continued cooperation. He stated the City should attempt to recover all costs. Councilmember Jacobs stated that he is satisfied that the chemicals did City Counoil Minutes 8 September 21, 1994 pose a health and safety issue. He believes the City should not assess the homeowner for costs that are normally covered for any home, regardless of personal fault. He stated fees should be recovered for costs over and above the normal cos'ks. He noted the following costs should be passed onto the homeowner: The handling and disposal costs, Attorney Fees, Sheriff~s costs, 11 hours plus 2 reserves, Saratoga Fire District costs. Councilmember Jacobs stated he is uncertain about the costs for the Hazardous Materials team, and stated he is concerned about other homeowners incurring costs for chemicals found in most homes. He noted he believes that the Hazardous Materials Team is part of the services people pay for through their property tax. Councilmember Moran stated she is in agreement with Councilmember Jacobs and noted this situation is extremely unique. Councilmember Wolfe stated the costs outlined by Councilmember Jacobs are justifiable, but would question the Sheriff~s costs. City Manager Peacock stated the City receive a monthly bill from the Sheriff~s Department for hours of sel~ice. He noted there has been no additional charge beyond what was budgeted, but the charges would have been 11 hours less and 2 reserves less, which is approximately $526.64. Mr. Oncay reminded the Council that criminal action is pending and additional costs will be incurred when the matter is settled. City Attorney Riback stated the costs addressed by Mr. Oncay cannot be taken into account at this time because they are not listed on the list published and noticed to the property owner. JACOBS/WOLFE MOVED TO ADOPTRESOLUTION 94-41 CONFII~MINGREPORT OF CITY MANAGER TO PLACE A LIEN AGAINST PROPERTY LOCATED AT 13484 HOLIDAY DRIVE, SARATOGA FOR THE PURPOSE OF RECOVERING THE COSTS INCURRED AS A RESULT OF REMOVAL OF HAZARDOUS WASTE. THOSE COSTS BEING: $730.00 - ATTOIhNEY FEE8~ $341.58 - SUPPLIES~ $.1173.65 - EXPENDITURES TO CHEMICAL WASTE MANAGEMENT~ $795.00 TO CHEMICAL WASTE MANAGEMENT FOR LABOR ~ TRUCK~ $526.64 FOR DEPUTY SHERIFF PERSONNEL~ $386.72 FOR SARATOGA FIRE DISTRICT, FOR A TOTAL OF $6,953.59. Councilmember Jacobs stated that they are not making a finding through the motion that Central Fire may not recover their costs. MORAN/JACOBS MOVED TORE-OPEN THE PUBLIC NEARING. PASSED 3-1-1 (Burger No, Tucker Absent). Mr. Warfel stated it is his understanding that the chemicals have been destroyed so there should be no storage charges. He stated there is a motion to suppress evidence. Mr. Warfel stated the law specifies retail products. Captain Chase requested that if the motion passes the Council direct the City Attorney to add the Hazardous Materials team expenses as part of the criminal complaint for cost recovery. City Attorney Riback stated this can be done. Mayor Burger closed the public hearing at 9:32 p.m. City Manager stated the total costs are $6,953.59. Councilmember Moran clarified that the motion excludes the expenditures due to City staff time because the City was looking out for the public health and safety. She also noted it excludes Central Fire, but they will be included through the criminal process. Mayor Burger stated she will vote against the motion because she believes the motion should include the cost of the Hazardous Materials team. She stated it would be more efficient to include all costs in a centralized agency. She added she is reluctant to have other tax City Council Minutes 9 September 21, 1994 payers pay for citizens who are irresponsible. The above motion passed 3-1-1 (Burger No, Tucker Absent). 10. ADJOURNMENT The ~eeting adjourned at 9:35 p.m. to next meeting at 6:30 p.m. on Tuesday, September 27, at Administration Meeting Room, 13777 Fruitvale Avenue. Respectfully submitted, Catherine M. R Minutes Clerk