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Agenda Packet 090908
M, X19$' ,979 CITY OF A TASCADERO CITY COUNCIL AGENDA Tuesday, September 9, 2008 City Council: 6:00 P.M. City Hall Council Chambers 6907 EI Camino Real, Atascadero, California REGULAR SESSION: 6:00 P.M. PLEDGE CSF ALLEGIANCE: Mayor Pro Tem Beraud I ROLL CALL; Mayor Brennler Mayor Pro Tem Beraud Council Member Clay Council Member Luna Council Member O'Malley APPROVAL O� AGENDA: Roll Call PRESENTATION: 1. Recognition of Steven B. Kahn, City Engineer/ Director of Public Works, for his years of service to the City of Atascadero 1 A. CONSENT CALENDAR: (All items on the consent calendar are considered to be routine and non-controversial by City staff and will be approved by one motion if no member of the Council or public wishes to comment or ask questions. If comment or discussion is desired by anyone, the item will be removed from the consent calendar and will be considered in the listed sequence with an opportunity for any member of the public to address the Council concerning the item before action is taken. DRAFT MINUTES: Council meeting draft minutes are listed on the Consent Calendar for approval of the minutes. Should anyone wish to request an amendment to draft minutes, the item will be removed from the Consent Calendar and their suggestion will be considered by the City Council. If anyone desires to express their opinion concerning issues included in draft minutes, they should share their opinion during the Community Forum portion of this meeting.) 1. City Council Draft Minutes — May 27, 2008 ■ Recommendation: Council approve the City Council Meeting Minutes of May 27, 2008. [City Clerk] 2. Observance of Veterans Day - Proposed Cancellation of City Council Meeting on November 11, 2008 ■ Fiscal Impact: None. ■ Recommendation: Council authorize staff to cancel the City Council meeting of November 11, 2008, as it is a national holiday, noting the next regularly scheduled meeting will be on November 25, 2008. [City Clerk] 3. Atascadero Creek Reservation No. 3 - Acceptance of Quitclainy Deed and Acceptance of Assignment and Assumption of Lease (Revised) ■ Description: Atascadero Creek Reservation No. 3 is the pc rtion of Atascadero Creek from the EI Camino Real Bridge to the Lewis"Avenue Bridge. The Atascadero Unified School District currently owns this"'property and the Atascadero Historical Society holds a lease on this property. ■ Fiscal Impact: There are no direct fiscal impacts resulting ,'from the acceptance of Atascadero Creek Reservation # 3. There maybe future fiscal impacts associated with the acquisition, such as leal costs, maintenance and irrigation. ■ Recommendations: Council adopt the Draft Resolution, thereby: 1. Accepting interest in real property conveyed by the QuitclaimDeed dated October 02, 2007 from the Board of Trustees of the Atasca�ero Unified School District; and, 2. Accepting Assignment and Assumption of the Atascadero Historical Society Lease to the City. [City Manager] 4. Purchase of Two Police Patrol Vehicles ■ Fiscal Impact: The combined cost of both vehicles is $51,908.74 including sales tax, shipping fees and mandatory tire fees. Funds are provided in the 2008/2009 City Budget. ■ Recommendation: Council authorize the purchase of two (2) police patrol vehicles from Downtown Ford Sales in Sacramento California at a total cost of $51,908.74. [Police] 2 5. Balboa Road Emergency Access Grading Improvements ■ Fiscal Impact: An additional $15,060.00 over what was previously budgeted for this project. ■ Recommendation: Council authorize the Administrative Services Director to re-direct an additional $15,060.00 in Local Transportation Funds from the Road Rehabilitation 5-Year Maintenance Project to the Balboa Road Project. [Public Works] 6. Final Map 2008-0169 (Parcel Map AT 07-0290) 7095 EI Camino Real (TPM 2007-0093) - Adam Scattini ■ Fiscal Impact: None. ■ Recommendations: Council: 1. Adopt and approve Final Parcel Map 2008-0169 (Parcel Map AT 07- 0093); and, 2. Authorize and direct the City Clerk to endorse the Council's approval on the Map. [Public Works] COMMUNITY FORUM: (This portion of the meeting is reserved for persons wanting to address the Council on any matter not on this agenda and over which the Council has jurisdiction. Speakers are limited to three minutes. Please state your name for the record before making your presentation. The Council may take action to direct the staff to place a matter of business on a future agenda. A maximum of 30 minutes will be allowed for Community Forum, unless changed by the Council.) B. PUBLIC HEARINGS: 1. Federal Emergency Management Agency Requirement: Flood Damage Prevention Ordinance ■ Disclosure of Ex Parte Communications: ■ Fiscal Impact: None. ■ Recommendation: Council introduce for first reading, by title only, a Draft Ordinance, amending Title 7, Chapter 11 of the Atascadero Municipal Code pertaining to Flood Damage Prevention. [Public Works] 2. Dormant Building Permit Applications Time Extensions -Title 8 Code Text Amendments ■ Disclosure of Ex Parte Communications: ■ Fiscal Impact: Collection of unpaid plan check fees is estimated to provide a financial benefit to the City of approximately $150,000±. ■ Recommendation: Council introduce for first reading by title only the Draft Ordinance, amending Title 8 to retroactively extend dormant and expired single family residential, multi-family residential, industrial, and commercial building permit applications to June 30, 2010, once all outstanding, unpaid plan check fees have been paid; and to clarify the City's building permit fee refund policy and Board of Appeals membership. [Community Development] 3 C. MANAGEMENT REPORTS 1. Informational Background Report — Drive-Throughs — Overview of Zoning Issues and Impacts ■ Fiscal Impact: None. ■ Recommendation: Council provide staff and Planning Commission with policy interpretation and direction on drive-through facilities. [Community Development] 2. Second Update on Economic Development Strategy ■ Fiscal Impact: None. ■ Recommendation: Council receive an update from representatives of Applied Development Economics on their progress to date regarding the economic development strategy. [City Manager] 3. Proposed Government Channel Access Policy ■ Fiscal Impact: There is no fiscal impact to the City as a result of approving the attached Policy. However, funding is not available for the City to support programming of the government access channel at this time. ■ Recommendation: Council approve the attached draft Government Access Channel Policy for the City of Atascadero. [City Manager] 4. Ordinance Amending Title 2, Chapter 1, Section 2-1.15 of the Atascadero Municipal Code, Pertaining to Voluntary Abstentions ■ Description: This Ordinance, if adopted, would clarify the interpretation of an abstention vote. ■ Fiscal Impact: None. ■ Recommendation: Council introduce for first reading, by title only, the Draft Ordinance amending Title 2, Chapter 1, Section 2-1.15 of the Atascadero Municipal Code pertaining to voluntary abstentions. [City Attorney] COUNCIL ANNOUNCEMENTS AND REPORTS: (On their own initiative, Council Members may make a brief announcement or a brief report on their own activities. Council Members may ask a question for clarification, make a referral to staff or take action to have staff place a matter of business on a future agenda. The Council may take action on items listed on the Agenda.) D. COMMITTEE REPORTS: (The following represent standing committees. Informative status reports will be given, as felt necessary): Mayor Brennler 1. County Mayor's Round Table 2. Air Pollution Control District (APCD) 3. Finance Committee Mayor Pro Tem Beraud 1. Integrated Waste Management Authority (IWMA) 2. City/ Schools Committee 4 Council Member Clay 1. City/ Schools Committee 2. Atascadero Youth Task Force Council Member Luna 1. Finance Committee Council Member O'Malley 1. S.L.O. Council of Governments (SLOCOG) 2. S.L.O. Regional Transit Authority (SLORTA) 3. Economic Vitality Corporation, Board of Directors (EVC) 4. League of California Cities — Council Liaison and CITIPAC Board Member E. INDIVIDUAL DETERMINATION AND/OR ACTION: 1. City Council 2. City Clerk 3. City Treasurer 4. City Attorney 5, City Manager F. ADJOURNMENT: Please note: Should anyone challenge any proposed development entitlement listed on this Agenda in court, that person may be limited to raising those issues addressed at the public hearing described in this notice, or in written correspondence delivered to the City Council at or prior to this public hearing. Correspondence submitted at this public hearing will be distributed to the Council and available for review in the City Clerk's office. I, Victoria Randall, Deputy City Clerk of the City of Atascadero, declare under the penalty of perjury that the foregoing agenda for the September 9, 2008 Regular Session of the Atascadero City Council was posted on September 2, 2008 at the Atascadero City Hall, 6907 EI Camino Real, Atascadero, CA 93422 and was available for public review in the Customer Service Center at that location. Signed this 2"d day of September, 2008 at Atascadero, California. Vic aria Randall, Deputy City Clerk City of Atascadero 5 City of Atascadero WELCOME TO THE ATASCADERO CITY COUNCIL MEETING The City Council meets in regular session on the second and fourth Tuesday of each month at 6:00 p.m. unless there is a Community Redevelopment Agency meeting commencing at 6:00 p.m. in which event the Council meeting will commence immediately following the conclusion of the Community Redevelopment Agency meeting. Council meetings will be held at the City Hall Council Chambers, 6907 EI Camino Real, Atascadero. Matters are considered by the Council in the order of the printed Agenda. Copies of the staff reports or other documentation relating to each item of business referred to on the Agenda are on file in the office of the City Clerk and are available for public inspection during City Hall business hours at the Front Counter of City Hall, 6907 EI Camino Real, Atascadero, and on our website, www.atascadero.org. An agenda packet is also available for public review at the Atascadero Library, 6850 Morro Road. Contracts, Resolutions and Ordinances will be allocated a number once they are approved by the City Council. The minutes of this meeting will reflect these numbers. All documents submitted by the public during Council meetings that are either read into the record or referred to in their statement will be noted in the minutes and available for review in the City Clerk's office. Council meetings are video taped and audio recorded, and may be reviewed by the public. Copies of meeting recordings are available for a fee. Contact the City Clerk for more information (470-3400). In compliance with the Americans with Disabilities Act, if you need special assistance to participate in a City meeting or other services offered by this City, please contact the City Manager's Office or the City Clerk's Office, both at (805) 470-3400. Notification at least 48 hours prior to the meeting or time when services are needed will assist the City staff in assuring that reasonable arrangements can be made to provide accessibility to the meeting or service. TO SPEAK ON AGENDA ITEMS (from Title 2, Chapter 1 of the Atascadero Municipal Code) Members of the audience may speak on any item on the agenda. The Mayor will identify the subject, staff will give their report, and the Council will ask questions of staff. The Mayor will announce when the public comment period is open and will request anyone interested to address the Council regarding the matter being considered to step up to the lectern. If you wish to speak for, against or comment in any way: 1. You must approach the lectern and be recognized by the Mayor 2. Give your name and address (not required) 3. Make your statement 4. All comments should be made to the Mayor and Council 5. No person shall be permitted to make slanderous, profane or negative personal remarks concerning any other individual, absent or present 6. All comments limited to 3 minutes 7. No one may speak for a second time until everyone wishing to speak has had an opportunity to do so, and no one may speak more than twice on any item. If you wish to use a computer presentation to support your comments, you must notify the City Clerk's office at least 24 hours prior to the meeting. Digital presentations brought to the meeting on a USB drive or CD is preferred. Access to hook up your laptop to the City's projector can also be provided. You are required to submit to the City Clerk a printed copy of your presentation for the record. Please check in with the City Clerk before the meeting begins to announce your presence and turn in the printed copy. The Mayor will announce when the public comment period is closed, and thereafter, no further public comments will be heard by the Council. TO SPEAK ON SUBJECTS NOT LISTED ON THE AGENDA Under Agenda item, "COMMUNITY FORUM", the Mayor will call for anyone from the audience having business with the Council to: • Please approach the lectern and be recognized • Give your name and address (not required) • State the nature of your business This is the time items not on the Agenda may be brought to the Council's attention. A maximum of 30 minutes will be allowed for Community Forum (unless changed by the Council). 6 ITEM NUMBER: A-1 ITEM NUMBER: A-1 DATE: 9109/08 1918 m ® 19]8 CITY OF A TASf'* \ � CITY COUNCIL ©RAFT MINUTES Tuesday, May 27, 2008 REGULAR SESSION: Immediately following the conclusion of the 6:00 p.m. Redevelopment Agency meeting Mayor Brennler called the meeting to order at 7:55 p.m. and Mayor Pro Tem Beraud led the Pledge of Allegiance. ROLL CALL: Present: Council Members Y Clay, Luna, O'Malley, Beraud, and Mayor Brennler Absent: None Others Present: City Clerk /Assistant to City Manager Marcia McClure Torgerson Others Present: City Manager Wade McKinney, Administrative Services Director Rachelle Rickard, Community Development Director Warren Frace, Public Works Director Steve Kahn, Community Services Director Brady Cherry, Acting Lt. Brian Dana, Deputy Public Works Director David Athey, and City Attorney Brian Pierik. APPROVAL OF AGENDA: MOTION: By Council Member Luna and seconded by Mayor Pro Tem Beraud to approve the agenda. Motion passed 5:0 by a roll-call vote. CC Draft Minutes 05/27/08 Page 1 of 13 7 ITEM NUMBER: A-1 ITEM NUMBER: A-1 DATE: 9/09/08 PRESENTATION: 1. Recognition of Ryan Carden, Former Parks & Recreation Commission Youth Representative Mayor Brennler recognized Ryan Carden for his exemplary service as a Youth Representative to the Parks and Recreation Commission and presented him with a plaque. Ryan Carden expressed his appreciation for the experience of serving on the Commission and thanked the Council for the plaque. A. CONSENT CALENDAR: 1. March 2008 Accounts Payable and Payroll ■ Fiscal Impact: $ 1,881,328.87. ■ Recommendation: Council approve certified City accounts payable, payroll and payroll vendor checks for March 2008. [Administrative Services] 2. April 2008 Accounts Payable and Payroll ■ Fiscal Impact: $ 1,895,612.76. ■ Recommendation: Council approve certified City accounts payable, payroll and payroll vendor checks for April 2008. [Administrative Services] 3. November 2007 Investment Report ■ Fiscal Impact: None ■ Recommendation: Council approve the City Treasurer's report for November 2007. [Treasurer] 4. December 2007 Investment Report ■ Fiscal Impact: None ■ Recommendation: Council approve the City Treasurer's report for December 2007. [Treasurer] 5. Contract for Services Provided by Kermani Consulting Group for First Level Appeal of Proiect Worksheet for Historic City Hall ■ Fiscal Impact: $25,000.00 in budgeted Historic City Hall Rehabilitation Funds. ■ Recommendation: Council approve a change order to the contract with Kermani Consulting Group in the additional amount of $25,000 for continued services related to the City's first level appeal of FEMA's project worksheet for historic City Hall. [City Manager] 6. Temporary Road Closure — Hot EI Camino Cruise Nite 2008 ■ Fiscal Impact: The cost of this event is approximately $13,750. It is anticipated that these costs will be fully recovered through sponsorships and entry fees. CC Draft Minutes 05/27/08 Page 2 of 13 8 ITEM NUMBER: A-1 DATE: 9/09/08 ■ Recommendation: Council approve the Draft Resolution authorizing the closure of EI Camino Real, from Curbaril Avenue to Traffic Way, San Luis Avenue from Curbaril to Pueblo, Pueblo from San Luis Avenue to EI Camino Real, Palma Avenue from West Mall to Traffic Way, Entrada Avenue from EI Camino Real to Lewis Avenue and Traffic Way from Lewis Avenue to EI Camino Real, on Friday, August 15, 2008 from 5:00 p.m. - 8:30 p.m. Additionally, we recommend the closure of East Mall and West Mall from EI Camino Real to Lewis Avenue and Palma Avenue between East Mall and West Mall from 1:00 p.m. — 10:00 p.m. [Community Services] 7. Atascadero Corporation Yard Relocation Change Order #5 (City Bid No. 2005-031 ■ Fiscal Impact: $27,844 in previously allocated Project funds. ■ Recommendations: Council: 1. Authorize the City Manager to execute Change Order #5 with Wysong Construction in the amount of $27,844.00 for improvements to the new Public Works Corporation Yard Building; and, 2. Authorize the City Manager to execute additional future change orders up to $10,000 as necessary for completion of the Public Works Corporation Yard Building. [Public Works] Eric Greening pulled Consent Item #6. MOTION: By Council Member O'Malley and seconded by Council Member Clay to approve Consent Items #A-1, 2, 3, 4, 5, and 7. Motion passed 5:0 by a roll-call vote. Eric Greening urged approval of this item but noted that it will greatly affect transit users. He suggested considerable signage and warnings for those who ride the local north county transit, as well as the county transit. MOTION: By Council Member O'Malley and seconded by Council Member Clay to approve Consent Item #A-6. Motion passed 5:0 by a roll-call vote. (Item #A-6 Resolution 2008-035) COMMUNITY FORUM: Chuck Ward, Board Member of the Veterans' Memorial Foundation, asked everyone to reflect on those people who have given their lives for our freedom. He briefly described the Veterans' Memorial that will be constructed in Atascadero. Heather Young Curry, Young Curry Photography, invited everyone to attend the Atascadero Art Tour being held Friday, May 30th, beginning at 5:30 p.m. She encouraged everyone to come out and support local businesses. (Exhibit A) CC Draft Minutes 05/27/08 Page 3 of 13 9 ITEM NUMBER: A-1 DATE: 9/09/08 David Broadwater, stated that some Council Members continue to make unsubstantiated allegations against local organizations and citizens. He encouraged the Council to take some sort of concrete action against the Council Member who used the threat of physical violence against a fellow Member. Tom Comar, spokesperson for Oppose Wal-Mart, stated he witnessed the threat of physical violence at the public workshop and encouraged taking action against the Council Member. He also gave supporting information to defend his organization against false accusations. Ron Rothman, stated that he does not see the need to change the way the Mayor is selected since it is not a topic of concern for the majority of the public. Joan O'Keefe, read from an article titled "O'Malley Threatens Mayor with Alley Brawl" on the website www.uncoveredslo.com. She asked that at the next public forum, there be microphones, that it be recorded and that the agenda be geared towards the capabilities of the participants. Ms. O'Keefe also asked that her questions from the last City Council meeting be answered with regards to who is in charge of enforcing preservation of the Printery. Eric Greening, asked the Council to always tape their meetings, with the exception of Closed Sessions. He spoke about the flaws in the proposed revised Governor's Budget, specifically the cuts to the State Transit Assistance Funding. Lee Perkins, stated she also wants an update on the Printery. She also asked that the stop signs at Curbaril and 101 be expedited. Ms. Perkins briefly spoke about the first annual Art Walk in Atascadero and thanked Heather Young Curry for her efforts. Joanne Main, reminded everyone that the UCSB Economic Forecast Forum will be held on Thursday, June 5th, from 7:30am — 11:00am, at the Pavilion on the Lake. Roberta Fonzi, urged Council to reconsider the elected Mayor issue and to bring it back to the community with more information. Jonalee Istenes, commented on the trash that is being strewn around the construction site of the new hotel on West Front and Highway 101 and suggested it be cleaned up. Mayor Brennler closed the Public Comment period. City Manager Wade McKinney said that a Printery update, including issues brought up this evening, will be available shortly in memo form for the Council and the public. Mr. McKinney also stated that staff will look into the trash issue on West Front. Council Member O'Malley said he thinks it would be helpful to look at some of the behaviors that were exhibited at the most recent meeting at the next public meeting with the facilitator. He expressed concern about the meeting not being televised and suggested that the Council may want to look at other consulting options. CC Draft Minutes 05/27/08 Page 4 of 13 10 ITEM NUMBER: A-1 DATE: 9109108 Council Member Clay stated that he attended the Memorial Day ceremonies at the cemetery. He commented on the large number in attendance and encouraged the public to attend in the future. He mentioned the sale of bricks for Veterans Memorial Project. Mayor Pro Tem Beraud stated that it was the recommendation of the consultant to not record the most recent meeting to enable a more comfortable environment. Mayor Brennler stated that the City Attorney is reviewing options and will come back with more information on having an elected Mayor. He stated, for the record, that he thinks that future public trust meetings should be recorded. Council Member Luna stated he is not pleased with how either of the first two sessions have gone. He would like to see future meetings recorded or televised in some fashion. Mr. Luna requested that there be a lot more structure with future meetings of this sort. B. PUBLIC HEARINGS: 1. Apple Valley Assessment Districts ■ Fiscal Impact: Annual assessments for 2008/2009 will total $35,889 for road/drainage system maintenance and $50,019 for landscaping and lighting maintenance. These amounts will be assessed to the owners of parcels in Apple Valley. The City General Fund will contribute $21,129 toward the cost of maintaining the park. ■ Recommendations: Council: 1. Adopt Draft Resolution A approving the final Engineer's Report regarding the Street and Storm Drain Maintenance District No. 01 — Apple Valley, and the levy and collection of annual assessments related thereto for fiscal year 2008/2009. 2. Adopt Draft Resolution B ordering the levy and collection of assessments for fiscal year 2008/2009 for Street and Storm Drain Maintenance District No. 01 —Apple Valley. 3. Adopt Draft Resolution C approving the final Engineer's Report regarding the Landscaping and Lighting District No. 01 — Apple Valley, and the levy and collection of annual assessments related thereto in fiscal year 2008/2009. 4. Adopt Draft Resolution D ordering the levy and collection of assessments for fiscal year 2008/2009 for Landscaping and Lighting District No. 01 —Apple Valley. [Administrative Services] Administrative Services Director Rachelle Rickard gave the staff report and answered questions of Council. PUBLIC COMMENT - None CC Draft Minutes 05/27/08 Page 5 of 13 11 ITEM NUMBER: A-1 DATE: 9/09/08 MOTION: By Council Member Luna and seconded by Council Member O'Malley to: 1. Adopt Draft Resolution A approving the final Engineer's Report regarding the Street and Storm Drain Maintenance District No. 01 —Apple Valley, and the levy and collection of annual assessments related thereto for fiscal year 2008/2009; and, 2. Adopt Draft Resolution B ordering the levy and collection of assessments for fiscal year 2008/2009 for Street and Storm Drain Maintenance District No. 01 — Apple Valley; and, 3. Adopt Draft Resolution C approving the final Engineer's Report regarding the Landscaping and Lighting District No. 01 — Apple Valley, and the levy and collection of annual assessments related thereto in fiscal year 2008/2009; and, 4. Adopt Draft Resolution D ordering the levy and collection of assessments for fiscal year 2008/2009 for Landscaping and Lighting District No. 01 —Apple Valley. Motion passed 5:0 by a roll-call vote. (Item #B-1.1 Resolution 2008-036, Item #B-1.2 Resolution 2008-037, Item #B-1.3 Resolution 2008-038, Item #B-1.4 2008-039) 2. De Anza Estates Assessment Districts ■ Fiscal Impact: Annual assessments for 2008/2009 will total $35,454 for road/drainage system maintenance and $30,457 for landscaping and lighting maintenance. These amounts will be assessed to the owners of parcels in De Anza Estates. There is no fiscal impact to general residents within the City. ■ Recommendations: Council: 1. Adopt Draft Resolution A approving the final Engineer's Report regarding the Street and Storm Drain Maintenance District No. 03 — De Anza Estates, and the levy and collection of annual assessments related thereto for fiscal year 2008/2009. 2. Adopt Draft Resolution B ordering the levy and collection of assessments for fiscal year 2008/2009 for Street and Storm Drain Maintenance District No. 03 — De Anza Estates. 3. Adopt Draft Resolution C approving the final Engineer's Report regarding the Landscaping and Lighting District No. 03 — De Anza Estates, and the levy and collection of annual assessments related thereto in fiscal year 2008/2009. 4. Adopt Draft Resolution D ordering the levy and collection of assessments for fiscal year 2008/2009 for Landscaping and Lighting District No. 03 — De Anza Estates. [Administrative Services] Administrative Services Director Rachelle Rickard gave the staff report and answered questions of Council. PUBLIC COMMENT CC Draft Minutes 05/27/08 Page 6 of 13 12 ITEM NUMBER: A-1 DATE: 9/09108 Jonalee Istenes, inquired if the walking paths in the DeAnza Estates area included in this Assessment District. Community Development Director Warren Frace responded that the trails have been accepted and fees will be collected for maintenance. Mayor Brennler closed the Public Comment period. MOTION: By Council Member Luna and seconded by Mayor Pro Tem Beraud to: 1. Adopt Draft Resolution A approving the final Engineer's Report regarding the Street and Storm Drain Maintenance District No. 03 — De Anza Estates, and the levy and collection of annual assessments related thereto for fiscal year 2008/2009; and, 2. Adopt Draft Resolution B ordering the levy and collection of assessments for fiscal year 2008/2009 for Street and Storm Drain Maintenance District No. 03 — De Anza Estates; and, 3. Adopt Draft Resolution C approving the final Engineer's Report regarding the Landscaping and Lighting District No. 03 — De Anza Estates, and the levy and collection of annual assessments related thereto in fiscal year 200812009; and, 4. Adopt Draft Resolution D ordering the levy and collection of assessments for fiscal year 2008/2009 for Landscaping and Lighting District No. 03 — De Anza Estates. Motion passed 5:0 by a roll-call vote. (Item #B-2.1 Resolution 2008-040, Item #B-2.2 Resolution 2008-041, Item #B-2.3 Resolution 2008-042, Item #B-2.4 Resolution 2008- 043) 3. Woodridge (Las Lomas) Assessment Districts ■ Fiscal Impact: Annual assessments for 2008/2009 will total $40,820 for road/drainage system maintenance and $156,885 for landscaping and lighting maintenance. These amounts will be assessed to the owners of parcels in Woodridge (Las Lomas). The City General Fund will contribute $3,769 toward the cost of the trails, once these improvements are accepted by the City. ■ Recommendations: Council: 1. Adopt Draft Resolution A approving the final Engineer's Report regarding the Street and Storm Drain Maintenance District No. 02 — Woodridge (Las Lomas), and the levy and collection of annual assessments related thereto for fiscal year 2008/2009. 2. Adopt Draft Resolution B ordering the levy and collection of assessments for fiscal year 2008/2009 for Street and Storm Drain Maintenance District No. 02 —Woodridge (Las Lomas). CC Draft Minutes 05/27/08 Page 7 of 13 13 ITEM NUMBER: A-1 DATE: 9/09/08 3. Adopt Draft Resolution C approving the final Engineer's Report regarding the Landscaping and Lighting District No. 02 — Woodridge (Las Lomas), and the levy and collection of annual assessments related thereto in fiscal year 2008/2009. 4. Adopt Draft Resolution D ordering the levy and collection of assessments for fiscal year 2008/2009 for Landscaping and Lighting District No. 02 —Woodridge (Las Lomas). [Administrative Services] Administrative Services Director Rachelle Rickard gave the staff report and answered questions of Council. PUBLIC COMMENT Jonalee Istenes, stated that she is thankful for the paths. She asked if she could review the standards before the trails are approved. She commented that the paths are not ADA accessible like the RCD trail. Community Development Director Warren Frace responded that the trails are intended to be natural foot-path type trails so they don't meet the standards for accessibility that you find with sidewalks or other public ways. Mayor Brennler closed the Public Comment period. Council Member O'Malley inquired about a list of existing definitions of trails. Community Development Director Warren Frace said that staff will put together a quick briefing memo for Council and the Parks and Recreation Commission on possible trails to be incorporated into the City's Public Works Standards. MOTION: By Council Member O'Malley and seconded by Mayor Pro Tem Beraud to: 1. Adopt Draft Resolution A approving the final Engineer's Report regarding the Street and Storm Drain Maintenance District No. 02 — Woodridge (Las Lomas), and the levy and collection of annual assessments related thereto for fiscal year 2008/2009; and, 2. Adopt Draft Resolution B ordering the levy and collection of assessments for fiscal year 2008/2009 for Street and Storm Drain Maintenance District No. 02 — Woodridge (Las Lomas); and, 3. Adopt Draft Resolution C approving the final Engineer's Report regarding the Landscaping and Lighting District No. 02 — Woodridge (Las Lomas), and the levy and collection of annual assessments related thereto in fiscal year 2008/2009; and, 4. Adopt Draft Resolution D ordering the levy and collection of assessments for fiscal year 2008/2009 for Landscaping and Lighting District No. 02 —Woodridge (Las Lomas). CC Draft Minutes 05/27/08 Page 8 of 13 14 ITEM NUMBER: A-1 DATE: 9/09/08 Motion passed 5:0 by a roll-call vote. (Item #B-3.1 Resolution 2008-044, Item #B-3.2 Resolution 2008-045, Item #B-3.3 Resolution 2008-046, Item #B-3.4 Resolution 2008- 047) C. MANAGEMENT REPORTS 1. Staff Authorization to Process General Plan Amendment and Annexation Application - Eagle Ranch Specific Plan - PLN 2008-1280 / GPA 2008-0022 / SP 2008-0002 / ZCH 2008-0150 (Eagle Ranch, LLC I RRM Design Group) ■ Fiscal Impact: Staff is unable to speculate on the significance of this impact at present. Part of the project's EIR review will include a fiscal impact analysis. The purpose of the analysis will be to analyze all of the project's costs and revenues and provide the Council with a complete picture of the project's fiscal impacts on both the Cit of Atascadero and r N 1 N Y the local business community. The General Plan identifies resort facilities as part of the project. Staff's opinion is that a substantial tourist serving resort component must be included to improve the revenue potential of the project. ■ Recommendations: 1. The City Council may direct staff to process the project application by adopting Draft Resolution A. This action would include directing staff to return to the City Council for a Specific Plan project process; OR 2. The City Council may withhold authorization for staff to process the project application by adopting Draft Resolution B. Withholding authorization for staff to process the application does not deny the application. [Community Development] Community Development Director Warren Frace gave the staff report and answered questions of Council. PUBLIC COMMENT Gregory Smith, one of four owners of Eagle Ranch, thanked the Council and staff for considering this General Plan Amendment and answered questions of Council. Jon Knight, Planner with RRM Group, stated this project is included in the Atascadero General Plan and asked the Council to direct staff to process their application. Roberta Fonzi stated she hopes that part of this public education process will address what is planned, as well as what roads will be utilized. She also commented that she thinks more information is needed about where we are in the agriculture preserve process. CC Draft Minutes 05/27/08 Page 9 of 13 15 ITEM NUMBER: A-1 DATE: 9/09108 Jody Smith stated she lives on a corner of ranch and is not pleased with the development of this land. She requested that Council take the wildlife into consideration during the development process. Ms. Smith stated that she hopes the City will put a connecting road through ranch, down to Highway 41 . She also expressed concern about sewer costs and asked Council to consider equestrian trails. Sandy Jack stated he owns property by Eagle Ranch, and he elaborated on issues with LAFCO and recommended that Council move on with process to gain control of how that area is developed. Jonalee Istenes expressed her concern for proper multi-use trails throughout this project. Kathy Redden stated she lives near development and said she hates to see this land developed. She expressed her concerns regarding trails, access to the forest, traffic, environmental issues, having minimal density and enabling housing to be affordable. Jim Wilkins, grandfather, ran the Eagle Ranch for 52 years and encouraged the Council to move ahead with this project. Mayor Brennler closed the Public Comment period. MOTION: By Council Member O'Malley and seconded by Council Member Clay to direct staff to process the project application by adopting Draft Resolution A. This action would include directing staff to return to the City Council for a Specific Plan project process. Motion passed 5:0 by a roll-call vote. (Item #C-1.1 Resolution 2008-048) 2. Downtown Streetscape Phase II ■ Fiscal Impact: None. ■ Recommendation: Council receive and file Downtown Streetscape Phase II Project update. [Public Works] Public Works Director Steve Kahn briefly described the project and announced that Deputy Public Works Director David Athey would be giving the report. Deputy Public Works Director David Athey gave the staff report and answered questions of Council. CC Draft Minutes 05/27/08 Page 10 of 13 16 ITEM NUMBER: A-1 DATE: 9/09/08 PUBLIC COMMENT — None The Council received and filed this report. 3. Emergency Preparedness and Evacuation Plan Update ■ Fiscal Impact: None. ■ Recommendations: Council receive and file this report. [Fire] Fire Chief Kurt Stone gave the staff report and answered questions of Council. (Exhibit B) PUBLIC COMMENT - None The Council received and filed this report. COUNCIL ANNOUNCEMENTS AND REPORTS: Council Member O'Malley announced he has tickets to the Monte Carlo Casino Night Zoo Benefit at the Best Western Colony Hall on May 30, 2008, from 6:00pm — 11:00pm. Mayor Brennler thanked everyone who participated in Children's Day at the Park and the 20th anniversary celebration of the library events. He also announced that June 10th is Hunger Awareness Day and for more information, go to www.slofoodbank.org . Council Member Clay spoke about the Public Trust Meetings and the differences in philosophy among Council Members. He said that he thought some good things came out of the last meeting. He said that it seems as though there are people in the community that have a vendetta against Council Member O'Malley and make false accusations about him, and this bothers him because Council Member O'Malley works harder than anyone in town to make Atascadero better. A few people were called liars at the last meeting and this is not acceptable to him. We all need to accept that we have different opinions. Mayor Brennler stated that no one was called a liar at the last meeting, and this is why all Council meetings should be taped. Council Member Luna clarified that the lies and whispering campaign, by at least the Vice President of A Better Atascadero, is really out of line. He stated, for the record, that 8 years ago Supervisor Mike Ryan attempted to use his political influence to make accusations of Council Member Luna's wife. He said those accusations never went anywhere and no charges were filed. He also stated that the City Council adopted a Conduct Statement that all candidates are asked to sign stating they will not put their campaign signs on public property, which Mike Ryan did. CC Draft Minutes 05/27/08 Page 11 of 13 17 ITEM NUMBER: A-1 DATE: 9/09/08 Council Member O'Malley stressed the importance to having a process where any accusations can be reviewed and then the appropriate person can make a statement of the results of the review. D. COMMITTEE REPORTS: Mayor Pro Tem Beraud • Integrated Waste Management Authority (IWMA) — Discussed a needles or sharps take back program, allowing needles to be returned back to the place they bought them which would make it safer for the people who handle the garbage and would minimize sharps in the landfill. • Building Public Trust — Meeting date not set yet. Will bring back further recommendations after the next meeting. E. INDIVIDUAL DETERMINATION AND/OR ACTION: City Clerk City Clerk Marcia McClure Torgerson reported that both of the Youth Representative positions to the Parks and Recreation Commission have been vacated. She asked for direction from Council to advertise for one or both positions. There was Council consensus to direct the City Clerk to advertise for the Parks and Recreation Commission Youth Representative position(s). Council Member O'Malley announced that his Planning Commission appointee will be vacating the position and he might be interested in advertising for that as well. CC Draft Minutes 05/27/08 Page 12 of 13 18 ITEM NUMBER: A-1 DATE: 9/09/08 F. ADJOURNMENT: Mayor Brennler adjourned the meeting at 10:40 p.m. MINUTES PREPARED BY: Marcia McClure Torgerson, C.M.C., City Clerk Exhibit A—Art Tour Handout, by Steve Martin Exhibit B—West Side Evacuation Route Handout, by Kurt Stone CC Draft Minutes 05/27/08 Page 13 of 13 19 ITEM NUMBER: A-2 DATE: 09/09/08 11918 ® 1979 A tascadero City Council Staff Report - City Manager's Office Observance of Veterans Day Proposed Cancellation of City Council Meeting on November 11, 2008 RECOMMENDATION: Council authorize staff to cancel the City Council meeting of November 11, 2008, as it is a national holiday, noting the next regularly scheduled meeting will be on November 25, 2008. DISCUSSION: The City Council, pursuant to Chapter 2, Section 1.01 of the Atascadero Municipal Code, meets the second and fourth Tuesday of each month. Staff sets the Council's schedule, allowing for summer schedules and avoiding major holidays. Veterans Day, a national holiday, always occurs on November 11th, which this year falls on the second Tuesday in November, a scheduled Council meeting date. Staff recommends Council cancel the meeting of November 1 1t, and meet as scheduled on the fourth Tuesday, November 25, 2008. FISCAL IMPACT: None. ALTERNATIVES: The City Council may decide to meet as scheduled on November 11, 2008 or on an alternate date. 21 ITEM NUMBER: A -3 DATE: 9/09/08 1979 Atascadero City Council Staff Report - City Manager's Office Atascadero Creek Reservation No. 3 Acceptance of Quitclaim Deed and Acceptance of Assignment and Assumption of Lease (Revised) (Atascadero Creek Reservation No. 3 is the portion of Atascadero Creek from the El Camino Real Bridge to the Lewis Avenue Bridge. The Atascadero Unified School District currently owns this property and the Atascadero Historical Society holds a lease on this property.) RECOMMENDATION: Council adopt the Draft Resolution, thereby: 1. Accepting interest in real property conveyed by the Quitclaim Deed dated October 02, 2007 from the Board of Trustees of the Atascadero Unified School District; and, 2. Accepting Assignment and Assumption of the Atascadero Historical Society Lease to the City. DISCUSSION: The Atascadero Unified School District (District) is the owner of real property known 9Y enerall as Atascadero Creek Reservation No. 3. This property is the portion of Atascadero Creek from the EI Camino Real Bridge to the Lewis Avenue Bridge. Atascadero Creek Reservation No. 3 is subject to a lease between the District as Lessor and the Treasure of EI Camino Real, now known as the Atascadero Historical Society (AHS) as Lessee. The Lease is dated October 11, 1965. On February 28, 2002, Creekside Parcel Associates, James M. Harrison and Kenneth B. Fryer (Plaintiffs), filed a lawsuit against the City of Atascadero (City), the District, and the AHS, contending that they were in some manner responsible for the damage to the Plaintiffs' property. • In August of 2004, after a lengthy litigation process, all parties entered into a settlement agreement. This agreement contains several requirements, including the District's 23 ITEM NUMBER: A -3 DATE: 9/09/08 conveyance of the Atascadero Creek Reservation No. 3 to the City. The 2004 settlement agreement also directs the District to assign the AHS Lease to the City. In October 2007, the District executed a Quitclaim Deed for Atascadero Creek Reservation No. 3 and an Assignment and Assumption of Lease (Revised) for the AHS Lease of Atascadero Creek Reservation No. 3, to the City. Subsequently, a few legal irregularities were discovered and resolved. The documents are now ready for implementation. Adoption of the attached Resolution will authorize the City Manager to execute the Certificate of Acceptance of the Quitclaim Deed and record the document. Also, the adoption of the attached Resolution will authorize the Mayor to execute the Assignment and Assumption of Lease (Revised). FISCAL IMPACT: There are no direct fiscal impacts resulting from the acceptance of Atascadero Creek Reservation # 3. There may be future fiscal impacts associated with the acquisition, including, but not limited to: • Legal costs and damages arising out of future injuries and claims. • Maintenance and care of the vegetation in the riparian area, $2,000 - $10,000 annually. This estimate can vary depending upon storm damage, fire concerns, or other issues. • Irrigation water for Creekside Park, $800 - $1,500. The water fee is currently paid by the Atascadero Historical Society. ALTERNATIVES: None. The recommended actions are part of the 2004 settlement agreement with Creekside Parcel Associates, et.al. ATTACHMENTS: 1. Map of Atascadero Creek Reservation No. 3 2. Draft Resolution, including the Quitclaim Deed and the Assignment and Assumption of Lease (Revised) • 24 ITEM NUMBER: A-3 DATE: 9/09/08 • ATTACHMENT #1 ATASCADERO CREEK RESERVATION #3 �G. . F.; lwk; 4*1 r 0, ' �. 6 j g �a Sunken er ' Gardens r n _ i "10P,417777,1 x v g 40 R City Hall tim, u t= =` Ata scadero Creek ,} , e Reservation 3 ` ft S • DRAFT RESOLUTION RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ATASCADERO, CALIFORNIA, ACCEPTING INTEREST IN REAL PROPERTY CONVEYED BY THE QUITCLAIM DEED DATED OCTOBER 029 2007 FROM THE BOARD OF TRUSTEES OF THE ATASCADERO UNIFIED SCHOOL DISTRICT AND ACCEPTING ASSIGNMENT AND ASSUMPTION OF THE ATASCADERO HISTORICAL SOCIETY LEASE TO THE CITY WHEREAS,the Atascadero Unified School District (District) is the owner of real property known generally as Atascadero Creek Reservation No. 3, located in the City of Atascadero (City), County of San Luis Obispo, State of California; and, WHEREAS, a portion of Atascadero Creek Reservation No. 3 is subject to a lease between the District as Lessor and the Treasure of El Camino Real, now the Atascadero Historical Society (ABS), as Lessee dated October 11, 1965; and, k ide Parcel Associates a California general WHEREAS, a dispute arose between Cree s partnership, James M. Harrison, and Kenneth B. Fryer (referred to collectively as Plaintiffs) and the City of Atascadero, Atascadero Unified School District, and Atascadero Historical Society, as a result of alleged property damage occurring on Plaintiffs' property located in the City of Atascadero, adjacent to Atascadero Creek Reservation No. 3; and, WHEREAS, on February 28, 2002, Plaintiffs filed an action against the District, the City, and the AHS contending, in essence,that the District, along with the City and the AHS,was in some manner responsiblefor the alleged damage to Plaintiffs' property; and, WHEREAS, in August 2004, all parties entered intoreuirin to a settlement agreement, requiring the District to, among other things, convey the Atascadero Creek Reservation No. 3 to the City and assign the AHS lease to the City. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Atascadero: SECTION 1. The City Manager is authorized to execute the Certificate of Acceptance, certifying that the interest in real property conveyed by the Quitclaim Deed dated October 02, 2007, attached hereto as Exhibit A, from the Board of Trustees of the Atascadero Unified School District to the City of Atascadero, a municipal corporation of the State of California, is accepted by order of the City Council of the City of Atascadero,pursuant to this Resolution; and, SECTION 2. The City Manager, by executing the Certificate of Acceptance, consents to the recordation of the Quitclaim Deed referenced above,by a City authorized officer. 27 SECTION 3. The Mayor is authorized to execute the Assignment and Assumption of Lease, dated October 02, 2007, by and between the Board of Trustees of the Atascadero unified School District and the City of Atascadero, a municipal corporation of the State of California, the Lease of Creek Reservation No. 3, entered into on October 11, 1965, between the Atascadero School District and the Treasure of El Camino Real (now known as the Atascadero Historical Society), attached hereto as Exhibit B. On motion by Council Member and seconded by Council Member ,the foregoing Resolution is hereby adopted in its entirety on the following roll call vote: AYES: NOES: ABSENT: ADOPTED: CITY OF ATASCADERO By: Mike Brennler, Mayor ATTEST: Marcia McClure Torgerson, C.M.C., City Clerk APPROVED AS TO FORM: Brian Pierik, City Attorney 28 Exhibit A Recording Requested By and when Recorded Mail to: City of Atascadero 6907 El Camino Real Atascadero, CA 93422 ABOVE THIS LINE RESERVED FOR RECORDER'S USE QUITCLAIM DEED The BOARD OF TRUSTEES OF THE ATASCADERO UNIFIED SCHOOL DISTRICT, for valuable consideration, including but not limited to, settlement of litigation (San Luis Obispo County Superior Court Case Nos. CV020192 and CV040046) and elimination of fixture maintenance, upkeep and liability, does hereby remise, release and forever quitclaim to the CITY OF ATASCADERO, a municipal corporation of the State of California, for use or partial use for park or recreational purposes or open space purposes, all of its right, title and interest in and to that certain property located in the City of Atascadero, County of San Luis Obispo, State of California, as more particularly described on Exhibit "A", attached and incorporated by this reference. Dated: October 02, 2007 Ci President, Board of Trustees Atascadero Unified School District Attest: 11 Seer t ry, Jnard o stees Atase dero Unified School District (signatures to be acknowledged prior to recording) 29 CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by the Quitclaim Deed dated October 02, 2007, from the BOARD OF TRUSTEES OF THE ATASCADERO UNIFIED SCHOOL DISTRICT to the CITY OF ATASCADERO, a municipal corporation of the State of California, is hereby accepted by order of the City Council of the City of Atascadero on , 2008, pursuant to Resolution No. , and authority conferred and adopted by Resolution No. of the City Council of the City of Atascadero adopted , and the grantee consents to recordation thereof by its duly authorized officer. Executed on , 2008, at Atascadero, California. Wade G. McKinney, City Manager City of Atascadero } STATE OF CALIFORNIA }ss. COUNTY OF SAN LUIS OBISPO } On before me, a notary public, State of California duly commissioned and sworn, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of whom the person(s)acted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (official notary seal) 30 STATE OF CALIFORNIA }ss. COUNTY OF SAN LUIS OBISPO ; On L O (:;—� , before me, Barbara M. Weaver, a notary public, State of California duly commissioned and sworn, personally appeared ���,� -'�-- _ �- ��_�� personally known or proved to me to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of whom the person(s) acted, executed the instrument on behalf of said public agency therein named, and acknowledged to me that said public agency executed it. IN WITNESS WHEREOF,I have hereunto subscribed my name and affixed my official seal on the day and year in the certificate first above written. ,�, ti BARBAF;F Ivl 'MAVER COMM. 41707560 r sn P'JfP,RY F)BUC CALIFORNIA SAN W Is OBISPO COUNTY S1unatUTe t ci �, �V. r ✓—te t My Comm _xpiies DFC 24, 1)1I 1 c K 'i Fonts (official notary sea]) t:Aausd\atascadercreek\assignment.2007 4 31 STATE OF CALIFORNIA }ss. COUNTY OF SAN LUIS OBISPO } On 2-0 c'1 before me, Barbara M. Weaver, a notary public, State of California duly commissioned and sworn, personally appeared JC,hY, �� �� personally known or proved to me to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of whom the person(s) acted, executed the instrument on behalf of said public agency therein named, and acknowled-ed to me that said public agency executed it. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year in the certificate first above written. BARBARA M. WEAVER ti COMM. 41707560 D NOTARY Fl!BLIC CALIFORNIA Signatures 0-16" {�� �� ��.� t� t e° SAN LUIS OBISPO COUNTY (� Vy Comm types DEC _?4 2U1(i '9 4 If OPN (official notary seal) t:\ausd\atascaderereek\assignmen 1.2007 4 32 EXHIBIT "A" LEGAL DESCRIPTION Real property in the City of Atascadero, County of San Luis Obispo, State of California, described as follows: Parcel 1: That portion of Atascadero Creek Reservation No. 3 of Atascadero Colony, in the City of Atascadero, County of San Luis Obispo, State of California, according to map recorded in Book 4, page 67C of maps, in the office of the County Recorder of said county, described as follows: Beginning at a point common to Atascadero Creek Reservation Nos. 2 and 3 and Lots 3 thence on a line common to Administration Park Sheet No. 67A Ma of Atascadero); and 9, Adm ( p Atascadero Creek Reservation Nos. 2 and 3, South 61'23' East, 117.1 feet to a point common to Atascadero Creek Reservation Nos. 2 and 3 and Lots 2 and 3, Hotel Park, Sheet No. 70, Map of Atascadero; thence along the Westerly boundary of said Lot 2, Hotel Park, South 62034" West, 25.5 feet; thence South 52°24' West, 200 feet; thence South 23°24' West, 188.0 feet; thence on a ' West 148.7 feet to a point on the Western line crossing Atascadero Creek, North 51 17 p k Reservation No. 3; thence along boundary of Atascadero Creek g said Reservation boundary line, North 34°30' East, 105.0 feet; thence North 45°30' East, 76.0 feet; thence North 20030' East, 67.0 feet; thence North 60030' East, 109.0 feet; thence North 73030' East, 41.47 feet to the place of beginning. Excepting therefrom that portion conveyed to the State of California by deed executed by Atascadero Unified School District, recorded February 7, 1969 in Book 1506, Page 371 of Official Records. Also excepting therefrom that portion conveyed to the State of California by deed executed in Book 1506 Page 510 of recorded February 10 1969 , by Atascadero Unified School Distract, ry 9 Official Records. APN: ptn 029-361-001 Parcel 2: Atascadero Creek Reservation No. 3 of Atascadero Colony, in the City of Atascadero, County of Sari Luis Obispo, State of California, according to map recorded in Book 4, Page 67C of Maps, in the office of the County Recorder of said County. Excepting therefrom that portion of said Atascadero Creek Reservation No. 3 described as II fows:0 Beginning at a point common to Atascadero Creek Reservation Nos. 2 and 3 and Lots 3 Park Sheet No. 67A Ma of Atascadero); thence on a line common to and 9 Administrationp ( Atascadero Creek Reservation Nos. 2 and 3, South 61'23' East, 117.1 feet to a point common to Atascadero Creek Reservation Nos. 2 and 3 and Lots 2 and 3, Hotel Park, Sheet No. 70, Map of Atascadero; thence along the Westerly boundary of said Lot 2, Hotel Park, South 62°34' West, 25.5 feet; thence South 52°24' West, 200 feet; thence South 23°24' West, 188.0 feet; thence on a line crossing Atascadero Creek, North 51°17' West, 148.7 feet to a point on the Western boundary of Atascadero Creek Reservation No. 3; thence along said Reservation boundary line, 33 North 34°30' East, 105.0 feet; thence North 45°30' East, 76.0 feet; thence North 20°30' East, 67.0 feet; thence North 60°30' East, 109.0 feet; thence North 73°30' East, 41.47 feet to the place of beginning. Also excepting therefrom that portion conveyed to the State of California by deed executed by Atascadero Unified School District, recorded February 7, 1969 in Book 1506, Page 371 of Official Records. Also excepting therefrom that portion conveyed to the State of California by deed executed by Atascadero Unified School District, recorded February 10, 1969 in Book 1506, Page 510 of Official Records. APN: 029-361-003 34 Exhibit B WHEN RECORDED MAIL TO: Atascadero Unified School District 5601 West Mali Atascadero, CA 93422 ASSIGNMENT AND ASSUMPTION OF LEASE (REVISED) This Assignment and Assumption of Lease ("Assignment") is dated for reference purposes as of the 2nd day of October, 2007, by and between The Board of Trustees of the Atascadero Unified School District, ("Assignor") and the City of Atascadero, a municipal corporation of the State of California ("Asssignee") with reference to the following facts: RECITALS A. WHEREAS, Assignor is the owner of that certain real property, known generally as Atascadero Creek Reservation No. 3, in the City of Atascadero, San Luis Obispo County, State of California, more particularly described on Exhibit "A" attached and incorporated by this reference (the "Property"),- and B. WHEREAS, on or about October 2, 2007, Assignor quitclaimed all of its right, title and interest in and to the Property, to Assignee, but Assignee has not yet accepted the Property; and C. WHEREAS, Assignor wishes to assign to Assignee all of Assignor's right, title and interest as Lessor in and to that certain Lease of a portion of Creek Reservation No. 3, entered into October 11, 1965,between the Atascadero School District and the Treasure of El Camino Real, a nonprofit corporation qualified under the general nonprofit laws of the State of California, a copy of which lease is attached hereto as Exhibit "B" and incorporated by this reference (the "Lease"), and D. WHEREAS, the "Treasure of El Camino Real" is now known as the Atascadero Historical Society and the Atascadero School District is now known as the Atascadero Unified School District. NOW, THEREFORE, in consideration of the mutual covenants of the parties herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1 35 I. Assignment by Assignor. Assignor hereby transfers and assigns to Assignee all of Assignor's right, title and interest in and to that portion of the Lease attributable to Creek Reservation No. 3, effective as of the date of Assignee's acceptance of the Quitclaim Deed from Assignor of Creek Reservation No. 3 (the "Effective Date"). 2. Acceptance and Assumption by Assignee. Assignee hereby accepts the foregoing Assignment and transfer and specifically assumes and agrees to perform and observe each and every covenant, agreement and condition to be performed or observed by Lessor (Assignor) under that portion of the Lease attributable to Creek Reservation No. 3, effective as of the Effective Date. 3. Governing Law. This Assignment is made and entered into in the State of California and shall be interpreted, construed and enforced in accordance with the laws of the State of California. 4. Binding Effect. Assignment shall apply to,bind and inure to the benefit of Assignor and Assignee, and their respective heirs, legal representatives, representatives, successors and assigns. 5. Counterparts. This Assignment may be executed in one or more counterparts, each of which shall be an original, but all of which shall together constitute one instrument. IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as of the date below. "ASSIGNOR" Dated: June 03_, 2008 ATAS -ADERO UNIFIED SCHOOL DISTRICT By: President Boar d Trustees By: r ,� �R Secreta , Boardo Trustees "ASSIGNEE" Dated: , 2008 CITY OF ATASCADERO Mayor Attest: City Clerk 2 36 CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by the Assignment and Assumption of Lease dated October 02, 2007, from the BOARD OF TRUSTEES OF THE ATASCADERO UNIFIED SCHOOL DISTRICT to the CITY OF ATASCADERO, a municipal corporation of the State of California, is hereby accepted by order of the City Council of the City of Atascadero on , 2008, pursuant to Resolution No. , and authority conferred and adopted by Resolution No. of the City Council of the City of Atascadero adopted and the grantee consents to recordation thereof by its duly authorized officer. Executed on , 2008. at Atascadero, California. Wade G. McKinney, City Manager City of Atascadero 3 37 STATE OF CALIFORNIA ss. COUNTY OF SAN LUIS OBISPO Oil 2008, before me, ¢ja✓(/)rjva Notary Public, personaliv appeared �� who proved to me on �o K �� �����' the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under- the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. i 1 x ni F L'.[( '4 -01� i Signature k11.�F^� (official notary sea]) t'\ausd\atascadercreek\AssignRev 2008 4 38 STATE OF CALIFORNIA }ss- COUNTY ss.COUNTY OF SAN LUIS OBISPO } e Notary , On 1 r ? 2008,before me, Nota Public 77.. Gt i J - ' y- I/ ., `.L Z who pro-ved to me on personally„ app=e i! _. the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. - M v`JFAVER �y r ` 1 707560 Tj g ®`I IVGTAR iii!iC CALIFORNIA , 01Or SAN WISPO COUNTY o� n Signature My Cum odes DEC 24 �'(10 (official notary seal) t:\ausd\atascadercreek\Assi gnRev 2008 4 39 EXHIBIT "A" LEGAL DESCRIPTION Real property in the City of Atascadero, County of San Luis Obispo, State of California, described as follows: Parcel 1: That portion of Atascadero Creek Reservation No. 3 of Atascadero Colony, in the City of Atascadero, County of San Luis Obispo, State of California, according to map recorded in Book 4, page 67C of maps, in the office of the County Recorder of said county, described as follows: Beginning at a point common to Atascadero Creek Reservation Nos. 2 and 3 and Lots 3 and 9, Administration Park (Sheet No. 67A, Map of Atascadero); thence on a line common to Atascadero Creek Reservation Nos. 2 and 3, South 61023' East, 117.1 feet to a point common to Atascadero Creek Reservation Nos. 2 and 3 and Lots 2 and 3, Hotel Park, Sheet No. 70, Map of Atascadero; thence along the Westerly boundary of said Lot 2, Hotel Park, South 62°34" West, 25.5 feet; thence South 52°24' West, 200 feet; thence South 23°24' West, 188.0 feet; thence on a line crossing Atascadero Creek, North 51°17' West, 148.7 feet to a point on the Western boundary of Atascadero Creek Reservation No. 3; thence along said Reservation boundary line, North 34°30' East, 105.0 feet; thence North 45°30' East, 76.0 feet; thence North 2030' East, 67.0 feet; thence North 60°30' East, 109.0 feet; thence North 73°30' East, 41.47 feet to the place of beginning. Excepting therefrom that portion conveyed to the State of California by deed executed by Atascadero Unified School District, recorded February 7, 1969 in Book 1506, Page 371 of Official Records. Also excepting therefrom that portion conveyed to the State of California by deed executed by Atascadero Unified School District, recorded February 10, 1969 in Book 1506, Page 510 of Official Records. APN: ptn 029-361-001 Parcel 2: Atascadero Creek Reservation No. 3 of Atascadero Colony, in the City of Atascadero, County of San Luis Obispo, State of California, according to map recorded in Book 4, Page 67C of Maps, in the office of the County Recorder of said County. Excepting therefrom that portion of said Atascadero Creek Reservation No. 3 described as follows: Beginning at a point common to Atascadero Creek Reservation Nos. 2 and 3 and Lots 3 and 9, Administration Park (Sheet No. 67A, Map of Atascadero); thence on a line common to Atascadero Creek Reservation Nos. 2 and 3, South 61'23' East, 117.1 feet to a point common to Atascadero Creek Reservation Nos. 2 and 3 and Lots 2 and 3, Hotel Park, Sheet No. 70, Map of Atascadero; thence along the Westerly boundary of said Lot 2, Hotel Park, South 62°34' West, 25.5 feet;thence South 52°24' West, 200 feet; thence South 23°24' West, 188.0 feet; thence on a line crossing Atascadero Creek, North 51°17' West, 148.7 feet to a point on the Western boundary of Atascadero Creek Reservation No. 3; thence along said Reservation boundary line, 40 North 34°30' East, 105.0 feet; thence North 45°30' East, 76.0 feet; thence North 20030' East, 67.0 feet; thence North 60°30' East, 109.0 feet; thence North 73°30' East, 41.47 feet to the place of beginning. Also excepting therefrom that portion conveyed to the State of California by deed executed by NCascadero ll lillt;d Jt,rU)ul District, recorded February 7, 1969 in Book 1506, Page 371 of Official Records. Also excepting therefrom that portion conveyed to the State of California by deed executed by Atascadero Unified School District, recorded February 10, 1969 in Book 1506, Page 510 of Official Records. APN: 029-361-003 41 �f VOL sJ PAGE ATASCADERO SCHOOL DISTRICT COUNTY OF SAN LUIS OBISPO STATE OF CALIFORNIA Resolution #6, School Year 1965-66 Dated: October 11, 1965 RESOLUTION ACCEPTING BID AND AUTHORIZING EXECUTION OF LEASE The following resolution is hereby offered and read: WHEREAS, on September 13, 1965, the Board of Trustees of the Atascadero School District duly adopted a Resolution of Intention to Lease District Owned Real Property; due notice was given of said Resolution and of the time and plane of holding the public meeting for the opening of bids for said lease; the highest bid which com- plied with all terms and conditions of said Resolution and of the attached proposed lease was submitted by "The Treasure of EI Camino Real" (also known as the Atas- cadero Historical Society); it is in the public interest that said lease be awarded by the Atascadero School District to "The Treasure of EI Camino Real NOW, THEREFORE, BE IT RESOLVED and ORDERED by the Board of Trustees of the Atascadero School District located in the County of San Luis Obispo, State of California, as follows: 1. That the bid of "The Treasure of E1 Camino Real" for lease of certain real property from the Atascadero School District pursuant to said Resolution of Intention and the lease attached thereto, be and here- by is accepted by the Atascadero School District. 2. That the President and Clerk of the Board of Trustees of the Atascadero School District be and hereby are authorized and directed to execute on behalf of the Atascadero School District that lease set out on the attached document marked "Exhibit All, which is hereby expressly in- corporated herein by reference as though here fully set forth, 3. That it is the duty of the Atascadero School District to ,record said lease and this resolution. On motion of Board Member Greenman seconded by Board Member Peterson and on the following roll call vote, to-wit: c AYES: Greenman, Hei lmann, Jespersen, Peterson, Sayers 1 a NOES: None ABSENT: None the foregoing resolution is hereby arinntrA qBoard of Trustees of the Ata aero School District 42 LEASE THIS LEASE, entered into on the 11th day of October 1965, by and between the Atascadero School District, a public corporation and one of the school districts located in the County of San Luis Obispo, State of California, hereinafter called "School", and The Treasure of E1 Camino Real a non-profit corporation qualified under the general non-profit corporation laws of the State of California, hereinafter called "Lessee"; WITNESSETH: That School hereby leases unto Lessee, and Lessee hereby leases from School, that School-owned real property located in the County of San Luis Obispo, State of California, and more particularly described as follows: All of Atascadero Creek Reservations Nos. 2 and 3 of Atascadero, in the County of San Luis.Obispo, State of California, according to the map of said Atascadero recorded in Book 4 of Maps at page 67-A (Amendment D), records of said County. Excepting therefrom the portion of said Atascadero Creek Reservation No. 3 described as follows: Beginning at the intersection of the centerline of South Mall with the centerline of East Mall, as shown on the above mentioned map; thence, S. 611 23' E., along the said centerline of South Mall, 166.00 feet; thence, S. 28° 37' W., 130.43 feet; thence N, 68° 30' E., 1.75 feet to the True Point of Beginning, being the southwesterly terminous of the course bearing N. 68° 30' E. in, the easterly line of said Reservation No. 3; thence, along said easterly line N. 680 30' E., 73.00 feet; thence, continuing along said easterly line, S. 450 30' E., 53.94 feet; thence leaving said easterly line S. 5° 49' W., 19.14 feet; thence, S. 180 21' W. , 41.77 feet; thence, S. 600 45'W. 22.57 feet; thence,N. 64° 36' W., 102.64 feet to a point on the aforesaid easterly line; thence, N. 29° 30' E. , 42.33 feet to the True Point of Beginning. upon the following terms and conditions: 1. Lessee shall pay the sum of One Dollar and no cents ($1.00) per year payable at the commencement of each Lease year, 2. Lessee may use the premises for the following purposes only: F.1 recreation, park, museum and historic purposes. �n 3. Lease may not be assigned, sublet or transferred by Lessee unless School f=irst gives its written consent. 4. The School will not be responsible to Lessee for any loss of property from said premises, or for any injury, loss or damage to any building or buildings, "Exhibit A" 43 or the contents thereof, placed on said real property as provided herein by Lessee, however occurring. 5. The School shall have the right to enter said premises at all reason- able hours to examine the same. 6. Lessee hereby waives all claims for damages that may be caused by the School in re-entering and tal<ing possession of the premises as herein provided, and all claims for damages that may result from the destruction of or injury to the premises thereby; and all claims for damages to or loss of such property belonging to the Lessee as may be in or upon the premises at the time of such re-entering. Lessee also waives all claims against the School for damages to any property of Lessee from any cause arising at any time. 7. The School reserves the right at any time to make such reasonable rules and regulations as in its judgment may from time to time be necessary for the safety, care, and cleanliness of the premises, and for the preservation of good order therein. S. Lessee hereby agrees to indemnify and save harmless the School from any and all manner of damages, charges, suits, costs and expenses which it may sustain or be put to by reason of the Lessee's use of the said premises or by reason of anything relating thereto or by reason of this Lease or any of the provi- sions hereof. 9. Lessee further agrees, prior to the commencement of this Lease, to purchase adequate insurance in the name of the Lessee and in the name of the School in the amount of $ i ,000,000.00 / $ Public Liability Insurance and $ 5,000.00 Property Damage Insurance to protect all persons who may sustain injury as a result of the use to which the premises are put. 10. If suit be necessary to enforce any part or portion of this Lease by School, Lessee agrees to pay attorney fees and all court costs connected therewith. 11 Lessee shall arrange for and pay for all of the utility hookups to said premises and shall pay all bills for water, gas, electrical service, and other public utility services used in, on or about said premises during the period of this Lease. -2- 44 12. Lessee agrees and promises that it will comply with and observe all statutes, ordinances, rules and regulations of the Federal, State, Municipal, County or other public authority. 13. This lease shall be valid for a period of ninety-nine (99) years from the date hereof unless sooner terminated as herein provided. 14. Lessee agrees that it shall not have access to the above—described real property through any other School-owned real property than that leased to Lessee herein and Lessee further to agrees provide its own access to the above 9 p described real property, 15. If Lessee for any reason fails or omits to comply with any of the terms and conditions of this Lease, School shall have the right to terminate this Lease by mailing to Lessee, postage prepaid, thirty (30) days written notice of such termina- tion. 16. A waiver by School of any failure or omission by Lessee to comply with any of the terms and conditions of this Lease shall not constitute a waiver by School of any other such failure or ommission. 17. Lessee shall have the right during the term of this Lease to place on the above described real property a building or buildings suitable to carry out the purposes of this Lease set out in paragraph no. 2 hereinabove. Said building or buildings shall be the property of and belong exclusively to Lessee, who shall at its own sole cost and expense pay for any and all repairs, maintenance and custodial care in, on and around said building or buildings. Lessee shall at its own sole cost and expense pay for any and all insurance on said building or buildings. 18. Lessee agrees to keep said real property in good order and free from all refuse, and shall promptly remove all ashes, garbage and refuse of any kind from said real property during the term of this Lease. J 19. At the end of this Lease term, or at any sooner termination of this �? Lease as provided herein, Lessee agrees to surrender the above described real property to School in as good condition as received, reasonable wear and tear excepted. Lessee shall at its own sole cost and expense remove from said real property upon said end or termination any and all buildings placed thereon by Lessee f -3- 45 pursuant to this Lease, within thirty (30) days after said end or termination. If any of said building or buildings are not so removed by Lessee from said real property by the end of said thirty (30) days, then School shall have the right either to keep said building or buildings on said premises in which case said building or buildings shall automatically belong to and become the property of School or of removing in any manner deemed appropriate to School said building or buildings from said premises at the sole cost and expense of Lessee in which event Lessee shall pay to School the cost thereof within thirty (30) days after the mailing by School to Lessee, postage prepaid, of an itemized bill which sets out the cost of said removal. IN WITNESS WHEREOF the parties hereto have executed this Lease on the day and year first above written. ATASCADERO SCHOOL DISTRICT By: AL ez__i2E� President of the Board of Trustees of the Atascadero School District ATTEST: flerk of the Board Trustees of the Atascadero School District The Treasure of El Camino Real By: (Name and Title) J(Name and Title) STATE OF CALIFO?tNIA ) ) ss LESSEE COUNTY OF S&N LUIS OPISPO ) On this 22nd day of October, in the year One Thousand Nine Hundred and sisty-five, before me, a Notary Public in and for said County, ter; residing therein, duly commissioned and sworn, personally appeared Everett Fenny and Marjorie R. Mackey, known to me to be the President and Secretary of the corporation that executed the within instrument and also known to me to be the persons who executed it on behalf of the said Corporation, and acknowledged to me that such corporation executed the same. IN WITNESS wHEREOF, I have hereunto set my hand and affixed my official seal at my office in the day and year in this certificate first above written, Dietary Public and for said County �aoeenxin![extenxv!exeexaxenweeeexnenocx:::eKu.[" and State. ALICE E. UPON /1 PUBLIC—�ALIF6RNIA —`-f— r M PRINCIPAL OFFICE IN r UJ15 G815p0 COUNTY &e6R to 1!11541911,11111:c:]!cc;x9[x:SVa::[a11c 6:x6 ieti[4� 46 STATE OF CALIFORNIA ) ss COUNTY OF SAN LUIS OBISPO ) On this t t th day of October 119 65 before me, the undersigned Notary Public, personally appeared Klaus Hellmann and Alice Sayers, known-to me to be the President and Clerk, respectively, of the Board of Trustees of the Atascadero School District and known to me to be the persons who executed the within instrument on behalf of said political subdivision, and acknowledged to me that such political subdivision executed the same. Notary Public in an of aid County & State YO}t!['[f0D1�!°.ilTi:JBIIS`OIdCCdr6Slt90Lr1L11E,^�¶IE..�..F;,7(SEAL) ?� �"' GLlC' EE.c UPFOld "i t•lCYr�, ..P E. —CAU ORIli.� Z m S>' P'c.'NCft'nL OFFICE IN 5AN L':5 OBISPO COUNT` y;l/oatliaar[tteVEf 9f grr7sivawse:n:ronoerrcnslgf8s3.'zstG�' Document Mo. 1DED T 'R - AT_..� _--MIH- PAST..---l.- -- Pll. SON•'Lf�--F.0S SSP COUNTY. CAL, NOV 171965 �Ve c!,; Bounty Re, r er $y -^s •Deput'Y,Fee f iGe. I 47 ITEM NUMBER: A -4 DATE: 09/09/08 In �'-11918 � R 1978 i ,A�SCAn�►// A tascadero City Council Staff Report - Police Department Purchase of Two Police Patrol Vehicles RECOMMENDATION: Council authorize the purchase of two (2) police patrol vehicles from Downtown Ford Sales in Sacramento California at a total cost of$51,908.74. DISCUSSION: The City budgets for the replacement of high mileage police vehicles. For Fiscal Year • 2008/2009, the Police Department is funded for replacement of four (4) police vehicles. The Police Department is requesting immediate replacement of two (2) vehicles. Purchase of the remaining (2) vehicles will be deferred until the end of this fiscal year, if they are needed. Replacement of two (2) vehicles at this time is necessary to maintain a safe and reliable fleet and to keep repair costs at a reasonable level. Downtown Ford Sales in Sacramento is offering, in stock, police vehicles under the GSA Contract #B071181047. The purchase of these vehicles from Downtown Ford Sales is consistent with the City's Purchasing Policy. FISCAL IMPACT: The combined cost of both vehicles is $51,908.74 including sales tax, shipping fees and mandatory tire fees. Funds are provided in the 2008/2009 City Budget. ALTERNATIVES: Defer purchase of all new police vehicles for FY 2008/2009. This course is not recommended due to increased on-going maintenance costs. is ATTACHMENTS: None. 49 ITEM NUMBER: A - 5 au DATE: 9/09/08 1,9-79}-7 Atascadero City Council Staff Report - Public Works Department Balboa Road Emergency Access Grading Improvements RECOMMENDATION: Council authorize the Administrative Services Director to re-direct an additional $15,060.00 in Local Transportation Funds from the Road Rehabilitation 5-Year Maintenance Project to the Balboa Road Project. REPORT-IN-BRIEF: • The City Council rated Balboa Road as the highest priority impassable emergency access route and directed staff to construct improvements to open the road as soon as possible. Staff proceeded immediately with the grading and placement of erosion protection on Balboa Road and it is open. DISCUSSION: Background: The City Council heard a report on the Atascadero Road Program and a recommended rating system for emergency access routes on February 12, 2008. They approved staff's recommended rating system which rated Balboa Road, from Otero Road to Llano Road, as the number one priority and directed staff to move forward on the design of Balboa Road to make it passable. Staff proceeded with a topographic and boundary survey of Balboa Road. This was needed for grading design and to be sure all work occurred within the right-of-way. A geotechnical firm was also hired to complete a soil report to identify grading recommendations and ground water mitigations. A design of the grading of Balboa Road was then completed by City Staff using this data. On July 8, 2008, Staff brought back to City Council a report on proposed improvements to Balboa Road and Council approved a total of$28,000.00 for the grading and erosion control of Balboa Road. • 51 ITEM NUMBER: A - 5 DATE: 9/09/08 Analysis: Staff went to work with a contractor on July 14, 2008 to complete the grading • and open Balboa Road as soon as possible. The work was completed on July 22, 2008. The total construction cost was $21,700.00. Conclusion: Council should allocate the additional $15,060.00 for this project. During the discussions at the July 8, 2008 City Council meeting the design, inspection, survey and soil report costs were not considered when discussing the total cost. FISCAL IMPACT: An additional $15,060.00 over what was previously budgeted for this project. Balboa Road Improvement Cost Summary Item Cost Surveying to o ra hic survey) $6,400.00 Soil Report 1,950.00 Staff Time in design and inspection 13,000.00 Grading and erosion protection 21,710.00 Total $43,060.00 ATTACHMENTS: • Balboa Road Photographs • 52 • BALBOA ROAD Before ,k RON omm w ,M r� r p x � 'Wi w: `, "e u � � n I ... ✓a sem" �,. � '?'� '� .� � g„3�.s yrs�°t-'`, �� ' g:r owl Yl 4:7 41 -------------- After • BALBOA ROAD Before F f r , s i n i r a .�Y After ITEM NUMBER: A- 6 DATE: 09/09/08 leis e ® 1979 Atascadero City Council Staff Report — Public Works Department Final Map 2008-0169 (Parcel Map AT 07-0290) 7095 EI Camino Real (TPM 2007-0093) Adam Scattini RECOMMENDATIONS: Council: 1. Adopt and approve Final Parcel Map 2008-0169 (Parcel Map AT 07-0093); and, 2. Authorize and direct the City Clerk to endorse the Council's approval on the • Map. DISCUSSION: Tentative Parcel Map 2007-0093 was approved by the Planning Commission on May 6, 2008. The Tentative Parcel Map approved the division of a 35,754.05 square foot lot into two lots of 17,824.88 and 17,929.17 square feet. Staff has determined that the Final Parcel Map is in substantial conformance with approved Tentative Parcel Map. Pursuant to California Government Code Section 66474.1 the approving legislative body (City Council) cannot deny a parcel map that is in substantial conformance with the previously approved tentative map. Also, Pursuant to California Government Code Section 66477.1(a), at the time the legislative body approves a parcel map, the legislative body shall also accept, accept subject to improvement, or reject any offer of dedication. There are no offers of dedication on this map. FISCAL IMPACT: None • ATTACHMENTS: Exhibit A: Final Map 2008-0169 (Parcel Map ATAL 07- 0093) 57 ITEM NUMBER: A-6 DATE: 09/09/08 Exhibit A Final Map 2008-0169(Parcel Map AT 07-0093) • 7095 EI Camino Real Adam Scattini K ra �I .Cl rw a m rn Q V iy hKh=h Z r-5- n f Np JU w S g O ao�oQ O Uz y Z < m e N av�w' vz Ni i �w�� d 4 0 In W JaaZW �p - Q ap Q, � P z �m Li @ R b ogo� F-O yW Z 8 V1 \ -am0z 0 WLnc O ut ro sa ao • \ u rA Nib t LLJ �' `L� q �•�l c�, J1` � o J S / T � '[qd'p• III? •�., � �.4, ' � ,� Fy �j7� �o • / \ / Ina pw BC:4C:80p007/9l//O 6Mp pO-yZ-9"N��7AC-/O\AM.nm\cajo(jtl»lvi colmsolV ZOG-/O\/OOT=M 58 ITEM NUMBER: B -1 DATE: 09/09108 iA18 9 `. 1878 Atascadero City Council Staff Report — Public Works Department Federal Emergency Management Agency Requirement: Flood Damage Prevention Ordinance RECOMMENDATION: Council introduce for first reading, by title only, a Draft Ordinance, amending Title 7, Chapter 11 of the Atascadero Municipal Code pertaining to Flood Damage Prevention. DISCUSSION: • The Federal Emergency Management Agency (FEMA) has created new Flood Insurance Rate Maps (FIRM) and a new model Flood Damage Prevention Ordinance. FEMA is requiring every City and County in America to adopt the new model Flood Damage Prevention Ordinance. Background: Title 7, Chapter 11 of the Atascadero Municipal Code (AMC) addresses Flood Damage Prevention. The Flood Damage Prevention Ordinance is required by FEMA for property owners to participate in the National Flood Insurance Program. Lending institution will not loan on properties in flood prone areas that cannot obtain flood insurance. The purpose of the Flood Damage Prevention Ordinance is to protect the health, safety, and welfare of Atascadero's citizens and their property. The Ordinance establishes duties and responsibilities of a Floodplain Administrator, restricts uses in flood-prone areas, controls grading and filling in the floodplains, sets construction standards for facilities in the floodplain and regulates other floodplain issues. Analysis: FEMA is in the process of modernizing Flood Rate Insurance Maps by creating digital flood maps over aerial pictures. The new Maps became effective on August 29, 2008. As part of this modernization, FEMA is requiring every City and County in America to standardize their Flood Damage Prevention Ordinance. 59 ITEM NUMBER: B - 1 DATE: 09/09/08 The proposed Ordinance was supplied to the City by FEMA. The proposed Ordinance . and Maps do not change the currently mapped flood zones in Atascadero. Listed below is a chart of the proposed changes to our current Ordinance: Item Changed Existing Proposed Flood Plain Administrator Community City Manager or designee Development Director Flood Plain Board of Appeals (1) PlanningCommission Cit Council Variance Hearings to the Flood Planning Commission City Council Consideration Ordinance (1) Consideration Definitions (2) Definitions Definitions Added Automatic Adoption (3) Flood Insurance Study Flood Insurance Study Flood Insurance Rate Ma Standard for Construction (4) Standards Expanded standards Severability Clause (5) None Added (1) This body hears appeals the Flood Damage Prevention Ordinance and requests for variances. The City has never had a request for an appeal or variance. (2) Definitions added are: accessory structure, accessory use, apex, development, encroachment, fraud and victimization, governing body, historic structure, levee, market value, obstruction, programming deficiency, public safety and nuisance, recreational vehicle, regulatory floodway, substantial damage, variance, water surface elevation and watercourse. (3)This will provide for automatic adoption of all future revised Flood Insurance Rate Maps and Studies. (4) Standards for construction on construction materials and methods and elevations and Floodproofing were expanded. (5)This section states if any section of this Ordinance is found unconstitutional or invalid by the courts the remaining sections shall still be valid. Conclusion: Staff has worked with FEMA to ensure that the proposed Flood Damage Prevention Ordinance meets the needs of Atascadero's Citizens and maintains the City's participation in the National Flood Insurance Program. The proposed Flood Damage Prevention Ordinance changes are minimal and will not affect or change City wide flood plain regulation. Staff recommends approval of the Ordinance. FISCAL IMPACT: There is no fiscal impact to the City that will be caused by this City Council Action. ALTERNATIVES: The City Council has the option to not adopt the updated flood ordinance. This alternative is not recommended since FEMA has the option to exclude the City from the National Flood Insurance Program if the updated Flood Damage Prevention Ordinance is not adopted. ATTACHMENTS: Draft Flood Damage Prevention Ordinance • 60 DRAFT ORDINANCE AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ATASCADERO, CALIFORNIA, AMENDING TITLE 7, CHAPTER 11, FLOOD DAMAGE PREVENTION, OF THE ATASCADERO MUNICIPAL CODE The City Council hereby finds and declares as follows: WHEREAS, the Municipal Code Title 7 Public Works Chapter 11 Flood Damage Prevention Ordinance was approved in 1988 and amended in 1993 and 2004. This Ordinance was required by Federal Emergency Management Agency to allow the City of Atascadero to participate in the National Flood Insurance Program; and, WHEREAS, the Federal Emergency Management Agency is requiring the City of Atascadero to amend the Flood Damage Prevention Ordinance to bring it in compliance with new Ordinance provision; and, WHEREAS, the required changes are administrative and clarifying in nature and do not make major changes to the current Ordinance; and, WHEREAS, the City of Atascadero has initiated an update to change, clarify and modify the provisions of the Municipal Code Title 7, Chapters 11, pertaining to flood damage prevention. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ATASCADERO HEREBY ORDAINS AS FOLLOWS: SECTION ONE: Findings for Approval of a Flood Damage Prevention Text Change. The City Council finds as follows: 1. The Flood Damage Prevention text change is consistent with General Plan policies and all other applicable ordinances and policies of the City. 2. Amendment of the Flood Damage Prevention Ordinance will provide for the orderly and efficient use of lands where such flood damage prevention standards are applicable and will comply with the Federal Emergency Management Agency requirements to allow the City of Atascadero to participate in the National Flood Insurance Program. 3. The text change will not, in itself, result in significant environmental impacts. SECTION TWO: Adoption. The City Council of the City of Atascadero hereby amends Title 7, Chapter 11 of the Municipal code as follows: Title 7, Chapter 11 is to be repealed and a new Chapter 11 is to be inserted as follows: 61 CHAPTER 11 FLOOD DAMAGE PREVENTION 7-11.001 Flood damage prevention 7-11.002 Statutory authorization 7-11.003 Findings of fact 7-11.004 Statement of purpose 7-11.005 Methods of reducing flood losses. 7-11.006 Definitions 7-11.007 Lands to which this chapter applies 7-11.008 Basis for establishing the areas of special flood hazard 7-11.009 Compliance 7-11.010 Abrogation and greater restrictions 7-11.011 Interpretation 7-11.012 Warning and disclaimer of liability 7-11.013 Administration 7-11.014 Severability 7-11.015 Designation of the floodplain administrator 7-11.016 Duties and responsibilities of the floodplain administrator 7-11.017 Development permit 7-11 .018 Appeals 7-11.019 Provisions for flood hazard reduction 7-11.020 Standards of construction 7-11.021 Standards for utilities 7-11.022 Standards for subdivisions and other proposed development 7-11.023 Standards for manufactured homes within manufactured home parks or subdivisions 7-11 .024 Standards for recreational vehicles 7-11.025 Floodways 7-11 .026 Flood-related erosion-prone areas 62 7-11.027 Variance Procedure 7-11.028 Nature of variances 7-11.029 Conditions for variances 7-11.030 Appeal Board 7-11.001 FLOOD DAMAGE PREVENTION The ordinance codified in this chapter is enacted to protect the health, safety and welfare of the citizens of Atascadero and their property and to meet the requirements of state and federal legislation. These regulations take precedence over any less restrictive conflicting local laws, ordinances and codes. 7-11.02 STATUTORY AUTHORIZATION. The Legislature of the State of California has in Government Code Sections 65302, 65560, and 65800 conferred upon local governments the authority to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry. Therefore, the City Council of the City of Atascadero does hereby adopt the following floodplain management regulations. 7-11.003 FINDINGS OF FACT A. The flood hazard areas of the City of Atascadero are subject to periodic inundation which results in loss of life and property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare. B. These flood losses are caused by uses that are inadequately elevated, flood proofed, or protected from flood damage. The cumulative effect of obstructions in areas of special flood hazards which increase flood heights and velocities also contributes to flood losses. 7-11.004 STATEMENT OF PURPOSE It is the purpose of this chapter to promote the public health, safety, and general welfare, and to minimize public and private losses due to flood conditions in specific areas by legally enforceable regulations applied uniformly throughout the community to all publicly and privately owned land within flood prone, mudslide [i.e. mudflow] or flood related erosion areas. These regulations are designed to: A. Protect human life and health; 63 B. Minimize expenditure of public money for costly flood control projects; C. Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public; D. Minimize prolonged business interruptions; E. Minimize damage to public facilities and utilities such as water and gas mains; electric, telephone and sewer lines; and streets and bridges located in areas of special flood hazard; F. Help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard so as to minimize future blighted areas caused by flood damage; G. Ensure that potential buyers are notified that property is in an area of special flood hazard; and H. Ensure that those who occupy the areas of special flood hazard assume responsibility for their actions. 7-11.005 METHODS OF REDUCING FLOOD LOSSES In order to accomplish its purposes, this chapter includes methods and provisions to: A. Restrict or prohibit uses which are dangerous to health, safety, and property due to water or erosion hazards, or which result in damaging increases in erosion or flood heights or velocities; B. Require that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction; C. Control the alteration of natural floodplains, stream channels, and natural protective barriers, which help accommodate or channel floodwaters; D. Control filling, grading, dredging, and other development which may increase flood damage; and E. Prevent or regulate the construction of flood barriers which will unnaturally divert floodwaters or which may increase flood hazards in other areas. 7-11.006 DEFINITIONS 64 Unless specifically defined below, words or phrases used in this chapter shall be interpreted so as to give them the meaning they have in common usage and to give this chapter it's most reasonable application. "A zone" - see "Special flood hazard area". purposes of Chapter 7-11 means a structure that is Accessory structure for the purp p either: A. Solely parking for the arkin of no more than 2 cars; or B. A small, low cost shed for limited storage, less than 150 square feet and $1,500 in value. (Note: Accessory structures, as defined in other chapters of the City of Atascadero Municipal Code that do not comply with this definition, shall comply with Section 7- 11.020 C.S.b.) "Accessory use" means a use which is incidental and subordinate to the principal use of the parcel of land on which it is located. "Alluvial fan" means a geomorphologic feature characterized by a cone or fan-shaped deposit of boulders, gravel, and fine sediments that have been eroded from mountain slopes, transported by flood flows, and then deposited on the valley floors, and which is subject to flash flooding, high velocity flows, debris flows, erosion, sediment movement and deposition, and channel migration. "Apex" means a point on an alluvial fan or similar landform below which the flow path of and alluvial fan flooding that formed the fan becomes unpredictableg the major stream can occur. ,� t for a review of the Floodplain Administrator's interpretation of "Appeal" means a re ues o p P pp q any provision of this chapter. "Area of shallow flooding" means a designated AO or AH Zone on the Flood Insurance Rate Map (FIRM). The base flood depths range from one to three feet; a clearly defined channel does not exist; the path of flooding is unpredictable and indeterminate; and velocity flow may be evident. Such flooding is characterized by ponding or sheet flow. "Area of special flood hazard" - See "Special flood hazard area." "Area of special flood-related erosion hazard" is the land within a community which is most likely to be subject to severe flood-related erosion losses. The area may be designated as Zone E on the Flood Insurance Rate Map (FIRM). 65 "Base flood" means a flood which has a one percent chance of being equaled or exceeded in any given year (also called the "100-year flood"). Base flood is the term used throughout this chapter. "Base flood elevation" (BFE) means the elevation shown on the Flood Insurance Rate Map for Zones AE, AH, Al-30, VE and V1430 that indicates the water surface elevation resulting from a flood that has a 1-percent or greater chance of being equaled or exceeded in any given year. "Basement" means any area of the building having its floor subgrade - i.e., below ground level - on all sides. "Building" - see "Structure". "Development" means any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials. "Encroachment" means the advance or infringement of uses, plant growth, fill, excavation, buildings, permanent structures or development into a floodplain which may impede or alter the flow capacity of a floodplain. "Existing manufactured home park or subdivision" means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed before May 9, 1989. "Expansion to an existing manufactured home park or subdivision" means the preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads). "Flood, flooding, or flood water" means: A. A general and temporary condition of partial or complete inundation of normally dry land areas from the overflow of inland or tidal waters; the unusual and rapid accumulation or runoff of surface waters from any source; and/or mudslides (i.e., mudflows); and B. The condition resulting from flood related erosion. "Flood Boundary and Floodway Map (FBFM)" means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of special flood hazards and the floodway. 66 "Flood Insurance Rate Map (FIRM)" means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of special flood hazards and the risk premium zones applicable to the community. "Flood Insurance Study" means the official report provided by the Federal Insurance Administration that includes flood profiles, the Flood Insurance Rate Map, the Flood Boundary and Floodway Map, and the water surface elevation of the base flood. "Floodplain or flood-prone area" means any land area susceptible to being inundated by water from any source - see "Flooding." "Floodplain Administrator" is the community official designated by title to administer and enforce the floodplain management regulations. "Floodplain management" means the operation of an overall program of corrective and preventive measures for reducing flood damage and preserving and enhancing, where possible, natural resources in the floodplain. Corrective and preventative measures include and are not limited to emergency preparedness plans, flood control works, floodplain management regulations, and open space plans. "Floodplain management regulations" means this chapter and other zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as grading and erosion control) and other application of police power which control development in flood-prone areas. This term describes federal, state or local regulations in any combination thereof which provide standards for preventing and reducing flood loss and damage. "Floodproofing" means any combination of structural and nonstructural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures, and their contents. For guidelines on dry and wet floodproofing, see FEMA Technical Bulletins TB 1-93, TB 3-93, and TB 7-93. "Floodway" means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot. Also referred to as "Regulatory Floodway." "Flood-related erosion" means the collapse or subsidence of land along the shore of a lake or other body of water as a result of undermining caused by waves or currents of water exceeding anticipated cyclical level or suddenly caused by an unusually high water level in a natural body of water, accompanied by a severe storm, or by an unanticipated force of nature, such as a flash flood or an abnormal tidal surge, or by some similarly unusually and unforeseeable event which results in flooding. 67 "Flood-related erosion area" or "Flood-related erosion prone area" means a land area adjoining the shore of a lake or other body of water, which due to the composition of the shoreline or bank and high water levels or wind-driven currents, is likely to suffer flood-related erosion damage. "Flood-related erosion area management" means the operation of an overall program of corrective and preventive measures for reducing flood-related erosion damage, including but not limited to emergency preparedness plans, flood-related erosion control works, and floodplain management regulations. "Floodway fringe" is that area of the floodplain on either side of the "Regulatory Floodway" where encroachment may be permitted. "Fraud and victimization" as related to 7-11.027 of this chapter, means that the variance granted must not cause fraud on or victimization of the public. In examining this requirement, the City Council of the City of Atascadero will consider the fact that every newly constructed building adds to government responsibilities and remains a part of the community for fifty to one hundred years. Buildings that are permitted to be constructed below the base flood elevation are subject during all those years to increased risk of damage from floods, while future owners of the property and the community as a whole are subject to all the costs, inconvenience, danger, and suffering that those increased flood damages bring. In addition, future owners may purchase the property, unaware that it is subject to potential flood damage, and can be insured only at very high flood insurance rates. "Functionally dependent use" means a use which cannot perform its intended purpose unless it is located or carried out in close proximity to water. The term includes only docking facilities, port facilities that are necessary for the loading and unloading of cargo or passengers, and ship building and ship repair facilities, and does not include long-term storage or related manufacturing facilities. "Governing body" is the local governing unit, i.e. county or municipality that is empowered to adopt and implement regulations to provide for the public health, safety and general welfare of its citizenry. "Hardship" as related to 7-11.027 of this chapter means the exceptional hardship that would result from a failure to grant the requested variance. The City Council of the City of Atascadero requires that the variance be exceptional, unusual, and peculiar to the property involved. Mere economic or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, physical handicaps, personal preferences, or the disapproval of one's neighbors likewise cannot, as a rule, qualify as an exceptional hardship. All of these problems can be resolved through other means without granting a variance, even if the alternative is more expensive, or requires the property owner to build elsewhere or put the parcel to a different use than originally intended. 68 "Highest adjacent grade" means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure. "Historic structure" means any structure that is: A. Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register; B. Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district; C. Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of Interior; or D. Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either by an approved state program as determined by the Secretary of the Interior or directly by the Secretary of the Interior in states without approved programs. "Levee" means a man-made structure, usually an earthen embankment, designed and constructed in accordance with sound engineering practices to contain, control or divert the flow of water so as to provide protection from temporary flooding. "Levee system" means a flood protection system which consists of a levee, or levees, and associated structures, such as closure and drainage devices, which are constructed and operated in accord with sound engineering practices. "Lowest floor" means the lowest floor of the lowest enclosed area, including basement (see "Basement" definition). A. An unfinished or flood resistant enclosure below the lowest floor that is usable solely for parking of vehicles, building access or storage in an area other than a basement area, is not considered a building's lowest floor provided it conforms to applicable non-elevation design requirements, including, but not limited to: 1. The flood openings standard in Section 7-11.020.C.3; 2. The anchoring standards in Section 7-11.020.A; 3. The construction materials and methods standards in Section 7-11.020.113; and 69 4. The standards for utilities in Section 7-11.021. B. For residential structures, all subgrade enclosed areas are prohibited as they are considered to be basements (see "Basement" definition). This prohibition includes below-grade garages and storage areas. "Manufactured home" means a structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when attached to the required utilities. The term "manufactured home" does not include a "recreational vehicle". For floodplain management purposes, the term "manufactured home" also includes park trailers, travel trailers and other similar vehicles placed on a site for greater than one hundred eighty (180) consecutive days. "Manufactured home park or subdivision" means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale. "Market value" is defined in the City of Atascadero substantial damage/improvement procedures (see Section 7-11.016.B.1) "Mean sea level" means, for purposes of the National Flood Insurance Program, the National Geodetic Vertical Datum (NGVD) of 1929, North American Vertical Datum (NAVD) of 1988, or other datum, to which base flood elevations shown on a community's Flood Insurance Rate Map are referenced. "New construction", for floodplain management purposes, means structures for which the "start of construction" commenced on or after May 9, 1989, and includes any subsequent improvements to such structures. "New manufactured home park or subdivision" means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after May 9, 1989. "Obstruction" includes, but is not limited to, any dam, wall, wharf, embankment, levee, dike, pile, abutment, protection, excavation, channelization, bridge, conduit, culvert, building, wire, fence, rock, gravel, refuse, fill, structure, vegetation or other material in, along, across or projecting into any watercourse which may alter, impede, retard or change the direction and/or velocity of the flow of water, or due to its location, its propensity to snare or collect debris carried by the flow of water, or its likelihood of being carried downstream. "One-hundred-year flood" or "100-year flood" - see "Base flood." 70 "Person" means an individual or his agent, firm, partnership, association or corporation, or agent of the aforementioned groups, or this state or its agencies or political subdivisions. "Program deficiency" means a defect in a community's floodplain management regulations or administrative procedures that impairs effective implementation of those floodplain management regulations. "Public safety and nuisance" as related to Section 7-11.027 of this chapter, means that the granting of a variance must not result in anything which is injurious to safety or health of an entire community or neighborhood, or any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin. "Recreational vehicle" means a vehicle which is: A. Built on a single chassis; B. 400 square feet or less when measured at the largest horizontal projection; C. Designed to be self-propelled or permanently towable by a light duty truck; and D. Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use. "Regulatory floodway" means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot. "Remedy a violation" means to bring the structure or other development into compliance with State or local floodplain management regulations, or if this is not possible, to reduce the impacts of its noncompliance. Ways that impacts may be reduced include protecting the structure or other affected development from flood damages, implementing the enforcement provisions of the chapter or otherwise deterring future similar violations, or reducing State or Federal financial exposure with regard to the structure or other development. "Riverine" means relating to, formed by, or resembling a river (including tributaries), stream, brook, etc. "Sheet flow area" - see "Area of shallow flooding." "Special flood hazard area (SFHA)" means an area in the floodplain subject to a 1 percent or greater chance of flooding in any given year. It is shown on an FHBM or FIRM as Zone A, AO, Al-A30, AE, A99, or, AH. 71 "Start of construction" includes substantial improvement and other proposed new development and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, or other improvement was within 180 days from the date of the permit. The actual start means either the first placement of permanent construction of a structure on a site, such as the or footings, the installation of piles, the construction of columns, or any pouring of slab P 9 9 r home on a f excavation or the placement of a manufacture work beyond the stage o foundation. Permanent construction does not include land preparation, such as clearing, grading, and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building. "Structure" means a walled and roofed building that is principally above ground; this includes a gas or liquid storage tank or a manufactured home. "Substantial damage" means damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred. "Substantial improvement" means any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure before the "start of construction" of the improvement. This term includes structures which have incurred "substantial damage", regardless of the actual repair work performed. The term does not, however, include either: A. Any project for improvement of a structure to correct existing violations or state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions; or B. Any alteration of a "historic structure," provided that the alteration will not preclude the structure's continued designation as a "historic structure." "Variance" means a grant of relief from the requirements of this chapter which permits construction in a manner that would otherwise be prohibited by this chapter. "Violation" means the failure of a structure or other development to be fully compliant with this chapter. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in this chapter is presumed to be in violation until such time as that documentation is provided. 72 "Water surface elevation" means the height, in relation to the National Geodetic Vertical Datum (NGVD) of 1929, North American Vertical Datum (NAVD) of 1988, or other datum, of floods of various magnitudes and frequencies in the floodplains of coastal or riverine areas. "Watercourse" means a lake, river, creek, stream, wash, arroyo, channel or other topographic feature on or over which waters flow at least periodically. Watercourse includes specifically designated areas in which substantial flood damage may occur. 7-11.007 LANDS TO WHICH THIS CHAPTER APPLIES This chapter shall apply to all areas of special flood hazards within the jurisdiction of the City of Atascadero. 7-11.008 BASIS FOR ESTABLISHING THE AREAS OF SPECIAL FLOOD HAZARD The areas of special flood hazard identified by the Federal Emergency Management Agency (FEMA) in the "Flood Insurance Study (FIS) for the City of Atascadero" dated July 20, 1981, with accompanying Flood Insurance Rate Maps (FIRM's) and Flood Boundary and Floodway Maps (FBFM's), dated January 20, 1982, and all subsequent amendments and/or revisions, are hereby adopted by reference and declared to be a part of this chapter. This FIS and attendant mapping is the minimum area of applicability of this chapter and may be supplemented by studies for other areas which allow implementation of this chapter and which are recommended to the City Council of the City of Atascadero by the Floodplain Administrator. The study, FIRM's and FBFM's are on file at the Department of Public Works, 6907 EI Camino Real, Atascadero, CA 93422. 7-11.009 COMPLIANCE No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the terms of this chapter and other applicable regulations. Violation of the requirements (including violations of conditions and safeguards) shall constitute a misdemeanor. Nothing herein shall prevent the City Council of the City of Atascadero from taking such lawful action as is necessary to prevent or remedy any violation. 7-11.010 ABROGATION AND GREATER RESTRICTIONS This chapter is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this chapter and another chapter, 73 easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. 7-11.011 INTERPRETATION In the interpretation and application of this ordinance, all provisions shall be: A. Considered as minimum requirements; B. Liberally construed in favor of the governing body; and C. Deemed neither to limit nor repeal any other powers granted under state statutes. 7-11.012 WARNING AND DISCLAIMER OF LIABILITY The degree of flood protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by man-made or natural causes. This chapter does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This chapter shall not create liability on the part of the City Council of the City of Atascadero, any officer or employee thereof, the State of California, or the Federal Emergency Management Agency, for any flood damages that result from reliance on this chapter or any administrative decision lawfully made hereunder. 7-11.013 ADMINISTRATION Administration of this chapter is vested with the City Manager or his designee. The City Manager shall designate his representative in writing. 7-11.014 SEVERABILITY This chapter and the various parts thereof are hereby declared to be severable. Should any section of this chapter be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the chapter as a whole, or any portion thereof other than the section so declared to be unconstitutional or invalid. 7-11.015 DESIGNATION OF THE FLOODPLAIN ADMINISTRATOR The City Manager or his duly authorized designee is hereby appointed to administer, implement, and enforce this chapter by granting or denying development permits in accord with its provisions. 7-11.016 DUTIES AND RESPONSIBILITIES OF THE FLOODPLAIN ADMINISTRATOR 74 The duties and responsibilities of the Floodplain Administrator shall include, but not be limited to the following: A. Permit Review. Review all development permits to determine: 1. Permit requirements of this chapter have been satisfied, including determination of substantial improvement and substantial damage of existing structures; 2. All other required state and federal permits have been obtained; 3. The site is reasonably safe from flooding; 4. The proposed development does not adversely affect the carrying capacity of areas where base flood elevations have been determined but a floodway has not been designated. This means that the cumulative effect of the proposed development when combined with all other existing and anticipated development will not increase the water surface elevation of the base flood more than 1 foot at any point within the City of Atascadero; and 5. All Letters of Map Revision (LOMR's) for flood control projects are approved prior to the issuance of building permits. Building Permits must not be issued based on Conditional Letters of Map Revision (CLOMR's). Approved CLOMR's allow construction of the proposed flood control project and land preparation as specified in the "start of construction" definition. Projects that have been issued building permits, and are under construction, prior to adoption of this revision of Chapter 11 are exempt from this provision. B. Development of Substantial Improvement and Substantial Damage Procedures. 1. Using FEMA publication FEMA 213, "Answers to Questions About Substantially Damaged Buildings," develop detailed procedures for identifying and administering requirements for substantial improvement and substantial damage, to include defining "Market Value." 2. Assure procedures are coordinated with other departments/divisions and implemented by community staff. C. Review, Use and Development of Other Base Flood Data. When base flood elevation data has not been provided in accordance with Section 7-11.008, the Floodplain Administrator shall obtain, review, and 75 reasonably utilize any base flood elevation and floodway data available from a federal or state agency, or other source, in order to administer Section 7-11.016. NOTE: A base flood elevation may be obtained using one of two methods from the FEMA publication, FEMA 265, "Managing Floodplain Development in Approximate Zone A Areas — A Guide for Obtaining and Developing Base (100- year) Flood Elevations" dated July 1995. D. Notification of Other Agencies. 1. Alteration or relocation of a watercourse: a. Notify adjacent communities and the California Department of Water Resources prior to alteration or relocation; b. Submit evidence of such notification to the Federal Emergency Management Agency; and c. Assure that the flood carrying capacity within the altered or relocated portion of said watercourse is maintained. 2. Base Flood Elevation changes due to physical alterations: a. Within 6 months of information becoming available or project completion, whichever comes first, the floodplain administrator shall submit or assure that the permit applicant submits technical or scientific data to FEMA for a Letter of Map Revision (LOMR). b. All LOMR's for flood control projects are approved prior to the issuance of building permits. Building Permits shall not be issued based on Conditional Letters of Map Revision (CLOMR's). Approved CLOMR's allow construction of the proposed flood control project and land preparation as specified in the "start of construction" definition. Projects that have been issued building permits prior to adoption of Chapter 11 are exempt from this provision. Such submissions are necessary so that upon confirmation of those physical changes affecting flooding conditions, risk premium rates and floodplain management requirements are based on current data. 3. Changes in corporate boundaries: Notify FEMA in writing whenever the corporate boundaries have been modified by annexation or other means and include a copy of a map of the community clearly delineating the new corporate limits. 76 E. Documentation of Floodplain Development. Obtain and maintain for public inspection and make available as needed the following: 1. Certification required by Section 7-11.020.C.1 and Section 7-11.023 (lowest floor elevations); 2. Certification required by Section 7-11.020.C.2 (elevation or floodproofing of nonresidential structures); 3. Certification required by Sections 7-11.020.C.3 (wet floodproofing standard); 4. Certification of elevation required by Section 7-11.022.A.3 (subdivisions and other proposed development standards); 5. Certification required by Section 7-11.025 (floodway encroachments); and 6. Maintain a record of all variance actions, including justification for their issuance, and report such variances issued in its biennial report submitted to the Federal Emergency Management Agency. F. Map Determination. Make interpretations where needed, as to the exact location of the boundaries of the areas of special flood hazard, where there appears to be a conflict between a mapped boundary and actual field conditions. The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in Section 7-11.018. G. Remedial Action. Take action to remedy violations of this chapter as specified in 7-11.009. H. Biennial Report. Complete and submit Biennial Report to FEMA. I. Planning. Assure community's General Plan is consistent with floodplain management objectives herein. 7-11.017 DEVELOPMENT PERMIT A development permit shall be obtained before any construction or other development, including manufactured homes, within any area of special flood hazard established in Section 7-11.008. Application for a development permit shall be 77 made on forms furnished by the City of Atascadero. The applicant shall provide the following minimum information: A. Plans, drawn to scale, showing: 1. Location, dimensions, and elevation of the area in question, existing or proposed structures, storage of materials and equipment and their location; 2. Proposed locations of water supply, sanitary sewer, and other utilities; 3. Grading information showing existing and proposed contours, any proposed fill, and drainage facilities; 4. Location of the regulatory floodway when applicable; 5. Base flood elevation information as specified in Section 7-11.008 or Section 7-11.016.C; 6. Proposed elevation in relation to mean sea level, of the lowest floor (including basement) of all structures; and 7. Proposed elevation in relation to mean sea level to which any nonresidential structure will be floodproofed, as required in Section 7-11.020.C.2 of this chapter and detailed in FEMA Technical Bulletin TB 3-93. B. Certification from a registered civil engineer or architect that the nonresidential floodproofed building meets the floodproofing criteria in Section 7-11.020.C.2. C. For a crawl-space foundation, location and total net area of foundation openings as required in Section 7-11.020.C.3 of this chapter and detailed in FEMA Technical Bulletins 1-93 and 7-93. D. Description of the extent to which any watercourse will be altered or relocated as a result of proposed development. E. All appropriate certifications listed in Section 7-11.016.E of this chapter. 7-11.018 APPEALS The City Council of the City of Atascadero shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the Floodplain Administrator in the enforcement or administration of this chapter. 7-11.019 PROVISIONS FOR FLOOD HAZARD REDUCTION Sections 7-11.020 through 7-11.024 are for the reduction of flood hazards. 7-11.020 STANDARDS OF CONSTRUCTION 78 In all areas of special flood hazards the following standards are required: A. Anchoring All new construction and substantial improvements of structures, including manufactured homes, shall be adequately anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. B. Construction Materials and Methods t All new construction and substantial improvements of structures, including manufactured homes, shall be constructed: 1. With flood resistant materials, and utility equipment resistant to flood damage for areas below the base flood elevation; 2. Using methods and practices that minimize flood damage; 3. With electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding; and 4. Within Zones AH or AO, so that there are adequate drainage paths around structures on slopes to guide flood waters around and away from proposed structures. C. Elevation and Floodproofing 1. Residential construction All new construction or substantial improvements of residential structures shall have the lowest floor, including basement: a. In AE, AH, Al-30 Zones, elevated to or above the base flood elevation. b. In an AO zone, elevated above the highest adjacent grade to a height equal to or exceeding the depth number specified in feet on the FIRM, or elevated at least 2 feet above the highest adjacent grade if no depth number is specified. c. In an A zone, without BFE's specified on the FIRM [unnumbered A zone], elevated to or above the base flood elevation; as determined under Section 7-11.016C. 79 Upon the completion of the structure, the elevation of the lowest floor, including basement, shall be certified by a registered civil engineer or licensed land surveyor, and verified by the community building inspector to be properly elevated. Such certification and verification shall be provided to the Floodplain Administrator. 2. Nonresidential construction All new construction or substantial improvements of nonresidential structures shall either be elevated to conform with Section 7-11.020.C.1 or: a. Be floodproofed, together with attendant utility and sanitary facilities, below the elevation recommended under Section 7-11.020.C.1, so that the structure is watertight with walls substantially impermeable to the passage of water; b. Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and c. Be certified by a registered civil engineer or architect that the standards of Section 7-11.0210 C.2.a & b are satisfied. Such certification shall be provided to the Floodplain Administrator. 3. Flood openings All new construction and substantial improvements of structures with fully enclosed areas below the lowest floor (excluding basements) that are usable solely for parking of vehicles, building access or storage, and which are subject to flooding, shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwater. Designs for meeting this requirement must meet the following minimum criteria: a. For non-engineered openings: 1. Have a minimum of two openings on different sides having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding; 2. The bottom of all openings shall be no higher than one foot above grade; 3. Openings may be equipped with screens, louvers, valves or other coverings or devices provided that they permit the automatic entry and exit of floodwater; and 80 4. Buildings with more than one enclosed area must have openings on exterior walls for each area to allow flood water to directly enter; or b. Be certified by a registered civil engineer or architect. 4. Manufactured homes a. Manufactured homes located outside of manufactured home parks or subdivisions shall meet the elevation and floodproofing requirement in Section 7-11.020.C. Manufactured homes laced within manufactured home parks or b. Ma p subdivisions shall meet the standards in Section 7-11.023. Additional guidance may be found in FEMA Technical Bulletins TB 1-93 and TB 7- 93. 5. Garages and low cost accessory structures a. Attached garages. 1. A garage attached to a residential structure, constructed with the garage floor slab below the BFE, must be designed to allow for the automatic entry of flood waters. See Section 7-11.020.C.3. Areas of the garage below the BFE must be constructed with flood resistant materials. See Section 7-11.020.113. 2. Aara e attached to a nonresidential structure must meet the above 9 9 requirements or be dry floodproofed. For guidance on below grade parking areas, see FEMA Technical Bulletin TB-6. b. Detached garages and accessory structures. 1. "Accessory structures" used solely for parking (2 car detached garages or smaller) or limited storage (small, low-cost sheds), as defined in Section 7-11.006, may be constructed such that its floor is below the base flood elevation (BFE), provided the structure is designed and constructed in accordance with the following requirements: i. Use of the accessory structure must be limited to parking or limited storage ii. The portions of the accessory structure located below the BFE must be built using flood-resistant materials 81 iii. The accessory structure must be adequately anchored to prevent flotation, collapse and lateral movement iv. Any mechanical and utility equipment in the accessory structure must be elevated or floodproofed to or above the BFE v. The accessory structure must comply with floodplain encroachment provisions in Section 7-11.025 vi. The accessory structure must be designed to allow for the automatic entry of flood waters in accordance with Section 7- 11.020.C.3. 2. Detached garages and accessory structures not meeting the above standards must be constructed in accordance with all applicable standards in Section 7-11.020. 6. Crawl Space Construction This sub-section applies to buildings with crawl spaces up to 2 feet below grade. Below-grade crawl space construction in accordance with the requirements listed below will not be considered basements. a. The building must be designed and adequately anchored to resist flotation, collapse, and lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. Crawl space construction is not allowed in areas with flood velocities greater than 5 feet per second unless the design is reviewed by a qualified design professional, such as a registered architect or professional engineer; b. The crawl space is an enclosed area below the BFE and, as such, must have openings that equalize hydrostatic pressures by allowing for the automatic entry and exit of floodwaters. For guidance on flood openings, see FEMA Technical Bulletin 1-93; c. Crawl space construction is not permitted in V zones. Open pile or column foundations that withstand storm surge and wave forces are required in V zones; d. Portions of the building below the BFE must be constructed with materials resistant to flood damage. This includes not only the foundation walls of the crawl space used to elevate the building, but also any joists, insulation, or other materials that extend below the BFE; and e. Any building utility systems within the crawl space must be elevated 82 above BFE or designed so that floodwaters cannot enter or accumulate within the system components during flood conditions. f. Requirements for all below-grade crawl space construction, in addition to the above requirements, to include the following: 1 . The interior grade of a crawl space below the BFE must not be more than 2 feet below the lowest adjacent exterior grade (LAG), shown as D in figure 3 of Technical Bulletin 11-01; 2. The height of the below-grade crawl space, measured from the interior grade of the crawl space to the top of the crawl space foundation wall not exceed 4 feet shown as L in figure 3 of Technical Bulletin 11- must o ( 9 01) at any point; 3. There must be an adequate drainage system that removes floodwaters within a reasonable period of from the interior area of the crawl spacep time after a flood event, not to exceed 72 hours; and 4. The velocity of floodwaters at the site should not exceed 5 feet per second for any crawl space. For velocities in excess of 5 feet per second, other foundation types should be used. 7-11.021 STANDARDS FOR UTILITIES A. All new and replacement water supply and sanitary sewage systems shall be designed to minimize or eliminate: 1. Infiltration of flood waters into the systems; and 2. Discharge from the systems into flood waters. B. On-site waste disposal systems shall be located to avoid impairment to them, or contamination from them during flooding. 7-11.022 STANDARDS FOR SUBDIVISIONS AND OTHER PROPOSED DEVELOPMENT A. All new subdivisions proposals and other proposed development, including proposals for manufactured home parks and subdivisions, greater than 50 lots or 5 acres, whichever is the lesser, shall: 1. Identify the Special Flood Hazard Areas (SFHA) and Base Flood Elevations (BFE). 83 2. Identify the elevations of lowest floors of all proposed structures and pads on the final plans. 3. If the site is filled above the base flood elevation, the following as-built information for each structure shall be certified by a registered civil engineer or licensed land surveyor and provided as part of an application for a Letter of Map Revision based on Fill (LOMR-F) to the Floodplain Administrator: a. Lowest floor elevation. b. Pad elevation. c. Lowest adjacent grade. B. All subdivision proposals and other proposed development shall be consistent with the need to minimize flood damage. C. All subdivision proposals and other proposed development shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage. D. All subdivisions and other proposed development shall provide adequate drainage to reduce exposure to flood hazards. 7-11.023 STANDARDS FOR MANUFACTURED HOMES WITHIN MANUFACTURED HOME PARKS OR SUBDIVISIONS All manufactured homes in special flood hazard areas shall meet the anchoring standards in Section 7-11.020.A, construction materials and methods requirements in Sections 7-11.020.6, flood openings requirements in 7-11.020.C.3, and garages and low cost accessory structure standards in 7-11.020.C.5. Note: Manufactured homes located outside of manufactured home parks or subdivisions shall meet the elevation and flood proofing requirement in Section 7- 11.020.C. A. All manufactured homes that are placed or substantially improved, on sites located: (1) in a new manufactured home park or subdivision; (2) in an expansion to an existing manufactured home park or subdivision; (3) or in an existing manufactured home park or subdivision on a site upon which a manufactured home has incurred "substantial damage" as the result of a flood shall: 1. Within Zones Al-30, AH, and AE on the community's Flood Insurance Rate Map, be elevated on a permanent foundation such that the lowest floor of the 84 manufactured home is elevated to or above the base flood elevation and be securely fastened to an adequately anchored foundation system to resist flotation, collapse, and lateral movement. B. All manufactured homes to be placed or substantially improved on sites in an existing manufactured home park or subdivision within Zones Al-30, AH, and AE on the community's Flood Insurance Rate Map that are not subject to the provisions of Section 7-11.023.A will be securely fastened to an adequately anchored foundation system to resist flotation, collapse, and lateral movement, and be elevated so that either the: 1 . Lowest floor of the manufactured home is at or above the base flood elevation; or 2. Manufactured home chassis is supported by reinforced piers or other foundation elements of at least equivalent strength that are no less than 36 inches in height above grade. Upon the completion of the structure, the elevation of the lowest floor including basement shall be certified by a registered civil engineer or licensed land surveyor, and verified by the community building inspector to be properly elevated. Such certification and verification shall be provided to the Floodplain Administrator. 7-11.024 STANDARDS FOR RECREATIONAL VEHICLES A. All recreational vehicles placed in Zones Al-30, AH, and AE will either: 1. Be on the site for fewer than 180 consecutive days; or 2. Be fully licensed and ready for highway use. A recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices, and has no permanently attached additions; or 3. Meet the permit requirements of Section 7-11.017 of this chapter and the elevation and anchoring requirements for manufactured homes in Section 7- 11.023.A. 7-11.025 FLOODWAYS Since floodways are an extremely hazardous area due to the velocity of flood waters which carry debris, potential projectiles, and erosion potential, the following provisions apply: 85 A. Until a regulatory floodway is adopted, no new construction, substantial development, or other development (including fill) shall be permitted within Zones Al-30 and AE, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other development, will not increase the water surface elevation of the base flood more than 1 foot at any point within the City of Atascadero. B. Within an adopted regulatory floodway, the City of Atascadero shall prohibit encroachments, including fill, new construction, substantial improvements, and other development, unless certification by a registered civil engineer is provided demonstrating that the proposed encroachment shall not result in any increase in flood levels during the occurrence of the base flood discharge. C. If Sections 7-11.025.A & B are satisfied, all new construction, substantial improvement, and other proposed new development shall comply with all other applicable flood hazard reduction provisions of Section 7-11.019. 7-11.026 FLOOD-RELATED EROSION-PRONE AREA A. The Floodplain Administrator shall require permits for proposed construction and other development within all flood-related erosion-prone areas known to the community. B. Permit applications shall be reviewed to determine whether the proposed site alterations and improvements will be reasonably safe from flood-related erosion, and will not cause flood-related erosion hazards or otherwise aggravate the existing hazard. C. If a proposed improvement is found to be in the path of flood-related erosion or would increase the erosion hazard, such improvement shall be relocated or adequate protective measures shall be taken to avoid aggravating the existing erosion hazard. D. Within Zone E on the Flood Insurance Rate Map, a setback is required for all new development from the ocean, lake, bay, riverfront or other body of water to create a safety buffer consisting of a natural vegetative or contour strip. This buffer shall be designated according to the flood-related erosion hazard and erosion rate, in relation to the anticipated "useful life" of structures, and depending upon the geologic, hydrologic, topographic, and climatic characteristics of the land. The buffer may be used for suitable open space purposes, such as for agricultural, forestry, outdoor recreation and wildlife habitat areas, and for other activities using temporary and portable structures only. 86 7-11.027 VARIANCE PROCEDURE The following sections shall govern the processing of appeals and modification of standards. 7-11.028 NATURE OF VARIANCES The issuance of a variance is for floodplain management purposes only. Insurance premium rates are determined by statute according to actuarial risk and will not be modified by the granting of a variance. The variance criteria set forth in this section of the chapter are based on the general principle of zoning law that variances pertain to a piece of property and are not personal in nature. A variance may be granted for a parcel of property with physical characteristics so unusual that complying with the requirements of this chapter would create an exceptional hardship to the applicant or the surrounding property owners. The characteristics must be unique to the property and not be shared by adjacent parcels. The unique characteristic must pertain to the land itself, not to the structure, its inhabitants, or the property owners. It is the duty of the City Council of the City of Atascadero to help protect its citizens from flooding. This need is so compelling and the implications of the cost of insuring a structure built below flood level are so serious that variances from the flood elevation or from other requirements in the flood ordinance are quite rare. The long term goal of preventing and reducing flood loss and damage can only be met if variances are strictly limited. Therefore, the variance guidelines provided in this chapter are more detailed and contain multiple provisions that must be met before a variance can be properly granted. The criteria are designed to screen out those situations in which alternatives other than a variance are more appropriate. 7-11.029 CONDITIONS FOR VARIANCES A. Generally, variances may be issued for new construction, substantial improvement, and other proposed new development to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing that the procedures of Sections 7-11.013 and 7.11.018 of this chapter have been fully considered. As the lot size increases beyond one-half acre, the technical justification required for issuing the variance increases. B. Variances may be issued for the repair or rehabilitation of "historic structures" (as defined in Section 7-11.006 of this chapter) upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as an historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure. 87 C. Variances shall not be issued within any mapped regulatory floodway if any increase in flood levels during the base flood discharge would result. D. Variances shall only be issued upon a determination that the variance is the "minimum necessary" considering the flood hazard, to afford relief. "Minimum necessary" means to afford relief with a minimum of deviation from the requirements of this chapter. For example, in the case of variances to an elevation requirement, this means the City Council of the City of Atascadero need not grant permission for the applicant to build at grade, or even to whatever elevation the applicant proposes, but only to that elevation which the City Council of the City of Atascadero believes will both provide relief and preserve the integrity of the local ordinance. E. Any applicant to whom a variance is granted shall be given written notice over the signature of a community official that: 1. The issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for $100 of insurance coverage, and 2. Such construction below the base flood level increases risks to life and property. It is recommended that a copy of the notice shall be recorded by the Floodplain Administrator in the Office of the San Luis Obispo County Recorder and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land. F. The Floodplain Administrator will maintain a record of all variance actions, including justification for their issuance, and report such variances issued in its biennial report submitted to the Federal Emergency Management Agency. 7-11.030 APPEAL BOARD A. In passing upon requests for variances, the City Council of the City of Atascadero shall consider all technical evaluations, all relevant factors, standards specified in other sections of this chapter, and the: 1 . Danger that materials may be swept onto other lands to the injury of others; 2. Danger of life and property due to flooding or erosion damage; 3. Susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the existing individual owner and future owners of the property; 4. Importance of the services provided by the proposed facility to the community; 88 5. Necessity to the facility of a waterfront location, where applicable; 6. Availability of alternative locations for the proposed use which are not subject to flooding or erosion damage; 7. Compatibility of the proposed use with existing and anticipated development; 8. Relationship of the proposed use to the comprehensive plan and floodplain management program for that area; 9. Safety of access to the property in time of flood for ordinary and emergency vehicles; 10.Expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters expected at the site; and 11.Costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water system, and streets and bridges. B. Variances shall only be issued upon a: 1. Showing of good and sufficient cause; 2. Determination that failure togrant the variance would result in exceptional to thea applicant; and "hardship" pp , 3. Determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create a nuisance (see "Public safety and nuisance"), cause "fraud and victimization" of the public, or conflict with existing local laws or ordinances. C. Variances may be issued for new construction, substantial improvement, and other proposed new development necessary for the conduct of a functionally dependent use provided that the provisions of Sections 7-11.029.A through 7- 11.029.D are satisfied and that the structure or other development is protected by methods that minimize flood damages during the base flood and does not result in additional threats to public safety and does not create a public nuisance. D. Upon consideration of the factors of Section 7-11.029.A and the purposes of this chapter, the City Council of the City of Atascadero may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter. E. The Atascadero City Council may, at its sole discretion, hire outside experts 89 including but not limited to engineers and attorneys for appeal review and technical advice. The applicant shall reimburse the City of Atascadero for the actual cost of any outside expert(s) hired to advise City Council. SECTION THREE: A summary of this ordinance, approved by the City Attorney, together with the ayes and noes, shall be published twice: at least five days prior to its final passage in the Atascadero News, a newspaper published and circulated in the City of Atascadero, and; before the expiration of fifteen (15) days after its final passage, in the Atascadero News, a newspaper published and circulated in the City of Atascadero. A copy of the full text of this ordinance shall be on file in the City Clerk's Office on and after the date following introduction and passage and shall be available to any interested member of the public. INTRODUCED at a regular meeting of the City Council held on , and PASSED and ADOPTED by the City Council of the City of Atascadero, State of California, on by the following roll call vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: CITY OF ATASCADERO Marcia McClure Torgerson, C.M.C., Mike Brennler, Mayor City Clerk APPROVED AS TO FORM: Brian Pierik, City Attorney 90 ITEM NUMBER: B -2 ITEM NUMBER: B -2 DATE: 9109106 r of r.r!'.`Fr'r C Atascadero City Council _ Staff Report — Community Development Department Dormant Building Permit Applications Time Extensions Title 8 Code Text Amendments RECOMMENDATION: Council introduce for first reading by title only the Draft Ordinance, amending Title 8 to retroactively extend dormant and expired single family residential, multi-family residential, industrial, and commercial building permit applications to June 30, 2010, once all outstanding, unpaid plan check fees have been paid; and to clarify the City's building permit fee refund policy and Board of Appeals membership. REPORT-IN-BRIEF: The City of Atascadero has over 250± permit applications on file for single-family residences, multi-family residences, and commercial projects that have been dormant for longer than six months or 180 days. These are building permit applications that are still in the plan check process or are ready to issue but have not been picked up. Therefore, no construction has occurred related to these permits. These building permit applications do not include permits that have been issued. Title 8 of the Municipal Code requires that building permit applications must demonstrate progress toward obtaining a permit by filing corrections within 180 days of notification that the corrections are ready to pick up. On August 12, 2008, the City Council reviewed the issue of dormant building permit applications and outstanding plan check fees. The Council directed staff to prepare an amendment to the Local Building Code, Title 8, to provide a retroactive time extension for dormant building permit applications. The Council stipulated that the extension would run to June 30, 2010, and be contingent on all outstanding plan check fees being paid by February 28, 2009. 91 ITEM NUMBER: B -2 DATE: 9/09/08 DISCUSSION: Background: Between the years 2000 and 2005 the City did not require a pre-plan check fee to be paid at the time of project application submittal. During this period, complete plan check fees were collected at the time of permit issuance, along with permit fees. This was due to technical shortcomings with the City's previous permit system that made it infeasible to collect the plan check fees up front. This deferred plan check fee process worked well when the construction industry was robust. In cases where a project did not make it completely through plan check, staff required the applicant to pay all fees for "services rendered" prior to cancelling a permit, which was primarily the outstanding plan check fees. Since the construction economy has taken a downturn, the City has developed a backlog of 250± permit applications that have become dormant. Staff estimates these dormant permits have $370,000± in outstanding plan check fees due to the City. With the implementation of our new permit tracking system (CDS BuildPerm), staff has completely modified the process for submitting building permits, and now approximately 80% of the plan check fee is required at the time of permit application submittal. Summary: A dormant permit is defined as a permit that has not made significant progress within the last 180 days. According to the Atascadero Municipal Code (AMC), a project must make a filing every 180 days. Progress is defined as returning corrected plans within 180 days of picking up plans, or obtaining a permit within 180 days of notification that a permit is ready. The AMC also provides for one one-time-only 180 day extension granted by the Building Official during the plan review process. This would allow an applicant up to a one full year to meet the City's filing requirement. Staff has been notifying applicants with dormant permits that the permits will expire and outstanding fees are due. However, many applicants have not responded to City mailings. Those that have responded often request additional time extensions beyond what is allowed by the AMC. These applicants have explained that due to the collapse of the residential housing market, it does not make any economic sense to proceed with construction at this time. However, many applicants plan to build these projects once the market begins to recover. • 92 ITEM NUMBER: B -2 DATE: 9109108 Analysis: There are a number of benefits if the City were to grant an additional time extension in exchange for the payment of outstanding permit fees. Benefits of Additional Time Extensions • City could recover much of the $370,000± in outstanding plan check fees. • City would avoid forfeiting portions of the plan check fees to a collection agency. • Housing construction could start immediately once the housing market recovers. • Developers and staff would avoid a lengthy process of preparing and plan checking plans for a second time on subdivision projects that are partially built- out. • The local construction industry is one of the key local industries that affect the local economy. • Would enhance the City's image as being supportive of business. The City is sensitive to the economic downturn and the impacts on our construction industry. The City is also concerned with the viability of construction projects that are not making adequate progress. Many of these projects involve planned developments with very specific architectural design and site plan requirements. Once the City expires these permits, it will be very expensive and time consuming to get new plans prepared and approved before development can be restarted on these projects. Some projects that are currently in foreclosure will likely be acquired by new owners with limited knowledge of the project approval requirements. These new owners will be in a more difficult position if the project permits have expired. Staff is also very concerned about collecting the $370,000± outstanding plan check fees due to the City. Once the City expires a permit, the outstanding fees are turned over to a collection agency that would keep a portion of the recovered fees. The City does not expect to recover a significant portion of the outstanding fees once the permits are expired and turned over to collections. Proposed Code Text Amendments: The proposed code text amendment would provide a one-time-only permit extension to retroactively extend dormant and expired single family residential, multi-fannily residential, industrial, and commercial building permit applications to June 30, 2010, once all outstanding, unpaid plan check fees have been paid. Applicants with dormant permits would have until February 29, 2009, to file for an extension and pay the outstanding fees. 93 ITEM NUMBER: B -2 DATE: 9/09108 3. Dormant building permit application one-time-only blanket extension. In addition to the time extension allowed in section 105.3.2.1., any building permit application for new single-family-residence, new multi-family-residence, new commercial or industrial building, or a commercial or industrial addition, submitted to the City of Atascadero on or before September 9, 2008, may opt into a one-time- only application extension. In order to be considered for this program, all outstanding plan check fees must be paid in full on or before February 28, 2009, and any subsequent building permit regulated by this program must be paid for in full and issued on or before June 30, 2010. Any building permit application or subsequent building permit regulated by this program that does not meet all timeframes indicated in this section will be cancelled and become null and void, and any subsequent work will require a new permit application, new plans, and new plan check and permit fees. Staff has also included the following new language to clarify the City's refund policy for building permit application fees. City staff has been following this policy for a number of years and felt it should be codified to ensure consistency. 2. Fee refund. Application fees and permit fees are assessed to cover the cost of providing permit issuance services and therefore are not refundable once service has been obtained. A full refund (100%) can only be given when a cancelled application was submitted and/or reviewed due to staff error. Refunds for cancelled applications will not include submittal fees, document imaging fees, and plan review fees (once a plan review has been completed). Refunds must be requested in writing and within one (1) year of application submittal date. Refunds for cancelled permits will include up to 80% of the permit fee, provided no work has commenced and the request for refund is within one (1) year from permit issuance. Refunds must be requested in writing and within one (1) year of permit issuance. Refunds will not be processed for applications and/or permits that have been suspended or revoked, or that have expired due to limitation. Staff is also recommending that a code inconsistency regarding the Board of Appeals be corrected. The membership and operation of the Board of Appeals is described in both Title 2 and Title 8 of the Municipal Code. The Title 8 section defines the Board of Appeals as the City Council which is not permitted by the 2007 California Building Code. Title 2 correctly describes the Board of Appeals as construction industry professionals whose decisions are appealable to the City Council. Staff is recommending that Title 8 be amended to refer to Title 2 for the membership and operation of the Board of Appeals. The last time the Board of Appeals was convened was in 2000. 112.1 Appeals Board. The Board of Building Appeals shall be as described in Section 2-12.01 of the Atascadero Municipal Code. 94 ITEM NUMBER: B -2 DATE: 9/09/08 Conclusion: Staff is recommending the Council adopt the proposed text amendments that would allow dormant single family residential, multi-family residential, industrial, and commercial building permit applications to remain active during our economic downturn. This would provide the City an opportunity to collect outstanding plan check fees while providing a benefit to the local construction industry. This action would provide builders and investors addition permit application processing time until the construction economy recovers. FISCAL IMPACT: k fees is estimated to provide a financial benefit to the Collection of unpaid id Ian check P P . o Cit of approximately $150,000±. Staff is estimating that less than 50% of the permit Y P applications that are eligible for the extension will take advantage of the program. Staff assumed that 40% of the outstanding plan check fees would be captured under extensionprogram ram which would recover approximately $150,000 ($370,000 x 40"/o = g mount should be considered a very 150 000 . This a rough estimate. ALTERNATIVES: 1. The Council could deny the proposed code text amendments. 2. The Council could approve selected portions of the proposed code text amendments. 3. The Council could refer this item back to staff for additional analysis. ATTACHMENTS: 1 . Draft Ordinance 95 ITEM NUMBER: B -2 DATE: 9/09/08 Attachment 1: Draft Ordinance DRAFT ORDINANCE AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ATASCADERO, CALIFORNIA, AMENDING THE ATASCADERO MUNICIPAL CODE BY REPLACING SECTIONS 8-2.102(C) AND 8-2.102(E) OF THE LOCAL BUILDING CODE The City Council hereby finds and declares as follows: WHEREAS, the National, State and local economy have experienced a significant economic downturn in 2007 and 2008; and, WHEREAS, this economic downturn has had a considerable negative effect on the construction industry, especially the residential construction sector; and, WHEREAS, the City of Atascadero now has a backlog of over 250 building permit applications for new residential and commercial projects with outstanding plan check fees of $370,000±, and, WHEREAS, the building code requires building permit applications to be deemed abandoned after 180 days of inactivity; and, WHEREAS, the City Council reviewed this issue on August 12, 2008, and determined that it was in the economic interests of the City of Atascadero to provide relief to the construction industry by extending the permit extension deadlines; and, WHEREAS, the City Council directed staff to prepare a code text amendment that would provide an addition time extension to inactive building permit application. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ATASCADERO HEREBY ORDAINS AS FOLLOWS: SECTION 1: Section 8-2.102(c) of the Atascadero Municipal Code is amended to read as follows: 105.3.2. Time limitations of application. 1. Expiration of Plan Review. Applications for which no permit is issued within 180 days following date of notification of approval/ready for issuance by the Building Division, or applications within 180 days following date of notification of permit corrections to be picked up or returned, shall 96 IItM NUM=K: a I ITEM NUMBER: B -2 DATE: 9109/013 expire by limitation, and plans and other data submitted for review may thereafter be returned to the applicant or destroyed by the building official'.. In order to renew action on an application after expiration, the applicant shall resubmit plans and pay a new plan review fee. No extension is allowed except by written appeal to the Building Official. The Building Official is authorized to grant one extension of time for an additional period not exceeding 180 days. No application shall be extended more than once. 2. Fee refund. Application fees and permit fees are assessed to cover the cost of providing permit issuance services and therefore are not refundable once service has been obtained. A full refund(100%) can only be given when a cancelled application was submitted and/or reviewed due to staff error. Refunds for cancelled applications will not include submittal fees, document imaging fees, and plan review fees (once a plan review has been completed). Refunds must be requested in writing and within one (1) year of application submittal date. Refunds for cancelled permits will include up to 80% of the permit fee, provided no work has commenced and the request for refund is within one (1) year from permit issuance. Refunds must be requested in writing and within one (1) year of permit issuance. Refunds will not be processed for applications and/or permits that have been suspended or revoked, or that have expired due to limitation. 3. Dormant building permit application one-time-only blanket extension. In addition to the time extension allowed in section 105.3.2.1., any building permit application for new single-family-residence, new multi-family- residence, new commercial or industrial building, or a commercial or industrial addition, submitted to the City of Atascadero on or before September 9, 2008, may opt into a one-time-only application extension. In order to be considered for this program, all outstanding plan check fees must be paid in full on or before February 28, 2009, and any subsequent building permit regulated by this program must be paid for in full and issued on or before June 30, 2010. Any building permit application or subsequent building permit regulated by this program that does not meet all timeframes indicated in this section will be cancelled and become null and void, and any subsequent work will require a new permit application, new plans, and new plan check and permit fees. 97 ITI-RA \11 IIUIMC[]. O 7 ITEM NUMBER: B -2 DATE: 9/09/08 SECTION 2 Section 8-2.102(e) of the Atascadero Municipal Code is amended to read as follows: 112.1 Appeals Board. The Board of Building Appeals shall be as described in Section 2-12.01 of the Atascadero Municipal Code. SECTION 3: A summary of this ordinance, approved by the City Attorney, together with the ayes and noes, shall be published twice: at least five days prior to its final passage in the Atascadero News, a newspaper published and circulated in the City of Atascadero, and; before the expiration of fifteen (15) days after its final passage, in the Atascadero News, a newspaper published and circulated in the City of Atascadero. A copy of the full text of this ordinance shall be on file in the City Clerk's Office on and after the date following introduction and passage and shall be available to any interested member of the public. INTRODUCED at a regular meeting of the City Council held on , and PASSED and ADOPTED by the City Council of the City of Atascadero, State of California, on by the following roll call vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: CITY OF ATASCADERO Marcia McClure Torgerson, C.M.C., Mike Brennler, Mayor City Clerk APPROVED AS TO FORM: Brian Pierik, City Attorney 98 ITEM NUMBER: C - 1 ITEM NUMBER: C - 1 DATE: 9/09/08 �iGFB AIB h: .W.�e ^ 1 791 9 1918 0 I F Atascadero City Council Staff Report — Community Development Department Informational Background Report Drive-Throughs Overview of Zoning Issues and Impacts RECOMMENDATION: Council provide staff and Planning Commission with policy interpretation and direction on drive-through facilities. • DISCUSSION: Background: Over the past few years, a number of applications have been submitted and approved for drive-through businesses throughout the City. Recent approvals have included the following drive-throughs: • Carl's Jr. at the K-mart shopping center on EI Camino Real and San Anselmo • Walgreens drive-through pharmacy at the corner of EI Camino Real and Curbaril • Taco De Mexico drive-through restaurant on EI Camino Real • Drive-through restaurant at the West Front commercial site (not yet constructed) • Drive-through bank at the corner of Morro Road and Curbaril (not yet constructed) • Coffee Classics drive-through coffee shop on Morro Road • Starbucks drive-through at Home Depot Center • Tastee Freez drive-through restaurant on Montecito • SESLOC bank drive-through at the Food-4-Less center on EI Camino Real • Carl's Jr. drive-through restaurant at the Vons shopping center on EI Camino Real • Rite Aid drive-through pharmacy at the corner of EI Camino Real and Highway 41 The Planning Commission has expressed concern regarding the impacts of drive- throughs. The Planning Commission submitted a request for City Council to provide policy interpretation and direction on the processing of drive-through applications. The Commission also recommended the City Council conduct a public hearing in 99 conjunction with their development of a policy. This staff report is in response to 0 Council request to review the issue. ANALYSIS: Definition of a Drive-through There are many variations of what can be considered a drive-through. A traditional "drive-in" facility consists of a restaurant or theater in which people are served without leaving their cars. At a drive-in restaurant or drive-in movie, cars park and the drivers turn off their engines; the cars do not continue to idle. More recently, "curbside takeout" or "curbside pick-up" from casual dining restaurants has become one of the fastest growing areas in the restaurant industry. There does not seem to be any major site design or emission differences between "drive-in" or "curbside pick-up" restaurants and standard sit down restaurants. Additional drive-through lanes are not needed and air- pollution from idling cars is not increased. The question has also been raised, asking if full service gas stations and car washes are considered drive-throughs. Most sources agree that these are not classified as drive-throughs as they are a different type of use and have their own definitions in zoning ordinances. For the purposes of this report, only the most typical version of a drive-though will be discussed. This includes facilities with one or more drive-through windows where customers are served without leaving their cars. Services may include restaurants, pharmacies, banking services, dry-cleaners, photo finishing services, convenience stores, coffee shops, or other types of uses which provide a drive-through service. City of Atascadero Zoning Requirements for Drive-throughs The Atascadero Municipal Code identifies eating and drinking places with drive-through facilities as a conditional use in most commercial zoning districts. Drive-throughs are not allowed in the Downtown, Commercial Service, Residential, or Industrial zoning districts. The Downtown zone, where drive-throughs are not permitted, extends along EI Camino Real from Morro Road to Rosario Avenue. The existing downtown Jack-in- the-Box and Rabobank drive-throughs are considered legal non-conforming uses that may continue, even though they are inconsistent with the current zoning requirements. A Planning Commission approval of a Conditional Use Permit is required for drive- through in all other districts. Conditional Use Permit Required Drive-Through Not Permitted ■ Commercial Tourist (CT) ■ Downtown Zones (DT, DO) ■ Commercial Neighborhood (CN) ■ Commercial Service (CS) ■ Commercial Retail (CR) ■ Residential Zones (RS, LSF, RSF, RMF) ■ Commercial Professional (CP) ■ Industrial Zones (IP, 1) ■ Commercial Park (CPK) ■ Agriculture Zone (A) • Recreation (R) & Special Recreation (LS) ■ Public (P) ■ Open Space (OS) 100 The Atascadero Municipal Code defines "Eating and Drinking Places with Drive- Through Facilities"as "establishments which include points of service where customers are served prepared food without leaving their vehicles." However, the AMC does not provide specific definitions or zoning designations for drive-throughs such as pharmacies, banks, ATMS, convenience stores, coffee shops, or other types of uses which may provide a drive-through service. Therefore, it has been policy to group these other types of drive-through facilities in the same category as drive-through restaurants. Section 9-4.122 of the Atascadero Municipal Code addresses the site design and development standards required for drive-through facilities. These standards apply to any type of drive-through, and are not limited to drive-through restaurants: 9-4.122 Drive-in and drive-through facilities. This section establishes supplementary standards for retail trade or service uses which conduct business may while customers remain in their vehicles. Such uses y include drive-through facilities that are accessory to a principal building where business is conducted indoors or that conduct all business by means of drive- through facilities. Such uses may include but are not limited to drive-in restaurants, fast food establishments with drive-through take-out windows, photo- finishing services, and bank services. These standards are not applicable to service stations (Section 9-6.164). (a) Site Location Criteria. A site that contains drive-in or drive-through facilities shall be located on a collector or arterial, provided that access to drive-through facilities may be to a local street when properties across the local street from the exit driveway are not in a residential zone. (b) On-site Traffic Control. Sites with drive-through facilities shall provide internal circulation and traffic control devices as follows: (1) Lane Separation. An on-site circulation pattern shall be provided for drive- through traffic that separates such traffic from that of stopover customers. Separation may be by paint-striped lanes from the point of site access to the stacking area described in subdivision (2) of this subsection. such lanes are to be a minimum width of ten (10) feet. (2) Stacking Area. An area shall be provided for cars waiting for drive-through service that is physically separated from other traffic circulation on the site. That stacking area shall accommodate a minimum of four(4) cars per drive-through window in addition to the car(s) receiving service. Separation of the stacking area from other traffic shall be by concrete or asphalt curbing on at least one side of the lane. Stacking areas shall be designed to preclude excessive overflow into public streets. (3) Directional Signals. Signs shall be provided that indicate the entrance, exit and one-way path of drive-through lanes. (Ord. 68 § 9-4.122, 1983) 101 Drive-through Zoning Regulations in Other Cities The City of San Luis Obispo does not allow new drive-through facilities to be constructed in any zoning district. The City's ban on drive-through restaurants was initiated by the Planning Commission, and approved by the City Council in 1982 (Ord.941-1.) The City conducted several public hearings during their review of the drive-through ordinance. Public testimony strongly favored eliminating drive-throughs, mainly based on environmental grounds. The Council decided that drive-through facilities, particularly drive-through restaurants, were an inappropriate use due to air- quality impacts of idling cars waiting for service, and due to the visual impact of the added paving needed to accommodate the drive-through lanes. The City's ban on drive-throughs applies to all uses. The only drive-throughs that currently exist in San Luis Obispo are those that existed prior to 1982. Any existing drive-throughs are considered legal, non-conforming uses. According to City staff, very few complaints have been submitted regarding the drive-through ban since its adoption over two decades ago. The City of Paso Robles allows drive-through facilities based on location and zoning. In Paso Robles, drive-throughs are permitted within the Regional Commercial, Highway Commercial, Commercial/Light Industrial, Manufacturing, Planned Industrial, and Airport zoning districts, provided that the site is at least 300 feet from the nearest residential zone. If a drive-through is proposed within these zones, and meets the 300- foot minimum distance from the nearest residential zone, a building permit may be obtained for the drive-through without a requirement for Planning Commission approval. If the site is closer than 300 feet from the nearest residential zone, a Conditional Use Permit is required. Conditional Use Permits are always required for drive-throughs within the General Commercial zone. Drive-throughs are not permitted in the Residential, Neighborhood Commercial, Agricultural, or Office Professional zones. Community Character The issue of drive-through facilities has been met with a host of concerns relating to community character and quality of life issues such as noise, odor, compatibility with residential uses, and litter. The relationship between drive-throughs and the traditional pedestrian oriented streetscape design has also been questioned. "Smart Growth" is a concept in city planning that encourages more compact, walkable communities that utilize pedestrian scale mixed use infill rather than automobile dependent land use patterns. The idea is to create a comfortable, safe, and attractive city-wide pedestrian network and high quality public realm. When streets are inviting to pedestrians, street life activities become more vital and in turn, contribute to the safety and economic health of local areas. Urban design guidelines which emphasize walkability, sense of place, connectivity, safety, livability and being transit supportive are primary goals of Smart Growth communities. 102 Smart Growth supporters often state that drive-throughs do not meet any of these "good planning" design guidelines. In addition, it has been stated that drive-throughs contribute to reduced physical activity levels because of the reliance on cars and are often not designed for non-vehicular traffic. Drive-through facilities have been said to reflect an over-emphasis on a "car-culture" which encourages the use of the automobile, rather than alternative forms of transportation such as walking, biking, and public transit. Shopping centers with clusters of drive-throughs around busy intersections and major roads designed for vehicular traffic, create environments which are unattractive for pedestrians, cyclists, or other non-motorized traffic. Pedestrian oriented streetscapes and walking communities are a main aspect of smart growth principles. Site and building design that relates to and supports the public realm is encouraged. Some say the way drive-throughs are set back on a site, lacking sufficient built form at the street edge and visually dominated by cars, results in an uninviting pedestrian environment along the public street. Architectural style is another aspect of community character which can be affected by drive-throughs. Many fast food chains tend to propose a franchise style architecture which does not usually relate to the local architecture and sense of place. Franchises typically have prototype designs which can create a generic looking streetscape. This type of prototype design is often associated with the idea of suburban sprawl. Drive- throughs have also been citied as an underutilized use of land. They require additional impermeable surface, creating concerns about lot coverage and drainage. One option to limit the effects of drive-throughs on community character is to restrict drive-throughs in a designated area, rather than banning fast food or drive-throughs throughout the entire municipality. Many cities have adopted restrictions on drive- throughs in certain zoning districts in order to protect small businesses and preserve the distinctive character of certain neighborhood commercial districts. For example, in the City of Atascadero, drive-throughs are conditionally allowed in most commercial zoning districts, however, they are not allowed at all in the Downtown Commercial or Downtown Office districts. In developing the Downtown zone, it was decided that drive- throughs would not be a compatible use with the historical streetscape and traditional land use pattern which was originally established in the downtown area. This current limitation on drive-throughs in the Atascadero Municipal Code helps to promote Smart Growth principles and the idea of a walking community in the City's historic downtown area. Another option to combat the affects of drive-throughs on community charter is to implement additional site requirements and design guidelines. Key aspects of good site and building design can be incorporated to achieve a high quality public realm, a more inviting streetscape, and more walkable community. 103 Green House Gases and Emissions When cars continue to idle as they move through drive-through lanes, additional emissions are produced from the vehicles. It is the Air Pollution Control District's (APCD) position that drive-throughs expand vehicle dependency, increase the use of fossil fuel, and are contrary to Smart Growth principles. The SLO County APCD promotes Smart Growth principles and development strategies that reduce vehicle dependency use and promote transit oriented design, thereby reducing emissions. In 2006, the California State Legislature adopted Assembly Bill 32 (AB 32), the California Global Warming Solutions Act of 2006. AB 32 requires the California Air Resources Board (CARB), the State agency charged with regulating statewide air quality, to adopt rules and regulations that would achieve Greenhouse Gas (GHG) emissions equivalent to statewide levels in 1990 by 2020. Carbon dioxide (CO2) is the most dominant greenhouse gas, making up approximately 84% of all greenhouse gases. Fossil fuel combustion is responsible for 97% of all CO2 emissions worldwide. The APCD therefore concludes that reducing fossil fuel combustion is essential in order to meet the goals of AB 32. In a letter dated March 6, 2008, San Luis Obispo County APCD responded to the Mitigated Negative Declaration circulated for the Rite Aid project at the corner of EI Camino Real and Highway 41. The Rite Aid project included a drive-through pharmacy. APCD staff was able to calculate the expected operational GHG impact of the project. This analysis indicated that operational impacts resulting from the Rite Aid were likely to exceed the APCD's CEQA Tier I significance threshold value of 10 lbs/day for the criteria air pollutants nitrogen oxides (NOx) and reactive organic gases (ROG); 21 lbs/day NOx and 16 lbs/day ROG). The APCD recommended mitigation measures be incorporated if the drive-through was approved. Recommended mitigation included additional landscaping, incentives and opportunities for alternative transportation and trip reduction, energy efficiency measures, and idling limitations. Excerpts from the letter relating to the drive-through component of the project are included in Attachment 2 of this staff report. Evidence shows that queuing and idling traffic is the worst possible operating condition for motor vehicles, and produces the worst type and amount of emissions. Drive- through queues, where cars are idling are a significant source of pollution because the engine is unable to burn fuel efficiently and emits high volumes of emissions. Fuel is also wasted from idling or slow-moving vehicles in drive-through service lanes. However, it is important to note that any type of idling, whether it is at a stop light, waiting for kids to come out of school with the air conditioning on, or warming up a car in the driveway in front of a home, all produce these excess emissions and add to GHG. Some studies show that drive-through facilities are actually a small source of auto emissions compared to other sources. According to the restaurant industry, customers who use the drive-through are usually in the car already with multiple stops to make, 104 and, therefore, extra trips are not necessarily generated by the drive-through itself. It is typically the restaurant or the service that generates the car trip, not the drive-through option itself. Some sources state that more emissions can actually be found in parking lots than in the stacking lanes of drive-throughs, as a result of starting and stopping cars to get to multiple destinations. There has been much debate and mixed data regarding the issue of idling verses turning off and restarting a car. Some studies show that walk-in customers, by stopping and starting their cars, actually produce more exhaust than their drive-through counterparts. Some reports state that the emissions produced by stopping and restarting a car when a customer goes in to get food, are actually equal to leaving a car idling for anywhere from 2-10 minutes in the drive through lane. Given this idea, air quality and emission impacts may not be that much different between a drive-through and a walk-in customer. The State's Air Resource Board does not agree with this data. It is the APCD's standpoint that idling for several minutes will always produce more emissions. An article produced by the California Energy Commission suggests that if a car is idling more than 10 seconds, you should turn off the engine (see Attachment 3.) Many other sources agree with this timeframe. Based on the many studies and facts which have been produced regarding idling, most seem to say that there is two minute or less breaking point for idling verses turning off and restarting the engine. It appears to staff that part of the confusion regarding this issue stems from the recent mandate to regulate GHG's. Historically APCD regulated air pollutants that caused smog and dust (nitrogen oxides (NOx), reactive organic gases (ROG), particulate matter (PM-10). Thanks to improved auto emission controls, new cars produce fewer pollutants when idling than when starting. This would tend to favor the argument that drive-through are not a significant air quality impact. However, GHG emissions are related to how long an engine is running. Any engine that burns fossil fuels, regardless of emissions control technology, will emit CO2 (carbon dioxide) as a byproduct. Therefore, the less an engine runs the less CO2 or GHG will be emitted. This would tend to favor the argument that drive-throughs contribute to increased GHG emissions. Air Quality and Traffic Air quality effects have been citied as a resulting impact of drive-through facilities, and therefore are not supported by the APCD. According to the APCD, mobile sources account for over 50% of San Luis Obispo County's air pollution. Research consistently shows the adverse effects of outdoor air pollution on human health, and evidence points to air pollution stemming from transportation as an important contributor. In terms of poor air quality, of particular concern is the cumulative health effect of drive- through clusters when combined with busy intersections, shopping areas, and major roads. The clustering of drive-through facilities and other vehicle dominated environments combine to have a significant effect on air quality, making these areas 105 unattractive for pedestrians, cyclists or other non-motorized traffic. The net effect from an individual drive-through may be small compared to the air pollutants at a busy intersection, busy shopping center, or major highway interchange, but the cumulative effect of several sources may add up to be significant. Studies indicate that drive- through facilities can significantly affect local air quality for this reason. Many sources claim that additional traffic is also produced by allowing drive-though facilities. However, fast food representatives state that drive-throughs serve motorists already traveling on nearby roads, and therefore do not add to neighborhoods traffic problems. Most customers use eateries while heading to another destination. Eliminating drive-throughs may not actually have any effect on the total amount of traffic on the City's streets. It has also been cited that an increase of traffic accidents may be a result of an increase in drive-throughs. Many people who get their food at a drive-through will then eat it in the car. Critics often refer to this as "dashboard dining," and say that it results in a driver being distracted and placed at a higher risk for collisions and injury. In addition, pedestrian conflicts with vehicles in drive-through service lanes can become an issue. Public Health Health impacts are not typically considered in land use decisions because there is a lack of specific or direct evidence. However, many points have been brought up regarding potential effects of a drive-though culture, especially those health impacts related to fast food. The scientific literature suggests a few main reasons why fast food likely contributes to obesity: ° Large, inexpensive portion sizes • High fat content and energy density • The frequency with which Americans, including children, consume it ° Increased time spent in cars and lack of physical activity Drive-throughs are most often associated with fast food, and are therefore thought to encourage consumption of unhealthy food. Fast food is generally inexpensive food that is prepared and served quickly, and tends to be high in fat and low in nutritional value. Fast food franchises have been cited as offering menus filled with nutritionally deficient food and promoting `super-sized' portions, in combination with a scarcity of healthy alternatives. Some argue that by providing the drive-through service, consumption of fast food is actually encouraged due to the convenience. Obesity is a significant public health problem in the United States and has been described as an epidemic. One study calculated that in 2000 at least 365,000 deaths in the United States (about 15.2% of the total number of deaths) were attributable to poor 106 diet and physical inactivity, second only to tobacco use. While there are differences in the scientific findings over the estimated number of deaths attributable to obesity and being overweight, even the lowest estimates suggest that at least tens of thousands of people in the United States die from obesity each year. Individuals even moderately overweight are twice as likely to die prematurely than those of normal weight. (Journal of the American College of Cardiology 2003; 41(7):1227-1228.) For adults alone, overweight and obesity costs between $98 billion to $129 billion each year in national health care expenditures (Institute of Medicine of the National Academies. Overview of the IOM's Childhood Obesity Prevention Study. Fact Sheet, September 2004.) Nearly two-thirds of American adults aged 20 or older are either overweight or obese, with obesity being a risk factor for diseases such as diabetes, stroke, heart disease, high blood pressure, and certain cancers. Fast food has been under increasing scrutiny for its role in the obesity epidemic. According to the American Journal of Public Health published in 2002 fast food establishments have significantly increased the size of their food portions over the past several decades to the extent that today's french fries, hamburgers, and sodas are 2 to 5 times larger than original sizes. Portions served at fast food restaurants are considerably larger than federal standard serving sizes. Additionally, fast foods tend to be high in fat content and have high calories per weight of the food. The obesity epidemic, as it has been called, is even more concerning in children. It is estimated that about 9 million U.S. children over age 6 are overweight (Institute of Medicine of the National Academies. Childhood Obesity in the United States: Facts and Figures. Fact Sheet, September 2004.) Children who eat fast food compared to those who do not eat it consume more total fat, more saturated fat, more total carbohydrates, more added sugars, more sugar-sweetened drinks, less fluid milk, less fiber, less fruits, and less non-starchy vegetables. Children who become obese are more likely to be obese adults, and obesity in children may predispose those children to adult diseases. Since weight-gain exploded in the US in the 1980s, the rate of overweight kids between 6 and 17 has more than doubled to well over 10%, according to sources cited by Smart Growth America. About 60% of overweight 5 to 10-year-old children, already have at least one risk factor for heart disease including elevated blood pressure or insulin levels. Today about 30% of newly diagnosed diabetic children have "adult-onset" diabetes, a disorder triggered by poor diet and sedentary lifestyle. Before 1990 it was rarely seen in people younger than 40. Additionally, more and more kids are being diagnosed with depression and other mood disorders that can be exacerbated by poor diet and lack of exercise. It is important to note that while many municipalities throughout the country have instituted bans on drive-throughs or fast food, none of these City's have cited the issue of obesity as the main reason for the ban. It is a factor that is often discussed, however, difficult to qualify and support. 107 In the document "The Use of Zoning to Restrict Fast Food Outlets: A Potential Strategy to Combat Obesity" produced by The Center for Law and the Public's Health at Johns Hopkins & Georgetown Universities, it is suggested that cities can use zoning regulations to restrict fast food purchase and consumption in a similar way that the sale of alcohol is restricted. Since the mid-1980s, many California cities have passed zoning laws that reduce alcohol availability by restricting the density and location of alcohol retailers. The article suggests that communities can combat the public health threat posed by fast food by issuing zoning laws that restrict where and how fast food outlets can operate. Studies suggest that zoning laws that limit individuals' access to fast food and provide access to healthy food alternatives could help reduce the prevalence of obesity in the United States. Zoning ordinances that encourage exercise by creating "walking communities" or by restricting automobile use or parking in certain areas, can alter the balance between the consumption and expenditure of calories, thereby altering the prevalence of obesity. On the other hand, many fast food restaurants have recently begun providing healthier alternatives as a response to consumer demand for more nutritional menu items. Many large fast food chains have started offering a variety of salads, sides of fruit, and other healthier options for both adults and children. With this current change in menu items, there seems to be more choices for consumers. The traditional idea of the fast food may begin to change if the public chooses to take advantage of these new healthier options. It is also important to note that not all food drive-throughs sell the same type of product. Local restaurants have started providing drive-through service as well. For example, in Atascadero, the Taco De Mexico on EI Camino Real and Coffee Classics on Morro Road are both locally owned and operated, and have recently been approved for new facilities with drive-through services. In these cases, the statistics regarding health impacts caused by traditional fast food franchises may not necessarily apply. Accessibility and Consumer Convenience Drive-throughs are often citied as having a large benefit for disabled customers, especially those in wheelchairs, and elderly people. Families with kids often say that it is a major convenience to not have to get out of the car. It is also argued that drive- through facilities provide a level of safety at night. The law requires that individuals with disabilities are entitled to equal access rights to public facilities. A safe accessibility route is always required from the sidewalk and from parking areas into the building. Drive-throughs, however, provide an additional convenience for those customers who have difficulty getting out of the car. Drive-through windows allow disabled people easier access to services such as banks, dry cleaners, pharmacies, convenient stores, and restaurants. Advocates for disabled people and commercial builders have argued that some cities and counties use their land use regulations to limit access by disabled and aged people. In particular, they point to zoning and requirements for use permits that limit 108 drive-through banks, restaurants, cleaners, and pharmacies. Requests have been made in the past for the Legislature to curb local City's authority to deny drive-through businesses. The State legislature has discussed the impacts that restrictions on drive-throughs would have for customers. Bills have been raised which would require City's to consider and address the impacts that banning drive-throughs would have on disabled customers elderly people. The State has discussed requiring local agencies to balance concerns for the general welfare with the needs of the disabled and aged community for services. It has been suggested that cities and counties consider whether the denial or restriction of drive-through facilities will preclude or diminish access to the services that the facility provides to the disabled and aged community. This caution should apply not only to outright bans or denials of drive-throughs, but also to City's which require conditions of approval for which make the operation or construction of the drive-through no longer feasible because of unreasonable restrictions. The State has also discussed increasing the duties of local agencies for outreach to those who would be affected by drive- through restrictions. The State has debated legislation which would limit City Council or County Board of Supervisors to certain reasons for denial, based on substantial evidence. The City would have to find that the drive-through facility would have an adverse impact on public health or safety that can't be feasibly mitigated or avoided. The drive-through facility must be denied because it fails to comply with a state or federal law, and there is no feasible method to comply. Denial or conditional approval of the drive-through should not adversely affect the access needs of the disabled or the aged of that community. Groups which have supported State legislature on limiting local land use controls on drive-throughs include California Business Properties Association, California Bankers Association, California Chamber of Commerce, California Cleaners Association, California Coalition of United Cerebral Palsy Associations, California State Pipe Trades Council, Independent Living Services of Northern California, Older Women's League of California. Those which have opposed the State legislature include the California Chapter of the American Planning Association, and the League of California Cities, including the cities of Antioch, Carlsbad, Carson, Culver City, EI Cajon, Lompoc, Los Angeles, Oceanside, Pacific Grove, Poway, Rancho Cucamonga, San Jose, Santa Barbara, Santa Clara, Signal Hill, and Stockton. Legality of Drive-through Restrictions There have been numerous court cases which have dealt with the legality of bans or denials of drive-throughs. The cases have shown that bans will be upheld if there is a rational relationship to a legitimate governmental purpose of promoting the public health, safety, morals, or general welfare. To be unconstitutional, the ordinance or 109 decision must be arbitrary, capricious, or not rationally related to a legitimate government purpose. The following cases are examples of these court cases: • Franchise Developers, Inc. v. City of Cincinnati, 505 N.E.2d 966, 971 (Ohio 1987) The City denied a permit to develop a Wendy's restaurant. The denial was based on an ordinance requiring franchise establishments in an overlay district to be "primarily pedestrian and not automobile oriented." The City's decision was upheld. The Supreme Court of Ohio found, among other things, that the City's "attempt to preserve and protect the character of certain neighborhoods" was a proper exercise of its zoning authority and that "there is a legitimate governmental interest in maintaining the aesthetics of the community and, as such, aesthetic considerations may be taken into account by the legislative body in enacting zoning legislation." • McDonald's Corporation v. Board of Trustees, Village of Elmsford, (New York 1994) The board denied a McDonald's a special permit to develop a drive-in restaurant within the Village of Elmsford in Westchester County. The restaurant was to be located 1,320 feet from an existing Wendy's drive-in restaurant; the zoning ordinance required 2,000 feet between such establishments. The decision was upheld and it was found that the complainant did not satisfactorily address issues related to traffic. • Bellas v. Planning Board of Weymouth, No. 00-P-1837 (Massachusetts 2002) Decision of planning board to deny a special permit for a drive-through window at a Dunkin Donuts facility was upheld because of the "board's concerns with traffic and pedestrian safety had a reasonable basis in fact." • Bess Eaton Donut Flour Company, Inc. v. Zoning Board of Review of Town of Westerly, (Rhode Island 2000) Denial of a special use permit for a drive-through window at Bess Eaton Donut's bake shop upheld because "there was sufficient, competent evidence in the record to support the dissenting member's denial of the special use permit based on incompatibility with the surrounding neighborhood and the threat of increased traffic congestion and hazard." Economic Effects Drive-throughs provide revenues to the City through direct sources such as tax revenues, and through indirect sources as well. Many national restaurant chains, pharmacies, and banks view drive-throughs as a necessary project component. Prohibition may discourage some projects which could therefore impact City revenues. Often times, chain stores will locate in a city in clusters, where restaurants and retailers will co-locate within shopping centers. Non-drive-through businesses may view a ban on drive-throughs as the City being unfriendly to businesses, and may not chose to locate within the City if drive-throughs are completely restricted. 110 Drive-throughs also bring income to the City indirectly. When people traveling on Highway 101 pull off the freeway to stop for fast food they usually stop to fill up on gas, and possibly even look for lodging as well. These other commuter businesses may be impacted if there are no drive-throughs to attract these types of travelers into the City. Based on these reasons, it appears that a ban on drive-through could have a negative economic effect on City revenues. Some City's like San Luis Obispo are able to get by without drive-throughs, and their economies are able to develop through other niches and more locally owned businesses. In these cases, it is necessary to have other revenue generators to replace any loss of business that would result from a ban in drive-throughs. It is staff's understanding, that the In-and-Out restaurant chose to locate in Atascadero rather than San Luis Obispo because of their ban on drive-through restaurants. The City of Atascadero has experienced negative economic impacts as new and existing retailers have chose to locate in Paso Robles. If Atascadero were to adopt a ban on drive-through business, this could encourage certain restaurants and retailers to choose Paso Robles rather than Atascadero. General Plan Policies The City of Atascadero's General Plan includes goals and policies for El Camino Real. EI Camino Real and Morro Road tend to be the main location where drive-throughs have been proposed. General Plan policy LOC 3.1.11 states: Transform the existing El Camino Real "strip" into a distinctive, attractive and efficient commercial, office and industrial park area which can provide for the long- term economic viability of the community. Encourage retail businesses at efficient and attractive nodes along El Camino Real and Morro Road with mixed office and residential uses between those nodes. Programs: (11) Amend and maintain the zoning ordinance to require Conditional use Permit approvals of bars, dance halls, night clubs, drive through restaurants, and service stations (all gasoline sales uses). The General Plan encourages a mixed use office and residential uses in the General s designation on EI Camino Real and Morro Road, which may Commercial land use g Y not be compatible with drive-through uses. Drive-through restaurants are currently conditional uses in most commercial zones, and they are not allowed in the downtown. In addition to the policies cited above, the City of Atascadero's General Plan includes "Atascadero's Smart Growth Principles", which are intended to supplement the Goals of the General Plan and provide a solid foundation for the City with the most current principles of good community development. As stated previously in the discussion on community character, drive-throughs are generally not supported by Smart Growth groups and objectives. However, the City of Atascadero's Smart Growth Principles 111 have been specifically tailored to Atascadero's goals and ideals, and do not make mention of limiting drive-through facilities. Attachment 1 of this report includes the full list of Atascadero's Smart Growth Principles as identified in the General Plan. Council Options This staff report is being presented to the City Council for informational purposes only. The Planning Commission has requested policy interpretation and direction from the Council. However, no action is required to be taken, nor are any changes are required to be made to the Zoning Ordinance. Alternatively, the Council may find that the current requirements of the Atascadero Municipal Code are not sufficient. The requirements regarding drive-throughs may be amended to allow or restrict drive- throughs in additional zones. It is also possible to amend the requirements of section AMC 9-4.122 to change the lot size, site design, or other requirements for drive- throughs, or the definitions identified in the zoning uses. Any changes to the code may result in existing drive-throughs becoming legal, non-conforming uses. The following list includes some examples of requirements which other cities and regulators suggest increase regulations on drive-throughs. • Require fast food outlets to locate a minimum distance from adjacent residential, as well as from schools, churches, institutions, and public recreation areas and other youth-oriented facilities; • Limit the total number or per capita number of fast food outlets in a community; • Limit the proximity of all fast food outlets to each other; • Charge a fee to fast food outlets and use the proceeds to mitigate the impact of poor nutritional content (e.g., construct parks, fund after-school programs, or provide nutrition education) • Consider a minimum lot size to ensure sufficient space on-site to incorporate measures to improve compatibility with adjacent uses. Minimum lot sizes for drive-throughs typically range from 10,000 sq. ft. to 30,000 sq. ft.; • Increase minimum vehicle stacking requirements, and ensure that the stacking lane(s) do not interfere with parking or maneuvering aisles; • Limit hours of operation; • Shield glare from car lights; • Establish standards and criteria for integrating operational elements, site design, and building design, with a focus on making a positive contribution to the surrounding context and pedestrian streetscape; • Place drive-through activities away from the street to create good street edge definition; 112 • Require minimum landscape standards specific to drive-throughs to contribute to a comfortable and attractive public realm; • Provide pedestrian amenity between the building and the street. Conclusion Staff has prepared an informational report on the impacts of drive-through facilities. Currently, the Atascadero Municipal Code identifies drive-through facilities as a conditional use in most commercial zoning districts. Drive-throughs are not allowed in the downtown zones, commercial service, residential, or industrial zoning districts. The issue of drive-through facilities has been met with many concerns relating to community character and quality of life issues, including the impacts to pedestrian oriented streetscapes, franchise or prototype architecture, and the inconsistency with Smart Growth principles. The emissions produced by cars idling in line at drive- throughs contribute to green houses gases and poor air quality. Fast food restaurants are thought to contribute to obesity among children and adults by encouraging the consumption of large, inexpensive portion sizes and high fat content, high calorie foods. Drive-throughs at banks, pharmacies, restaurants and other services do provide a large benefit of convenience for disabled and elderly customers. Drive-throughs also provide revenues to the City through direct sources such as tax revenues, and through indirect sources as well. As a result of the numerous drive-through facility approvals in recent years, the Planning Commission has submitted a request for City Council to provide policy interpretation and direction on drive-through facilities. The City Council may chose to provide direction without any changes to the zoning ordinance, or modifications may be made as needed. FISCAL IMPACT: None. Attachments: Attachment 1: City of Atascadero's Smart Growth Principles; General Plan Table I-2 Attachment 2: APCD Letter Regarding Rite Aid Drive-through Pharmacy; Dated March 6, 2008 Attachment 3: Article on Idling and Emissions; California Energy Commission 113 Attachment 1: City of Atascadero's Smart Growth Principles General Plan page 1-4; Table 1-2: Smart Growth Aware that concern for environmental protection and resource conservation are becoming increasingly important issues at all levels, the City Council and Planning Commission jointly developed a set of"Smart Growth Principles". Smart Growth is a concept in city planning that encourages more compact, walkable communities that encourage pedestrian scale mixed use infill rather than automobile dependent subdivisions. The "Atascadero Smart Growth Principles" were intended to supplement the Goals of the previous General Plan and provide a solid foundation for the new General Plan that combined the communities previous 20-years of planning with the most current principles of good community development. Table 1-2: Atascadero's Smart Growth Principles 1. Provide for well-planned new growth. Recognize and preserve critical areas of open space, environmental habitats, and agricultural lands, while accommodating new growth in compact forms in areas designated for higher density, in a manner that encourages multi- modal transportation opportunities, integrates the new growth, and creates housing and job opportunities for people of all ages and income levels. 2. Maximize use of existing infrastructure. Accommodate additional growth by first focusing on the use and reuse of existing urbanized lands supplied with infrastructure, with an emphasis on reinvesting in the maintenance and revitalization of existing infrastructure. 3. Support vibrant city centers. Give preference to the redevelopment and reuse of Downtown Atascadero and appropriate nodes along existing transportation corridors through the encouragement and retention of mixed-use development, business vitality, housing opportunities for people of all income levels, and safe, reliable and efficient multi-modal transportation systems. 4. Develop and support coordinated planning for regional impacts. Coordinate planning with neighboring communities and the County so that there are agreed upon regional strategies and policies for dealing with the regional impacts of growth on transportation, housing, schools, air water, wastewater, solid waste, natural resources, agricultural lands, and open space. 5. Support high quality education and school facilities. Encourage and support high quality public education, neighborhood-accessible school facilities and adequate library services as a critical determinant in making our community attractive to families, maintaining a desirable and livable community, promoting life-long learning opportunities, enhancing economic development, and providing a work force qualified to meet the full range of job skills required in the future economy. 6. Build strong communities. Support and embrace the development of strong families and a socially and ethnically diverse community, by: (1)working to provide a balance of jobs and housing within the community; (2) reducing commute time; (3) promoting community involvement; (4) enhancing public safety; and (5) providing and supporting cultural and recreational opportunities. 114 7. Emphasize joint-use of facilities. Emphasize the joint-use of existing compatible public facilities operated by City, school, County, and state agencies, as well as take advantage of opportunities to form partnerships with private businesses and non-profit agencies to maximize the community benefit of existing public and private facilities. 8. Support creative entrepreneurial efforts. Support local endeavors to create new products, services and businesses that will expand the wealth and job opportunities for all social and economic levels. 9. Encourage full community participation. Foster an open and inclusive community dialogue and promote alliances and partnerships to meet community needs. 10. Establish a secure local revenue base. Create/support the establishment of a secure, balanced, and discretionary local revenue base necessary to provide the full range of needed services and quality land use decisions. 115 Attachment 2: APCD Comments for Atascadero Rite-Aid Development (PLN 2008-1273) Excerpts Pertaining to Drive-through Component; March 6, 2008 By Andy Mut ziger, Air Quality Specialist, San Luis Obispo County APCD SPECIFIC COMMENTS The SLO County APCD supports Smart Growth principles that reduce dependency on vehicle use and promote transit oriented design such as compact, mixed-use developments within Urban Reserve Lines. This type of development allows residents to work, shop, and recreate within the community that they live thus reducing vehicle dependency and emissions. Mobile sources account for over 50% of our county's air pollution. Drive-through facilities, such as the one proposed in the Rite-Aid development, expand vehicle dependency, increase the use of fossil fuel, and are contrary to Smart Growth principles. The APCD does not support drive-through facilities. Should this project move forward the following mitigation measures need to be implemented. OPERATIONAL PHASE MITIGATION APCD staff has determined the operational impacts of this development through the use of the URBEMIS2007 computer model, a tool for estimating vehicle travel, fuel use and the resulting emissions related to this project's land uses. The results of the model using conservative County average trip distances demonstrated that the operational impacts will likely exceed the APCD's CEQA Tier I significance threshold value of 10 lbs/day for the criteria air pollutants nitrogen oxides (NOx) and reactive organic gases (ROG); 21 lbs/day NOx and 16 lbs/day ROG). As a result of this estimated threshold exceedence, this project must implement all applicable Standard Mitigation Measures and at least 10 Additional Mitigation Measures listed below. Should this project move forward, the APCD will consider the overall criteria pollutant air quality impacts from this project to have been reduced to a level of insignificance with the implementation of these mitigation measures. Other measures may be proposed as replacements by contacting the APCD's Planning Division at 781-5912. Standard Measures (Include all standard mitigation measures below) • Provide on-site bicycle parking. One bicycle parking space for every 10 car parking spaces is considered appropriate. • Provide on-site eating, refrigeration and food vending facilities to reduce employee lunchtime trips. • Provide preferential carpool and vanpool parking spaces. • Provide shower and locker facilities to encourage employees to bike and/or walk to work, typically one shower and three lockers for every 25 employees. 116 Additional Measures (Include at least 10 of the following) Site Design Mitigation for this Commercial Protect • Increase street shade tree planting. • Increase shade tree planting in parking lots to reduce evaporative emissions from parked vehicles. • Provide on-site banking (ATM) and postal services. • Implement on-site circulation design elements in parking lots to reduce vehicle queuing and improve the pedestrian environment with designated walkways. • Provide pedestrian signalization and signage to improve pedestrian safety. Transportation Demand Mitigation • If the project is located on an established transit route, improve public transit accessibility by providing a transit turnout with direct pedestrian access to the project or improve existing transit stop amenities. • Provide incentives to employees to carpool/vanpool, take public transportation, telecommute, walk, bike, etc by implementing the Transportation Choices Program. The applicant should Contact SLO Regional Rideshare at 541-2277 to receive free consulting services on how to start and maintain a program. • Provide Transportation Choices Program information centers on alternative transportation modes at the site (i.e. a transportation kiosk). Contact SLO Regional Rideshare for appropriate materials at 541-2277. • Employ or appoint an Employee Transportation Coordinator. Implement an APCD approved Trip Reduction Program. • Increase the quality of existing bicycle routes/lanes or add bicycle routes/lanes which access the project. • Implement compressed work schedules. • Participate in an employee "flash pass" program, which provides free travel on transit buses. • Include teleconferencing capabilities, such as web cams or satellite linkage, which will allow employees to attend meetings remotely without requiring them to travel out of the area. Energy Efficiency Measures: Additional measures beyond those implemented to achieve the 20%beyond Title 24 standard requirement listed below. • Shade tree planting along southern exposures of buildings to reduce summer cooling needs. • Use roof material with a solar reflectance value meeting the EPA/DOE Energy Star® rating to reduce summer cooling needs. • Use built-in energy efficient appliances, where applicable. • Use double-paned windows. • Use low energy parking lot and street lights (e.g. sodium). • Use energy efficient interior lighting. • Use low energy traffic signals (e.g. light emitting diode). • Install door sweeps or weather stripping if more energy efficient doors and windows are not available. • Install high efficiency or gas space heating. 117 • Replace diesel fleet vehicles with cleaner fueled low emission vehicles (e.g. delivery vehicles frequenting facility). Operational Permit Requirements Based on the information provided, we are unsure of the types of equipment that may be present at the site. Operational sources may require APCD permits. The following list is provided as a guide to equipment and operations that may have permitting requirements, but should not be viewed as exclusive. For a more detailed listing, refer to page A-5 in the District's CEQA Handbook. • Portable generators and equipment with engines that are 50 hp or greater; • Electrical generation plants or the use of standby generator; • Boilers; • IC Engines; and • Cogeneration facilities. To minimize potential delays, prior to the start of the project, please contact the District's Engineering Division at (805) 781-5912 for specific information regarding permitting requirements. Truck Idling Limitations To help reduce the emissions impact of diesel vehicles accessing the facility, the applicant shall implement a no idle zone for diesel driven delivery trucks (and the following shall be included as an APCD permit condition). Truck idling emissions shall be minimized to the maximum extent feasible using at least the following techniques: • Each delivery vehicle's engine shall be shut off within two minutes of arrival in the area, unless the vehicle is actively maneuvering. • The scheduling of deliveries shall be staggered to the extent feasible. • Vehicle operators shall be made aware of the no idle zone, including a notification by letter to companies controlling out of the area drivers. • Prominently lettered signs shall be posted in the receiving dock area to remind drivers to shut off their engines. Greenhouse Gas Impacts and Mitigation In 2006, the California State Legislature adopted AB 32, the California Global Warming Solutions Act of 2006. AB 32 requires the California Air Resources Board (CARB), the State agency charged with regulating statewide air quality, to adopt rules and regulations that would achieve greenhouse gas emissions equivalent to statewide levels in 1990 by 2020. Carbon dioxide(CO2) is the most dominant greenhouse gas, making up approximately 84% of all greenhouse gases. Fossil fuel combustion is responsible for 97% of all CO2 emissions worldwide; thus, reducing fossil fuel combustion is essential to solving this problem. While California successfully passed Assembly Bill 32, California's Global Solutions Act of 2006, little guidance was provided to lead agencies regarding how to address greenhouse gas (GHG) impacts in the CEQA process. In the 2007 California legislative session, Senate Bill 97 was passed and required that the California Office of Planning and Research, by July 1, 2009, prepare and develop guidelines for the feasible mitigation of GHG emissions or the effects of 118 GHG emissions as required by CEQA, including, but not limited to, effects associated with transportation or energy consumption. As guidelines are not currently available, the APCD suggests that projects subject to CEQA should quantify project related GHG emissions and implement feasible mitigation. The APCD staff considered the operational GHG impact of the proposed Rite-Aid development by running the URBEMIS2007. This analysis indicated that operational phase impacts of the greenhouse gas known as carbon dioxide (CO2) will be approximately 7000 pounds per day or 1159 metric tons per year. In addition, the model underestimates emissions from drive-through because it does not account for the drive-through idling emissions. The APCD recommends the implementation of feasible mitigation measures to minimize project related GHG impacts. • Post "no-idling" restriction notices at several locations in the drive-through queue; • Make safe walking or bicycling connectivity to/from and on the site; • Improve nearby transit amenities; • Implement green building techniques such as: o Building positioning and engineering that eliminate or minimize the development's active heating and cooling needs; o Implement solar systems to reduce energy needs; o Increase the building energy efficiency rating by 20% above what is required by Title 24requirements. o Plant native shade trees along southern exposures of buildings to reduce summer cooling needs; o Plant native, drought resistant landscaping; o Use locally or nearby produced building materials; o Use renewable or reclaimed building materials; o Install outdoor electrical outlets to encourage the use of electric appliances and tools; and o Include teleconferencing capabilities, such as web cams or satellite linkage, which will allow employees to attend meetings remotely without requiring them to travel out of the area. 119 Attachment 3: Article on Idling and Emissions; California Energy Commission a iFo ni.a Horne ContactUs Sftg],lap Lazer�?; ;� _" A L3 ttYYrit54i.1s11 Consumer Enera,y Center �._.. _ Google Search C Entire'Neb �' Consumer Energy Center vA,m,,.consumerenerg,center.org,' myths.j IDLING Energy Myths Main Page SHOULD I SHUT OFF THE MOTOR WHEN I'M IDLING MY CAR HERE'S THE RULE OF THUMB: If you're in a drive-through restaurant/business Did You Know? Eine or waiting for someone and you'll be parked and sitting for 10 seconds or Idling is linked to increases in longer... turn off your car's engine. asthma, allergies,heart and lung disease and cancer. Why?? Idling gets ZERQ miles per For every two minutes a car is idling, it uses about the same amount of fuel gallon. it takes to go about one mile. Research indicates that the average person idles their car five to 10 minutes a day. People usually idle their cars more in Idling for 1 hour burns nearly i the winter than in the summer. But even in winter, you don't need to let gallon of gasoline. your car sit and idle for five minutes to "warm it up" when 30 seconds will do just fine. But you're not going anywhere. Idling gets ZERO miles per gallon. The recommendation is: If you are going to be parked for more than 30 seconds, turn off the engine.Ten seconds of idling can use more fuel than turning off the engine and restarting it. And when you start your engine, don't step down on the accelerator,just simply turn the key to start. An alternative to idling is to park your car, walk inside, do your business and then go back to your car. Here are some other Myths associated' with idling; Myth #1:The engine should be warmed up before driving. Reality: Idling is not an effective way to warm up your vehicle, even in cold weather. The best way to do this is to drive the vehicle. With today's modem engines, you need no more than 30 seconds of idling on winter days before driving away. Myth #2:Idling is good for your engine. Reality: Excessive idling can actually damage your engine components, including cylinders, spark plugs, and exhaust systems. Fuel is only partially combusted when idling because an engine does not operate at its peak temperature. This leads to the build up of fuel residues on cylinder walls that can damage engine components and increase fuel consumption. Myth #3:Shutting off and restarting your vehicle is hard on the engine and uses more gas than if you leave it running. Reality: Frequent restarting has little impact on engine components like the battery and the starter motor. Component wear caused by restarting the engine is estimated to add $10 per year to the cost of driving, money that will likely be recovered several times over in fuel savings from reduced idling. The bottom line is that more than ten seconds of idling uses more fuel than restarting the engine., 120 11GIYI IVllIYIOCIi. V L ITEM NUMBER: C -2 DATE: 9/09/08 iis7ar7 Atascadero City Council Staff Report— City Manager's Office Second Update on Economic Development Strategy RECOMMENDATION: Council receive an update from representatives of Applied Development Economics on their progress to date regarding the economic development strategy. DISCUSSION: On April 8, 2008, the City Council hired Applied Development Economics (ADE) of Walnut Creek to revise the City's economic development strategy. During the past three months, ADE has been gathering information about Atascadero through surveys, community workshops, conversations with residents, economic and demographic data, and from our own documents such as the General Plan and the Downtown Revitalization Plan. A website for the process has also been placed on the World Wide Web and is available at http://www.atascaderoecondev.com. The community workshops at the end of June were well attended and the survey sent to all homes also received a high response rate. Tonight, ADE representatives will be in attendance to discuss the process thus far, including results of the Economic Base Analysis, the Cluster Analysis, the Strengths, Weaknesses, Opportunities, and Threats Analysis, the Retail Analysis, and the mail survey. ADE will also be discussing the public workshop scheduled for Saturday, November 22, 2008, where ideas for economic development goals will be discussed. ADE will be giving the Council updates every other month throughout the survey. FISCAL IMPACT: There is no financial impact as a result of this report. Funding for the project is coming from the Atascadero Redevelopment Agency and has been approved by the Agency Board. 121 ITEM NUMBER: C -3 DATE: 9/09108 • �5 � �i Atascadero City Council Staff Report - City Manager's Office Proposed Government Access Channel Policy RECOMMENDATION: Council approve the attached draft Government Access Channel Policy for the City of Atascadero. DISCUSSION: • As part of our franchise agreement with Charter Cable, the City is provided with access to analog cable channel 20, also known as the government access channel. Currently, the cable channel is used for broadcasting regularly scheduled Council meetings, Planning Commission meetings, and past and current photos of the community. The channel is controlled by the City and managed under contract by AGP. There has been interest expressed by certain departments regarding possible programming on the channel. Examples include programs about public transportation, fire safety, water conservation and a community calendar. Additionally, the City Council's Building Public Trust Committee, comprised of Council Members O'Malley and Beraud, has requested that the City-sponsored candidate forums be broadcast on the government access channel. The City currently has no policy addressing what type of programs may air on the City's government access channel. The channel is a "government access channel" as provided for in the Cable Communications Act of 1984. This Federal legislation established public, educational, and government (PEG) channels for use by each of the broad corresponding groups. Because this is a government access channel, there is no legal requirement to broadcast any type of programming that is not government related or sponsored. In anticipation of potential programming, staff has drafted a Government Access Channel Policy (Attachment A). The Policy basically states that the City's government access channel is to be used as an informational and outreach tool to assist in increasing community knowledge and 123 ITEM NUMBER: C - 3 DATE: 9109108 awareness of the functions and responsibilities of City government, including • broadcasting regularly scheduled Council and Commission meetings and providing direct, non-editorial, non-political, non-commercial and neutral information to the citizens of Atascadero concerning the operation, deliberations, and/or programs of City government. Examples for what may be broadcast on the channel ultimately may include: • City Council meetings • Planning Commission meetings • Parks and Recreation Commission meetings • City-sponsored meetings and forums of educational interest to the community • City-approved public service announcements regarding fire safety, water conservation, public transportation, recycling, etc. • City calendar and slides of information generated by the City • Videos of events sponsored or supported by the City such as Cruise Night, Colony Days, Winter Wonderland or Movies in the Park • Emergency broadcasts during times of crisis All programming broadcast on the government access channel should address topics that pertain directly to City government-related or sponsored meetings, services, events, programs and/or activities, and needs to comply with all FCC regulations and applicable federal, state and local laws. The City Manager or his/her designee would be • responsible for administering the channel in accordance with the guidelines recommended herein. Under federal law, the government access channel does not constitute public access and is not a public forum. In other words, the channel is for the City's use and not for independent programming, features, etc. The contract with AGP currently provides for the recording of regularly scheduled Planning Commission and City Council meetings only. Funding is not available in the budget for recording additional meetings. The contract also provides for the actual management of content and broadcasts of the channel, but it does not provide for submitting, scheduling or determining content. Currently there is not adequate staff or financial resources for this function. Additionally, the City has no cameras or editing equipment for productions. At this point, programming would either need to be produced by other governmental entities, provided to the City, or equipment would have to be rented from a video provider such as AGP at an additional cost. FISCAL IMPACT: There is no fiscal impact to the City as a result of approving the attached Policy. However, funding is not available for the City to support programming of the government access channel at this time. 124 ITEM NUMBER: C - 3 DATE: 9/09/08 ALTERNATIVES: Council direct staff to review and revise the attached Policy. Council reject approval of the attached Policy. ATTACHMENTS: Attachment A: Draft Government Access Channel Policy 125 Attachment A Atascadero Administrative Policy Policy No. Original Policy Approval Date: Revision Date: Approved by: DRAFT GOVERNMENT ACCESS CHANNEL POLICY Purpose The purpose of this policy is to provide guidelines and standards for the use of the government access channel provided to the City of Atascadero "the City" by Charter Communications. This channel is a government access channel as provided for in the Cable Communications Act of 1984. This Federal legislation established public, educational, and government (PEG) channels for use by each of the broad corresponding groups. Because this is a government access channel, there is no legal requirement to broadcast any type of programming that is not government related or sponsored. This policy clarifies what is "government related or sponsored" programming. General Policy The government access channel of the City is to be used as an informational and outreach tool to assist in increasing community knowledge and awareness of the functions and responsibilities of City government, including broadcasting regularly scheduled Council and Commission meetings and providing direct, non-editorial, non-political, non-commercial and neutral information to the citizens of Atascadero concerning the operation, deliberations, and/or programs of City government. Under federal law, the government access channel does not constitute public access and is not a public forum. Nothing in this policy shall be construed to create a public forum, limited or otherwise. The channel will not be used for the purpose of building support or opposition to a particular policy,program, issue, party or individual. All programming broadcast on the government access channel must address topics that relate directly to City government related or sponsored meetings, services, events, programs and/or activities, and meet all FCC regulations and applicable federal, state and local laws. The City Manager or his/her designee shall be responsible for administering the channel in accordance with the guidelines recommended herein. Provisions 1) Access to the government access channel is provided to the City Manager's Office and City departments. Specifically, programming on the government access channel may include: 127 a) Live and tape-delayed broadcasting of regularly scheduled City Council and Planning Commission meetings, and other select City meetings as determined by the City Manager or his/her designee, or by City Council. b) City produced programs, or programs produced on behalf of the City to: i) illustrate the function or operations of City government, government facilities, or programs featuring City services, programs created by the City, public utilities, or other governmental entities that the city in its sole determination, has determined would be of benefit to the members of the community, iii) information on specific City programs, and/or iv) City-sponsored events of interest to the community. c) Augmenting other programming, a digital program including images of the City and bulletin-board announcements of certain City government related or City sponsored meeting and event information. This information shall reflect the City events calendar(s) maintained by the Community Services Department and/or the City Clerk's Office. d) City Council candidate forums sponsored by the City that all candidates have been invited to. e) In the event of an emergency, health and safety related programming or announcements relevant to residents. 2) Except with respect to broadcasts of agendized public meetings, candidate forums, or similar public forums, the following programming is prohibited from airing on the government access channel: a) Programs that constitute libel, slander, pornography or obscene and indecent content. b) Programs that promote, advocate and/or endorse a particular religious belief or beliefs. c) Programs that attempt to influence viewers to vote for a particular political candidate or position. d) Programs that depict anyone in a prejudicial manner on the basis of race, national origin, religion, ancestry, age, disability, gender, or sexual orientation. e) Programs that solicit funds for any private, charitable, non-governmental or political purpose. f) Programs used to promote or publicize information and activities of specific groups, organizations, businesses or individuals. g) Political candidates running for election or re-election are prohibited from appearing during the "election season", except in the normal course of their official duties, except 128 that candidates may appear in City-sponsored candidate forums in which all candidates have equal opportunity to participate. For these purposes, the "election season" begins when a candidate files nomination papers and ends when polls close on Election Day. h) Any program used to endorse an issue, company, or product. i) Any pro-ram conceming bany lottery, gift enterprise ente �rise or similar promotion based on lot or b chance. J) Programs containing any corporate logos or commercial advertising. k) Any"commercial programming"prohibited by Public Utilities Code section 5870. 1) Copyrighted material. Any programming containing content that is in violation of copyright laws. m) Programming which is prohibited by applicable Federal, State or local laws. 3) Management, Retention, Ownership and Liability rights: a) All management, oversight and programming of the City of Atascadero government access channel shall be provided by the City Manager or the City Manager's designee. b) City-owned video equipment shall be used only for authorized City activities, and only by employees of the City Manager's Office and/or the Information Technology Department, or personnel trained under the direction of these departments. Loan of equipment, for personal or outside use, is prohibited. c) All programming produced by or for the City of Atascadero shall be and shall remain the property of the City. Programs produced by contract agents of the City become the property of the City. d) Official public meetings shall not be edited or be subject to editorial comment. e) Any programming prepared, originated, or provided by a City Department may be modified or edited as appropriate. 129 ITEM NUMBER: C -4 DATE: 9109108 -1979 Atascadero City Council Staff Report - City Manager's Office Ordinance Amending Title 2, Chapter 1, Section 2-1.15 of the Atascadero Municipal Code, Pertaining to Voluntary Abstentions (This Ordinance, if adopted, would clarify the interpretation of an abstention vote.) RECOMMENDATION: Council introduce for first reading, by title only, the Draft Ordinance amending Title 2, Chapter 1, Section 2-1.15 of the Atascadero Municipal Code pertaining to voluntary • abstentions. DISCUSSION: Atascadero Municipal Code section 2-1.15 presently provides: "Unless a Councilmember states that he or she is not voting because of a conflict of interest, his or her silence shall be recorded as an affirmative vote." Section 2-1.15 could be susceptible to legal challenge due to the lack of a reasonable basis supporting the rule. As such, we recommend that the City consider amending the provision to make it more consistent with the Affirmative Majority Rule. The "traditional rule" in California, which follows Roberts Rules of Order, treats voluntary abstentions as non-votes. A second, and the recommended, alternative which we have labeled the "Affirmative Majority Rule," would preserve the primary advantage of the City's existing regulation in terms of preventing a "stalemate" vote. This rule counts voluntary abstentions as an affirmative vote only where such vote is needed in order for the legislative body to take action. Otherwise, the traditional rule would apply. The third alternative is to follow the "common law rule," which provides that voluntary abstentions are considered to be acquiescence to the majority vote and are therefore recorded as a • concurrence with the majority. Section 2-1.15, which provides that voluntary abstentions 131 ITEM NUMBER: C -4 DATE: 9109108 are always counted as affirmative votes, does not fall squarely within any of these three • rules. Consistent with their authorization under state law to adopt procedural rules, some local legislative bodies have enacted what may be deemed an "Affirmative Majority Rule." Such rule essentially provides that rather than not being counted, or always being counted with the majority, an abstention may be counted with the majority or to create a majority for the purposes of taking action where without the vote the agency would otherwise not be able to conduct business. Such a local abstention rule was considered in Dry Creek Valley Assn., Inc. v. Board of Supervisors (1977) 67 Cal.App.3d 839. There the court upheld a local rule of the Sonoma County Board of Supervisors that provided that if one less than the necessary number of "aye" votes had been cast, then an abstention would constitute concurrence with the "aye" votes. The adoption of an ordinance similar to the one in the Dry Creek case would be useful in situations where an abstention makes the difference in whether or not the City Council can take action on a matter. Such an ordinance would likely be upheld because of its similarity to the local rule in the Dry Creek case, and the fact that Government Code section 36813 authorizes the City Council to adopt local rules concerning City Council proceedings. Consequently, we recommend that the City amend ordinance 2- 1.15 in conformance with the Affirmative Majority Rule. • FISCAL IMPACT: None. ALTERNATIVE: Take no action. ATTACHMENTS: Draft Ordinance • 132 DRAFT ORDINANCE ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ATASCADERO, CALIFORNIA, AMENDING TITLE 2, CHAPTER 1, SECTION 2-1.15 OF THE ATASCADERO MUNICIPAL CODE PERTAINING TO VOLUNTARY ABSTENTIONS WHEREAS, California Government Code section 36813 authorizes a city council to establish rules for the conduct of its proceedings; and WHEREAS, Title 2, Chapter 1 of the Atascadero Municipal Code sets forth the City Council's procedural rules; and, WHEREAS, Atascadero Municipal Code section 2-1.15 provides presently that"[u]nless a Councilmember states that he or she is not voting because of a conflict of interest, his or her silence shall be recorded as an affirmative vote;" and, WHEREAS, the "traditional rule" in California, which follows Roberts Rules of Order, treats voluntary abstentions as non-votes; and, WHEREAS, the City would like to adopt a new voluntary abstention policy that is an alternative to not counting abstentions or counting them with the majority in all instances. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ATASCADERO DOES ORDAIN AS FOLLOWS: SECTION ONE. Findings. The City Council hereby incorporates the foregoing recitals and findings. SECTION TWO. Adoption. The City Council of the City of Atascadero hereby amends Section 2-1.15 of Title 2, Chapter 1 of the Municipal Code as follows: Section 2-1.15 Voluntary Abstentions. (a) If a Member of the City Council, Planning Commission or Parks and Recreation Commission states he or she has a conflict of interest, the Member must declare the conflict prior to consideration of the item and leave the dais and also leave the room (unless allowed to remain in the room due to a personal interest) and abstain from participating in the item and from voting and the abstention will be treated as non- vote. (b) In all situations other than as provided in subsection (a), the abstention will be treated as follows: 133 (1) In the event that one less than the necessary number of `aye' votes has been cast, then an abstention will constitute concurrence with the affirmative votes, and the minutes will reflect such concurrence and that the matter was passed pursuant to this rule. (2) An abstention in all situations other than described in subsection (b)(1) will be recorded in the minutes as an abstention and treated as a non-vote. (3) Failure to vote when in attendance at a meeting by silence or otherwise will be treated as an abstention. SECTION THREE. A summary of this ordinance, approved by the City Attorney, together with the ayes and noes, must be published twice: at least five (5) days prior to its final passage in the Atascadero News, a newspaper published and circulated in the City of Atascadero, and, before the expiration of fifteen (15) days after its final passage, in the Atascadero News. A copy of the full text of this ordinance must be on file in the City Clerk's Office on and after the date following introduction and passage and must be available to any interested member of the public. INTRODUCED at a regular meeting of the City Council held on , and PASSED and ADOPTED by the City Council of the City of Atascadero, State of California, on by the following roll call vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: CITY OF ATASCADERO Marcia McClure Torgerson, C.M.C., Mike Brennler, Mayor City Clerk APPROVED AS TO FORM: Brian Pierik, City Attorney 134