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HomeMy WebLinkAbout02-21-1996 City Council Minutes MINUTES SARATOGA CITY COUNCIL TIME: Wednesday, February 21, 1996 - 7:30 p.m. PLACE: Civic Theater, 13777 Fruitvale Ave. TYPE: Regular Meeting Pledge of Allegiance The Pledge of Allegiance was led by Scoutmaster Robert Martin and Troop 535. 1. ROLL CALL The meeting was called to Order at 7:30 p.m. Councilmembers Burger, Moran, Wolfe and Mayor Jacobs were present. Councilmember Tucker arrived at 7:42 p.m. Staff present: City Manager Peacock, City Attorney Riback, Public Works Director Perlin, Community Development Director Curtis, and Associate Planner James Walgren. 2. CEREMONIAL ITEMS - None 3. REPORT OF CITY CLERK ON POSTING OF AGENDA City Manager Peacock reported that pursuant to Government Code 54954.2, the agenda for this meeting was properly posted on February 16. 4. COMMUNICATION8 FROM COMMISSIONS AND THE PUBLIC A. ORAL COMMUNICATION8 Mr. Preston Wisner, resident, presented a position paper on the need for senior housing in Saratoga. He reported that market studies indicated that in 1994 there was a need for 635 more units for seniors, and by the year 1999 the need will increase to 717 more units for seniors. He said that he heartily endorsed the Odd Fellows' project and that even with its project, there will still be a shortfall of senior housing in Saratoga. Mr. Wisner said that it would be preferable for the City of Saratoga to be able to offer seniors care rather than have to refer them to other cities. He urged citizens of Saratoga to vote no on Measure G. Mr. George Kreamer, resident, requested that his letter be read into the record. Mayor Jacobs said that the City Manager would read Mr. Kreamer's letter into the record. Mr. Peacock did so: "To the Mayor and the Members of the Saratoga City Council: It is my intention to request oral communication time at the February 21 City Council to present the following information. Because of my speech 'prOblems I am presenting this in writing to each of you to ensure proper delivery ..... "As the Treasurer of the No on G Committee, I have been appalled by the lies and misstatements regarding the recent telephone campaign within this city. Now let's set the record straight. The No on G Committee commissioned the telephone campaign. The No on G Committee has committed to pay for all, please note "all" costs associated with this telephone campaign. The No on G Committee designed and conducted~the telephone survey to identify undecided voters so the Saratoga volunteers could deliver informational packages to them. The No on G Committee will spend approximately the same amount on this survey as it would for a citywide mailing. The No on G Committee has received almost all of its contributions from Saratoga residents and organizations. These of course have been legally recorded. The No on G Committee and a group of volunteers also did a telephone survey. This volunteer committee, fellow Saratogans, are committed to encouraging their friends and neighbors to study the facts about this ill-conceived initiative and make an informed decision at the polls. Since the No on G Committee has paid for this phone campaign, it is our prerogative to ask questions to which we want answers. There is no reason not to do that. The No on G Committee is made up of Saratogans like you who care passionately about the future of our community. People who believe in City Council Minutes ~ 2 February 21, 1996 No on G are grass roots individuals, the Saratoga Chamber of Commerce Board, business professionals,~parents, seniors including the Saratoga Area Senior Coordinating Couhcil, board and community groups, the League of Women Voters, Los Ga~os, Saratoga, Monte Sereno board and the Saratoga Good Government GroupSboard. Finally, the No on G supporters have willingly publicized thei~ names for the public to see. George W. Kreamer, Treasurer, No on G COmmittee." Mr. Kreamer thanked the mayor.and council. B. COMMUNICATIONS FROM COMMISSIONS - None C. WRITTEN COMMUNICATION8 Mayor Jacobs commented that there were still individuals in the community making allegations that the City Council or City spent public funds for telephone surveys regarding Measure G. He said he thought it was clarified at the last City Council meeting that no City funds were expended on Measure G telephone surveys, and reiterated that he had discussed it with the City Manager and no public funds were expended on any telephone survey regarding. Measure G. He noted that City records were accessible to the public and the public was welcome to examine the records. Mayor Jacobs stated that if, upon examination of the City's records, it was found that any public funds were spent on telephone surveys for Measure G, he would reimburse the City personally. He said he hoped the clarification would put an end to all rumors. 5. CONSENT CALENDAR A. Previously-Discussed Items 1) AZO-95-002 (APN 517-36-008 & 517-13-012) - MILLER; 15001 BOHLMAN RD. Ordinance NS3-ZC-102 rezoning portions of two existing hillside parcels from R-1-40,000 to HR and from RR to R- 1-40,000 (second reading and adoption by title only, waiving further'reading) MORAN/BURGER TO APPROVE CONSENT CALENDAR ITEM 1A(1). PA8SED 5-~. B. New Items 1) Planning CommisSion Actions, 2/14 - Note and file. Finance Advisory Committee Minutes, 11/2/95; 1/11/96 - Note and file. 3) Approval of Request from west Valley solid Waste Program to Negotiate a Landfill Disposal Contract with BFI to dispose of Trash at Newby Island Landfill and Approval of Resolution appropriating Funds from the Envlronmental Programs Fund to the Integrated Waste Management Budget Funds to Analyze the Economic, Environmental and Legal Issues Relating~Thereto (See Item 7.) 4) City Financlal Reports for January: a) Treasurer,s Report - Receive and file. b) Investment Report - Receive and file. Financial Report - Receive and file. 5) Approval of cheOk Register 6) June 30, 1995, Single Audit Report and Saratoga Public Financing Authority Financial Statements 7) Resolution 95-30.09 amending 1995-96 Budget 8) Quarterly Report to Regional Water Quality control Board on City NPDES!Activity 9) Resolution MV-222 removing Crosswalk and modifying City Council Minutes 3 February 21, 1996 Parking Restrictions on Xomlna Avenue 10) Resolution 96-09 Appointing chief Kraule, Saratoga Fire District, to the Noticed Nuisance Abatement Board of Appeals Mayor Jacobs stated that Item 5B(3) would be removed from the Consent Calendar for discussion. MORAN/WOLFE MOVED TO APPROVE THE CONSENTCALENDAR ITEMS 5B, (1) THROUGH (10), WITH THE EXCEPTION OF ITEM 5B (3). PASSED 5-0. 5.B. 3) City Manager Peacock discussed a letter received from the Guadalupe Landfill Disposal Company which suggested that the City did not have the authority to change landfills. In response to Mayor Jacobs' question, Mr. Peacock stated that the Cities of Monte Sereno, Campbell and Los Gatos have proceeded to negotiate a contract with BFI, Inc. City Attorney Riback stated that a letter was sent to the legal counsel representing Guadalupe Landfill Disposal Company. He explained that the agreement is not an exclusive agreement insofar as obligating cities to use Guadalupe Landfill for disposal of garbage. Mayor Jacobs stated that the purpose was to obtain lower garbage rates for the citizens of Saratoga and he was satisfied with proceeding to secure a proposal from BFI. City Manager Peacock pointed out that the City of Saratoga would realize a savings of approximately $200,000 annually if the contract for solid waste disposal with BFI was entered into in lieu of Guadalupe Landfill. BURGER/TUCKER MOVED TO AUTHORIZE THE CITY MANAGER TO PURSUE THE NEGOTIATION OF THE CONTRACT WITH BFI INC., FOR SOLID WASTE DISPOSAL SERVICES TO THE NEWBY ISLAND LANDFILL AND APPROVE AUGMENTING THE ENVIRONMENTAL SERVICES BUDGET BY $8,179. PASSED 5-0 5. C. CLAIMS AGAINST THE CITY - None. Mayor Jacobs moved the agenda to Item 9A. 9. ROUTINE MATTERS A. Approval of Minutes - 2/3~ 2/7 WOLFE/MORANMOVED TO APPROVE THE MINUTES OF THE FEBRUARY 3 AND FEBRUARY 7 MEETINGS AS PKEaENTED. PASSED 5-0. 10. CITY COUNCIL ITEMS A. Agenda items for joint meeting wlthPublic Safety Commission March 12 Mayor Jacobs suggested that the traffic survey be discussed. City Manager Peacock stated that the Public Safety Committee submitted a list of items for discussion which would be agendized for the February 26 meeting. Mayor Jacobs then moved the agenda back to Item 8B. S. B. Authorization to purchase Compressed Natural Gas Mobile Fueling Trailer and Interim Agreement to haul Trailer and supply CNG Fuel Public Works Director Perlin reviewed the staff report which outlined the joint effort with West Valley College to build a compressed natural gas fuel facility at the City of Saratoga's Corporation Yard. Mr. Perlin explained that it was staff's recommendation to approve the sole source purchase with PCI for a not-to-exceed amount of $62,185 for purchase of the tube trailer and support services. He stated that the costs would be fully reimbursed to the City from grant funds obtained City Council Minutes 4 February 21, 1996 by West Valley College. He also recommended that the Council authorize staff to enter into an interim agreement with PCI to supply fuel to the facility for a six month peribd while alternative arrangements were investigated. The cost is $509-$750 each occurrence, about 5 to 10 times per month. Mr. Perlin noted that the cost of refueling would be fully recovered by the sale of ~he fuel to the college and post office. Councilmember Wolfe questioned whether the reimbursement to the City would be equal to the expenses~or would the City receive a stipend for handling the process for the two agencies. Mr. Perlin stated that some .of the administrative costs could be recovered and explained that h~ was working to develop a pricing plan for the fuel, which would not only include the cost of purchasing the fuel and transporting it, but also recovering all of the operating and maintenance costs at this station plus some markup for administrative expenses and a small profit. MORAN/WOLFE TO APPROVE THE 80~E SOURCE PURCHASE OF THE MOBILE FUEL STORAGE TRAILER, FUNDS FOR STARTUP, AND APPROVAL OF THE INTERIM AGREEMENT FOR FUEL SUPPLY SERVICES. PA~SED 5-0. Councilmember Wolfe commended Karen Dowdy, Chairman of.the Board of Trustees of West Valley Colleg~ District for her work on the project. 8. C. ABAG Power PUrchasing Pool - Resolution authorizing City Manager to sign and deliver 1) a Natural Gas Sales and Aggregation Agreement appointlngABAG as the Core Transport Agent for the City in procuring purchase and transportation of natural gas and 2)i PG&E's customer Authorization for Core Gas Transportation Service Mr. Perlin stated that the resolution permitted the City of Saratoga to purchase natural gas through ABAG in lieu of PG&E. MORAN/TUCKER TOAD OPT RESOLUTION 96-12 AUTHORIZING THE GEMERALMANAGER TO SIGN AND DELIVER THE AGREEMENT TO PARTICIPATE IN THE ]&BAG POWER PURCHASING POOL FOR THE FIRST NATURAL GAS PURCHASE. PASSED 5-0. D. Memo Authorizing Publicity for Upcoming Bearings - City Manager Peacock reported that no hearings were scheduled for March 6. Mayor Jacobs moved to the Agenda to Item 10B. 10. B. Other Councilmember Burger announced! that the Saratoga Tree Committee had scheduled the inaugural tree planting for Feb. 24, but because of the rainy weather conditions it would be postponed until March 2, at 9 a.m. until noon, at the Saratoga Community Library (weather permitting). Councilmember Wolfe announced that the Saratoga Business Development Council monthly meeting would be held at 8 a.m. on February 27 in the City Hall meeting room. Mayor Jacobs moved the agenda back to Item 6. 6. PUBLIC HEARINGS - 8:00 pm.' A. GPA-94-003t AZO-94-002~ 8D-95-008 & Tentative Cancellation of a Williamson Act Agricultural Preserve Contract (APN 503-49- 41 & 42) Applicant= TRINITY DEVELOPMENT COMPANYI 20851 SARATOGA HILLS RD. (public hearing continued from 2/7 as to the following items only) 1) Resolution making Findings PUrsuant to Public Resources Code 21081 2) Resolution approving General Plan Boundary Amendment to allow two parcels totalling 5.1 acres to be reclassified from an Open Space-Outdoor Recreatlonal designation to City Council Minutes 5 February 21, 1996 Residential-very Low Density and Medium Density. 3) Resolution certifying Cancellation Fee for Williamson Act Contract 4) Resolution epproving Tentative Cancellation of Williamson Act Contract City Manager Peacock noted a typographical error in Item 6A(3). In paragraph 3 of the resolution, the amount on the last line should read: "$1,069,600." He also stated that on Page 2 of the resolution, Item 6A(4), 7th line from the bottom of the page, "Conservance" should read "Conservancy." City Attorney Riback reviewed the four items subject to public hearing for the Council to consider. He explained that if the Council acted affirmatively on the four items subject to the public hearing, the two documents considered at the last public hearing and listed as Items 7A, could be acted upon at this meeting. Mayor Jacobs noted that the public hearing from the last adjourned meeting was still in an open status. Ms. Ann Waltonsmith, 21060 Saratoga Hills Road, presented a copy of an attorney's letter which addressed the issue of why the City of Saratoga should not find cause for early cancellation of the Williamson Act contract. She summarized that the letter stated that in order for an early cancellation, there needs to be proof that there are no other properties in Saratoga that could be developed at this time. Mayor Jacobs closed the public hearing at 8:06 p.m. Councilmembers took a short time to read the contents of the letter presented by Ms. Waltonsmith. City Attorney Riback stated that the letter submitted by Ms. Waltonsmith on behalf of Friends of Nelson Gardens from Robin Kennedy appears to state, although in different terminology, a similar argument that was presented at the previous City Council hearing on this matter. He noted that the argument focused primarily on the definition of the word "available". Mr. Riback clarified that one of the findings that needs to be made is that there are no other properties available for development of this nature. He said at the prior public hearing both legal counsel for the developer and legal counsel for Friends of Nelson Gardens stated that the term has not in this context been litigated before. There is no clear guidance from courts as to what the term means. However, the attorney of the developer indicated that in his opinion the only logical interpretation of the term available was that it is available for this particular development. City Attorney Riback pointed out that using that rationale, evidence was presented at the previous public hearing. WOLFE/BURGER MOVED TO APPROVE RESOLUTION 96-10MAKING FINDINGS PURSUANT TO PUBLIC RESOURCES CODE 21081. PASSED 5-0 BURGER/WOLFE MOVED TO APPROVERESOLUTION 96-10.1 APPROVING GENERAL PLAN BOUNDARY AMENDMENT FOR TRINITY DEVELOPMENT COMPANY, 20851 SARATOGA RILLS ROAD. PASSED BURGER/WOLFE MOVED TO APPROVE RESOLUTION 96-10.2 DETERMINING AND CERTIFYING TO COUNTY AUDITOR THE FEE PAYABLE TO COUNTY TREASURER FOR CANCELLATION OF WILLIAMSON ACT CONTRACT FOR PROPERTY LOCATED AT 20851 SARATOGA RILLS ROAD. PASSED '5-0 WOLFE/BURGER MOVED TO APPROVE RESOLUTION 96-10.3 APPROVING TENTATIVE CANCELLATION OF A WILLIAMSON ACT CONTRACT RELATING TO PROPERTY LOCATED AT 20851 SARATOGA RILLS ROAD. PASSED Mayor Jacobs moved the agenda to Item 7A. 7. OLD BUSINESS City Council Minutes 6 February 21, 1996 A. GPA-94-003, AZO-94-002, 8D-95-008 & Tentative Cancellation of a Williamson Act Agricultural Preserve Contract (APN S03-49- 41 & 42) Applicant½ TRINITY DEVELOPMENT COMPANY; 20851 SARATOGA HILLS RD. (icontinued from 2/7) 1) Ordinance amending Zoning District Map to allow the two parcels to be reclassified from an AgrlCultural designation to R-1-40,000 and R-1-12,500 (second reading and adoption) WOLFE/BURGER TO ADOPT ORDINANCE NS3-ZC-103 BY TITLE ONLY, WAIVING PURTHER READING. PASSED 5-0 2) Resolution appr0ving Vesting Tentative Subdivision Map to subdivide the two parcels into nine single-family lots and adopting a Mitigation Monitoring Plan BURGER/WOLFE TO ADOPT RESOLUTION 96-10.4 APPROVING VESTING TENTATIVE SUBDIVISION MAP TO SUBDIVIDE THE TWO PARCELS INTO 9 SINGLE FAMILY LOTS AND ADOPT A MITIGATION MONITORING PLAN. PASSED 5-0 Mayor Jacobs moved the agenda back to Item 6B. The Public Hearing continued at 9:00 p.m. 6. B. GPA-94-001, UP-94-001 & DR-94-004 (APN 397-12-012 & 019 & 397-40-006) Independent Order of Odd Fellows; 14500 Fruitvale Ave. The Independent Order of Odd Fellows has submitted a Master Plan application to redevelop their senior care and living facility located at 14500 Fruitvale Ave. The application requests include General Plan Text Amendment, Use Permit and Design Review approval. An Environmental Impact Report has been prepared for' the project and recommended for certification by the Planning Commission to the City Council. Odd Fellows' representatives are also requesting that the City of Saratoga enter into a Development Agreement with Odd Fellows to assure that upon approval of the project they may proceed with the project in accordance with existing rules and regulations. Notice of intention to consider adoption of the development agreement is hereby given pursuant to sections 65080 and 65091 of the Government Code. City Manager Peacock read a series of communications received following the posting of the agenda and'distribution of Council's packet: (1) Letter from Schute, Mahaley &' Weinberger regarding the Independent Order Of Odd Fellows project; (2) Memorandum From Linda Callon regarding the Odd Fellows master plan development; (3) Letter From Berliner Cohen Signed by Linda'Callon regarding the City of Saratoga public project; (4) Letter tO Mayor Jacobs from McMullin Companies regarding fire protection need~ for Odd Fellows Saratoga complex; (5) Letter from Merritt~ Smith Consulting regarding Odd Fellows project; (6) Letter from Berliner Cohen regarding water quality issue;.(7) Declaration of Dr. Reah Williamson; (8) Letter from William D. Ross regarding Odd Fellows development agreement; (9) Letter from Berliner Cohen;.and (10) Memorandum from. Linda Callon on Oddfellows master plan. City Attorney Riback referred to the declaration of Reah Williamson and the letter from Merritt, Smith'Consulting. He stated that the letter from Merritt Smith was a follow up to previous letters received from Friends of Santa Clara County Creeks .relating to the issue of stormwater quality. Even though those letters and the letters from Merritt Smith were received following the close of the public review period, in an effort to perform due diligence, the City did request Dr. Williamson to respond to some iof the issues relating to stormwater/ storm drain quality. He briefly reviewed her findings. He stated that the document submitted by Merritt Smith Consultants does not provide any significant new information beyond what has already been submitted and reviewed in the EIR.. Associate Planner Walgren reviewed the Odd Fellows master plan City Council Minutes 7 February 21, 1996 application and the Planning Commission issues and concerns as outlined in the attached staff report. He stated that the Planning Commission did not have adequate time to consider the outstanding issue of the requirement for purchase of an aerial fire truck and adopted the use permit and design review resolution as prepared, with the fire truck requirement, and submitted to City Council for further consideration. In response to Councilmember Wolfe's question, Mr. Walgren stated that due to the large volume of information on the issue received at the February 14 meeting, the Planning Commission was not able to make a decision on the fire truck issue and submitted it to City Council for further consideration. Councilmembers Moran and Burger commended staff for the excellent job on the project. Ms. Laura Worthington Forbes, MBA, 1754 Technology Drive, San Jose, described the process followed for preparation of the EIR. She explained that the City of Saratoga had taken many steps to maximize the opportunity for public input and participation in the environmental process, beginning in 1994 with the mailing to public agencies and other interested parties to solicit public input as well as inform the public of the proposed project. A public scoping meeting was held on May 3, 1994 by the City of Saratoga Planning Commission to explain the characteristics of the proposed project, the status of the proposed project, the nature of the environmental issues that would be examined in the EIR, as well as provide an opportunity for input regarding the environmental constraints or issues which the public might have. She continued to describe the many steps involved, ending with the distribution of an EIR for public review in April of 1994. Due to the enormous public interest, the City extended the 45 day review period to 60 days. Twenty three comment letters were received on the draft EIR, some letters containing as many as 60 comments. The three volume EIR was submitted to the City Planning Commission in September 1995 and was continued to September 27 and October 11. There was considerable' public interest in the project and several issues were raised during the public testimony at the public hearing. Although the public review period had closed and no further response to the issues was required under CEQA the City felt there were issues that needed to be addressed, and did so with a document entitled Discussion of Public Hearing Testimony and Letters Received on the Final EIR. which was given to the Planning Commission. Following consideration of the document as well as the EIR, the Planning Commission recommended the adoption. With the exception of a short term cumulative air quality impact, all impacts have been mitigated to a less than significant level. She added that City staff and the City Attorney reviewed the comments and public testimony on both the draft and final EIR and have determined that no new significant issues and no significant new information has been presented. All issues that have been raised since the release of the draft EIR in April 1995 have been corrected in the draft EIR or final EIR. Ms. Worthington Forbes discussed the fire mitigation issues. When the EIR was prepared, the Saratoga Fire District indicated that the existing Odd Fellows facility resulted in 37 annual calls out of a total 786 calls to the district. Of the calls, 4 were attributed to fire related incidents, the remaining relating to service or medical related incidents. The fire district determined that responding to the development's needs created the need for an additional paramedic or firefighter to respond to the medical emergencies. It is noted in the draft EIR that the district currently has three 1500 gallon permanent engines, one which will be replaced within the next two or three years. During the draft EIR review period, the fire district requested that the impact and mitigation be revised and that in lieu of the firefighter or.paramedic an aerial fire truck capable of accessing upper floors and structures would be needed, and as well as 24 hour onsite emergency medical service capable of providing emergency advanced life support (ALS) service to residents. The fire district added specifically that the 24 hour ALSwould ensure adequate emergency level response after completion of the project, thereby mitigating the impact on the district's medical response capability. What the district did not take the opportunity at that time to revise was the City Council Minutes ~ 8 February 21, 1996 impact statement that the fire truck was needed for fire suppression and the facts in the EIR do not provisions of the fire truck ~ SuPP°rt for responding to emergency m~dical needs. Ms. Worthington Forbes stated~ that there were 4 mitigations in the draft EIR Which specifically address the need to reduce fire prevention impacts, including the provision for sprinklers and emergency fire access plan. Following MBA's ~areful review of the draft EIR impact assessments, there appears to be no established nexus between the fire district's ability to respond to medical emergencies and the need for an aerial fire truck. Additionally, as stated in the draft EIR, under existing conditions, if a fire truck is needed, fire and medical response services can be provided to the Odd Fellows site on the next available or close proximity basis. The deletion of the fire truck requirement from this mitigati6n will not compromise the integrity of the effectiveness of the mitigation to avoid medical response impact, particularly since the requirement of a 24 hour onsite emergency medical service capability was also added. Ms. Worthington Forbes read a correction to the final EIR into the record. Volume 3, Section 4, Page 4-6 "Because of the higher degree of risk due to the age of the re~i~ents, the impact of this project to the fire protection services is considered significant by the fire department. Although the district has requested the applicant provide a 1500 GPM aerial fire truck in lieu of providing additional manpower, there is no substantial evidence in the draft EIR analysis to support the district's request for such a fire truck. The district has also indicated the project would require 24 hour onsite emergency medical response team with emergency advanced license for capability. Based on the analysis contained in the EIR and information provided by the fire district in the draft and the final EIR, the provision of the ALS capability is supported by the draft EIR facts and will mitigate the identified impacts." Ms. Worthington Forbes said that there was correspondence regarding water quality drainage impacts and issues. MBA has reviewed all the correspondence and believes there is no new information that has been introduced. She summarized that the draft EIR clearly states that the existing water quality impact in the storm drain could be expected to be contaminated with typical u~ban and suburban contaminants. The EIR clearly states water quality cQuld be substantially degraded and thus considered a significant impact. The impacts have been identified, the commitment to mitigation was m~de, and the performance criteria were established. Relative to the drainage issue, the applicant is mitigating not onlythe projectsincremental.impact on site but off site impacts as well that will result in an overall benefit or improvement to the degrading system. Thisis above and beyond CEQA requirements, as mitigation measures only address the impacts of the project. The city may not require an applicant to implement mitigation measures beyond what has been done unless the applicant offers to do so on a voluntary basis, which they have in this case. Mayor Jacobs summarized Ms. Worthington Forbes' presentation, noting that there was nothing in the!EIR to justify the Odd Fellows being required to purchase an aerial fire truck. The EIR has dealt with the issue of groundwater contamination, and the additional letters and claims in no way further impact the EIR. In response to Councilmember TuCker's question, Ms. Worthington Forbes stated that the EIR supports a 24 hour ALS on site. Councilmember Moran addressed drainage, stating that the EIR called for addressing incremental impacts 0f the applicant and off site impacts as well which is in excess of what=CEQA requirements are. Ms. Worthington Forbes said that was correct and was in the conditions of approval. Mayor Jacobs opened the publichearing at 8:50 p.m. Mayor Jacobs indicated for the record that he had been contacted by the applicant's representative and discussed matters relating to this and to the fire department issue as well as Fire Chief Kraule on this issue. City Council Minutes 9 February 21, 1996 Ms. Linda Callon, representing the Odd Fellows, said the Odd Fellows master plan will benefit the citizens of Saratoga. She requested that the Council take action on the introduction of an ordinance that would eventually be adopted by the Council on March 6 for the development agreement. She pointed out that March 6 was the final date that the City could act on the project. Ms. Callon stated that the development agreement is being sought as a partnership with the City. The use permit and design review approvals granted by the City would be generally valid for two years with a possible three year extension. With the development agreement the entire project could be built in a ten year time frame, with actual construction of Phases 1 and 2 in two or three years. Ms. Callon discussed her letter dated February 16 wherein she requested changes to the development agreement, which was amended by the Planning Commission. She noted that the development agreement was structured similar to the Greenbriar agreement. She discussed Page 6, 9.3, stating that the content was entirely deleted by the Planning Commission. She explained that the item afforded the ability for the Odd Fellows to receive staff approval for minor changes to the project. The second change Ms. Callon discussed was on Page 11 (17.1) which enabled the Odd Fellows to transfer the property. She stated that although the Odd Fellows had no intention of ever transferring the property, in the event it should happen, they did not feel that the City should have to consent to the transfer. Ms. Callon explained that Exhibit B referred to preference being given to Saratoga senior residents, possibly advance notice about available occupancy. She stated that the landscaping plan was acceptable. She said that the concern with the open space was that the manner it was drawn conveyed that it was located on Phase 2 of the villas. Ms. Callon indicated that they were agreeing to go ahead in perpetuity with the open space easement throughout the riparian corridor. She pointed out that Condition 6 was still not settled as to the disposition of the 10.6 acres and questioned how it fit into Phase I or Phase II.' Initially the 10.6 acre parcel with the 11 cottages was submitted by the Odd Fellows to be part of Phase II. She explained that as part of Phase I, the Odd Fellows would either build the 11 cottages or build some of the cottages and put a permanent private open space easement along the remainder, or an open space easement would be put on the property that would only permit the 11 cottages; or it could permit the current general plan based zoning which is a fallback to residential subdivision similar to the neighbors. Ms. Callon stated that the Planning Commission was opposed to giving options which did not get the cottages built and required that the cottages be built as part of Phase I, and if they were not built, Phase II could not be commenced. She pointed out that in reality, Phase I only adds three units to the total existing today, and would mean there would be no new senior housing in Saratoga. She explained that the project consisted of two phases, the second phase being the expansion, the 134 units for the remainder of senior citizens who choose to come into the project. Ms. Callon requested relief from that condition. She stated that the applicant was willing to go back to the first offer which included the permanent open space easement at either the 11 cottages for the master plan, or the underlying general plan and residential subdivision as it now exists, or to have a new Condition C which would state that for the entire ten years of this agreement, the only thing that can be built on the property is the 11 cottages. The master plan is locked in for 11 years. Ms. Callon requested that the Council modify the condition that the Odd Fellows try to acquire the public easements across the neighbors' private property in order to join the San Marcos Road and the Odd Fellows private road at Fruitvale. She stated that Odd Fellows did not have a good working relationship with the neighbors and it would be difficult to get that type of agreement. Ms. Callon discussed the issue of the requirement for a fire truck with an aerial ladder. She questioned the need for an aerial ladder as there were no units in the development taller than 35 feet. She explained various alternative methods of dealing with the fire City Council Minutes 10 February 21, 1996 emergency issue. Mr. Ralph Borelli, 19301 Pinmacle Court, referred to the site plan schematic landscape plan to illustrate the location of his property. He expressed concern about the landscape buffer being discussed for Crisp Avenue and questioned why othe~ locations were not also getting it. He also expressed concern about the height of Apartment 2, stating that a single story building was being replaced with a two story building. Mr. Borelli requested that landscaping be planted at the commencement at the same time it is planted on Crisp Avenue. He noted that the Planning Commission did not do an on-site visit from his yard to analyze the view impacts. Mr. Borelli said he was please~ that the developer had agreed to take the 11 cottages off the ridge top and that there was a scenic open space easement. He said there.was also discussion that there would be an open space easement which would continue on, but he had not received any information since the last Planning Commission meeting. He asked if the easement could be expanded through the riparian corridor to the westerly boundary. He thanked the staff for the work they have done and the Council for the opportunity to express his concerns. Councilmember Wolfe stated that he recently had a conversation with Tom Armstrong from HMH,- and asked Mr. Borelli if he was able to put together a schematic to submit to act as a buffer. Mr. Borelli stated that because of time constraints and other commitments, he was not able to submit a sketch yet. Mr. Wolfe said that Mr. Borelli would be most impacted by the project and it would be appropriate for him to submit a proposed schematic for consideration. Mayor Jacobs requested the applicant address Mr~ Borelli's concerns. Mr. George Ivelich, architect, representing the Odd Fellows, referred to the site plan/schematic landscape plan, stating that he felt Mr. Borelli's concerns were being 'addressed with the proposed open space easements. He outlined the original easement on the site plan and stated that the easement had been expanded to include additional area on the other side of the 10 acre parcel encroaching into the 27 acre parcel; which created a buffer on both sides, continuing across the roadway and picking up the riparian habitat illustrated on the site plan. He said Mr. Borelli might want to expand even further, but the proposal was the staff recommendation. In response to Councilmember Moran's question, Mr. Ivelich stated that the buffers discussed by the Planning Commission dealt with the area as shown on the site plan. He said there was a small area on Chester also. He explained that a great deal of additional landscaping would be brought into the area he referred to on the site plan, and the neighbors on Chester would beneXit significantly. Discussion continued regarding additional ways to! provide landscaping buffers to more adequately respond to Mr. Borelli's concerns. Mr. William Ross, 425 Sherman Avenue, Palo Alto, attorney representing the Saratoga Fire District, said he represented the fire district with respect to the continued condition of approval No. 52 requiring the provision for fire apparatus with aerial capability. Mr. Ross stated he felt there were two issues before the Council: (1) The procedure that the consultant retained by the City has followed in assessing the environmental impacts of this project; and (2) the condition. Mr. Ross requested the Council's indulgence, stating that he and the fire district were conscious of their obligations, and pointed out that the fire district had participated in good faith in the environmental review of this project. He explained that before tonight's hearing, the MBA representative was asked what her position was with respect to the issue of the requirements of the fire district as articulated in its letter of June 13, 1995; and her response was she did not know. Mr. Ross stated that he has been involved in CEQA proceedings for over 20 years and he has never been involved in a situation where the consultant had taken the position in the eleventh hour as occurred this evening. He stated that the fire district was prejudiced by the City's consultant now coming forward: with the statement that there is a City Council Minutes 11 February 21, 1996 deficiency in the EIR. Mr. Ross emphasized that if the consultant felt there was a deficiency, it had an obligation, both ethically and legally, to raise it as soon as possible. This matter did not become an issue until February 2, 1996, when there was a meeting between the district and the applicant's representative, and the district was told that the fire apparatus would not be purchased. It was followed by a communication to City staff from the law firm, (Exhibit A). Mr. Ross said he did not believe that the applicant's representative was at fault in the method of environmental analysis, and the district does believe th~ issue between fire suppression and rescue and emergency medical services are two separate issues that were clearly articulated in its June 13, 1995 letter, and is prejudicial to the district and contrary to CEQA's purpose of encouraging public participation in the process of a fire district which has a special status in this instance because it is charged with protection of lives. The MBA representative seemed to indicate it was considered to be a significant impact by the fire district. Mr. Ross noted that the fire district, when it is not the lead agency for a project, does not have the obligation of assessing its effect on the environment. Its powers are specifically limited by Health and Safety Code Section 13.861 and 13.862 and do not include that obligation. It is the obligation under CEQA of the City as the agency or more correctly here, the obligation of the City consultant under CEQA. He suggested that there has been a breach of that obligation. He stated there have been numerous public hearings on this matter. In the June 13, 1995 letter referred to, there are identified significant impacts that are of concern to the district and there is reference to the actual language of the EIR. Mr. Ross said he believed the critical language to be the sentence "This is considered a significant impact". It is language from the EIR and is an obligation of conclusion of the City's consultant, not the fire district. The fire district raised significant impacts under the concept of fire' protection the capability of utilizing the area facility, the aerial apparatus to effect rescue for fire suppression and rescue functions. It is distinctly different and condition 52 shows that between the EMS obligation or the ALS obligation; they are two distinct matters. It was recognized in the final EIR by the formulation of the conditions of approval as in SFD 1, SFD 4, and SFD 8, and there was no indication at that time or during September 1995 those mitigation conditions were somehow based on inaccurate information or inaccurate analysis by the City's consultant. Mr. Ross reiterated that the articulated state policy in CEQA and Government Code Section 65033 encourages public participation in the land use process and its proper analysis under the Environmental Quality Act. He questioned how it could take place when the notice is not given to the fire district until now. He said it was a rhetorical question; it cannot; and said that the consultant cannot have it both ways. He questioned what happened between the presentation of the draft FEIR in latter September 1995 and now to cause the change in position. Mr. Ross stated that the fire district takes no position for or against the project. It is concerned about mitigation of a perceived identified impact to its ability to protect those services which it is required to perform under the Health and Safety Code for this facility. He stated that the issue should be addressed now because the fire district does not want to appear before the Council when there has been an unfortunate incident to explain why there were deaths and damage to this facility. Mr. Ross discussed the changes in circumstances that were not acknowledged. He noted that the FEIR went through the prescribed hearing process and indicates that there is an identified impact in this area and it has to be mitigated. It was respectfully raised before the Planning Commission that there was the presumption that the fire district has performed its governmental duty under Evidence Code Section 664 and the burden is otherwise on the fire district to satisfy this issue of adequate environmental analysis. He stated that before the Council was the reference by the MBA consultant of the fact that there was the first available capability to meet this issue, the declaration by Chief Kraule, supported by a letter from the Chief of the Central Fire District referencing the two specific stations that City Council Minutes 12 February 21, 1996 are analyzed by the applicant's attorney that in Los Gatos and Cupertino they are not available to address this concern for access for fire suppression and rescue. ~he Chief of the Central Fire District detailed why neither the mutual aid agreement nor the automatic aid agreement can serve as a basis for that type of first available mitigation. In fact, the actual language of the two agreements bears that out. Mutual aid is o~ly available after the agency having responsibility (Saratoga Fire District) exhausts its own resources. He pointed out that it is a rhetorical question: If we have resources now to meet the existing demands o~ the district, but we need an additional incremental demand in the form of an aerial apparatus, how can it exhaust that, if that condition is removed? Mr. Ross noted that the automatic aid agreement is only applicable to four specific areas within the City and does not include the project site. It has been continually represented by the applicant that this is the basis for mitigation. Referring to Condition 52, Mr.. Ross suggested that there had to be a prior finding prepared for Council's consideration under the provisions of CEQA guidelines Section 15091, and it is not found in the record. He said there was no question from the fire district's perspective that this is the first time there is, a facility that could be approved which requires the need and capability for the aerial apparatus. He pointed out that it Would be reasonable to provide, as a condition in the development agreement, that similar developments approved in the City berequired to reimburse the Odd Fellows. Mr. Ross explained that current information indicates there is a 90% increase in the senior population in this facility which impacts the capability of the fire district to affect fire suppression and rescue. It is-a separate issue from the medical issue and is the reason there is reference to a firefighter/paramedic in the draft. He said that the Council has the ability to oppose the 'condition. Mr. Ross stated that under the Friends vs. Levinya case, it showed an obligation when evaluating the information of the consultant exercising independent judgement, which should be accomplished in this'instance; and if it is not, he said that because of the information presented both in writing and testimony by the fire district that recirculation of the EIR would be required. Mr. Ross requested correction.Page 3, Paragraph 5 of Chief Kraule's Declaration, stating that reference to square footage cannot be in excess of the villas' portion of the development because of the starburst configuration aroundit; therefore the correct figure should be 104,640 square feet. He also requested that timely notice be given of any Notice of Determination filed under CEQA concerning the environmental analysis. A brief discussion followed wherein Mayor Jacobs questioned the fire protection services provided in the City of Palo Alto and the use of aerial ladders throughout the county. Mr. Ross responded that the issue at hand concerned the specific proposal and development configuration for the City of LSaratoga and its demands on this fire agency, not the demands on the Central Fire District. Mr. Ross suggested that this type of analysis should have taken place earlier in the environmental review process if it was an issue. Mr. Ernest Kraule, Chief of Saratoga Fire District, 14380 Saratoga Avenue, said that he was pleased that the ALS situation was in hand and that the residents of the Odd Fellows facility would be cared for. He stated that the fire district would be available to provide extra help. Mr. Kraule distributed a brochure which contained pictures of fire trucks and photos of units in the Odd Fellows facility. Referring to the wall mounted site plan, he pointed out the areas on the map which are unavailable to fire truck access. Referring to the photos in the brochure, Mr. Kraule pointed out areas of concern in the various units and landscaping plans relative to fire.truck access and proximity to the buildings in the event of an emergency or fire. He questioned the storage of ladders on the facility for fire department use. Mr. Kraule stated that he toured the site with Chief Sporleder who noted that "You will recall that when we developed the County plan it was intended to provide firefighters and equipment to any agency City Council Minutes 13 February 21, 1996 needing assistance after they had exhausted their own resources. All fire agencies intended to agree the understanding that each jurisdiction provide adequate staffing and equipment to handle their day to day needs and the mutual aid would be used only for extraordinary events." He explained the ISO grading system for fire districts, which takes into account the water, number of people on duty, type of equipment, and size and number of buildings. Mr. Kraule respectfully requested that the 1500 GPM fire truck be purchased by the Odd Fellows project which would allow the fire district the ability to access the upper floors. In response to Councilmember Tucker's question, Mr. Kraule indicated on the wall map that in order for the fire trucks to have adequate access, the roads would have to be widened per fire codes. He stated that sprinkler systems would be utilized, and noted that the present buildings were updated with sprinkler systems, fire doors and smoke detectors. Mr. Kraule reported that the 4 fires responded to at the facility were cooking related fires. Councilmember Moran thanked Chief Kraule for addressing the ALS system which will reduce the amount of noisy traffic into the facility, which was a concern of the neighbors. Mr. Kraule explained that the reason the EIR was changed was the fact that having the Odd Fellows pay for a fire fighter continuously seemed unreasonable; and in looking at the second phase, the fire district did not feel it was reasonable. It was determined that a fire truck with an aerial ladder was necessary. Mayor Jacobs declared a recess at 10:12 p.m. Upon reconvening at 10:23 p.m. the same councilmembers and staff were present. Ms. Callon responded to issues and concerns addressed. She explained that it was appropriate to address the issue of the EIR process of the legal perspective under CEQA. The EIR is an informative document to lay out all the avenues of information, and then discuss mitigation measures. In the end it is the City Council, the final decision making body upon whose judgment is reliable to determine if (1) if there is a potential significant effect, and (2) if a mitigation measure is actually needed. She stated that it was in CEQA and her letter provided explanation. She stated for the record that this was the right time for this particular project. Responding to Mr. Ross' issue about public participation, Ms. Callon pointed out that there was significant public participation: the applicant participated; the fire district participated; and the public participated in the public hearings. Addressing the issue of the need for the fire truck, Ms. Callon stated that Chief Sporleder's statement that was attached to Chief Kraule's declaration did not state that mutual aid was not available; it does say that mutual aid is for extraordinary use when their own district's resources are not available. Saratoga Fire District does not have a need for an aerial. ladder because there are no tall buildings in Saratoga. She discussed the option of purchase of a ladder to be kept on the premises for use in an emergency. Mayor Jacobs questioned Exhibit B, Page 2, No. 6. He said that the applicant had requested that the language revert to something similar to the original option and that Odd Fellows not be required to first build the 11 units. Ms. Callon said that the applicant had stated that for the term of ten years they were willing to be obligated to either build according to the ll units on the 10.6 acres or build nothing during that time. Mayor Jacobs questioned if the applicant was willing to agree that it meant that in ten years if no building had occurred, the buildings would be limited in terms of size, and height, and revert to the same size and height as the 11 buildings that are now planned. Ms. Callon said applicant would reluctantly accept the density and intensity that the master plan allows after ten years, if that is what the Council wanted stipulated; the applicant could look at the intensity and density. She said applicant would ask for the master City Council Minutes ~ 14 February 21, 1996 plan or the underlying zoningiand general plan designation, which is residential subdivision. Councilmember Wolfe attempted rto clarify Mayor Jacobs' question, that if after a ten year period the applicant does not build out the 10.6 acres, and that if something i~ built there eventually, it won't be any more dense than was first planned. Ms. Callon said that if that is the only option left to get the approval, the Odd Fellows would agree. It is private property and a ten year commitment is a long time. She stated that the Planning Commission recommended that the buildings must be built before the second phase commences. Mayor Jacobs closed the public hearing at 10:38 p.m. Ms. Callon briefly discussed the memo from her office which contained blank areas to be completed for the development agreement, as well as minor issues. She requested that the comment section be completed at this meeting if the development agreement was introduced. She noted that in Condition C there needs to be added that the existing villas could be expanded as per the Phase I plan. Councilmember Moran said staff has recommended that the City Council approve this as recommended by' the Planning Commission, in particular the development agreement and the conditional use permit. The applicant has differed on some'issues. She asked staff to outline the areas that have different views and explain to the Council why staff is supporting the Planning Commission's recommendation for change. Community Development Director Curtis stated that staff supports the Planning Commission recommendations. He noted that the timing of the project addresses whether the duplexes will be built, when.they will be built, how the first phase will be built, the renovation of the existing building, and construction of the health center. He stated that the Planning Commission did not include the renovation or expansion of the villas in thelrecommendation, it would be consistent with their action. The intent of the phasing was primarily to address the neighbors' concern. Mr. Curtis explained that the development agreement could be amended by mutual consent of the Council and the applicant. He said that the only guarantee that the master plan will be implemented is by building the'cottages. In response to Councilmember Moran's question about street easements, Mr. Curtis stated that Crisp Avenue and Chester were put in because they couldn't plant now and would not affect construction activities. Mr. Curtis said that the applicant did request that the good faith effort condition be stricken. The Planning Commission' discussed the issue and letters were written to the neighbors; most of them came back indicating no interest, or a no thank you response, and the Planning Commission determined it as their good faith effort. Councilmember Moran questioned the possibility of asking the applicant not to object if after ten years there was a safety problem; they would agree in advance not to contest any City effort to put a joint mouth together for that road. Mr. curtis responded that it was not discussed as an option at the Planning Commission level. He said that a condition could be added to require an easement be granted to be accepted at the discretion of the City. Mr. Curtis said that it would mean that if proceedings took place in the future, the land on the Odd Fellows' side would be available for public access and use. Public Works Director Perlin said that there was no reason the City could not require an offer of dedication to be made now. He explained that it did not have to be accepted by the City, but it could be recorded, and at some future time, the City could accept it if there was an opportunity to do something with the Odd Fellows driveway and San Marcos Road. If nothing could be done, the offer could be abandoned, terminated or allowed to expire. The offer of dedication would come from Odd Fellows. In response to MayOr Jacobs' ~estion about the operating memoranda City Council Minutes 15 February 21, 1996 clause, Mr. Curtis explained that the clause could be stricken and still meet the intent. He said that one of the discussions staff had with the Planning Commission was that the development agreement was similar to Greenbriar's and is appropriate because most development agreements have boiler plate sections. He pointed out that 9.3 was specifically of concern to Greenbriar because of the kind of activity they were involved in. A lengthy discussion ensued regarding 9.3 wherein staff answered questions. Mr. Curtis explained that internal changes could be handled by staff without a public hearing. He pointed out that changes of property use such as office to living space would be handled under the annual review. In response to Mayor Jacobs' request for clarification on the order of development, Mr. Curtis explained that the Odd Fellows could renovate the existing building, build the new health center, but they could not build new buildings on the old parcel. He said that expansion of the villas as part of the first phase prior to the construction of the ll cottages was an issue because people would have to be moved while renovations were occurring. Mr. Curtis said that under the amended Condition No. 6, the dedication of the open space easements on the riparian corridor and the 10.6 acres has to occur before anything else can happen. It locks in the requirement for either open space or cottages. Mayor Jacobs questioned why the Odd Fellows should be forced to build out on the 10.6 acres if they concluded that, for financial reasons, they are not going to build for the next 25 years, but they want to do it on the old portion; why not let them do it on the old portion? Mr. Curtis explained that it was the only way to ensure that there would not be future battles over the land use on the 10.6 acres. Discussion continued regarding the conditions of the development agreement wherein staff answered questions. Discussion ensued regarding Mr. Borelli's concerns about why the landscaping was not put in with the first phase of Crisp Avenue and Chester. Mr. Curtis said that if the landscaping was put in, it could interfere with construction. He said a solution could be worked out regarding the 40 foot corridor which is a minor issue. He said that relative to the entire perimeter landscaping up front, there is a significant amount of natural buffer there now. With the exception of Crisp and Chester and Mr. Borelli's 40 foot corridor, the remainder could wait until development occurs. In response to Councilmember Wolfe's question, Mr. Curtis recommended that staff work with the applicants and property owner to address the issue and leave it to his office's discretion. Staff could return to the Planning Commission or City Council if it didn't work out. Following a brief discussion, City Attorney Riback clarified that if the EIR is certified, the Council would have to consider whether to make the change recommended by the EIR consultant. He said that the Council would not need to make the findings in order to certify the EIR, but would have to consider the issue that Laura Worthington Forbes has raised. MORAN/TUCKER MOVED TO ADOPT RE8OLUTION 96-11 CERTIFYING THE EIR AS AMENDED BY THE CONSULTANT. PASSED 5-0. A lengthy discussion continued. Mayor Jacobs stated that he had reviewed the material including the letter from James McMullin and saw no justification for requiring Odd Fellows or the City to purchase a new fire engine because of the proposed project. He explained that the Saratoga Fire District has its own budget and source of revenue which is from property taxes, and when needs expand in the fire district, they buy new equipment to meet those needs. The fire district may feel the need for a new engine with an aerial ladder, but it is the fire district's obligation to determine what the needs are based on the City Council Minutes 16 February 21, 1996 community and find ways in t~eir own budget to fund those needs. Mayor Jacobs reiterated thatieventuallY the fire district is going to have to buy a new truck, and if at the time they purchase the truck, they feel they need an aeriai ladder, they will have to bear the cost of it. He said he felt the ~applicants should be required to put 35 foot ladders on the property,~which should be a condition of approval. He recommended that the Council consider the proposal that Odd Fellows contribute an amount of money to the fire district, approximately 4% or $12,000, toward the eventual cost of a fire truck which is a fair and reasonable contribution toward additional fire protection. Councilmember Moran said she agreed with that position, and if any funds were requested for the fire truck, the funds be put into a separate account until the truck is purchased. If the purchase of the fire truck .did not occur within a reasonable time period, the money could be returned to the Odd Fellows. Councilmember Wolfe commended=Chief Kraule for the excellent job he has done. He pointed out that in'order to keep Saratoga a safe city, the fire chief wishes to have the maximum equipment on site. He pointed out that other cities' equipment is available to the City of Saratoga in a severe need under the mutual aid agreement. Councilmember Burger' expressed concern about the vagueness of the provision for storing 35 foot ladders on site. If the need is specified in a condition, she stated that the number and storage location needs to be considered. She suggested that part of the condition ought to be that it be determined by the fire chief working with the Odd Fellows. City Attorney Riback stated that what he envisioned was that Council would consider affirmative action on the motion to certify the EIR with the proposed change and that the development agreement with 'modifications be introduced, or the ordinance be introduced this evening. He suggested that Council provide the appropriate comments in order that staff could make changes in the conditions of approval and in the CEQA findings to bring back to Council. Following a brief discussion, City Attorney Riback recommended that the only other item to act onthis!evening would be the introduction of the ordinance approving the development agreement because he pointed out that changes needed to be madelto the CEQA findings based on the change approved in the EIR, and rather than make those changes at the late hour in the meeting, he would prefer they be presented at the March 6 meeting. He clarified that action on the general plan amendment cannot be taken at this evening's meeting either. MORAN/WOLFE TO INTRODUCE THE ORDINANCE APPROVIN~ THE DEVELOPMENT AGREEMENT AS RECOMMENDED BY THE PLANNING COMMISSION. PASSED 5-0. (Clerk's note: See amendment below.) Mayor Jacobs suggested that discussion commence on the proposed changes with regard to the use permit; design review request and development agreement. Councilmember Burger asked C0uncilmember Moran if the motion she presented was meant to introduce the development agreement without any changes. Councilmember Moran responded that she was referring to the changes proposed by the Planning Commission. City Manager Peacock clarified that further changes could be made, voted on, and introduce the ordinance as amended. Councilmember Moran said she was in favor of the change on Page 6 which is the process for making changes, stating that it provides enough flexibility so that the removal of that section by the Planning Commission is a reasonable one. Councilmember Tucker stated that she was unclear what Councilmember Moran was in favor of. City Council Minutes 17 February 21, 1996 It was clarified that Councilmember Moran was in favor of deleting 9.3. Councilmember Moran said she agreed with the staff analysis that it was reasonable to delete it and still have flexibility on the part of the applicant and greater participation on the part of the City. Councilmember Moran further explained that on Page 11, 17.1, transfer of property clause, it appeared that the Odd Fellows are saying they have no intention of ever transferring property. She stated she supported the change made by the Planning Commission. In terms of Exhibit B changes, they have been discussed in detail. She said she favored the preference fo~ Saratogans, that they be given preference in terms of knowing about and moving into this facility. Councilmember Moran said she was in favor of leaving the Planning Commission recommendation for the phasing of the property, Section 6. Councilmember Tucker said she needed clarification on the operating memoranda. She understood that staff felt a problem occurred with the last sentences, beginning with "for instance". It creates a lot of restrictions, but keeps the necessity for public hearings down or keeps the applicant from waiting a year before they can address issues with the Council and move forward. She said she would feel comfortable with the elimination of the term "for instance" and putting the section back in. In response to Councilmember Tucker's concern, Councilmember Moran said she supported that Odd Fellows be limited in the first phase to developing the existing orange building, remodeling expanded villas, the hospital and the 11 villas on 10.6 acres. Mayor Jacobs indicated that the operating memoranda clause was a unique clause which was normally not included in the agreements. He said he was comfortable with staff's statement that they would not have to bring all items to the Council; that the Planning Department would be able to exercise discretion on minor and major items, thus eliminating the need for the clause. Councilmember Burger questioned the reason for removal of the clause if it was not going to make any difference whether or not it went back to the Council. She stated she agreed with Councilmember Tucker. Councilmember Wolfe stated that if the flexibility remains in the hands of the staff, there was no harm in keeping the clause. Councilmember Tucker stated she would allow a little more flexibility in having them dedicate the riparian open space. Following a brief discussion wherein staff answered questions, there was consensus to remove the clause. Mayor Jacobs clarified that there was consensus to leave the following text in on Exhibit B, Page 2, Section A: "prior to the issuance of building permits for any construction whatsoever and further into the master plan, developer will dedicate and record a private open space easement that restricts future development of the 10.6 acre parcel to substantially conform to the master plan." Referring to Page 2 of Exhibit B, "Prior to issuance of building permits for construction of any new buildings or structures and further into the master plan, developer shall construct and obtain final occupancy approval for all of the duplex cottage units, maximum 11 duplex units, on the 10.6 acre parcel," Mayor Jacobs indicated that Councilmember Moran recommended leaving the text as is; and he suggested, following discussions, that they should be allowed to build out the new buildings on the older portion of the property and leave the 10.6 acre parcel to last if they chose, or not develop at all. Councilmember Burger concurred and expressed concern that putting it back in doesn't recognize economic realities over a period of time. Discussion continued regarding dedication of open space easement and development of the 10.6 acres. City Council Minutes i 18 February 21, 1996 Councilmember Moran said that she agreed with Councilmember Burger that the Council is not trying t~ make financial decisions for the Odd Fellows and demand that they !do things in certain order, but merely looking for assurances that the open space,' intensity and density of development is not exceeded. City Manager.Peacock summarized that the open space easement has to be dedicated before any buildingspermits are issued, and development on the 10.6 acres can only be as shown on the master plan or the open space easement is going to stay in perpetuity. Mr. Curtis stated that if the Odd Fellows decided they wanted to sell the 10.6 acres and did not want to develop it, they would have to go to the City and ask the City to abandon the open space easement; with no guarantee of abandoning the open space easement. He emphasized that is the reason the Planning Commission wanted the cottages built, so the Odd Fellows would not return and ask for a change. Following further discussion about open space easements, Councilmember Moran suggested that the motion be changed to change Exhibit B, No. 6 to have a title of dedication of open space easements, and for it to include 6A and not 6B. MORAN/WOLFE AMENDED MOTION TO. INTRODUCE THE ORDINANCE APPROVING THE DEVELOPMENT AGREEMENT AS AMENDED BY THE PLANNING COMMISSION, CHANGING EXHIBIT B, NO. 6 TO HAVE A TITLE OF DEDICATION OF OPEN SPACE EASEMENT, AND FOR IT TO INCLUDE 6A AND NOT 6B. ADDITIONAL LANGUAGE WILL BE IN THE EASEMENT DOCUMENT. PASSED 5-0. (Clerk's note: See amendment below.) Mayor Jacobs addressed two items brought up by the applicant: Page 11, No. 17, Right to Assign. Applicant objected to consent of the City as opposed to notice from the City. Councilmember Burger stated she was not comfortable with requiring the' property only be assigned with Council's consent. Councilmember Moran stated that she was in favor of the requirement because Council is giving this. privilege to the Odd Fellows facility, it is a partnership agreement and prior written consent, which consent shall not be unreasonably withheld, offers protection for everybody. Councilmember Burger concurred .that the City has a reasonable interest, but expressed concern about extending that to Council's ability to halt any change in the assignmen~ of that property without Council's consent. City Attorney Riback clarified]that it was not a legal question, but a policy question. Councilmember Burger said she felt it was not appropriate. Mayor Jacobs said he did not have a problem with the requirement. City Attorney Riback pointed out that the shaded language is in the Greenbriar development agreement; it was initially removed from this agreement at the request of the applicant and the Planning Commission put it back because they were c6ncerned about the possibility of them selling that property. Mr. Curtis explained that it is in the agreement to allow the City to review potential purchasers to see if the intent of the original approval and the development agreement are going to be fulfilled or problems may occur. Mayor Jacobs stated that the residency criteria in Exhibit B was a concern of the applicant. Applicant has expressed the desire to be able to offer residency to Saratogans earlier than 60 days. If agreeable that the language should bechanged to allow Odd Fellows to offer the units earlier that perhaps the City Attorney in conjunction with their attorney can work out the language. Councilmember Moran amended her previous motion to reflect changes in City Council Minutes 19 February 21, 1996 Section 1A to allow offering units to people within Saratoga at the earliest possible date. City Attorney Riback suggested that the modifications that the applicant's legal counselhas proposed to the development agreement be made except for the last recommendation regarding Paragraph 6B. City Manager Peacock clarified that Paragraph ll.1 states 1996 and should be changed to 1997. The Council commended the staff, Planning Commission and consultants for the excellent job and for addressing many concerns of the neighbors and others. Relative to the use permit, Mayor Jacobs stated that he was not opposed to the letter being written to the neighbors. City Manager Peacock suggested using the standard wording that they waive the right to protest the formation of an assessment district to build a public street. Councilmember Moran said that Council should err on the side of caution because there is no way of knowing what will happen in ten years. Public Works Director Perlin explained that the status of San Marcos Road was not known. 'It may be that the property owners along the road own a piece of the road across their property; anybody else beyond them might have a right of way across there. He said it may be possible that the only property owner to deal with is the very first property owner, whoever it may be, and if that property owner was willing, there may be a way to bring the two driveways together and create a better access road off Fruitvale. He said that preserving the option and encouraging the Odd Fellows to pursue it is a good idea. Councilmember Burger requested to peruse the language of the use permit when it is presented again. Mayor Jacobs moved the agenda back to Item 7B. 7. B. Cable Television Franchise - Request for Transfer of Ownership (continued from 12/20/95 City Manager Peacock reviewed the proposed franchise agreement to transfer the cable franchise from Brenmor to TCI Cable as outlined in the staff report. He distributed a list of proposed changes, noting that staff felt they were not substantive. He explained that some of the transfer language has been modified to reflect recent legislation, FCC rulings and judgements. City Manager Peacock explained that there is an area of Saratoga that is served by San Jose and it creates a problem because the San Jose system is not compatible with Saratoga's system. The issue is whether the company should spend $60,000 to change the system without any input from the neighborhood if they want to change. If the neighbors don't change they will not be able to community access Channel 6. He explained that the agreement states that the company will either rebuild the system or ask for relief from the system requirement. TCI Cable would apply for a franchise to serve that particular area alone. City Manager Peacock pointed out that there is a strong difference of opinion relating to Page 11, Sections 9D and 10. He stated that it makes it impossible for the City to evaluate a request for rate increases when there is no financial data available to indicate the basis by which the request is being made. City Manager Peacock stated that it was important to have agreement on Items 9D and 10, and he said he was not satisfied at this point that the company's position is something he could recommend to the City Council. There is a deadline of February 29 under FCC rules to either grant or deny the transfer request. It is possible to discuss the matter further and reach a decision at the next City Council Meeting on City Council Minutes ! 20 February 21, 1996 ~ February 27. Mr. Peacock statad that he was not recommending denial of the application at this evening's meeting. Mr. Richard Patch, attorney, lrepresenting Brenmor Partners and TCI Cable, stated that he and the city Manager had made considerable progress with the exception oE the two articles. He pointed out that the principal positions on bot~ sides were fairly rigid, not to suggest that there can't be a resolutfon. He stated that the provision of the payment of penalties is unlawful. He stated it was not in the present franchise so the imposition of the penalty as part of the transfer is a unilateral amendment of the franchise without their consent. He stated it was also a violation of the 5% franchise limitation because there is no action causing any loss or damage. He said they were=willing to work with the City, but the provision stating that 100% of the profits go over without regard to how it fits into the other regulatory issues is something that cannot be agreed to. Mr. Patch said that the request for financial statements is similar to a request for an entity that doesn't exist because the company does not do business just in Saratoga. There is no set of books that applies to Saratoga alone. He said that when an attempt was made to penetrate the issue with the City Manager, the real issue was not a concern of seeing stable financial stability of the company, checking into franchise fee payments, but in fact was a concern arising out of rate regulation. Mr. Patch stated that all requests for documents the City is entitled to request under FCC regulations will be honored within 60 days of demand, or it will be deemed and they would agree that it is a material breach of the franchise. He reiterated that it was not possible to create documents that do not exist for a sole purpose. Mr. Patch emphasized that he was willing to work with staff to come to an amicable solution. Mayor Jacobs suggested continuing discussion of the item to the next City Council meeting. City Attorney Riback clarified that City Council did not have the authority to meet in closed session regarding the item. The Brown Act is very specific about criteria for meeting in closed session. He suggested that a subcommittee be appointed to work with the City Manager to discuss the matter with the applicant. In response to Councilmember Wolfe's comments, Mr. Patch reiterated that the company financial statements do not differentiate different cities. He pointed out that.the City of Milpitas did not request financial statements for the city. TUCKER/MORAN TO REQUEST CITY 'MANAGER TO CONTINUE NEGOTIATION8 AND APPOINT A SUBCOMMITTEE OF THE'MAYOR TO CONFERENCE WITH CITY MANAGER REGARDING THE TRANSFER OF CABLE FRANCHISE.. PASSED 5-0 8. MEW BUSIMESS A. Oral Communications (continued) and instructions to staff regarding actions on current oral communications - None. Mayor Jacobs moved the agenda to Item 11. 11. ADJOURNMENT BURGER/WOLFE TO ADJOURN THE MEETING AT 12:27 A.M. (2/22/96) TO THE MEETING AT 7500 P.M. ON TUESDAY, FEBRUARY 27, 1996 AT ADMINISTRATION MEETING ROOM, 13777 FRUITVALE AVENUE. tf~ll~itted, Elizabeth Ellis ~ Minutes Clerk