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HomeMy WebLinkAboutAgenda Packet 101408 r.mrqiR 1 , CITY OF ATASCADERO ,1 igi9 CITY COUNCIL. _ AGENDA Tuesday, October 14, 2008 City Hall Council Chambers 6907 EI Camino Real, Atascadero, California CLOSED SESSION: 5:30 P.M. 1. PUBLIC COMMENT — CLOSED SESSION 2. CALL TO ORDER a. CONFERENCE WITH REAL PROPERTY NEGOTIATORS (Govt. Code Sec. 54956.8) Property address: Easement from Capistrano Avenue to Stadium Park along APN# 029-105-028 Agency Negotiator: Wade McKinney, City Manager Negotiating Parties: Dr. Gary Renzaglia and Ms. Sandy Hughes Under Negotiation: Instruction to negotiator will concern price and terms of payment. 3. ADJOURN CLOSED SESSION REPORT REGULAR SESSION: 6:00 P.M. PLEDGE OF ALLEGIANCE: Council Member Luna ROLL CALL: Mayor Brennler Mayor ProTem Beraud Council Member Clay Council Member Luna Council Mayor O'Malley APPROVAL OF AGENDA: Roll Call PRESENTATION: 1. Energy Conservation Presentation and Pledge Signing -- by Natalie Schaeffer, Director of Paso Robles Children's Museum 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 the meeting.) 1. City Council Draft Special Meeting Minutes —June 26, 2008 ■ Recommendation: Council approve the City Council Special Meeting Minutes of June 26, 2008. [City Clerk] 2. City Council Draft Minutes — July 8, 2008 ■ Recommendation: Council approve the City Council Meeting Minutes of July 8, 2008. [City Clerk] 3. City Council Draft Minutes — August 12, 2008 ■ Recommendation: Council approve the City Council Meeting Minutes of August 12, 2008. [City Clerk] 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.) 2 B. PUBLIC HEARINGS: None. C. MANAGEMENT REPORTS: 1. Central Coast Regional Water QualitV Control Board - Basin Plan Septic SVstem Amendments ■ Fiscal Impact: If Council chooses to comment on the basin plan, there will be a commitment of staff time; however no additional funding will be required. The total costs for compliance with the Basin Plan requirements are unknown at this time. Total and ongoing costs will depend on the level of detail required in our Onsite Wastewater Management Plan. The City does have the option to forgo regulation of septic systems in Atascadero by not signing a MOU with the Regional Board. Regulation of septic systems would revert back to the Regional Board. This means that this option would have to be carefully weighed vs. the benefit of being able to regulate septic systems locally. ■ Recommendation: Council direct Staff to provide the State Water Board with comments on Staff's analysis of the Central Coast Regional Water Quality Control Board's Septic System Basin Plan amendments. 2. Regional Water QualitV Control Board (RWQCB) - Storm Water Management Plan - NPDES Phase II — (continued from 9/23/08 Council meeting ■ Fiscal Impact: The long term fiscal impact is unknown at this time but could be significant. Staff is estimating the consultant costs will likely range between $30,000 and $50,000 to study the impacts of the new requirements and prepare a compliant SWMP. ■ Recommendation: Council direct staff to file the 2004 Storm Water Management Plan (SWMP) with the Central Coast Regional Water Quality Control Board (RWQCB) with language that the City will conduct a future process to attempt to incorporate the Board's February 15, 2008 revised standards to the extent practicable for this community. [Public Works] a. Supplemental Report. Regional Water QualitV Control Board (RWQCB) Storm Water Management Plan NPDES Phase II b. Supplemental Report City Attorney Report on Potential Third PartV Liabilities — Storm Water Management Plan ■ Fiscal Impact: The City Attorney is unable to estimate the potential fiscal impact which might result from third party lawsuits as it is unknown at this time when the City might obtain approval of its Storm Water Management Plan and, further, the nature and extent of any third party lawsuits is unknown as none have been filed to date. 3. Campaign Ordinance ■ Fiscal Impact: The fiscal impact of the adoption of this Ordinance will be the staff time involved in the implementation of the Ordinance which will include: processing of Declaration of Candidacy Statements, calculation of expenditure limit each election season, public noticing requirements, press 3 releases, postings on the website and processing of additional Late Contribution Reports. ■ Action: If Council desires to adopt this campaign ordinance: Council introduce for first reading by title only the Draft Ordinance amending the Atascadero Municipal Code by adding Chapter 19 to Title 2, adopting an ordinance to be known as "Atascadero Campaign Ordinance. [City Attorney] 4. Atascadero Lake Park Great Lawn Installation ■ Fiscal Impact: Approval of this recommendation will result in the expenditure of approximately $35,000 in previously allocated to the Lake Park Frontage improvement project. ■ Recommendations: Council: 1 . Approve an amendment to the permit for the Atascadero Veterans Memorial project to allow for landscaping modifications; and, 2. Authorize the expenditure of up to $35,000 of the previously allocated Lake Park Frontage Improvement project funds for purposes of installing the Great Lawn at Atascadero Lake Park; and, 3. Approve the reduction of approximately 22,000 square foot of low-use, non-essential lawn area at other City maintained facilities and/or lowered maintenance service levels in City Parks. 5. Wrestling Baccantes — Location Selection Process ■ Fiscal Impact: Funding will be needed to administer the process and to complete an engineer's estimate of the construction cost for the various display options suggested. The 2007-2009 Budget currently has $51,980.00 that is unencumbered for the Project. If additional funding for the selected display is necessary, staff will bring it back to Council to determine which projects should be reduced, deleted, or postponed. ■ Recommendation: Council endorse the location selection process and provide decision parameters relevant to the future placement of the Wrestling Bacchantes. [Public Works] 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.) 1. Mayor Mike Brennler a. De Anza Project Bridges Mayor Brennler requests Council review of the permitting issues related to these bridges. b. Ballot Measure D-08 Mayor Brennler requests Council consideration and/or action to allow Ballot Measure D-08 to be included in the Candidate Final Word Forum scheduled for November 1, 2008. 4 D. COMMITTEE REPORTS: (The following represent standing committees. Informative status reports will be given, as felt necessary): Mayor Brennler 1. County Mayors 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 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 Parks and Recreation Commission Youth Representative — need two Council Members appointed for interview. 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. 5 I, Victoria Randall, Deputy City Clerk of the City of Atascadero, declare under the penalty of perjury that the foregoing agenda for the October 14, 2008 Regular Session of the Atascadero City Council was posted on October 7, 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 7th day of October, 2008 at Atascadero, California. Victoria Randall, Deputy City Clerk City of Atascadero 6 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 Inours 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). 7 8 - ITEM NUMBER: A- 1 DATE: 10/14/08 SPECIAL MEETING ATASCADERO CITY COUNCIL The Nuts and Bolts of Running for a City Council Seat Thursday, June 26, 2008, 7:00 P.M. The meeting was called to order at 7:15 p.m. by City Clerk Marcia McClure Torgerson. ROLL CALL: Present: Council Member Clay Absent: Council Member O'Malley, Luna, Beraud and Mayor Brennler Others Present: City Clerk Marcia McClure Torgerson This Workshop was noticed as a Special Meeting of the City Council to allow a majority of the City Council to attend. Since only Council Member Clay attended, City Clerk Torgerson adjourned the Council meeting at 7:20 p.m. due to a lack of a quorum. City Clerk Torgerson continued the Workshop. THE NUTS AND BOLTS FORUM: City Clerk Marcia McClure Torgerson explained the election process; the paperwork involved, candidate statements, the campaign sign regulations, and the Code of Fair Campaign Practices using a PowerPoint presentation. She also discussed the different departments within the City and their responsibilities. The audience was allowed to ask questions throughout the presentation and there were discussions on a variety of topics. ADJOURNMENT: City Clerk Torgerson adjourned the Workshop at 8:50 p.m. MINUTES PREPARED BY: Marcia McClure Torgerson, C.M.C., City Clerk CC Draft Special Meeting Minutes 06/26/08 Page 1.>of 1 9 ITEM NUMBER: A- 2 DATE: 10/14/08 —{Reis a iaie CITY OF A TASCADERO \ � CITY COUNCIL DRAFT MINUTES Tuesday, July 8, 2008 REGULAR SESSION: Mayor Brennler called the meeting to order at 6:04 p.m. and Council Member O'Malley led the Pledge of Allegiance. ROLL CALL: Present: Council Member Clay, Luna, O'Malley, Beraud and Mayor Brennler Absent: None Others Present: Deputy City Clerk Shannon Sims Staff Present: City Manager Wade McKinney, Assistant City Manager Jim Lewis, Assistant to the City Manager/City Clerk Marcia McClure Torgerson, Administrative Services Director Rachelle Rickard, Public Works Director Steve Kahn, Police Chief Jim Mulhall, Fire Chief Kurt Stone 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. DC Draft Minutes 07/08/08 Page 1 of 12 ITEM NUMBER: A- 2 DATE: 10/14/08 A. CONSENT CALENDAR: 1. City Council Draft Minutes - April 22, 2008 ■ Recommendation: Council approve the City Council Minutes of April 22, 2008. [City Clerk] 2. City Council Joint Study Session Draft Minutes - April 29, 2008 ■ Recommendation: Council approve the City Council Special Meeting Minutes of April 29, 2008. [City Clerk] 3. City Council Closed Session Draft Minutes — May 6, 2008 ■ Recommendation: Council approve the City Council Closed Session Minutes of May 6, 2008. [City Clerk] 4. 2008-09 Annual Spending Limit ■ Fiscal Impact: None. ■ Recommendation: Council adopt the attached Resolution establishing the annual spending limit for fiscal year 2008-2009. [Administrative Services] 5. Authorization to Purchase Replacement Fire Engine ■ Fiscal Impact: $271,350 of the 2008-2009 budgeted funds from the Vehicle Replacement Fund. ■ Recommendation: Council authorize the City Manager to enter into a contract with Pierce Manufacturing Inc. to build and deliver a 2008, Model 34 style wildland fire engine at a cost of $271,350. [Fire] 6. Lewis Avenue Bridge Protect Change Order - Design of Atascadero Mutual Water Company Waterline ■ Fiscal Impact: There is no fiscal impact to the City since this is a pass through of funds. ■ Recommendation: Council authorize the City Manager to sign Change Order No. 5 for $9,700.00 with Psomas for design of the waterline. [Public Works] 7. Inclusionary Policy Equity Sharing Program Loan Document Revision ■ Fiscal Impact: $10,000 from the In Lieu Low/Moderate Housing Fund. ■ Recommendations: Council: 1. Authorize staff to hire the law firm of Goldfarb Lipman LLP at an estimated cost of $10,000 to revise the Inclusionary Policy Equity Sharing Loan Program; and, 2. Authorize the Director of Administrative Services to appropriate $10,000 from the In Lieu Low/Moderate Housing Fund for Revision of the Inclusionary Housing Loan Documents. [City Manager] CC Draft Minutes 07/08/08 Page 2 of 12 ITEM NUMBER: A- 2 DATE: 10/14/08 Mayor Brennler explained that if a member of the public wishes to contest the accuracy of the minutes or believes something was recorded in error, it would be appropriate to pull that item and speak to the issue. He pointed out that if a member of the public simply wants to address the merits of an item that was recorded in the minutes, the time to do that would be during Community Forum. Assistant to the City Manager/City Clerk Marcia McClure Torgerson confirmed Mayor Brennler's comments and answered questions of the Council. There was Council consensus to direct the City Clerk to address the language on the agenda under Consent to make it clearer for the public. Council Member Luna pulled Consent Item #A-7. George Billings pulled Consent Item #A-5. MOTION: By Mayor Pro Tem Beraud and seconded by Council Member Luna to approve Consent Items 1, 2, 3, 4 & 6. Motion passed 5:0 by a roll-call vote. (Item #A-4 Resolution 2008-053) George Billings, asked for clarification on whether or not the replacement Fire Engine has 4-wheel drive. He said he would highly recommend it have 4-wheel drive if it doesn't. City Manager Wade McKinney confirmed that the proposed engine is a 4- wheel drive vehicle. MOTION: By Council Member O'Malley and seconded by Council Member Luna to approve Consent Item #5. Motion passed 5:0 by a roll-call vote. (Item #A-5 Contract 2008- 020) Council Member Luna referred to Item #A-7, and asked that staff give further clarification of what the implications would be of foreclosure and what the City's share in this would be. Administrative Services Director Rachelle Rickard responded to Council Member Luna's inquiries and answered questions of the Council. PUBLIC COMMENT - None MOTION: By Council Member O'Malley and seconded by Council Member Luna to approve Consent Item #7. Motion passed 5:0 by a roll-call vote. CC Draft Minutes 07/08/08 Page 3 of 12 13 ITEM NUMBER: A-2 DATE: 10/14/08 COMMUNITY FORUM Jerry Hickman, Pastor of New Hope Christian Fellowship, led those present in prayer. David Broadwater apologized for his possible contribution to the confusion surrounding pulling of draft minutes and stated he thinks clarifying the language on the agenda would be a good idea. He cited examples and encouraged Council to direct that, in situations when there is a range of potential costs or exposure, that the entire range be included in the staff report rather than just the extreme case scenario. Richard Mullin, Portola Road, inquired about the unattractive window coverings of some of the Mission Oaks Outlet stores. He also commented that he's noticed excessive trash in the Sunken Gardens area and requested that trash be picked up more frequently. Mitch Paskin referred to Oak Ridge Estates and asked who is paying for the damage to the roads after Phase I and Phase II. He asked for answers regarding the safety issues. He referred Council to the EIR and PD-11 (Exhibit A). Joanne Main invited everyone to come listen to the Executive Director of the Regional Water Quality Control Board, David Ridge, speak at The Carlton Hotel on Tuesday, July 15th, at 7:30 a.m. She said topics such as the basin plan and stormwater issues will be discussed. Bill McNamara, founder and retired owner of McNamara Electric, spoke about what draws people to Atascadero: the natural beauty of the oak trees, the hills and the people. He stated that he thinks that the appointment for Mayor should be put on ballot for election. George Billings, lifelong resident, spoke about point of order and his concerns about being asked to leave a prior Council meeting. He paraphrased a quote from Franklin Delano Roosevelt's "For Freedom" speech. Mr. Billings stated he thinks Council has taken the public's freedom away by limiting speech and asked for a two-minute extension of time. Mayor Brennler denied the time extension. Ron Rothman wanted to speak about the Mayor position being elected. Mayor Brennler stated that since it is an agendized item, the appropriate time for Mr. Rothman to speak would be when Council gets to that item. Ray Buban spoke about posturing by some of the members of the Council and the alleged abuse of power. Mr. Buban referred to a prior Council meeting and spoke of his frustrating dealings with a City Building Inspector. Mayor Brennler closed the Community Forum period. CC Draft Minutes 07/08/08 Page 4 of 12 1 ITEM NUMBER: A-2 DATE: 10/14/08 Assistant City Manager Jim Lewis addressed Mr. Broadwater's comments and spoke about the Mission Oaks Office Depot's efforts to address the window coverage problem. Public Works Director Steve Kahn stated that trash is emptied daily at the Sunken Gardens and that will continue to be done. Mr. Kahn addressed Mr. Paskin's questions and answered questions of Council. Mayor Brennler addressed Mr. Billing's questions and explained Point of Order. He referred to the City Attorney, Brian Pierik, for further clarification. Mr. Pierik stated that members of the public may not speak out and say that they have a Point of Order. A discussion ensued amongst Council Members and City Attorney Brian Pierik regarding Point of Order and acceptable public behavior. Council Member O'Malley commented on the upcoming meeting referred to by Joanne Main. He stated he hopes the topics raised during Regional Water Quality Control Board presentation will be followed up on by staff and come back to Council. City Manager Wade McKinney said staff is closely monitoring developments and there isn't an exact date that this will be before Council Council Member Clay stated that he thinks the current Council is suppressing the public and being too sensitive. City Manager Wade McKinney said he is not aware of any of the inspection issues raised by Ray Buban, but will look into them and prepare a memo. Council Member Luna wanted to make clear that the Municipal Code states that Council may not deal with employees directly, they are to deal with the City Manager. Further, he stated that any inference that Council Members might have something to do with building inspection issues is inaccurate. Mayor Pro Tem Beraud supported Council Member Luna's statements and pointed out that Council gives the City Manager direction in public. B. PUBLIC HEARINGS 1. Placing Sewer Service Charges on the 2008-2009 Property Tax Rolls ■ Disclosure of Ex Parte Communications ■ Fiscal Impact: The City will bill $1,732,654.14 in sanitation service charges for Fiscal Year 2008-2009. ■ Recommendation: Council adopt the Draft Resolution at the conclusion of the Public Hearing, adopting service charges to be added to the 2008-09 Property Tax Rolls. [Public Works] Public Works Director Steve Kahn gave the staff report and answered questions of the Council. CC Draft Minutes 07/08/08 Flags S of 12 15 ITEM NUMBER: A - 2 DATE: 10/14/08 Ex-Parte Communications: None. PUBLIC COMMENT— None MOTION: By Council Member Luna and seconded by Mayor Pro Tem Beraud to adopt the Draft Resolution at the conclusion of the Public Hearing, adopting service charges to be added to the 2008-09 Property Tax Rolls. Motion passed 5:0 by a roll-call vote. (Item #B-1 Resolution 2008-054) Mayor Brennler adjourned the meeting for a break at 7.31 p.m. Mayor Brennler called the meeting back to order at 7.42 p.m. C. MANAGEMENT REPORTS 1. 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] Assistant City Manager Jim Lewis gave a brief description and introduced Doug Svensson, Project Manager and President of Applied Development Economics. Doug Svensson, Applied Development Economics, presented a PowerPoint presentation update and elaborated on the strategy status and future process. Mr. Svensson answered questions of the Council. There was Council consensus to ask staff to review the draft reports provided by Applied Development Economics. PUBLIC COMMENT Joanne Main asked Mr. Svensson for the website mentioned in his presentation. Doug Svensson replied that there is not a web address at the current time, but when it is unveiled it will be advertised and will be accessible by link on the City's website. Ron Rothman mentioned that he had not received the survey yet. He commented that he thinks it is not a complete survey because it only focuses on the economic issues. CD Draft Minutes 07/08/08 F,age 6-of 12 16 ` ITEM NUMBER: A-2 DATE: 10/14/08 David Broadwater stated he is impressed by Applied Development Economics. He urged the Council to make sure events do not conflict as in the case of the Nuts and Bolts meeting overlapping the Applied Development Economics meeting. Bill Shaeffer, resident, inquired to what extent the economic survey will address the values that we have beyond the economics. Doug Svensson responded that it is a technical survey as it is designed to collect market information. He said more of the values-type discussions will crake place at the public forum in the fall. Ann Hatch commended the Council for recommending the study. Nora Trentecosta echoed comments that another focus on vision could be appropriate. She suggested posting some sort of a timeline on the website so community members can plan ahead for these meetings. Mayor Brennler closed the Public Comment period. City Manager Wade McKinney clarified that the drafts get circulated directly to the City Council but the comments wouldn't come back to staff; Council would collect the comments for the public. Doug Svensson confirmed that they are currently in the process of selecting specific dates and once the dates are confirmed, they will be posted on the website. He answered questions of the Council. There was Council consensus to receive and file the report. 2. Balboa Road Design and Construction • Fiscal Impact: $103,220.00, redirected from Local Transportation funds from the Road Rehabilitation 5-Year Maintenance Project; and an estimated $10,000 in annual maintenance costs. ■ Recommendations: Council: 1. Council approve the design and construction of grading Balboa Road from Otero Road to Llano Road; and, 2. Authorize the Administrative Services Director to re-direct $103,220.00 in Local Transportation Funds from the Road Rehabilitation 5-Year Maintenance Project to the Balboa Road Project; and, 3. Provide Staff direction on the funding source for the annual estimate $10,000.00 maintenance costs. [Public Works] Public Works Director Steve Kahn gave the staff report, distributed a memo on the subject, and answered questions of the Council. CC Draft Minutes 07/08/08 Fuge 7 of 12 17 ITEM NUMBER: A-2 DATE: 10/14/08 City Manager Wade McKinney elaborated further on some of the issues. PUBLIC COMMENT Joan O'Keefe commented that she thinks that Public Works Director Steve Kahn is doing exactly what he should be doing by trying to comply with federal and state laws. Ron Rothman suggested that since it is mostly the upper section that is impassible, the money be put into that section alone. He also suggested that the road be restricted just for emergency use. Ann Hatch cited numerous road options and asked for costs for these options. She inquired if the project were to be stretched out long term, it would cost more. Ray Buban commented on the backlog of road maintenance in Atascadero. He spoke about lobbying by a Planning Commissioner to staff and Council to place his street at the top of the priority list. A community member expressed his disappointment with the use of politics by Council and the public and the inability to get things done. He asked if there are any special funds from Fire that might be applied to this road. Mayor Brennler closed the Public Comment period. Mayor Pro Tem Beraud said she supports staff's recommendation and suggested doing an annual inspection to see if it really requires $10,000 a year. Council Member O'Malley supports the original list. He said he does not want to deviate from the original process and thinks cost analysis needs to occur. Public Works Director Steve Kahn answered questions of Council. Council Member Luna expressed his support for Phase I. He said that Phases II and IV bother him the most because they are very costly and he thinks neighborhood meetings need to be held to discuss possible assessment district options. Mayor Brennler relayed his support for Phase I and expressed great reluctance to go to Phase II. MOTION: By Council Member O'Malley and seconded by Council Member Luna to approve Phase I and follow up with consideration of alternatives for the other phases and hold neighborhood meetings. Public Works Director Steve Kahn addressed further questions of the Council. Council Member O'Malley amended his motion: CC Draft Minutes 07/08/08 yyPage & of 12 ITEM NUMBER: A- 2 DATE: 10/14/08 MOTION: By Council Member O'Malley and seconded by Council Member Luna to approve Phase I and follow up with consideration of alternatives for the other phase, hold neighborhood meetings and to add sufficient funding for erosion siltation control. City Manager Wade McKinney commented on drainage issues and answered questions of Council. City Attorney Brian Pierik also answered questions of Council. Council Member O'Malley withdrew his Motion. Council discussion continued. MOTION: By Mayor Pro Tem Beraud to: 1 . Approve the design and construction of grading Balboa Road from Otero Road to Llano Road; and, 2. Authorize the Administrative Services Director to re-direct $103,220.00 in Local Transportation Funds from the Road Rehabilitation 5-Year Maintenance Project to the Balboa Road Project; and, 3. Provide Staff direction on the funding source for the annual estimate $10,000.00 maintenance costs. Mayor Pro Tem Beraud's motion died due to a lack of a second. MOTION: By Council Member Clay to accept Phase I and add an additional up to $10,000 for erosion control Council Member Clay's motion died due to a lack of a second. Council discussion continued. MOTION: BY Councily to accept Member Clay t Phase I and add sufficient p erosion control in order to mitigate downstream drainage concerns as required to mitigate off-site impacts. Council Member Clay's motion died due to a lack of a second. Council discussion continued. MOTION: By Mayor Brennler and seconded by Council Member Clay to move forward with Phase I to make the road passable for emergency and solicit neighborhood participation in moving forward on Phase II. Also, to add sufficient erosion control in order to mitigate downstream drainage concerns as required to mitigate off-site impacts per the City Engineer's analysis with a $28,000 maximum. CC Draft Minutes 07/08/08 Page 9of1.2p 19 ITEM NUMBER: A -2 DATE: 10/14/08 Motion passed 5:0 by a roll-call vote. MOTION: By Council Member O'Malley and seconded by Council Member Luna to authorize the Administrative Services Director to re-direct $28,000 in Local Transportation Funds from the Road Rehabilitation 5-Year Maintenance Project to the Balboa Road Project. Motion passed 5:0 by a roll-call vote. MOTION: By Council Member Clay and seconded by Council Member Luna to approve the design and construction of grading Balboa Road from Otero Road to Llano Road. Motion passed 5:0 by a roll-call vote. Mayor Brennler recessed the meeting at 9:34 p.m. Mayor Brennler reconvened the meeting at 9:47 p.m. 3. Historic City Hall Architecture and Engineering Services ■ Fiscal Impact: The fiscal impact is expected to be $3,911,140 of Redevelopment Agency and CCHE grant funds. These are potentially reimbursable by FEMA and OES. ■ Recommendation: Council endorse staff to continue with next phase of architecture and engineering services with Pfeiffer Partners Architects, Inc. [Administrative Services] Administrative Services Director Rachelle Rickard gave a brief report and introduced Stephanie Kingsnorth, project architect with Pfeiffer Partners Architects, Inc. Stephanie Kingsnorth elaborated about what the next Phase will entail and answered questions of the Council. PUBLIC COMMENT Al Fonzi, asked if the building is being engineered to be able to withstand a larger, longer earthquake, like what is predicted. Stephanie Kingsworth responded that the building will be designed to the highest level possible within the funding that is available. Mayor Brennler closed the Public Comment period. Administrative Services Director Rachelle Rickard answered questions of the Council. CC Draft Minutes 07/08/08 ?gage 10 of 12 ITEM NUMBER: A-2 DATE: 10/14/08 MOTION: By Mayor Pro Tem Beraud and seconded by Council Member O'Malley to endorse staff to continue with next phase of architecture and engineering services with Pfeiffer Partners Architects, Inc. with the expected fiscal impact of $3,911,140 of Redevelopment Agency and CCHE grant funds that are potentially reimbursable by FEMA and OES. Motion passed 5:0 by a roll-call vote. 4. Campaign Finance Ordinances and Related Issues ■ Fiscal Impact: Contingent on the direction from Council. [City Attorney] City Attorney Brian Pierik gave the report and answered questions of the Council. MOTION: By Council Member Luna and seconded by Mayor Pro Tem Beraud to go past 11:00 p.m. There was Council discussion on the motion. Council Member Luna withdrew his motion. MOTION: BY Council Member Beraud and seconded by Council Member Clay to go past 11:00 p.m. with the intent of adjourning after public comment is received on Item #C-4. Motion passed 5:0 by a roll-call vote. PUBLIC COMMENT Ann Hatch encouraged the Council to adjourn and hear this item at the next meeting and considers it a disservice to approach it at this hour. Mark Phillips showed a PowerPoint presentation he prepared. He stared that the rapid cost increase of running for City Council in Atascadero is alarming. Al Fonzi recommended a book by Mr. Bradley Smith. He said money does not determine who wins and thinks there are a lot of unintended consequences in pursuing this. He encouraged Council to not to go down this road. David Broadwater encouraged omitting necessary personal information and posting 460's online. Cyndi Sasur said she supports Mr. Phillip's and Mr. Broadwater's statements and does support some form of campaign finance reform. Sandy Jack, echoed support of Al Fonzi's comments. He urged Council not to impose limits. CC Draft Minutes 07/08/08 Page 11 of 12 21 ITEM NUMBER: A - 2 DATE: 10/14/08 Roberta Fonzi, comment about recent legislation and additional requirements on the 24 hour reporting period. Geraldine Brasher, expressed concern with campaign finance and stressed the importance of full disclosure in a timely fashion. Mayor Brennler closed the Public Comment period. 5. 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 Manager] This item was continued to the next meeting. 6. Update on City Council Strategic Planning Goals ■ Fiscal Impact: None. ■ Recommendation: Council provide direction on the progress and status of the City Council's strategic planning goals. [City Manager] This item was continued to the next meeting. F. ADJOURNMENT Mayor Brennler adjourned the meeting at 11:24 p.m. MINUTES PREPARED BY: Shannon Sims, Deputy City Clerk The following exhibits are available for review in the City Clerk's office: Exhibit A— Mitch Paskin handout Exhibit B—Steve Kahn Memo on Balboa Road ITEM NUMBER: A-3 DATE: 10/14/08 CITY OF ATASCADERO CITY COUNCIL ®RAFT MINUTES Tuesday, August 12, 2008, 7:00 p.m. CITY COUNCIL CLOSED SESSION: 5:00 P.M. Mayor Brennler called the meeting to order at 5:00 p.m. ROLL CALL Present: Council Members Luna, Clay, O'Malley, Beraud and Mayor Brennler. Absent: None Others Present: City Clerk / Assistant to the City Manager Marcia McClure Torgerson, and Deputy City Clerk Susanne Anshen. Staff Present: City Manager Wade McKinney, Assistant City Manager Jim Lewis, Community Development Director Warren Frace, Public Works Director Steve Kahn, Fire Chief Kurt Stone, Police Chief Jim Mulhall, and City Attorney Brian Pierik Mayor Brennler indicated Item "a" has been deleted from the agenda. PUBLIC COMMENT— CLOSED SESSION None. Mayor Brennler closed the Public Comment period. a. CONFERENCE WITH REAL PROPERTY NEGOTIATORS (Govt. Code Sec. 54956.8) Property address: Easement from Capistrano Avenue to Stadium Park along APN# 029-105-028 Agency Negotiator: Wade McKinney, City Manager Negotiating Parties: Dr. Gary Renzaglia and Ms. Sandy Hughes CC Draft Minutes 08/12/08 Page 1 of 12 23 ITEM NUMBER: A-3 DATE: 10/14/08 Under Negotiation: Instruction to negotiator will concern price and terms of payment. b. CONFERENCE WITH LEGAL COUNSEL — EXISTING LITIGATION (Govt.Code Sec. 54956.9(a)) Title: Tracey v. City of Atascadero, Case No. CV070917 c. CONFERENCE WITH LEGAL COUNSEL — ANTICIPATED LITIGATION Initiation of litigation pursuant to Government Code Section 54956.9(c) (Number of cases: 1) d. PUBLIC EMPLOYEE PERFORMANCE EVALUATION (Government Code Section 54957) Title: CITY MANAGER e. PUBLIC EMPLOYEE PERFORMANCE EVALUATION (Government Code Section 54957) ADJOURN Mayor Brennler adjourned the Closed Session of the City Council at 5:55 p.m. to the regular meeting of the Redevelopment Agency. CLOSED SESSION REPORT City Attorney Brian Pierik announced there were no reportable actions taken. CITY COUNCIL REGULAR SESSION Mayor Brennler called the meeting to order at 6:42 p.m. and led the Pledge of Allegiance. City Clerk / Assistant to City Manager Marcia McClure Torgerson introduced Susanne Anshen who is replacing Grace Pucci as Deputy City Clerk. ROLL CALL: Present: Council Members Clay, Luna, O'Malley, Beraud and Mayor Brennler. Others Present: City Clerk/Assistant to City Manager Marcia McClure Torgerson, and Deputy City Clerk Susanne Anshen. CC Draft Minutes 08/12/08 24 Page 2 o, ITEM NUMBER: A- 3 DATE: 10/14/08 Staff Present: City Manager Wade McKinney, City Attorney Brian Pierik, Community Development Director Warren Frace, and Police Chief Jim Mulhall. APPROVAL OF AGENDA: Mayor Brennler confirmed with staff that Item C-1 was pulled from the agenda by the applicant and will be continued to a future date. Mayor Brennler asked that Item C-3 be the C-1 position. MOTION: By Mayor Pro Tem Beraud and seconded by Council Member Luna to continue Item C-1 and move Item No. C-3 to the C-1 position on the agenda. Motion passed 3:2 on a roll-call vote (Council Members O'Malley and Clay opposed) Council Member Clay asked Community Development Director Warren Frace to clarify that the Wal-Mart group and the Rottman Group will submit simultaneously. Staff indicated it would appear that both groups will now attempt to return under a specific plan that had already been approved by the Council, but this has not yet been confirmed. PRESENTATIONS 1. Police Chief Jim Mulhall presented Support Services Technician Kelly Arebalo with the Police Chief's Commendation for Exceptional Performance in a Multi-Jurisdictional Event that occurred on September 6, 2007. 2. Police Chief Jim Mulhall presented a Plaque of Appreciation to Senior Officer Keith Falerios upon the Retirement of his Canine-Partner, Zep Van Guy's Hof, who served from August 28, 2002, until March 19, 2008. 3. Dave Mullinax, League of California Cities Regional Public ,Affairs Manager, made a presentation on the following Resolution and answered questions of the Council: Resolution Opposing Irresponsible State Budget ■ Fiscal Impact: This action will have no financial impact, however if the State implemented the borrowing contemplated in the current Budget edition, the impact would cost Atascadero $1 ,090,000.00. ■ Recommendation: Council adopt Draft Resolution entitled A RESOLUTION OPPOSING FISCALLY IRRESPONSIBLE STATE BUDGET DECISIONS THAT WOULD `BORROW" LOCAL GOVERNMENT, REDEVELOPMENT AND TRAN P S OR 7ATION FUNDS. [City Manager's Office] CC Draft Minutes 08/12/08 Page 3 of 12 25 ITEM NUMBER: A- 3 DATE: 10/14/08 MOTION: By Council Member O'Malley seconded by Council Member Luna, to adopt Draft Resolution entitled, A Resolution Opposing Fiscally Irresponsible State Budget Decisions That Would "Borrow" Local Government, Redevelopment and Transportation Funds. Motion passed 5:0 on a roll call vote. (Resolution No. 2008- 021) A. CONSENT CALENDAR: 1. City Council Draft Minutes — May 13, 2008 ■ Recommendation: Council approve the City Council Meeting Minutes of May 13, 2008. [City Clerk] 2. City Council Special Meeting Draft Minutes — Mav 22, 2008 ■ Recommendation: Council approve the City Council Special Meeting Minutes of May 22, 2008. [City Clerk] 3. Mav 2008 Accounts Payable and Payroll ■ Fiscal Impact: $ 1 ,900,993.39. ■ Recommendation: Council approve certified City accounts payable, payroll and payroll vendor checks for May 2008. [Administrative Services] 4. June 2008 Accounts Payable and Payroll ■ Fiscal Impact: $ 2,624,762.76. ■ Recommendation: Council approve certified City accounts payable, payroll and payroll vendor checks for June 2008. [Administrative Services] 5. March 2008 Investment Report ■ Fiscal Impact: None. ■ Recommendation: Council approve the City Treasurer's report for March 2008. [Administrative Services] 6. Acceptance of Proposals for Contract Plan Check Services for Building Services ■ Fiscal Impact: The plan check contract is expected to exceed $100,000 per year. The cost is paid for by a percentage of the building plan check fee, which is collected at the time of permit submittal. ■ Recommendation: Council place on eligibility list, and award contracts for plan check services to, California Code Check, Wildan Engineering, and NAFFA International. [Community Development] 7. Cafe & Concession Agreement Approval for the Colony Park Community Center ■ Fiscal Impact: The City will collect $400 per month rental fee of the cafe and 10% of gross receipts for all on-site cafe & catering sales. u: ''craft Minutes 08/12/08 '� 7-a- _ 4 of 12 ITEM NUMBER: A-3 DATE: 10/14/08 ■ Recommendation: Council approve a two-year contract with extension provisions for cafe and food services for the Colony -Park Community Center with LeBoeuf's Bar-b-que, effective upon execution of the contract through September 30, 2010. [Community Services] 8. Atascadero Creek Trail and Restoration Prosect ■ Fiscal Impact: The public process, design, right-of-way and construction of this project could cost the City an estimated additional $200,000.00. ■ Recommendations: Council: 1 . Adopt the Draft Resolution authorizing filing of an application for grant funds from the River Parkways Grant Program; and, 2. Authorize the Public Works Director to sign Amendment #2 to the Grant Agreement which transfers the Grant to the City of Atascadero and extends the project performance period to May 1, 2011. [Public Works] 9. Temporary Road Closure — Colony Days Parade Route ■ Fiscal Impact: Staff time required for traffic control and clean-up related to this event. ■ Recommendations. Council: 1. Adopt the Draft Resolution establishing a temporary Colony Days Parade Route and associated tow-away zones; and 2. Approve the following No Parking zone, road closures and tow-away zones for the Parade and related events: • Friday, October 17th thru Sunday, October 19th, 2008 - 6:00 a.m. until 5:00 p.m. Establish No Parking and tow-away zone o East Mall - south side only from 5901B to the entrance to City Parking Lot • Saturday, October 18, 2008 6 a.m. until 5:00 p.m. Establish road closure and tow-away zone o West Mall from EI Camino Real to Lewis Avenue o East Mall from EI Camino Real to Lewis Avenue o Palma Avenue from East Mall to West Mall • Saturday, October 18, 2008 from 8:00 a.m. until 1 :00 p.m. Establish road closure and tow-away zone o EI Camino Real from Curbaril to Traffic Way o Entrada Avenue from EI Camino Real to Lewis Avenue o Lewis Avenue from Traffic Way to Capistrano o West Mall from EI Camino Real to Olrneda o San Luis Avenue from Curbaril to Pueblo o Pueblo Avenue from San Luis Avenue to EI Camino Real o Palma Avenue from East Mall to Traffic Way[Public Works] CC Draft Minutes 08/12/08 Page 5 of 12 - -_ 27 ITEM NUMBER: A-3 DATE: 10/14/08 10. Temporary Road Closure — Via Avenue Bridge • Fiscal Impact: None. ■ Recommendation. Council approve a request for the temporary closure of the Via Avenue Bridge for a guard railing replacement project, exact dates to be determined. [Public Works] 11.Temporary Road Closure — Calvary Chapel of Atascadero • Fiscal Impact: None. ■ Recommendation: Council approve a request by Calvary Chapel of Atascadero for the closure of Palma Avenue from East Mall to West Mall from 5:00 p.m. Friday, September 12th to 10:00 p.m. Saturday, September 13th for an event in the Sunken Gardens. 12. North County Transit Operator's Agreement ■ Fiscal Impact: $35,000 per year to be programmed from region-wide FTA 5307 funds for administrative overhead. ■ Recommendation: Council approve the attached Operator's Agreement between the San Luis Obispo Council of Governments, the County of San Luis Obispo, the San Luis Obispo Regional Transit Authority (RTA) and the Cities of Atascadero and Paso Robles. [Public Works] 13.Pump Repair Services ■ Fiscal Impact: The costs of Pump Repair Services are billed directly to previously allocated equipment repair accounts. ■ Recommendations: Council authorize the City Manager to enter into ongoing contracts, when needed, for contract pump repair services with the following providers: Perry's Electric Motor's & Controls Santa Maria Tool, Inc. Nickson's Machine Shop, Inc. PC Mechanical Inc. [Public Works] MOTION: By Council Member Luna and seconded by Mayor Pro Tem Beraud to approve Items A-1 through A-13 on the Consent Calendar. Motion passed 5:0 by a roll-call vote. (A-7: Contract No. 2008- 021, A-8: Resolution No. 2008-056, A-9: Resolution No. 2008- 057, and A-12: Contract No. 2008-022) COMMUNITY FORUM Marty Brown, thanked local organizations for making Stadium Park a jewel in Atascadero, and requested more trash receptacles for Stadium Park due to excessive trash. CC Draft Minutes 08/12/08 28 Page 6 of 12 ITEM NUMBER: A- 3 DATE: 10/14/08 Steve Martin, Colony Days Committee Chair, invited everyone to attend the 35th Annual Colony Days on October 18. Joan O'Keefe expressed concern at the lack of progress on the Printery Building and concerns that Kelly Gearhart is not going to honor his obligations. David Broadwater commended the City Clerk on the change in the Consent Calendar description on the Council agendas. Mr. Broadwater also reiterated concerns as to Stadium Park's trail bench in disrepair and trash strewn across the trail. Maria Hooper expressed her concerns with the Printery and encouraged the Council to consider mothballing the building as requested by the Historical Society. Jim Shannon asked what the status is on the traffic problem at the intersection of Curbaril and the freeway off ramp and the stop signs that the City was going to install at this location. Mr. Shannon also asked Mayor Brennler what he meant when he said on the Dave Congalton radio show that Wade McKinney needs to be looking for a new job. He asked him not to continue with the hatred and bitterness and move forward. Lee Perkins asked when the next strategic planning session is scheduled or whether it has been replaced by other types of meetings. Ms. Perkins read an article on Wal-Mart and the Minnesota Labor Law trial from the Bloomington News of July 2, 2008. Joanne Main, Atascadero Chamber, stated that the Chamber is hosting Empower Hour on August 19, 2008, at 7:30 a.m. at the Carlton and the topic will be the Santa Margarita Ranch; and she announced the Chamber Open house Thursday, August 21, 2008, from 5:30 — 7:30 pm. Ms. Main invited the community to the last Tuesday in the Park BBQs in the Park. Tino Santos thanked Mr. Luna for service to the City. Mr. Santos thanked Wal-Mart for his t-shirt and for creating jobs and opportunities, and stated we need cooperation for Atascadero's bright future. Nora Trentacosta stated we need to protect local revenue and consider Measure D-08 on November's ballot. Tom McGee thanked the Police Department for continued drive-bys of his business. Mr. McGee complained that the bus stop in front of his business has no trash can and he has to pick up the trash every morning. Chris Cobalt stated the San Jacinto repaving project has resulted in a "lake" in front of his home. Mr. Cobalt stated no notices were given as to when the road would be accessible which caused excess time to reroute. Mayor Brennler closed the Public Comment period. 29 ITEM NUMBER: A-3 DATE: 10/14/08 Mayor Brennler asked the City Manager to comment in regard to Marty Brown's and Mr. Broadwater's concerns over Stadium Park. City Manager Wade McKinney indicated he would follow up with Public Works. Mayor Brennler addressed Joan O'Keefe's questions regarding the Printery and stated the Printery was discussed in Closed Session. Mayor Brennler stated the City Council is not in a position to discuss this issue at this time, but indicated the City is taking steps to try to resolve some of the Printery issues. Council Member Clay asked if we could relay that the City is looking at all options, and Mayor Brennler stated that was an appropriate comment. Mayor Brennler asked the City Manager to address the questions concerning the Printery. City Manager Wade McKinney stated they have directed the property owner to mothball the building and the City is looking at a variety of alternatives to insure mothballing or improvements to the building. He explained that if the present owner sells, all the conditions would transfer with the sale. Mayor Brennler asked the City Manager to address the questions concerning the Curbaril intersection with the freeway. City Manager Wade McKinney noted that the design and plans have been submitted to Caltrans and they have not been approved at this time. Mayor Brennler noted Mr. McGee's request for a trash can at the bus stop in front of his business. City Manger Wade McKinney stated he would follow up on this issue. Mayor Brennler noted Mr. Cobalt `s issue of drainage on San Jacinto. Staff 'indicated the streets in that area are not city-maintained roads. Mayor Brennler asked Mr. Cobalt to submit his complaint in writing to the City for a response. Mayor Brennler stated Mr. Shannon raised the issue of some comments he claimed Mayor Brennler had made on the Dave Congalton Radio Show. Mayor Brennler stated the comments were made by Council Candidate Bob Kelley. Mayor Brennler closed the Community Forum and recessed the meeting at 8:07 p.m. Mayor Brennler called the meeting back to order at 8:15 p.m. B. PUBLIC HEARINGS 1. Confirming the Cost of Vegetative Growth and/or Refuse Abatement ■ Disclosure of Ex Parte Communications ■ Fiscal Impact: The City will receive $155,887.00 from the 2008/2009 property tax rolls in weed abatement/ refuse abatement assessments. ■ Recommendation: Council adopt the Draft Resolution, confirming the cost of vegetative growth (weeds) and/or refuse (rubbish) abatement. [Fire] CC Draft Minutes 08/12/08 3(y Fuge 8 of 12 ITEM NUMBER: A- 3 DATE: 10/14/08 Fire Chief Kurt Stone gave the staff report and answered questions of Council. PUBLIC COMMENT - None. Mayor Brennler closed the Public Comment period. EXPARTE COMMUNICATIONS - None. MOTION: By Council Member Luna and seconded by Council Member O'Malley to adopt the Draft Resolution confirming the cost of vegetative growth (weeds) and/or refuse (rubbish) abatement. Motion passed 5:0 on a roll-call vote. (Resolution No. 2008- 058) C. MANAGEMENT REPORTS 1. Campaign Finance Ordinances and Related Issues ■ Fiscal Impact: Contingent on the direction from Council. [City Attorney] City Attorney Brian Pierik reminded the Council that he gave the staff report for this issue at their last meeting, and due to the late hour, the item was continued to tonight. Mr. Pierik explained that a supplemental report had been distributed for tonight's meeting (Exhibit A). He then answered questions of Council. City Clerk Marcia McClure Torgerson stated there has been conflicting information from the State and other agencies that have caused her to hesitate on posting the Form 460s on the City's website. Since 2004, she has created a binder during the election season of all the 460s, and made it available at the front counter for the public; to access. Ms. Torgerson stated that after further research, she has decided to redact all personal information on the Form 460s, and post them on the City's website, which has been completed. The City Clerk answered questions of Council. PUBLIC COMMENT Dave Broadwater referenced the letter he provided to the Council today asking to have it placed in the record of tonight's meeting. Mr. Broadwater's letter listed his recommendations to the Council concerning this issue. He encouraged the Council to support campaign finance reform. (Exhibit B). Joan O'Keefe stated posting Form 460s on web is a very positive action and will assist the City Clerk to provide the public with information. Mark Phillips thanked staff for putting the Form 460s on line. He stated that he is unclear why the appearance of corruption would be a viable purpose for your findings. He stated that he agrees with Mr. Broadwater's suggestions on late reporting, and he C:, Draft Minutes 08/12/08 a ITEM NUMBER: A-3 DATE: 10/14/08 feels the Council should just state whether an applicant before them has made a contribution to them. Lee Perkins applauded the City Clerk on getting 460s online. Ms. Perkins called the Council's attention to Mark Phillips' presentations over the last few elections, which may not have been malfeasance but is certainly a serious concern. Marty Brown commended the City Clerk in her positive step in posting contributions on the City's website. Jim Shannon stated this comes down to ethics and money, and he does not feel that reporting contributions matters, and is concerned over cost of investigating to the City. Tom McGee stated the word "transparencies" is the new hot word, and he feels the real reason behind this change is not to control campaign financing, but an attempt to block City Councils in the name of increased or enhanced transparencies. Mr. McGee feels this should not be acted on so close to the next election. Nora Trentacosta thanked the City Clerk for all her work on this issue. Ms. Trentacosta said that this Council has not risen to the challenge of creating standards of ethics, so voluntary declarations and codes of ethics do not seem sufficient; however, there needs to be consequences for not following through, especially disclosure during meetings and late campaign contribution reports post election. Tino Santos stated either you are honest or not, as cash cannot be tracked. Roberta Fonzi stated she is concerned about the findings and hopes Council will be very careful not to bring us into legal jeopardy in making these findings. Ms. Fonzi was concerned about the limit on contributions but not on expenditures; and stated that by limiting expenditures, we make sure the little guy also has a chance to compete and maybe a monetary amount on the hours of volunteering could also be limited. Ms. Fonzi hoped reporting requirements are not made too onerous. Joanne Main with the Atascadero Chamber, stated we need to create findings in order to enact campaign reform, and does not want to put our City at risk by rushing to make findings before we have some of the answers. Mayor Brennler closed the Public Comment period. Discussion was held by Council and questions were answered by City Attorney Brian Pierik and City Clerk/Assistant to the City Manager Marcia Torgerson. CC Draft Minutes 08/12/08 6aae 11,of 12 ITEM NUMBED: A- 3 DATE: 10/14/08 There was Council consensus to direct City Attorney Brian Pierik to bring back to the Council an action item, and Mayor Pro Tem Beraud restated the four items as follows: (1) Voluntary expenditure limits with incentives at 50 cents per person (or whatever he finds from his research); (2) late contributions -- reducing reporting amounts from $1,000 to $250; (3) ex parte disclosure of over $250 in contributions to a Council Member when a matter comes before the City Council for action by an applicant; and (4) expand 460s on the web to include mid-year filings, and bring this issue back to Council as a draft ordinance with options. Mayor Brennler recessed the meeting at 10:15 p.m. Mayor Brennler called the meeting back to order at 10:25 p.m. 2. Dormant Building Permit Applications and Unpaid Plan Check Fees Update — Potential Time Extension Program ■ Fiscal Impact: Collection of unpaid plan check fees is estimated to provide a financial benefit to the City of approximately $150,000±. • Recommendation: Council direct staff to prepare a Title 8 code text amendment to retroactively extend dormant and expired single family residential, multi-family residential, industrial, and commercial building permit applications to December 31, 2009, once all outstanding, unpaid plan check fees have been paid. [Community Development] Community Development Director Warren Frace gave the staff report and answered questions of Council. PUBLIC COMMENT - None. Mayor Brennler closed the Public Comment period. MOTION: By Council Member Clay and seconded by Council Member O'Malley to direct staff to prepare a Title 8 Code Text Amendment 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. Motion passed 5:0 on roll-call vote. ADJOURNMENT: MOTION: By Council Member Clay seconded by Council Member O'Malley to adjourn due to the time being close -to 11 p.m. Motion passes 3:2 on a roll-call vote. (Mayor Pro Tem Beraud and Mayor Brennler opposed.) CC Draft Minutes 08/12/08 Page 11 of 12 33 ITEM NUMBER: A-3 DATE: 10/14/08 The meeting was adjourned at 10:55 p.m. MINUTES PREPARED BY: Susanne Curtis Anshen, Deputy City Clerk The following exhibits are available for review in the City Clerk's office: Exhibit A— Supplement Report of City Attorney Brian Pierik on Campaign Finances Reform Exhibit B -- Letter from David Broadwater, dated 8/12/08 ITEM NUMBER: C - 1 DATE: 10/14/2008 E Isis ry 1979 Atascadero City Council Staff Report - Public Works Department Central Coast Regional Water Quality Control Board Basin Plan Septic System Amendments RECOMMENDATION: Council direct Staff to provide the State Water Board with comments on Staff's analysis of the Central Coast Regional Water Quality Control Board's Septic System Basin Plan amendments. REPORT-IN-BRIEF: The Central Coast Regional Water Quality Control Board (Regional Board) is a State Government Agency that recently made changes to its Septic System rules and regulations. The Regional Board's Septic System rules and regulations are part of a Water Quality Control Plan, often called a Basin Plan. The changes to the septic system rules and regulations will direct the City to sign a Memorandum of Understanding with the Regional Board in order to allow the City to regulate septic systems in Atascadero, develop and implement a Septic System Management Plan, and update the Municipal Code to align our regulations with the Regional Board's recent changes. DISCUSSION: Background: The Central Coast Regional Water Quality Control Board is a State Government Agency that is responsible for protecting surface and groundwater quality in the six counties stretching from Santa Barbara to southern Santa Clara County. The Regional Board is part of the State Water Resources Control Board' and California Environmental Protection Agency. ' The State Water Resources Control Board provides administrative support and appellate oversight for the State's nine Regional Water Boards. 35 ITEM NUMBER: C - 1 DATE: 10/14/2008 The Regional Board was formed in 1949 to regulate wastewater discharges from Industrial and municipal treatment plants. The idea was to create a local version of a State agency that would make better decisions than a body located in Sacramento. The Regional Board consists of nine individuals from the six county areas. Regional Board members are appointed by the Governor to staggered four-year terms. The appointees are all volunteers and are required to have knowledge regarding water quality issues. Individuals represent constitutes such as, water quality, water supply, local government, recreation, fish or wildlife and others. A list of the current local Regional Board members may be viewed at: http://www.waterboards.ca.gov/centralcoast/about_us/board_members.shtml In 1969 the Porter Cologne Water Quality Acte expanded the Regional Board's authority to protect all ground and surface waters. This authority includes the ability to levee significant fines on polluters and establish water quality objectives as part of a Regional Water Quality Control Plan (Basin Plan.) The Basin Plan is developed by the Regional Board to describe the requirements3 that are needed in order to protect ground and surface water quality in the Regional Board's jurisdiction. The Basin Plan includes requirements and goals for septic systems, wastewater discharges, landfills and storm water systems. The Regional Board recently amended the Basin Plan's onsite wastewater (septic system) treatment requirements on May 9, 2008. The City provided comments to the Regional Board and a request for additional time for public input prior to the May 9th public hearing. In addition, City staff spoke during the hearing's public comment period to highlight the City's concerns. City staff's written Basin Plan comments are contained in Attachment A and the City's request for additional public input time is included as Attachment B. The Regional Board's Basin Plan Amendment staff report, Regional Board staff's written response to public comments, and the hearing's audio recording can be accessed at: http://www.waterboards.ca..qov/centralcoast/board_info/agendas/2008/may/item9/index. shtml The Regional Board adopted the Basin Plan amendments with minor changes4. Therefore, the amendments are currently going through an administrative and legal review in Sacramento. Both the State Water Resources Control Board (State Board) and the Office of Administrative Law will be reviewing the local Regional Board's 2 The Porter Cologne Water Quality Act is the governing State law for water quality protection in California and can be found at: http://www.swrcb.ca.gov/laws—regulations/docs/portercologne.pdf 3 Water quality objectives are established to protect the beneficial uses of State waters. This means that when an entity discharges treated wastewater to an aquifer or stream there will be specific pollutant levels that cannot be exceeded. For example, the City is allowed to discharge wastewater to percolation ponds close to the Salinas River. The City is allowed to only release a set concentration of salts in order to protect the use of the aquifer. The current beneficial uses of the Atascadero groundwater subbasin are municipal, industrial and agricultural uses. 4 The Water Board changed the requirement for septic system pumping from a required five-year cycle to a recommended five-year cycle. ITEM NUMBER: C - 1 DATE: 10/14/2008 changes. The Office of Administrative Law's review is not a public process and is focused on the Basin Plan Amendment's compliance with other State laws. The State Water Board's review is based on the technical and administrative compliance with the Porter Cologne Water Quality Act. The Regional Board has sent the amended Basin Plan language for review and concurrence to the State Water Board. The review period typically takes six months to one year. City staff has been in contact with State Water Board staffer Michael Buchman who is leadingthe Basin Plan Amendment review. Mr. Buchman anticipates that the amended language,n along with State Board staff recommendations, will be g g heard before the State Water Board sometime in November 2008, possibly the 18t'. At the time of this staff report the State Board's staff recommendation was not known. The State Board staff will either recommend that the Basin Plan amendments be accepted by the State Board members or be sent back to the Regional Board for reconsideration. State Board staff believes that their recommendations will be considered at the November 18th State Board hearing. City staff believes we will have at least ten days to comment to the State Board since Mr. Buchman mentioned that the comment period was likely to close on October 28th, 2008. This provides the City and the public with time to provide written comments on the recently adopted changes and State Board staff's recommendation. SummarV: City staff previously provided Regional Board staff with comments objecting to a number of new and changed requirements that were unfunded mandates and may result in potential costs to property owners. Staff's complete comments are included in Attachment A. The Regional Board's proposed changes, staffs summarized comments and the Regional Board staff's responses are as follows: 1 . Regional Board Change: Watercourse - A natural or man-made arti#+sial channel for passage of water, A-rUAing-stRaf-s# Mets. There must be a stream, usually flowing in a particular direction (though it need not flow continuously) usually discharging into some stream or body of water. City Staff's Previously Submitted Comment: The definition of "Watercourse" was changed to be less specific than the previous Basin Plan requirement. The Regional Board changed the definition of a watercourse, mainly by deleting some language and adding "man-made" to the definition. City staff believes it is important to define watercourse in a straight forward, easy to interpret manner. The definition approved by the Water Board is ambiguous. 37 ITEM NUMBER: C- 1 DATE: 10/14/2008 Regional Board Staff Response to the City: Staff response: The City's proposed definition is certainly more specific and limiting than that proposed in this amendment. However, the intent is to require adequate setback from any surface water (watercourse, drainageway, stream, natural, man-made, with or without bed or banks, etc.) to preclude impacting that water quality. See response to John Ricker's comment 5 above. No change recommended. Additional Regional Board Response to the City: Staff response: The watercourse definition is intended to be as broad as possible in order to preclude seepage of wastewater into any surface water, even for a short duration. Flexibility in the setback requirement, included to ensure reasonable protection of water quality, is in the language "Where site conditions permit migration of wastewater to water." Such language has been in the watercourse setback requirement since 1983, but is often overlooked. This qualifying language is moved so that it is clearly applicable to each of the setbacks in the proposed criteria VIII.D.2.b.17. In cases where the stated setback is not provided, then the onsite system designer must document the conditions that will preclude seepage of wastewater into the surface water. The watercourse setback requirement is essentially unchanged from the existing Basin Plan criteria. No change recommended. 2. Regional Board Change: Onsite wastewater management plans should shall be implemented in urbanizing areas to investigate and mitigate long-term cumulative impacts resulting from continued use of individual, alternative and community onsite wastewater systems.EPA A City Staffs Previously Submitted Comment: The Regional Board is requiring all government agencies that have septic systems in their jurisdictions to develop and implement an Onsite Wastewater Management Plan (Management Plan). City staff is concerned about this requirement since it will potentially cost a significant amount of money to develop and implement a Management Plan. In addition, there appears to be a lack of water quality impacts from septic systems which could precipitate the need for a Management Plan. City staff believes that the Regional Board should use a collaborative approach to dealing with septic system issues where impacts are known to occur. ITEM NUMBER: C- 1 DATE: 10/14/2008 Regional Board Staff Response to the City: Staff response: The comment implies that onsite wastewater management is not needed in Atascadero because problems were not identified in 1983. It does not indicate whether any water quality monitoring, investigation, or other evaluation of onsite discharge impacts has been performed in the 25 years since the current Basin Plan criteria was adopted. Staff is not aware of any such monitoring or investigation. In short, the City is unlikely to be aware of impacts for which it has not looked. Many of the components of effective onsite wastewater management are already implemented In the City of Atascadero, and those activities could be coordinated into a cost-effective onsite wastewater management plan. California Water Code §13267 authorizes the Water Board to request technical reports regarding exiting or proposed discharges of waste. Development and implementation of onsite wastewater management plans will streamline the development of such technical reports by identifying where and how onsite discharges can be authorized without risk to water quality. The Water Code specifically requires the discharger (homeowner in the case of most onsite systems) to develop such reports, an admittedly cumbersome approach. However, if the City fails to develop and implement an onsite wastewater management plan, then it must notify dischargers of their responsibility to apply individually to the Water Board (see comment 2 above). In summary, required development and implementation of onsite wastewater management plans is included in the proposed Basin Pian amendment as the most cost- effective method of providing for long-term water quality protection from impacts associated with onsite discharges. Water Board staff agrees that a collaborative approach to meeting onsite management needs is most effective for effected agencies and the public. No change recommended. City Staff Follow Up: Since the time that this comment was submitted to the Regional Board, John Neil and Robert Jones of the Atascadero Mutual Water Company have stated that Atascadero's local aquifer has not been impacted by Ataiscadero's septic systems. The local aquifer is comprised of the Atascadero Subbasin to the Paso Robles Groundwater Basin. Staff believes that this could be transmitted to the State Board if City comments are submitted. 3. Regional Board Change: PROHIBITIONS 13. For new land divisions (including lot splits) served by onsite systems, lot sizes less than one acre sheuld not be permitted are prohibited unless authorized under an onsite management plan approved by the Central Coast Water Board Executive Officer. For the purpose of this prohibition, secondary units are considered "de-factd' lot splits and shall not be constructed on lots less than two acres in size unless consistent with onsite management plate"'994 - 39 ITEM NUMBER: C- 1 DATE: 10/14/2008 City Staff's Previously Submitted Comment: Regional Board staff has added new language to prohibit second units on lots less than 2-acres. This new language is based on a Regional Board legal opinion and does not appear to be supported by science. City staff sees no difference between building a second unit or a single home with additional bedrooms. Each situation would have to show that the property is capable of handling the entire wastewater flow and include open land for the reserve leachfield. This requirement conflicts with the City's Municipal Code which requires at least one acre for second units where the lot is served by an onsite septic system. Regional Board Staff Response to the City: Staff response: The City of Atascadero has a broad secondary unit policy which allows second dwellings on many lots throughout the City. Yet, as indicated in response to comment 5, the City does not evaluate the impacts of onsite discharges on underlying groundwater resources, Until such time as the City implements an onsite wastewater management plan to characterize such potential impacts, secondary units on less than two acres should not be allowed. Also see response to John Ricker's comment 12. Language is added to VIII.D.a.13 to clarify that smaller lot sizes are allowed where consistent with an onsite wastewater management plan. Additional Regional Board Response To The City: Staff response: Existing Basin Plan criteria limits onsite wastewater systems to one acre per residence unless the site is particularly favorable, in which case one half acre is acceptable. The proposed revision includes clarifying language, but does not change the underlying one acre per residence standard. The proposed revision (Site Suitability Prohibition VIII.D.2.a.13) also provides for exception to the one-acre limitation in areas covered by onsite wastewater management plans. As with many of the existing and proposed Basin Plan criteria, the conservative nature of the requirement (one acre per residence) is intended to ensure long-term water quality protection where onsite wastewater management is not implemented. Language is added to VIII.D.a.13 to clarify that smaller lot sizes are allowed where consistent with an onsite wastewater management plan. Analysis: The proposed Basin Plan changes will likely have an impact on City finances, staff resources and will require changes in the Municipal Code. The main issues include the: requirement that the City sign a Memorandum of Understanding (MOU) with the Regional Board for septic system oversight; requirements to develop, gain approval for and implementation of a Septic System Management Plan; and change the Municipal Code to comply with the new second unit and other Basin Plan changes. 40 ITEM NUMBER: C- 1 DATE: 10/14/2008 The options available to the City include the following: 1. Comment on the State Water Board's staff Basin Plan recommendation. 2. Do not comment and therefore accept the State Water Board staff's recommendations to the State Water Board in order to effect changes in the Basin Plan language. If the upcoming State Board decision is contrary to the City's position then our options include: 1. Work with the Regional Board to develop a Memorandum of Understanding and an Onsite Wastewater Management Plan. Pro: The City will be able to develop and Onsite Management Plan to specifically address Atascadero's unique geography. For example, Regional Board staff has f second units not being stated that the issue o g allowed on lots that are less than two acres could be addressed in the Onsite Management Plan. This could possibly result in the allowance of second units on lots of less-than two acres as long as the lot's conditions (i.e. soil and topography) are favorable. The Onsite Wastewater Plan would need to describe the criteria for favorable lot conditions in order to gain Regional Board staff concurrence. However, there are no guarantees that Regional Board staff would be willing to negotiate on this item. Con: This could potentially add additional work for City Staff and cost the City money. The Regional Board Basin Plan specifies the minimum requirements that would need to be addressed. City and Regional Board staff could disagree on the extent of which the requirements need to be addressed, which could cause Onsite Management Plan implementation costs to be significant. 2. Decide not to sign a Memorandum of Understanding and onsite Wastewater Management Plan. Pro: The City would transfer all permitting and complaint inspection functions to the Regional Board. This would save the City money and free up staff time. Con: The Regional Board is a bureaucratic organization and its staff is overburdened with their current work load. This could lead to serious delays in permitting new and repaired systems. City residents would most likely not be well served by this arrangement. Conclusion: At the time this staff report was written, the State Board had not yet released a notice for the State Board hearing. The State Board hearing is anticipated to be held on either November 4th or 18th according to State Board staffer Michael Buchman. Mr. Buchman anticipates numerous comments on this item and believes _ 41 ITEM NUMBER: C- 1 DATE: 10/14/2008 there will be a three week comment period ending no earlier than October 24, 2008. Therefore, this will provide the public and the City with time to submit comments. FISCAL IMPACT: If Council chooses to comment on the basin plan, there will be a commitment of staff time; however no additional funding will be required. The total costs for compliance with the Basin Plan requirements are unknown at this time. Total and ongoing costs will depend on the level of detail required in our Onsite Wastewater Management Plan. The City does have the option to forgo regulation of septic systems in Atascadero by not signing a MOU with the Regional Board. Regulation of septic systems would revert back to the Regional Board. This means that this option would have to be carefully weighed vs. the benefit of being able to regulate septic systems locally. ALTERNATIVES: The City Council can direct staff to not submit comments to the State Board. ATTACHMENTS: Attachment A — City Comments on the Proposed Septic System Changes Attachment B — Mayor's Letter to Roger Briggs CITY OF ATASCADERO PUBLIC WORKS DEPARTMENT' 19CR.t` '� 1fl7fl."'�r 1 6907 El CAMINO REAL, ATASCADERO, CA 9'422 Telephone(805)461-5000 Fax (805)46"1-7612 Exhibit A April 7, 2008 Ms. Sorrel Marks Central Coast Regional Water Quality Control Board 895 Aerovista Place, Suite 101 San Luis Obispo, CA 93401 Comments on Amendments to the Central Coast Water Quality Control Plan (Basin Pian) Onsite Wastewater Requirements Dear Ms. Marks, The City of Atascadero (City) appreciates the opportunity to comment on the Central Coast Regional Water Quality Control Board's (Water Board) proposed Onsite Wastewater Basin Plan Amendments. The City agrees with the Water Board staff that amendments to the Onsite Wastewater Basin Plan requirements are long overdue. The City appreciates Water Board staff's eye towards making the requirements straightforward and implementable. However, the City believes that a number of the amendments should be modified or clarified prior to adoption. The City has the following comments: Resolution No. R3-2208-0005 1. Page 3, Definition of"Watercourse" Regional Board staff has changed the definition of a watercourse, mainly by deleting some language and adding "man-made" to the definition. City staff is concerned that the new definition is too flexible and is still open to broad interpretation. Past experience has shown that not all Water Board staffers interpret the Basin Plan equally. In addition the old definition was much clearer and provided language that assisted City staff in identifying watercourses. However, City staff understands that the original definition was problematic for Water Board staff and we are therefore recommending the following definition': Watercourse—A running stream of water; a natural stream fed from permanent or natural sources, including rivers, creeks, runs, and rivulets. There must be a stream, usually flowing in a particular direction,though it need not flow continuously. it may sometimes be dry. it must flow in a definite channel, having a bed or banks, and usually discharges itself into some other stream or body of water. It must be something more than a mere surface drainage over the entire face of the tract of land, occasioned by freshets or other extraordinary causes. It is important to definewatercoursein a straight forward, easy to interpret manner. The above definition provides the minimum guidelines that agency staff, homeowners, and the public can use to determine appropriate setback distances. 2. Page 5, RECOMMENDATIONS, Number 1 - City staff recommends that the first sentence be amended as follows: 7 fi��ilion from Bi-xk's Dictionary;, Fifth Edition, 1989 43 "..,Provide property buyers, upon request, with legally available records regarding the existence, location, operation, and maintenance of onsite disposal systems..." It is not the City's responsibility to track or be involved with property transfers within our boundary. We will provide any documents that we physically posses, in conformance with the Freedom of Information Act. 3. Page 5, Item 7- City staff recommends that additional language be added to the following sentence: "...Local jurisdictions shall ensure that alternate onsite system owners are provided an informational maintenance or replacement document by the system designer engineer or representative Installer..." This language better clarifies who is responsible for providing operational documents to homeowners since non-engineers are allowed to design septic systems. 4. Page 5, PROHIBITIONS, Page 9 - We recommend that Water Board staff take a collaborative approach to achieving its goal of getting Cities and Counties to develop and implement Onsite Wastewater Management Plans, as described further below. We recommend that Water Board staff add the following language to the end of this prohibition: "..,Central Coast Water Board Executive Officer or individual Waste Discharge Requirements issued by the Water Board..." 5. Page 5, Vill.D.2.I.b. ONSITE WASTEWATER MANAGEMENT PLANS- The City, with Water Board staff's knowledge and approval, has been implementing the Water Board's Basin Plan requirements at the City's own expense. We have consented to this situation in order to provide a service to the City's homeowners. This has worked for the most part and has freed up valuable Water Board staff time, allowed for speedy permitting and eliminated duplicative governmental oversight. However, we are now perplexed on why the development of Onsite Wastewater Management Plans have become such an important and immediate issue. It appears that the Water Board staff desires that the City spend a potentially significant amount of funds on an issue that, to City staff's knowledge, is not currently needed in Atascadero. Overall, it is unclear to City staff how the Water Board can require Cities and Counties to prepare Onsite Wastewater Management Plans. Staff has looked at the Basin Plan's governing document, the Porter Cologne Water Quality Act. City staff has found no instance where the Water Board is given the authority to require the City to address a waste discharge that is not the City's responsibility (The City is not the owner of the individual septic systems.) Therefore, we strongly recommend that the Basin Plan language be reverted back to the current language. Additionally, this requirement, as written, is an unfunded mandate. If the current language is not changed, then the City requests that the Water Board provide the funding for plan development. s City staff agrees with Water Board Staff that Onsite Wastewater Management Plans may be a good tool to prevent ground or surface water contamination in areas where limiting site conditions could lead to problems. Indeed, Water Board staff has already identified the urbanizing areas with septic systems that may be impacting water quality. These areas were noted in Basin Plan Section VIII.D2.b. Curiously enough, Atascadero was not listed in 2 44 that section even though septic systems have been in use for over 75 plus years, a majority of the land has been previously subdivided, and it incorporates approximately 25 square miles of land. It is also important to note that the City does not allow new divisions of land less than one acre if sewer is not available. Therefore, even if further"urbanization" were to occur, the current Basin Pian requirements would be adequate to protect water quality in Atascadero. Lastly, all new subdivisions that are less than one acre are connected to our wastewater collection system. The City sees itself as a partner in the effort to protect water quality. We believe that forcing Cities and Counties to produce Onsite Wastewater Management Plans (if it is ve it is an undue somehow legal, we belie requirement) is a step in the wrong direction. Water Board staff should use a collaborative approach, much like the approach that was used to develop the Ag Waiver program, for each individual jurisdiction. City staff also believes that this new water quality objective should be focused on the areas where septic systems are known problems (those listed in the current Basin Plan.) This would ensure that funds and resources are spent on real problem areas. City staff pledges to work with Water Board staff to implement changes that may be needed in our upcoming Memorandum of Understanding (MOU) discussions. We believe that a collaborative approach and minor changes may be all that is needed. 6. Page 8, PROHIBITIONS, Number 13- Water Board staff have added new language to prohibit second units on lots less than 2- acres. This new language is based on a Water Board legal opinion and does not appear to be supported by technically sound science. City staff sees no difference between building a second unit or a single horne with additional bedrooms. Each situation would have to show that the property is capable of handling the entire wastewater flow and include open land for the reserve leachfield. City staff also recommends removal of the term "defacto" since the words use implies that the construction of a second unit on lots of less than 2 acres constitutes an illegitimate or illega12 lot split. City staff recommends the following amendments be made: " —For the purpose of this prohibition, secondary units construction on a lot of less than 2 acres is are considered -defaste- a lot splits and shall not be allowed,seastPasted o lets }ess-�an--two-.aGFes-in-aize unless if is shown that the lot can accept the wastewater flow from the primary and second unit. it also appears that Water Board staff has removed language that was previously contained in the Basin Plan that allowed lot splits of less than one acre, if favorable site conditions were present. No justification was provided in the amended requirements. Lastly, it appears short sighted to require that lots be 2-acres or larger for second units. i California, especially the Central Coast, is dealing with a large population of aging individuals. These individuals are being cared for by their adult children, hence, there is a demand for second units. The Water Code requires Water Board staff to consider housing needs when establishing new requirements. It does not appear that the housing needs requirement was considered. City staff believes that the threshold for second units vs, lot size should be based on whether or not the land can accept the onsite wastewater load. z The use of De facto: As defined in Black's Law Dictionary, Fifth Edition, 1989 3 45 r Failure to do so would potentially cause undue hardships on families when the potential for water quality improvement or protection is insignificant. 7. Page 9, REQUIREMENTS, Number 9 - City staff is unclear why the requirement for a 0.1 gallon per day per square foot application rate is required for percolation rates between 61 and 120 minutes per inch. It is not reasonable to require a landowner with a percolation rate of 61 minutes per inch to construct an onsite wastewater system that would be the same size as the system on a lot with an 120 minute per inch percolation rate. The 61 minute per inch percolation rate is almost twice as fast as the 120 minutes per inch rate. Therefore, the system would be twice the needed size, twice the cost and provide no greater water quality protection. Agencies have to be responsive and only require what is necessary to protect human health and the environment. City staff proposes the following application rates for percolation rates between 61 and 120 minutes per inch: minuteslinch) _fig d/p sq.ft) 61-80 0.2 81-1000.15 101- 120 0.1 8. Page 9& 10, REQUIREMENTS, Number 17- City staff recommends that a note be included with each setback clarifying that a 100-foot setback applies to the areas upslope from a Water Course, Drinking Water Supply Reservoir Spillway Elevation or Spring. Onsite wastewater systems that are downslope from the aforementioned features do not pose a risk to the upslope features (water d'oesn'I flow uphill,) 9. Page 10, REQUIREMENTS, Number 25- City staff recommends that the word "downgradient"in this paragraph be changed to ' "downslope"since this more accurately describes the surface location. City staff appreciates the opportunity to review and comment on the proposed Onsite Wastewater Basin Plan Amendments. Please call me should you have any questions. Sincerely, bavid'M. Athey Deputy Public Works Director City of Atascadero Cc: Steve Kahn, City of Atascadero Warren Frace, City of Atascadero 4 46 Exhibit B ..fir R CITY OF ATASCAE`ERO 019,18 197$ April 25, 2008 Roger W. Briggs Executive Officer Central Coast Regional Water Quality Control Board 895 Aerovista Drive San Luis Obispo, CA 93401 Request for Additional Public Input on February 15, 2008 NPDES Phase II Requirements and Delay of Upcoming Regional Board Action on Onsite Wastewater Basin Plan Amendments Dear Mr.Briggs: The City Council of Atascadero has been informed that new septic system Basin Plan requirements will be considered by your board on May 9,2008. In addition, you have issued new NPDES Phase II requirements on all remaining cities with un-approved Storm Water Management Plans. The City of Atascadero is very concerned about these recent developments. We are, therefore,requesting that the May 9, 2008,hearing on the Basin Plan Requirements be postponed until July 2008 to allow for additional public comment, and that the new requirements contained in your February 15, 2008 letter be subject to additional public input. The Atascadero City Council met on April 22, 2008, and discussed the upcoming changes to the Septic System Basin Plan Requirements. Several members of the public voiced concerns over the proposed changes and indicated that public notification by your staff was inadequate and requested more time to be allowed for public input and discussion. We believe that the changes proposed in the basin plan are significant and more time is needed to adequately inform the public. We request that the hearing be postponed until the Regional Board's July or August meetings. This will allow our citizens more time to be involved and provide comments. In addition, our staff also presented the requirements of your February 15, 2008 letter. Your letter indicates that four additional requirements need to be addressed in our Storm Water Management Plan. My understanding is that these requirements are above and beyond the NPDES Phase II requirements and were developed without public input. The City Council and I 6907 EL CAMINO REAL ATASCADERO,CA 93422 (805)461-5000 FAX (805)461-7612 47 Roger W. Briggs April 25, 2008 Page 2 are very concerned about this since public input is key to public acceptance. We request that these new requirements be rescinded and at very least, vetted through a public input process. The City has enjoyed a great working relationship with you and your staff, and I hope you will consider and grant our request. If you would like to discuss this matter further, please feel free to contact Steve Kahn, Public Works Director, at(805) 470-3480. e�.w y like Brennler,Mayor City of Atascadero ITCRR All IMRGR• r,—9 ITEM NUMBER: C-2 DATE: 10/14/08 n �A I II iris � ® iaie Atascadero City Council Staff Report - Public Works Department Regional Water Quality Control Board (RWQCB) Storm Water Management Plan NPDES Phase II (Continued from 9/23/08 Council meeting) RECOMMENDATION: Council direct staff to file the 2004 Storm Water Management Plan (SWMP) with the Central Coast Regional Water Quality Control Board (RWQCB) with language that the City will conduct a future process to attempt to incorporate the Board's February 15, 2008 revised standards to the extent practicable for this community. REPORT-IN-BRIEF: During this past year, the Central Coast Regional Water Quality Control Board (RWQCB) has taken two actions that affect the City of Atascadero. The first is to amend the Basin Plan. The Basin Plan update includes a number of new onsite wastewater (septic system) regulations, one of which requires the City to develop a Septic System Management Plan. The second action requires Storm Water Management Plan (SWMP) revisions. The actions differ in that the Basin Plan changes affect onsite wastewater systems (septic systems) while the SWMP changes affect the City owned storm water system. Both actions will require the allocation of additional City resources. Staff plans to update the Council on the Basin Plan at a future meeting. This report focuses on the RWQCB's latest request for revisions to the City's SWMP. City staff has been working to prepare a SWMP since 2003. The City of Atascadero originally submitted a draft SWMP in 2003, but like most other Central Coast cities, the SWMP was not approved by the RWQCB. In February 2008, the RWQCB issued a letter regarding the processing of SWMPs. The letter included four new regulations that would need to be incorporated into the City's SWMP prior to being approved. These four requirements are in addition to the six minimum storm water pollution control measures that are required by the federal National Pollutant Discharge Elimination System (NPDES) Phase II regulations. The City is required to amend its draft SWMP 49 ITEM NUMBER: C-2 DATE: 10/14/08 and secure RWQCB approval by March 2009. City staff is requesting Council direction on how to proceed with the SWMP. DISCUSSION: What is NPDES, what does it do, and how is it enforced? The NPDES program was established under the Federal Clean Water Act in 1977 to protect and restore surface waters of the United States. Surface waters include wetlands, lakes, creeks, and rivers. The enforcement of NPDES is delegated by the Federal government to the states. The California State Water Resources Control Board (State Board) is responsible for State implementation of NPDES. The State Board, a regulatory state agency, and the nine RWQCBs coordinate implementation throughout California. The RWQCB that oversees Atascadero is Region 3 - Central Coast Regional Water Quality Control Board. Our RWQCB covers a six-county area, including San Luis Obispo County, Santa Barbara County, Monterey County, San Benito County, Santa Clara County and Santa Cruz County. The RWQCB is composed of nine officials that are appointed by the Governor and serve four-year terms. The RWQCB appoints an Executive Officer who is responsible for day to day operations and enforcement of regulations. How do Storm Water Management Plans (SWMP) relate to NPDES and what do the plans cover? A SWMP is required for every City and County in the State as part of NPDES Phase II. NPDES was implemented in two phases depending on the size of agencies. Phase I required agencies with populations over 100,000 to comply. NPDES Phase II required cities smaller than 100,000 in population to comply. SWMPs define strategies and provide guidelines for the protection of water quality and the reduction of pollutant discharge. Prior to the Region 3 RWQCB's additional regulations, a SMWP was required to address six minimum requirements: 1. Public Education 2. Public Participation 3. Illicit Discharge Detection and Elimination 4. Construction Site Storm Water Runoff Control 5. Post Construction Storm Water Management 6. Pollution Prevention/Good Housekeeping for Municipal Operations What Process has the City followed to prepare a SWMP? In February, 2002, the City Council directed staff to begin development of a SWMP as required by NPDES Phase II. The City retained URS Inc., to assist staff in drafting the plan. In March 2003, the City Council directed staff to submit the SWMP to the RWQCB. The RWQCB reviewed the plan and requested a number of revisions. The 5 ITEM NUMBER: C-2 DATE: 10/14/08 City was working earnestly to get the SWMP plan approved. By December 2004, the City and RWQCB had completed three re-submittal cycles of the SMWP and responded to comments from the RWQCB. Shortly after December 2004, RWQCB staff indicated that the City of Atascadero's Storm Water Plan adoption would be delayed because of problems with staffing and heavy opposition to other cities' plans from environmental groups. Coincidentally, the ' WMP which had been submitted in the same timeframe as Paso Robles S Cit of Pao , Y Atascadero's, was approved. They City's draft SWMP remained under review with the RWQCB for several years. Staff did not receive any further comments from the RWQCB until November 2007. In November 2007, the RWQCB notified Atascadero and other agencies that a new timeline and process for adopting the outstanding SWMPs would be imposed. The new process and timeline was presented and approved at the RWQCB meeting on December 7, 2007. At this meeting many agencies were concerned about the lack of detail provided in the Board's staff report regarding the four additional SWMP requirements imposed by the local RWQCB. On February 15, 2008, RWQCB staff notified the City of Atascadero and other cities of the new requirements and timeline for Storm Water Plan adoption (refer to Attachment 1). The letter included four new requirements that are likely to have a, major impact on Atascadero's future development and "housekeeping" practices. What are the new requirements being imposed by the RWQCB? Listed below is a summary of the four new RWQCB requirements that: were released in the February 15, 2008 letter (refer to attachment 1 and 2). 1. Maximize infiltration of clean storm water, minimize runoff volume and rate: The RWQCB believes that excess storm water is a problem for streams and creeks. According to the RWQCB, excess water may cause erosion of stream banks and down cutting of stream beds. Therefore, the RWQCB is requiring agencies to modify development practices to retain the same amount of water onsite post-development as occurred prior to development. The City currently requires the rate of stormwater run-off to be maintained at pre-development levels but does not restrict the quantity of run-off. The proposed changes would restrict the quantity of run-off to pre-development levels. This represents a change in the thinking and design of how stormwater has been handled for decades. In order to comply with this requirement projects will likely have to incorporate onsite retention systems and utilize other means such as porous paving materials which will allow stormwater to permeate back into the site. 2. Protection of riparian areas, wetlands and their buffer zones: The RWQCB is requiring agencies to determine and implement appropriate setbacks to riparian areas, creeks, and wetlands. It is not dear exactly which - _ _ 51 ITEM NUMBER: C-2 DATE: 10/14/08 waterways would be affected by this requirement. It appears that the minimum setbacks could be greater than those currently adopted by the City's General Plan. 3. Minimize pollutant loading: The RWQCB is requiring agencies to incorporate Best Management Practices (BMP) into SWMPs that will minimize the discharge of pollutants affecting creeks and streams. For example, the City will need to incorporate specific BMP that will address low dissolved oxygen and pathogens into Atascadero Creek. This requirement will likely require modifications to the City's existing stormwater drainage system that may result in expensive modifications, maintenance and retrofits. 4. Provide long-term watershed protection: Agencies are required to develop plans to control watershed impacts, also known as hydromodification. The RWQCB desires that watersheds contain no more than 3-10% impervious surfaces (paving). This means that the City will have to develop plans and requirements that limit new and redevelopment impacts on storm water runoff volume in creeks and watersheds through site design and limitations on lot coverage. These requirements are complicated and the boundaries of the watershed are not clearly delineated. Due to the unique nature of Atascadero's topography which includes several valleys, creeks, and riparian areas, the City could potentially contain multiple watersheds. Since many parts of Atascadero already exceed the 5% threshold, this rule is likely to change development practices and redevelopment. It is not clear how this rule will affect compact infill development like the City encourages Downtown. Additionally, the cost of complying with these new requirements is not known. ITEM NUMBER: C-2 DATE: 10/14/08 What is the timeline for approving/enacting new SWMP? The timeline provided by the RWQCB is provided below: Table 1, Water Board Timeline Task Date Phase (:Water Board Assessment of July 8, 2008 Water Quality Challenges Phase II: City Finalization of Draft SWMP and Water Board Staff and September 17, 2008 Public SWMP Review Phase III: City SWMP Redraft October 29, 2008 Phase IV: Water Board staff Final November 19, 2008 Review and Posting of SWMP Phase V: Water Board Action (if March 20, 2009 needed) In essence, the Board is giving cities 60 days from the date comments are provided by RWQCB staff to complete the revised SWMP. While this may seem like an appropriate amount of time, staff has had concerns that once comments are received, this does not allow for adequate time to analyze the specific impacts of these regulations on the community and then have time for public comment, workshops and deliberation. As of the date of this report, the City has yet to receive comments on the previously submitted 2004 SWMP, and therefore it has been difficult to draft a revised plan. In the meantime, the timeline continues to move forward. Subsequently, staff requested an extension in order to have time to receive comments from the Board, study the impacts of the new regulations, and have a public process to consider impacts of the SWMP. A letter was received from RWQCB staff on August 12, 2008 (see Attachment 3), that denied the City's request for additional time. Staff has submitted a letter requesting reconsideration of the RWQCB's time extension denial. 53 ITEM NUMBER: C-2 DATE: 10/14/08 What Are Other Cities Doing? Atascadero is not the only agency facing the imposition of the four new requirements. Twenty-four agencies in the RWQCB jurisdiction are facing the same requirements. The following chart outlines several other agencies and their actions taken to date: r !k q'' cs tt Iy ♦a y,. Z 'fib as t"`I I rr i k` `Gt, r '` k f'n 0 F4 ''$r'9 r 1 h u k �7t1S �4Q1 � n a }. , H:2 yw`� iRt$ t«e'� ;, i ►��nC1/di r tai ns , -APPIUVOI Date Submitted December 2004 Draft for initial Water Board review. Staff will be responding to the Water Board Atascadero March 2009 based on City Council direction. The Water Board has notified staff that comments will be provided to the City based on the 2004 draft and the City is still required to address the four additional requirements. Submitted Draft in August 2008. The CSD's plan Templeton CSD March 2009 addresses facilities they own. The County of San Luis Obis o's plan covers the rest of the town. The Water Board has notified the City that they will be Paso Robles* Approved 2004 addressing the four additional requirements during their next Storm Water Plan update in 2009, The Water Board has notified the County that they will be County of San Luis Obispo* Approved 2008 addressing the four additional requirements during their next Storm Water Plan update in 2012. The City resubmitted its Storm Water Plan in September 12, 2008 for initial Water Board Review, The City has addressed the four additional requirements by either City of San Luis Obispo April 2009 telling the Water Board they already have standards that address the Water Board's concerns (LID and riparian setback standards), or offering to do study's and report back to the Board in three years to present options H dromodification Plan). The plan has made it through the appeal period and was approved in early September. The City City of Santa Maria September 2008 responded to the Regional Board saying that they would study the issues brought up in the February 15 letter and report back to the Regional Board in two ears. Lompoc and the Building Industry Association has appealed the Storm Water Plan approval to a Full Water City Lompoc October 2008 Board Hearing. The City of Lompoc was required to submit a Storm Water Plan prior to the RWQCB's July 10, 2008 letter which relaxed requirements that Lompoc previously addressed. The City has re-submitted to the Regional Board on September 5, 2008. The City revised their Storm Water City of Morro Bay April 2009 Plan to be similar to the County of San Luis Obispo Storm Water Plan. The City's Storm Water Plan will now be subject to a sixty day review before final approval. A hearing will be held if any person or agency requests one. *The City of Paso Robles and San Luis Obispo County already have approved Storm Water Plans. Agencies with approved Storm Water Plans will be required to address the four additional measures when their Storm Water Plans are up for their five year review. ITEM NUMBER: C-2 DATE: 10/14/08 How Should the City Respond to the RWQCB's New Requirements? Staff is very concerned about the RWQCB's four new SWMP requirements. In addition, the RWQCB has provided a short timeframe to analyze and integrate the requirements into the City's draft SWMP. Staff is also concerned that the short timelines have limited the opportunity for public participation in the SWMP process. Staff has reviewed the approach of neighboring cities to comply with SWMP requirements. The City of Santa Maria has submitted its SWMP with a provision that they will review and incorporate standards that implement the new requirements in the next two years. It is staff's understanding that the RWQCB has approved Santa Maria's SWMP. Therefore, staff is proposing Atascadero resubmit the SWMP with a provision agreeing to review and study these issues in the future. The approach would allow time for adequate staff analysis and public participation regarding these four new requirements. What Alternatives Are Available to the City? 1. The City does not File a Timely SMWP It is staff's understanding that if the City's SWMP is not submitted by November 19, 2008, RWQCB staff will unilaterally insert the new requirements into the City's plan and they will then be in effect. RWQCB staff's action could be appealed at the RWQCB Board meeting of March 20, 2009. 2. Incorporate the Four Requirements into the SWMP Council could direct staff to begin a thorough evaluation of the four additional requirements and return to the City Council for approval of a plan that fully complies with the latest RWQCB plan requirements. Staff would need to hire a consultant to assist with this effort and begin a public participation process. Staff does not think this could be accomplished before the November deadline. 3. Resubmit the existing SWMP The City could resubmit the existing 2004 SWMP without modification. Staff would expect the RWQCB to reject this plan and unilaterally add the four requirements. This alternative likely has the same end result and Alternative 1 above. In addition, the Council could direct staff to: A. Seek Legislative Relief: The City could approach its legislators to have laws written or changed to provide relief from the four additional requirements. This option would be time consuming and require significant staff resources. B. Seek Judicial Relief: The City could challenge the requirements and the process in court. This option would be time consuming and expensive with significant City Attorney time required. 55 ITEM NUMBER: C-2 DATE: 10/14/08 FISCAL IMPACT: The long term fiscal impact is unknown at this time but could be significant. Staff is estimating the consultant costs will likely range between $30,000 and $50,000 to study the impacts of the new requirements and prepare a compliant SWMP. ATTACHMENTS: 1. RWQCB staff's February 15, 2008 Letter 2. RWQCB staff's July 10, 2008 Letter 3. RWQCB staff's August 12, 2008 Letter — denying time extension request ITEM NUMBER: C-2 DATE: 10/14/08 Attachment 1 RWQCB's February 15, 2008 process letter California Regional Water Quality Control Board "Inds S.Adams Central Coast Region Agency.Secretary Arnold Schwa»'xnegger Internet Address:hnp://www.wateTboards.c&govicent-alcoast Govemar 895 Aetovista Place,Suite 101,San Luis Obispo,Califomia 93401-7906 Phone(805)549-3147•FAx(805)543-0397 February 15,2008 «AddressBlock» «AgencyMailingAddress» «AgencyCity»,CA«AgencyZipu «GreetingLine»: Notification to Traditional,Small MS4s on Process for Enrolling under the State's General NPDES Permit for Storm Water Discharges Introduction As Executive Officer of the Regional Water Quality Control Board, Central Coast Region (Water Board), I am writing to notify you of the Water Board's revised process for enrolling traditional, small Municipal Separate Storm Sewer Systems (M84s) under the State's General Permit No. CAS000004 (General Permit). Water Board staff have identified you as an entity that owns or operates an MS4,so you must enroll in the General Permit and develop and impieme:nt a Storm Water Management Program(SWMP). This letter describes the SWMP approval process and our expectations regarding the content of your SWMP to comply with the General Permit,and provides you with the schedule Water Board staff intend to follow for review of your SWMP and enrollment of your MS4 under the General Permit. Staff will communicate further with you as your enrollment cycles begin,to establish specific schedules for the five phases leading to enrollment. Water Board staff will evaluate your SWMP for compliance with the General Permit requirements, Including the Maximum Extent Practicable standard, and as appropriate will approve the SWMP and enroll you in the General Permit. If requested,Water Board staff will schedule a public hearing before the Central Coast Water Board for consideration of an individual SWMP. The Water Board's revised enrollment process is a fundamental shift from the way we have reviewed and approved SWMPs to date. The revised enrollment process eliminates the multiple SWMP review/edit iterations and negotiations that characterized our previous approach. For SWMPs that do not meet the schedule and content described here for General Permit compliance, staff will draft specific resolutions or individual permits for Water Board consideration that will protect water quality,beneficial uses,and the biological and physical integrity of watersheds. Enrollment Process and Schedule Water Board staff grouped the 24 remaining un-enrolied traditional MS4s into eight enrollment cycles (Table 1). Each cycle spans a period of 33 to 38 weeks and concludes, on the projected date, with Water Board approval of individual SWMPs and enrollment of the MS4s under the General Permit. Each enrollment cycle includes five time-limited phases requiring specific actions by (both Water Board staff and the MS4 (Table 2). The precise timing and duration of each phase is, subject to California Environmental Protection Agency Recycled Paper 57 ITEM NUMBER: C-2 DATE: 10/14/08 aFirst—Nameu alast_Name» -2- February 15,2008 change; Water Board staff will develop specific schedules at the commencement of each enrollment cycle. Table 1:Enrollment Cycle for Attachment 1 and 2 MSds Projected ProjectedProjected Cycle M54 Group Group Members Start Date for Executive Officer SWMP Board SWMP Enrollment Cycle Approval Approval 1 1 Santa Maria/Lompoc Santa Maria Jan.22,2008 July 28,2008 Sept.5,2008 Lompoc San Luis Obispo 2 Coastal Santa Barbara Goleta Jan.29,2008 September 2, Oct.17,2008 County Carpinteria 2008 Santa Barbara Santa Barbara UC Santa Barbara 3 Santa Cruz Mountains Santa Cruz County Mid February 2008 Oc2obar 20, Dec.5,2008 and Coast Capitola 2008 San Luis Soquel Obispo Aptos Ben Lomond Boulder Creek Live Oak Felton Coralitos Watsonville City of Santa Cruz Scotts Valley UC Santa Cruz 4 Coastal San Luis Arroyo Grande Mid April 2008 January 2009 2009—1 Obispo County Grover Beach Quarter Pismo Beach San Luis Oceano Obispo Morro Bay Ba ood—Los Osos 5 Upper Salinas King City Early June 2008 February 2009 2009—1 Templeton Quarter Atascadero Salinas 6 City of San Luis Obispo City of San Luis Early September April 2009 2009—2 Obispo 2008 Quarter San Luis Obis o 7 Upper Pajaro Gilroy Early November August 2009 2009—3 San Martin 2008 Quarter Santa Clara Watsonville 8 Santa Ynoz Sueilton Mid November August 2009 2009—3` Solvang 2008 Quarter Vandenberg AFB San Luis Obis a 1. Board approval only required if a hearing is requested by stakeholder California Environmental Protection Agency Recycled Paper 58 ITEM NUMBER: C-2 DATE: 10/14/08 aFirst_Namep«Last_Nameo -3- February 15,•2008 Table 2: Phases of MS4 Enrollment Cycle Duration weeks Phase I:Water Board Staff Assessment of Water Quali Challen es Water Board staff: Assess available water quality information Accept input from stakeholders on water quality conditions 3--4 Prepare and transmit to MS4 staff a statement of current knowledge of water quality challenges that must be addressed by SWMP Phase It:Water Board Staff SWMP Review Water Board staff: Review SWMP and"red-lines"text 3-4 Send red-lined SWMP and letter explaining requirements to M34 Phase 111:MS4 SWMP Redraft 6 MS4 staff re-draft SWMP and post for Public Review Phase IV:Water Board Staff Final Review and Posting of SWMP Water Board staff review SWMP 2-4 Water Board staff post SWMP and table of required revisions for Public Review 8 Water Board staff respond to ublic comment and EO approves SWMP 3-4 Phase V:Water Board Action JUT nearing requested) Water Board staff prepare Staff Report with recommendation and resolution for 2 SWMP approval Water Board Staff: Post Staff Report with Board Agenda for Public Review 6 Respond to additional public comment Prepares Presentation for Hearing Conduct internal review up to Board Meeting Total 33 to 38 Communication Clear and open communication between Water Board staff,MS4 staff,and stakeholders is vital to the success of this enrollment process. Also, the Phase II General Permit requires public participation as a component of developing and implementing successful stormwater management programs for MS4s. To comply with the General Permit, you must verify that you have achieved broad and timely distribution of announcements of scoping meetings, draft stormwater program documents, and local agency actions on stormwater program activities when you submit your SWMP for Water Board staff review. Water Board staff are committed to ensuring that the enrollment process proceeds with open communication. Staff will employ a list-serve(email notification)for notifying all interested parties of important milestones in each enrollment cycle. Water Board staff will also maintain an MS4 enrollment tracking webpage where staff will post relevant documents and indicate the status of each MS4 in the enrollment process. Additionally, an individual Water Board staff person will be assigned to each enrollment cycle. We request that you also identify an individual to serve as point of contact representing your MS4 with whom we will communicate during the enrollment process. You must identify your point of contact when Water Board staff contact you to initiate your enrollment cycle. California Environmental Protection Agency Recycfed Payer 59 ITEM NUMBER: C-2 DATE: 10/14/08 uFirst_Name»ol_ast_Name)� .4. February 15,2008 Central Coast Water Board Expected SWMP Content The federal Clean Water Act(CWA)provides that National Pollutant Discharge Elimination System (NPDES) permits for MS4s must require municipalities to reduce pollutants In their stormwater discharges to the Maximum Extent Practicable(MEP)(CWA§402(p)(3)(B)). The California Water Boards have established the meaning and application of this standard through several adopted stormwater permits(the MEP standard is the same for Phase I and Phase II municipalities)'. The Water Board implements the General Permit to be consistent with its Water Quality Control Plan (Basin Plan)to ensure protection of water quality, beneficial uses, and the biological and physical integrity of watersheds according to the issues in the Regions. Your SWMP must include an array of Best Management Practices (BMPs), including the six Minimum Control Measures listed in the General Permit,to achieve the following conditions: I. Maximize infiltratlon of clean stormwater,and minimize runoff volume and rate II. Protect riparian areas,wetlands,and their buffer zones III. Minimize pollutant loading;and IV. Provide long-term watershed protection 1.Maximize Infiltration of clean stormwater,and minimize runoff volume and rate. Water Board staff expect your SWMP to present a schedule for development and adoption of control standards for hydromodification. For SWMP adoption, staff will recommend to the Water Board the following Interim requirements, which would apply until such time that you develop acceptable control standards for hydromodification: • For new and re-development projects, Effective Impervious Area shall be maintained at less than five percent(5%)of total project area. • For new and redevelopment projects that create and/or replace 5,000 square feet or more of impervious surface, the post-construction runoff hydrographs shall match within one percent (1%) the pre-construction" runoff hydrographs, for a range of events with return periods from 1-year to 10-years. • For projects whose disturbed project area exceeds two acres,preserve the pre-construction drainage density (miles of stream length per square mile of watershed) for all drainage areas serving a first order stream4 or larger, and ensure that post-project time of concentration is equal or greater than pre-project time of concentration. These interim requirements must be implemented for all applicable projects subject to your discretionary approvals within six (6) months of your enrollment in the Phase II permit. Your schedule for development and adoption of your own control standards for hydromodification must include: • Numeric criteria for controlling stormwater runoff volume and rates from new and redevelopment. 'Several stormwater permits adopted by different Regional Boards have been legally challenged. All have been upheld by the State Water Resources Control Board and the courts. The Water Boards have broad authority to regulate stormwater and land use activities that result in discharges to waters of the State. Urbanization is one the most Important land use activities affecting water quality,beneficial uses,and the physical and biological Integrity of watersheds in the Central Coast Region. 2 Effective Impervious Area is that portion of the Impervious area that drains directly to a receiving surface waterbody via a hardened storm drain conveyance without first draining to a pervious area. In other words, impervious surfaces tributary to pervious areas are not considered Effective Impervious Area. 4 Pre-construction condition is defined as undeveloped soil type and vegetation. 4 A first order stream is defined as a stream with no tributaries. California Environmental Protection Agency (� Recycled Paper 60 = ITEM NUMBER: C-2 DATE: 10/14/08 ((First—Name))«Last Name» •5- February 15,2008 Numeric criteria for stream stability required to protect downstream beneficial uses and prevent physical changes to downstream stream channels that would adversely affect the physical structure,biologic condition, and water quality of streams. Specific applicability criteria,land disturbance acreage thresholds,and exemptions. • Performance criteria for control BMPs and an inspection program to ensure proper long term functioning over. Education requirements for appropriate municipal staff on hydromodification and Low Impact Development. You must include an effective strategy to control hydromodification, or Water Board staff will recommend to the Water Board requirements in the resolution approving your SWMP and enrolling you in the Phase II permit. Il Protect riparian areas wetlands and their buffer zones: Your SWMP must include BMPs and/or other control measures to establish and maintain a minimum 30-foot buffer zone for riparian areas and wetlands6. The buffer zone is a protective area that is undisturbed to the maximum extent practicable, Your SWMP must Include consideration and prioritization of local conditions, such as habitat degradation, water quality, and land management practices, and apply more substantial buffer zones where necessary to protect riparian areas and wetlands. You must include an effective strategy to adopt and implement protection of riparian areas, wetlands, and their buffer zones, or Water Board staff will recommend to the Water Board requirements in the resolution approving your SWMP and enrolling you In the Phase I I permit. III Minimize pollutant loading Your SWMP must include BMPs and/or other control measures to minimize pollutant loading, including volume-and/or flow-based treatment criteria. Your SWMP must include consideration and prioritization of local conditions,such as existing pollutant loading,water quality, 303(d)listed impaired waters, pollutants of concern,habitat degradation, and land management practices, and apply more stringent control measures where necessary to minimize pollutant loading. You must include an effective strategy to reduce pollutant loading, or Water Board staff will recommend to the Water Board requirements in the resolution approving your SWMP and enrolling you in the Phase II permit. IV Provide long-term watershed protection You must include in your SWMP a strategy to develop watershed based hydromodification management plans. These plans should incorporate Low Impact Development strategies with the goal of Post Construction Storm Water Management to achieve an Effective Impervious Area of no more than three to ten percent(3—10%)of watershed area within your jurisdiction,depending on local conditions. The requirements listed above are often characterized as hydromodification controls, or Low Impact Development. These terms are related and their meanings overlap. These regluirements are necessary to ensure protection of water quality,beneficial uses,and the biological and physical integrity of watersheds and aquatic habitat. You can reference information on hydromodification controls and Low Impact Development principles on the Central Coast Water Board's website: s The Central Coast Water Quality Control Plan(Basin Plan)requires protection of riparian and wetland habitat and their buffer zones(Basin Plan,Section V.G.4). California Environmental Protection Agency Kd Recycled Paper ITEM NUMBER: C-2 DATE: 10/14/08 «First Name))((Last Name)) .6- February 15,2008 http//www waterboards ca gov/centralcoast/stormwater/low%20impact%20devel/iid index.htm. Evaluation of Program Effectiveness and Progress toward Water Quality Goals Because MEP is a dynamic performance standard which evolves over time as stormwater management knowledge increases, MS4 managers must continually assess and modify their programs to incorporate improvements in control measures and BMPs to achieve MEP. Therefore, your SWMP should contain a detailed plan for evaluating its effectiveness and progress toward complying with the General Permit. Your SWMP must also explain how you will communicate evaluation results with stakeholders, Your evaluation plan should include quantifiable measures for evaluating the effectiveness of the program and be based on the following objectives: • Assess compliance with requirements of the General Permit,including: Inspection Programs Construction Site Controls Elimination of unlawful discharges New development and redevelopment requirements • Verify that BMPs are being implemented (e.g., ail new applicable developments meet hydromodification control requirements described above and as further described in your SWMP); • Assess the chemical, physical, and biological impacts on beneficial uses caused by pollutants of concern in stormwater discharges; • Characterize watersheds and stormwater discharges; • Identify sources of pollutants;and • Evaluate long-term trends in receiving water quality. Conclusion Please become familiar with the schedule for the enrollment cycle for your MS4, and the steps in the enrollment process. When Water Board staff contact you to initiate your enrollment cycle, please provide us with contact information for the individual that will be representing your MS4. Please begin updating or preparing your SWMP to include the following as explained in this letter: • Hydromodlfication controls for new and redevelopment; • Protection of riparian and wetland habitat and their buffer zones; • Minimization of pollutant loading; • Provision of long-term watershed protection;and • Evaluation of program effectiveness. Your SWMP must be specific and must Include:well-defined BMPs and other actions that you will implement, schedules, measurable goals, and measures to determine the effectiveness of your program. If your SWMP Is not comprehensive or lacks specificity, I will not approve it, and Water Board staff will draft a resolution or an individual permit for consideration by the Water Board at a hearing. I am clarifying the Water Board's revised enrollment process and SWMP content and requirements to speed up approval of SWMPs for MS4s in the Central Coast Region that will protect water quality, beneficial uses, and the biological and physical integrity of watersheds. I am also committing staff time to regulate MS4s and provide technical and financial assistance to municipalities for stormwater management programs. California Environmental Protection Agency Recyc(erl Paper ITEM NUMBER: C-2 DATE: 10/14/08 ((First Name)>rcLast_Namev .7- February 15,2008 The Proposition 84 Storm Water Grant Program funds may be used to provide matching grants to local public agencies for the reduction and prevention of stormwater pollution of rivers, lakes, and streams. A total of approximately $82 million will be available for matching grants. A scoping meeting to answer questions and to solicit input will be held at our office in San Luis Obispo on Monday, March 3.2008,from 1:00—4:00 PM. For more information on the Proposition 84 Storm Water Grant Program and workshops, visit the State Water Board's website at: http://www.waterboards.ca.gov/funding/prop84.html. I anticipate you will have questions about this letter and the expected content of your SWMP. Please contact us. Our lead staff for this enrollment process is Dominic Roques, droguesnwaterboards.ca.gov or at(805)542-4780. Sincerely, �7""j�j� Roger W. Briggs Executive Officer W:\Storm Wator\Munlclpai\Phase II MS4\MS4 Enmilment StrateglesWS4 Notlficauon Ltr\PhasellNotiflcations2-12-OB.doc California Environmental Protection Agency Recycled Paper 63 ITEM NUMBER: C-2 DATE: 10/14/08 Attachment 2 RWQCB's July 10, 2008 process fetter California Regional Water Quality Control Board Linda S.Adams Central Coast Region Arnold Schwamengger Agency Secretary Governor Internet Address: http:/1www.waterhoards.ea.gov/cenlralcoazt 895 Acrovista Place,Suite 101,San Luis Obispo,Califomia 93401-7906 Phone(805)549-3147•FAX(805)543-0397 July 10,2008 David Athey City of Atascadero 6907 EI Camino Real Atascadero,CA 93422 Dear David Athey: FOLLOW UP TO NOTIFICATION TO TRADITIONAL, SMALL MS4s REGARDING PROCESS FOR ENROLLING UNDER THE STATE'S GENERAL NPDES PERMIT FOR STORMWATER DISCHARGES On February 15, 2008, 1 sent a letter to you with my expectations regarding the content of Storm Water Management Plans (SWMPs), and an explanation of our process for enrolling traditional, small Municipal Separate Storm Sewer Systems (MS4s) under the State's General Storm Water Permit. This letter responds to feedback we received regarding my February 15 letter and is a follow up to the meetings we have had with several municipalities. This letter presents: • An example approach for including quantifiable measures of healthy watersheds in stormwater management programs • Additional time for developing interim hydromodification criteria • Reiteration of our authority to provide expectations for SWMP content • The current status of the enrollment process • The availability of technical and financial assistance My February 15 letter emphasized that SWMPs must include Bll to achieve the following conditions, which are necessary to ensure protection of water quality, beneficial uses, and the biological and physical integrity of watersheds and aquatic habitat: I. Maximize infiltration of clean stormwater,and minimize runoff volurne and rate 11. Protect riparian areas,wetlands,and their buffer zones 111. Minimize pollutant loading;and IV. Provide long-term watershed protection My February 15 letter specifically required your SWMP to include an "Evaluation of Program Effectiveness and Progress toward Water Quality Goals." This means that your SWMP must identify quantifiable measures to determine whether your stormwater program achieves the conditions (lAV.) above and any other water quality goals your SWMP is designed to achieve (e.g., pollution reduction). In my February 15 letter I included interim requirements for hydromodification control that could serve as quantifiable measures and that I considered adequate for recommending SWMP approval to our Board. California Environmental Protection Agency Reclrrled Paper C-4 .. .. _ ... ITEM NUMBER: C-2 DATE: 10/14/08 David Athey -2. July 10,2008 Several responses to my February 15 letter requested that I consider different interim requirements for hydromodification control that could serve as quantifiable measures for recommending SWMP approval to our Board. This information is discussed in the next section on quantifiable measures, below. We also received requests for additional time to align SWMPs with my expectations. This issue is discussed below under Additional Time for Developing Interim Criteria for Hydromodification. Finally, some responses questioned our legal authority to base SWMP approvals on the expectations I presented in the Feb. 15 letter and claimed that they are not necessary for compliance with the State General Permit. This issue is discussed below under Legal Authority to Provide Expectations for SWMP Content. The list of goals above (listed as I. through IV.) includes our expectation that you "provide long- term watershed protection." This means that your SWMP must include a schedule (of BMPs)to integrate all stormwater management control measures into all aspects of land use planning and development (municipal plans, policies, ordinances, codes, conditions of approvall, etc.) to attain/protect healthy watersheds. Municipalities must understand the specific water quality and watershed issues in their areas, such as pollutant loading, aquatic habitat degradation, types of land uses and their impacts, trends, and the cumulative effects from multiple municipalities in a watershed. Municipalities must plan comprehensively to define their future growth, including infrastructure and redevelopment, in the context of long-term watershed protection. I recommend that municipalities located in the same watershed work together and pool resources to define water quality and watershed scale issues, and assess watershed conditions, in a coordinated manner. This type of collaborative approach is being used by almost 3000 farmers in our region, as they . also learn how to comply with the Water Board's requirements to define and resolve water quality a non-profit organization that Farmers in our region established p and watershed scale issues. 9 coordinates and streamlines their compliance efforts, helps minimize costs, and helps disseminate information among farmers and between farmers and the Water Board. p acknowledge the challenge this resents, and that it will take years for municipalities to learn We g 9 how to incorporate and implement these changes beyond the project or site-specific scale. It will take time to build the institutional capacity to do the work, and to measure results. Please see the section at the end of this letter on the availability of financial and technical assistance. An Example Approach for Including Quantifiable Measures of Healthy Watersheds in Stormwater Management Programs The attached information may help you develop quantifiable measures of healthy watersheds, including numeric criteria for hydromodification control and watershed protection controls. The information is not comprehensive, but provides examples to demonstrate how a control measure should be linked to, a)a desired condition (or goal), b) the parameter(s)that define the condition, and c)quantifiable measures that serve to evaluate performance of the control measure. We will use this type of approach to evaluate the control measures and quantifiable measures (including interim criteria for hydromodification controls)in your SWMPs. We recognize that different Phase II communities are at different junctures in developing or implementing their SWMPs and selecting quantifiable measures. Thus, the attached information may assist you in different ways; for example, it may assist your selection of interim hydromodification criteria, or, it may help you improve your SWMP's measures of long-term performance. California Environmental Protection Agency Recycled Paper 65 ITEM NUMBER: C-2 DATE: 10/14/08 David Athey -3- July 10,2008 Additional Time for Developing Interim Criteria for Hvdromodification My February 15 letter stated that we expect you to implement our interim requirements for hydromodification control for all projects subject to your agency's discretionary approvals within six (6) months of your enrollment in the Phase II General Permit, i.e., when your SWMP is approved by the Executive Officer or adopted by the Water Board. In response to the feedback we received, we are providing flexibility in three ways: 1) 1 am providing you an additional six (6) months, (to make it a full year), before you apply interim criteria for hydromodification control,2) 1 am willing to consider other hydromodification control criteria that you develop, if they are reasonably equivalent to those I specified in my February 15 letter, and 3) 1 am willing to consider the applicability of hydromodification control criteria based on local conditions. Water Board staff's expectation is that within one year of enrollment under the General Permit,you will have adequate development review and permitting procedures to impose conditions of approval, or other enforceable mechanisms, to implement quantifiable measures(numeric criteria) for hydromodification control. Your SWMP must include a commitment and a schedule to develop any alternative interim criteria, should you choose to develop them. If you fail to develop alternative criteria acceptable to the Water Board, you will be subject to our interim criteria as stated in the February 15 letter. We are available to discuss hydromodification control measures (BMPs), acceptable numeric criteria for those controls,and the criteria for their application(applicability criteria), If you intend to . develop your own interim criteria for hydromodification control, please include your schedule for developing the criteria in your SWMP and allow for a period of no less than three (3) weeks for Water Board staff to review the proposed criteria. Water Board staff will also consider economic factors in reviewing hydromodification control criteria and applicability criteria. To ensure our allowance of additional time does not come at a cost to watershed health, we propose that by our original six-month date,you inform property developers that, in the absence of established detailed criteria (interim or otherwise)for hydromodification control, you only approve and permit projects that incorporate substantive hydromodification evaluation and controls (that is, the developers can propose their own approach to meet the intent until detailed criteria are established). Legal Authority to Provide Expectations for SWMP Content As noted in my February 15 letter, the federal Clean Water Act (CWA) provides that National Pollutant Discharge Elimination System (NPDES) permits for MS4s must require municipalities to reduce pollutants in their stormwater discharges to the Maximum Extent Practicable (MEP) (CWA §402(p)(3)(B)). The California Water Boards have established the meaning and application of this standard through several adopted stormwater permits (the MEP standard is the same for Phase and Phase 11 municipalities)'. The Water Board implements the General Permit to be consistent with its Water Quality Control Plan (Basin Plan) to ensure protection of water quality, beneficial uses, and the biological and physical integrity of watersheds according to the issues in the Regions. The General Permit contemplates that low impact development will be a component of Several stormwater permits adopted by different Regional Boards have been legally challenged. All have been upheld by the State Water Resources Control Board and the courts. The Water Boards have broad authority to regulate stormwater and land use activities that result in discharges to waters of the State. Urbanization is one the most important land use activities affecting water quality,beneficial uses,and the physical and biological integrity of watersheds in the Central Coast Region. California Environmental Protection Agency 44 Recycled Paper 66 ITEM NUMBER: C-2 DATE: 10/14/08 David Athey -4- July 10,2008 SWMPs. See Fact Sheet to General Order at page 6. The General Permit also requires the SWMP to contain measurable goals, including, for example, percent reduction in pollution load. The General Permit has been in effect for nearly five years and the Central Coast Water Board expects that Phase 11 communities will have benefited from their own experience and other communities in developing a robust SWMP. The General Permit expects Phase II communities to learn from Phase I communities in implementing MEP. The February 15 letter did not require that each community include the specific recommendations, but rather stated that the Executive Officer would not approve a SWMP that does not include adequate low impact development BMPs and measurable goals. Our approach, including our February 15, 2008 letter, is consistent with the General Permit. Current Status of Enrollment Process Since initiation of the new enrollment strategy, several enrollment cycles have begun. Table 1 presents the status of the cycles. Please check our website for more specific scheduling information and notices for public comment periods. httox//www swrcb.ca._qov/rwgcb3/stormwater/index.htm Availability of Technical and Financial Assistance Several grant programs are currently available to provide matching grants to local public agencies to protect watersheds, reduce and prevent stormwater pollution, and Implement LID planning and design principles and practices. These programs include California Proposition 84 Storm Water funds, California Proposition 1E Flood Prevention and Stormwater Management, and the US EPA West Coast Estuaries Initiative. i encourage you to pursue these grant opportunities. For more information specifically on the Proposition 84 Storm Water Grant Program and workshops,visit the State Water Board's website at: http://www.waterboards.ca,gov/water issues/programs/grants loans/prop84/index.shtml You may also contact our grant manager, Angela Schroeter, at 805-542-4644, or at ASchroeter(c)waterboards.ca.gov,regarding these grant opportunities. The Water Board is also providing partial funding for a Central Coast Low Impact Development Center. The Center will assist municipalities, engineers, and developers to implement Low Impact Development on the Central Coast. We anticipate technical assistance will be available from the Central Coast LID Center office starting fall 2008. In the meantime,we encourage you to contact the LID Center of Maryland (http://www.lowimpactdevelopment.or-q , as they have extensive experience in helping municipalities implement LID throughout the Unites States, including California. We also encourage you to contact other professionals who are qualified to implement LID and watershed protection, such as the Center for Watershed Protection (www.cwp-arp and www stormwatercenter.net), and The Center for Water and Land Use (http://extension.ucdavis.edulunit/center—for water_and_land_use/about.asp) to use their many technical and educational resources(many of which are free). These services will help you create the institutional capacity to integrate all stormwater management control measures into all aspects of land use planning and development (municipal plans, policies, ordinances, municipal codes, conditions of approval,etc.)to protect healthy watersheds. California Environmental Protection Agency M Recycled Paper -- - ..J-.(._ ITEM NUMBER: C—2 DATE: 10/14/08 David Athey -5- July 10,2008 Table 1:Status of Enrollment C cles for Attachment 1 and 2 MS4s Projected rojected rojected taff Board Cycle M54 Group Group Members tart Date for xecutive Officer SWMP hone(805 nrollment Cycle WMP Approval A roval2 rea Code) 1 Santa Maria Santa Maria nderway ugust 11,2008 Sept.5,2008 ominic San Luis oques Obispo 42-4780 2 Coastal Santa Goleta Jnderway September 2,2008 Oct. 17,2008 3randon Barbara County Carpinteria Santa Sanderson Santa Barbara Barbara 49-3868 UC Santa Barbara Lompoc(originally in Cycle 1 3 Santa Cruz Santa Cruz County Jnderway ebruary,2009 March 6, hit Hammer Mountains and Watsonville 2009 49-3882 Coast City of Santa Cruz San Luis Scotts Valley Obispo UC Santa Cruz 4 Coastal San Luis Arroyo Grande Underway January 2009 2009—1 Tamara Obispo County Grover Beach Quarter Dresser Pismo Beach San Luis 49-3334 Oceano CSD Obispo Morro Bay Los Oscs CSD 5 Upper Salinas King City June 2008 ebruary 2009 2009—1' avid Innis Templeton Quarter 49-3150 Atascadero Salinas 6 City of San Luis City of San Luis Jnderway April 2009 2009—2" Tamara Obispo Obispo Quarter Presser San Luis 549-3334 Obispo 7 Upper Pajaro Gilroy Farly November August 2009 2009—3 ominic San Martin 2008 Quarter oques Santa Clara Watsonville 42-4780 8 Santa Ynez Buellton Mid August2009 2-00-9----37a-- ominic Solvang 2005 Quarter oques Vandenberg AFB San Luis 42-4780 Obispo Agencies, municipalities, and consultants are all on a learning curve with respect to stormwater management, LID implementation, and watershed protection. Water Board staff are not design or planning experts, and as with all of our requirements,we cannot legally tell those we regulate how to comply. Municipalities must build their capacity to be able to comply with the Board's requirements. This includes hiring qualified personnel to develop and implement SWMPS, and providing the most up to date, relevant education on an ongoing basis. When relying on consultants, it is critical that you carefully consider the qualifications and experience of the professionals you retain. Many consulting firms are on the same learning curve as agencies and municipalities. 2 Board approval only required If a hearing Is requested by stakeholder California Environmental Protection Agency _ t Recycled Paper <r. ITEM NUMBER: C-2 DATE: 10/14/08 David Athey -6- July 10,2008 If you have any questions regarding this letter,please contact Dominic Roques at droquesgwaterboards.ca.gov or at (805) 542-4780. If you have any questions regarding the status of a particular enrollment cycle,please contact the staff person indicated in Table 1. Thank you for your commitment to developing a SWMP that will support healthy watersheds in the Central Coast Region. Sincerely, Roger W. Briggs Executive Officer Cc: Hillary Hauser, Heal The Ocean Steve Shimek,The Otter Project Kira Redmond, Santa Barbara ChannelKeeper Christine Sotelo,SWRCB Chris Crompton, California Stormwater Quality Association Jerry Bunin, Homebuilders Association of the Central Coast Attachment:An Example Approach for Including Quantifiable Measures of Healthy Watersheds for Stormwater Management Programs W:\Stormwater\_Stormwater Program\ Municipal Program\Phase II\MS4 Enrollment Strategies\MS4 Notification Ltr\Foilow-up Ltr\FollowuptoFeb15Final dr.doc California Environmental Protection Agency r Qa Recycled Paper 69 ITEM NUMBER: C-2 DATE: 10/14/08 Attachment 3 RWQCB's August 12, 2008 process letter -w. California Regional Water Quality Co►rtroI Board Central:Coast Region ate, Linda S.Adams 895 Acrovista Place,Suite 101,San Luis Obispo,Califomia 93401-7906 Arnold Schwarzenegger Secretaryfor (805)549-3147•Fax(805)543-0397 Governor Envirownenlal Prolection http://www.waterbouds.ca gov/ccntralcoast August 12, 2008 Steve Kahn City of Atascadero 6500 Palma Avenue Atascadero, CA 93422 Dear Mr. Kahn: ENROLLMENT SCHEDULE — STORM WATER MANAGEMENT PLAN; CITY OF ATASCADERO, SAN LUIS OBISPO COUNTY,WDID# 3 40MSO4027 Central Coast Water Board staff David Innes met with you and David Athey on July 8, 2008 to discuss the City of Atascadero's enrollment in the Municipal Stormwater General Permit. The emphasis of your meeting was to discuss the schedule we e- mailed to you on June 24, 2008. The schedulle reflects the direction our Board approved at the December 7, 2007 hearing, my Notification to Traditional, Small MS4s letter dated February 15, 2008, and my recent Follow-up letter dated July 10, 2008. The schedule provides a firm date for a March 2,009 Board hearing, if requested, to consider approval of your Storm Water Management Program (SWMP). Our schedule requires you to submit a revised draft by August 13, 2008. However, you won't meet this timeline because of your decision to present our requirements to your City Council in September before submitting revisions in October 2008. Atascadero is one of 24 communities participating in this enrollment process. As emphasized in my February and July letters, the current enrollment process has certain dates that each community must meet. The schedule staff provided reflects these dates, but the interim due dates have some flexibility. This flexibility, however, may have consequences if you chose to side step the required dates. in this case, we would receive your SWMP during Phase III: MS4 SW'MP Redraft. At this approximate October 10`h date, you would have only one week to respond to our staff and public comments. Essentially, your modification of the schedule would skip most of Phase Il and your opportunity to receive our feedback. The consequence of missing our dates is the potential we may require a series of recommendations and resolutions we would attach after public posting of your SWMP and Staff Report preparation, if portions are unacceptable to staff. 1. We plan to work with you and your staff to help develop a SWMP that meets all expectations of the General Permit and our enrollment notifications. In 2004 we provided comments to your SWMP and we plan to provide additional comments to the December 2004 draft in the next few weeks. If you incorporate the recommendations California Environmental Protection Agency Recycled Paper ++ ID �.a 70 ITEM NUMBER: C-2 DATE: 10/14/08 City of Atascadero r -2- August 12, 2008 we provide, our later recommendations,,,,,and resolutions for your SWMP will likely be minimal. We look forward to working with you in a cooperative fashion. However, we are committed to finalizing Atascadero's SWMP by March 2009. We hope the flexibility we've given you to plan within our schedule will result in a substantive and specific set of BMPs and measurable goals to improve stormwater control in Atascadero. Sincerely, ' rRoger W. Briggs Executive Officer SAStormwater\_Stormwater Program\_Municipal Program\Phase II\MS4 Enrollment Strategies\Enrollment Schedules for MS4 Groups\Upper Salinas Atas-Templ-KingC\Atas schedule modification.doc Pile:Atascadero SW file California Environmental Protection Agency �a RecycicdPaper - _ - - 71 ITEM NUMBER: C—2.a DATE: 10/14/08 'n len e n 1918 ® 1978 d Atascadero City Council Staff Report - Public Works Department SUPPLEMENTAL REPORT Regional Water Quality Control Board (RWQCB) Storm Water Management Plan NPDES Phase II DISCUSSION: The City Council reviewed an update regarding a Storm Water Management Plan (SWMP) at their September 23r regular meeting. Staff has continued to compile information regarding the requirements of the Regional Water Quality Control Board. A meeting has been scheduled with the Home Builders Association and staff is working on scheduling a meeting with the Regional Board Staff. A discussion of the requirements was included on the agenda of the Mayor's meeting held on October 3rd. San Luis Obispo County City Managers have held a meeting on the issue and are planning follow-up meetings. Cities in the six-county region are working to understand the Regional Board's requirements and the associated costs. Attached is a matrix developed by staff highlighting the current status of region cities relative to the SWMP requirements. The matrix is developing each day as significant financial and staff resources from region cities are focused on the SWMP requirements. The positions of the cities are evolving and there are more unknowns than recognized at the previous Council review. The City has received the remaining comments from Regional Board Staff regarding the previously submitted SWMP. ATTACHMENT: Matrix on SWMP Requirements _ __ _ 73 .Jtral Coast Regional Water Quality Control Board- Region 3 norm Water Management Plan & NPDES/WDR Permit Status, as of 10103/08 Municipality SWMP Status NPDES Permit Status 2nd draft plan submitted 9/5/08.Will be available for public Arroyo Grande Tied to Oceano WDR comment(60 days); review&approval scheduled for 01/2009. Atascadero Due to small size,does not have NPDES,but has a Has begun editing draft based on 2/08&7/08 letters from the WDR for their permit&Basin Plan compliance.Last Buellton Board.Review scheduled for mid-Nov. reviewed 2006,no modifications anticipated prior to 2011 or 2012. 4 big issues remain.4th draft due 10/3/08;5jurisdictions (Santa Cruz Co,City of Santa Cruz,Capitola,Watsonville,& Capitols Scotts Valley)requesting more time to create common language for the 5 agencies&will submit on 10/24/08. Carpinteria Gilroy See So.Santa Clara County Further revisions to plan have been submitted in June 2008,in Goleta response to the RWCQB letter of 2/15/08 Draft plan submitted 9/2008.Review&approval scheduled for Grover Beach Tied to Oceano WDR 01/09 Hollister Board approved revised SWMP 2/2006 MS45(Municipal Separate Storm Sewer System) Permit issued 2/2/06 King City Lompoc Hearing w/RWQCB on 10/17/08 Los Osos CSD Just beginning revisions of 1st draft Monterey Region Approved 2003;Last revised 11/15/06 Granted:9/7/06 Morgan Hill See So.Santa Clara County Original prepared 2003;submitted revision summer 2008. Morro Bay Resubmitted 9/5/08 with corrections.Posted to board website 9/29/08 for 60 day public comment review Draft plan submitted 9/5/08,due for review between 10/3- Due to small size,no NPDES permit,but WDR 10/9/08.Will then be available for public comment(60 days), compliance will be art of the final/approved SWMP. Oceano CSD after which revisions will be made based on the board&public p p Review scheduled 01/09(see AG and Grover) comments In compliance.Submitted 12/04&approved early 2005;they Paso Robles are in year 4 of program.Last revision 5/6/2008;Working Permit approved early 2005 currently on annual report. Pismo Beach San Luis Obispo Submitted draft to RWQCB 9/12/08;draft ordinance now available for public comment 60 day period. San Luis Obispo County SWMP approved by the RWQCB on 3/22/07. NPDES permit granted 3/22/07 Submitted with revisions on 5/29/08 per Boards 2/15/08 Santa Barbara letter;Board responded 8/1/08 with list of additional improvements to be made before they'd recommend approval. Santa Barbara County Submitted to Regional Board 9/15/08 UC Santa Barbara Draft submitted 06/2008;Board responded 8/1/2008 with list of additional improvements. So.SC Co.(those areas in Region 3)-is in its'infancy;are just !Sc. Santa. ,iar-i Count', rotting started;met 9/30/08 w/Board&Cities of Gilroy& - —4 Hili,decid ng whetner to join forces or each go it alone.:,-,, - 4 big issues remain.4th draft due 10/3/08;5 jurisdictions (Santa Cruz Co,City of Santa Cruz,Capitola,Watsonville,& Santa Cruz Scotts Valley)requesting more time to create common language for the 5 agencies&will submit on 10/24. 4 big issues remain.4th draft due 10/3/08;5 jurisdictions (Santa Cruz Co,City of Santa Cruz,Capitola,Watsonville,& Santa Cruz County Scotts Valley)requesting more time to create common language for the 5 agencies&will submit on 10/24. 1st draft previously submitted to RWQCB,currently working on Santa Maria a 2nd draft to include a portion of the requirements per board letter of 2/15/08;City is opposing certain requirements. 4 big issues remain.4th draft due 10/3/08;5 jurisdictions (Santa Cruz Co,City of Santa Cruz,Capitola,Watsonville,& Scotts Valley Scotts Valley)requesting more time to create common language for the 5 agencies&will submit on 10/24. SWMP approved by the RWQCB on 9/28/04;Ordinance Soledad adopted 2005.Failure to implement notice from Board dated Permit granted 9/28/2004 V2006, Solvang Templeton CSD 4 big issues remain.4th draft due 10/3/08;5 jurisdictions (Santa Cruz Co,City of Santa Cruz,Capitola,Watsonville,& Watsonville Scotts Valley)requesting more time to create common language for the 5 agencies&will submit on 10/24. 75 it ITEM NUMBER: C-2.b DATE: 10/14/08 1979 Atascadero City Council Staff Report - City Attorney SUPPLEMENTAL REPORT City Attorney Report on Potential Third Party Liabilities Storm Water Management Plan DISCUSSION: On September 23, 2008, City Staff presented a Staff Report on the Storm Water Management Plan designated as Item C-1 on the Agenda. After the Staff Report was presented to the City Council, there was public comment from a number of individuals, including representatives from the Regional Water Quality Control Board (RWQCB). During the comment period, one of the RWQCB representatives stated that there was potential liability faced by the City for third party lawsuits in the event the City did not obtain an approved Storm Water Management Plan. The City Council requested that the City Attorney review the issue of potential third party liability and report back to the Council at its next meeting. Rufus Young of Burke, Williams & Sorensen submitted a Memorandum to City Attorney Brian Pierik on September 29, 2008 regarding the issue of potential third party liability. This Memorandum is attached to this report. Mr. Young has substantial experience in storm water issues including drafting and negotiating storm water permits with .regional water quality control boards and the State Water Resources Control Board. Mr. Young's comments on the drafts of the Small Cities NPDES MS4 storm water permit resulted in a number of changes to that permit. Mr. Young is a member of the faculty of the ALI-ABA Land Use Institute, where his topics include the Clean Water Act and its effect on land use. FISCAL IMPACT: The City Attorney is unable to estimate the potential fiscal impact which might result from third party lawsuits as it is unknown at this time when the City might obtain 2310 East Ponderosa Drive - Suite 25 - Camarillo, California 93010-4747 IMIN voice 805.987.3468 - fax 805.482.9834 www.bwslaw.com BURKE, WILLIAMS & SORENSEN, LLP OFFICE MEMORANDUM TO: Brian A. Pierik FROM: Rufus C. Young DATE: September 29, 2008 RE: Atascadero MS4 Third-Party Memo Issues: (1) May an entity which has been designated as within the scope of the Phase II Small MS4 Storm Water Permit be sued by a third party? (2) Are discharges from the City's storm water system covered by the Phase II Storm Water Permit? Answers: (1) Yes, under the Citizen Suit provisions of the Clean Water Act, for failure to submit a Storm Water Management Plan on a timely basis. In addition, a party damaged by a discharge in violation of a permit, or a discharge without a permit, also may have an action for trespass or nuisance, and, depending on the nature of pollutants discharged, possibly under the federal Comprehensive Environmental Response, Compensation and Liability Act. (2) No, not until the Storm Water Management Plan is approved by the Regional Board. Discussion: In 1972, the Federal Water Pollution Control Act (also referred to as the Clean Water Act [CWA]) was amended to provide that the discharge of pollutants to waters of the United States from any point source is unlawful unless the discharge is in compliance with a National Pollutant Discharge Elimination System (NPDES) permit. In 1987, Congress amended the CWA by adding § 402(p), which established a statutory framework for regulating storm water discharges from municipal separate storm sewer systems (MS4s). In 1990, the U.S. Environmental Protection Agency (EPA) implemented § 402(p) by promulgating regulations for storm water discharges from _i--os An, es - Inland Empire - Menlo Park - Grange County - Palm Desert - Ventura County Brian A. Pierik September 29, 2008 Page 2 MS4s serving a population of 100,000 people or more. These regulations, known as the Phase I regulations, impose NPDES permit requirements on owners of medium and large MS4s. Discharge of storm water from an MS4 to waters of the United States without a NPDES permit is a violation of the CWA. An "MS4" is a conveyance or system of conveyances including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels and storm drains designed or used for collecting or conveying storm water. 40 C.F.R. §122.26(b)(8). On December 8, 1999, the EPA promulgated Phase II storm water regulations, subjecting owners of Small MS4s to CWA permit requirements. Federal regulations allow two options for permits for storm water discharges, individual permits and general permits. In California, the State Water Resources Control Board (SWRCB) elected to adopt a Statewide General Permit for Small MS4s in order to efficiently regulate numerous storm water dischargers under a single permit, which is regulatory in nature. SWRCB WQO No. 2003-0005. The Small Cities General Permit regulates discharges of storm water from all "regulated Small MS4s." The City is among many California Cities designated by the EPA and the SWRCB for coverage (regulation) under the Small Cities Permit. See SWRCB WQO No. 2003-0005, Attachment 1. By imposing the NPDES MS4 storm water permit requirement on owners of MS4s, Congress has conscripted municipal governments in the battle against water pollution. Therefore, the City is required to comply with the Small Cities Permit. That permit requires the City to submit a Storm Water Management Plan satisfactory to the Regional Board, in a timely manner. Coverage under the Permit commences only after: 1) Board staff has reviewed the SWMP to determine compliance with the CWA requirement to reduce the discharge of pollutants to the maximum extent practicable ("MEP") and has recommended coverage under the Small Cities MS4 Permit, 2) the SWMP is made available for public review for a minimum of 60 days, and 3) permit coverage has been approved by either the RWQCB or its Executive Officer. Penalties for Violations of Permit Conditions. Section 309 of the CWA provides significant penalties for any person who violates any CWA permit condition or limitation in a permit issued under § 402. Any 79 Brian A. Pierik September 29, 2008 Page 3 person who violates any permit condition, or discharges storm water from an MS4 to waters of the United States without a permit, could be subject to a civil penalty not to exceed $27,500 per calendar day of such violation, as well as any other appropriate sanction provided by § 309 of CWA. Under California law, the Porter-Cologne Water Quality Act also provides for administrative, civil, and criminal penalties, which in some cases may be greater than those under the CWA. Enforcement by Third Parties. To supplement state and federal enforcement of the Clean Water Act, Congress empowered citizens to serve as "private attorneys general" and bring their own lawsuits to enforce the Clean Water Act. The citizen suit authority is found in Clean Water Act § 505, 33 U.S.C. § 1365. Any person or entity that either is or might be adversely affected by any CWA violation has the right to file a citizen suit to enforce the provisions of the CWA. Citizens may seek injunctive relief, civil penalties, and reimbursement of legal costs and attorneys' fees. In addition, if a regulatory agency fails to take enforcement actions against a violator of the Clean Water Act or does not get acceptable results from their enforcement actions, citizens have the right to file citizen suits against a state regulatory agency or the U.S. EPA. In California, numerous cases have been brought against local governments to enforce provisions of the CWA. Conceptually, a third party claiming to have been damaged by a discharge which violates a permit or by a discharge without a permit also could bring an action against the discharger for trespass or nuisance and for property contamination under the federal Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq. Problems of proof and causation could make this option less attractive than an enforcement action under the CWA. A SWRCB Fact Sheet on the Small Cities General Permit may be found at http://www.swrcb.ca.gov/water issues/prog rams/stormwater/docs/fi nal_sm_ms4_fact_o rder.pdf 80 ITEM NUMBER: C—2.b DATE: 10/14/08 approval of its Storm Water Management Plan and, further, the nature and extent of any third party lawsuits is unknown as none have been filed to date. ATTACHMENTS: Memorandum from Rufus Young to Brian Pierik dated September 29, 2008 81 82 ITEM NUMBER: C-3 DATE: 10/14/08 ' ®n nn 1918 A n 1979 Atascadero City Council Staff Report — City Attorney's Office Campaign Ordinance ACTION: If Council desires to adopt this campaign ordinance: Council introduce for first reading by title only the Draft Ordinance amending the Atascadero Municipal Code by adding Chapter 19 to Title 2, adopting an ordinance to be known as "Atascadero Campaign Ordinance." DISCUSSION: At the August 12, 2008 meeting of the City Council, the Council directed the City Attorney to prepare a draft a campaign ordinance to include a voluntary expenditure limit and a reduction in the contribution amount which triggers late contribution reports. At the September 23, 2008 meeting of the City Council, a draft Campaign Ordinance was presented to the City Council along with a staff report by the City Attorney. At the City Council meeting on September 23, 2008, following the staff report, there were questions from the Council, comments from the public and then discussion by the Council regarding the draft Campaign Ordinance. Following the discussion by the City Council, the Council directed the City Attorney to prepare a Campaign Ordinance to include a $12,000 voluntary expenditure limit for City Council candidates and a reduction in the late contribution reporting requirement from the current amount of $1000 down to the amount of $250. The City Attorney has prepared the Campaign Ordinance as directed by the City Council and the ordinance is attached to this report. Also at the meeting of September 23, 2008, the City Council approved a motion directing that all FPPC Form 460s be posted on the City's website. 83 ITEM NUMBER: C-3 DATE: 10/14/08 FISCAL IMPACT: The fiscal impact of the adoption of this Ordinance will be the staff time involved in the implementation of the Ordinance which will include: processing of Declaration of Candidacy Statements, calculation of expenditure limit each election season, public noticing requirements, press releases, postings on the website and processing of additional Late Contribution Reports. ALTERNATIVES: 1. The City Council may not adopt a campaign ordinance. 2. The City Council may adopt a campaign ordinance which has different provisions from those included in the ordinance attached to this staff report. ATTACHMENT: Draft Campaign Ordinance 84 a - DRAFT ORDINANCE AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ATASCADERO, CALIFORNIA, AMENDING THE ATASCADERO MUNICIPAL CODE BY ADDING CHAPTER 19 TO TITLE 2 ADOPTING AN ORDINANCE TO BE KNOWN AS "ATASCADERO CAMPAIGN ORDINANCE" WHEREAS, the City Council desires to adopt an ordinance providing for a voluntary expenditure limit on campaigns by City Council candidates; and, WHEREAS, the City Council further desires to provide incentives and benefits to encourage candidates to comply with the voluntary expenditure limit; and, WHEREAS, the City Council further desires to reduce the dollar amount requirement for late contributions from the requirement set by State law. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ATASCADERO HEREBY ORDAINS AS FOLLOWS: SECTION ONE. Findings. The City Council hereby incorporates the foregoing recitals and finds that this ordinance will include a voluntary expenditure limit on campaigns by City Council candidates with incentives and benefits to encourage compliance with the limit, and this ordinance will reduce the dollar amount requirement for late contributions from the State law requirement. SECTION TWO. Adoption. The City Council of the City of Atascadero hereby amends Title 2 of the Municipal Code by adding Chapter 19 as follows: 2-19.01 Title. This chapter shall be known as the "Atascadero Campaign Ordinance" and is intended to supplement the provisions of the State Political Reform Act (California Government Code Section 81000, et. seq.). The provisions of this chapter are expressly intended to be more restrictive than the provisions of State law. This chapter applies only to candidates for City Council. 2-19.02 Purposes and Intent. The City Council enacts this chapter to provide benefits and incentives that encourage City Council candidates to agree to voluntarily limit campaign expenditures. 2-19.03 Voluntary Expenditure Limit. (a) Expenditures The tenn "expenditures" as used in this chapter shall mean the total of the expenditures by a City Council candidate and any campaign committee controlled by the candidate. (b) Declaration of Candidacy Statement Each candidate for City Council office shall file, with their nomination papers, a "Declaration of Candidacy Statement" ("Declaration") which will be in a form to be determined by the City Clerk. At the time of filing his/her Declaration, the candidate shall indicate on the Declaration his/her acceptance or rejection of the voluntary expenditure limit set forth herein. City Council candidates who agree to adhere to voluntary campaign expenditure limitations in accordance with this chapter, and who spend more than the voluntary campaign expenditure limitation, must notify the City Clerk pursuant to the provisions of this chapter. (c) Limitation on Expenditures The voluntary campaign expenditure limit shall be twelve thousand dollars ($12,000.00) and the base was established in June 2008 as adjusted in the manner provided by this chapter. The adjustment to the voluntary expenditure limit will be calculated by the City Clerk. For City Council elections conducted with the City's general municipal election, the adjustment will be made on June 1. For special municipal elections called to fill a vacant seat on the City Council, the adjustment will be made ninety days before the special election. The adjustment will be rounded off to the nearest hundred dollar figure: downward if $49.99 or less or upward if $50.00 or more. The adjustment will be based upon the Consumer Price Index increment as determined by the United States Department of Labor, Bureau of Consumers (CPI-U), Los Angeles/Riverside/Orange, CO, CA Area—all items, or successor index. (d) Within three working days of the close of the candidate filing period for City Council, the City Clerk shall notify in writing all candidates of the acceptance or rejection of the voluntary expenditure limit by the other candidates. (e) A candidate who agrees to accept the voluntary expenditure limit in this article may not change that decision, except that if an opposing candidate files a statement of rejection of the voluntary expenditure limit, the candidate may rescind by written notice to the City Clerk his/her acceptance of the voluntary expenditure limit within three working days of receipt of the notice from the City Clerk issued pursuant to Section 2-19.03(d). (f) Incentives and Benefits For candidates accepting the voluntary expenditure limits, the following benefits and incentives will apply: (1) The City will pay the cost of the Candidate's Statement Of Qualifications as printed in the Official Voter Information Guide. (2) The fact of a candidate's participation in the voluntary expenditure limit program will be posted by the City Clerk on the City's website and at City Hall. (3) Ten working days after the close of the candidate filing period for City Council, the City Clerk will issue a press release to newspapers, radio and television stations announcing the names of the City Council candidates, if any, who have accepted the voluntary expenditure limit established by this chapter. (4) Each participating candidate may use the designation "voluntary spending limit candidate" in all election and campaign materials except for the Candidate's Statement of Qualifications that is included in the voter pamphlet. (g) Should a City Council candidate agree to accept the voluntary expenditure limit in this chapter and thereafter, whether intentionally or inadvertently, fail to abide by that agreement, then the candidate upon discovering said failure shall cause written notice of such failure to be received by the City Clerk's Office within one working day and the following rules shall apply: (1) The candidate shall forthwith pay the City Clerk's estimated cost of the Candidate's Statement Of Qualifications as printed in the Official Voter Information Guide. (2) The candidate shall immediately discontinue use of the designation "voluntary spending limit candidate" in all election and campaign materials. (3) The City Clerk shall post a notice on the City's website and at City Hall and issue a press release stating that the candidate had agreed to the voluntary expenditure limit, but has exceeded the limit. (h) The candidate shall be responsible for monitoring his/her campaign expenditures to ensure compliance with the voluntary expenditure limit set by this chapter. The City Clerk is not responsible for monitoring campaign expenditures or advising candidates who have exceeded, or are close to exceeding, the expenditure lirnit as that is the responsibility of the candidate. 2-19.04 Reduction of dollar amount for late contribution reports. In addition to all contribution reporting requirements set forth in the California Government Code and other applicable state laws, the threshold requirement for reporting, late contributions for City Council candidates shall be reduced from the State requirement, currently $1000, down to $250 (two hundred and fifty dollars), including in kind services and donations. These late contributions shall be reported on the Fair Political Practices Commission (FPPC) late contribution form, currently referred to as the 497 Contribution Report. 2-19.05 Applicability of other laws. 87 Nothing in this chapter shall exempt any person from applicable provisions of any other laws of this State or the City. 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., City Clerk Mike Brennler, Mayor APPROVED AS TO FORM: Brian Pierik, City Attorney ITEM NUMBER: C-4 DATE: 10/14/2008 W ON 1® RQ A p isle Atascadero City Council Staff Report - Public Works Department Atascadero Lake Park Great Lawn Installation RECOMMENDATIONS: Council: 1. Approve an amendment to the permit for the Atascadero Veterans Memorial project to allow for landscaping modifications; and, 2. Authorize the expenditure of up to $35,000 of the previously allocated Lake Park Frontage Improvement project funds for purposes of installing the Great Lawn at Atascadero Lake Park; and, 3. Approve the reduction of approximately 22,000 square foot of low-use, non- essential lawn area at other City maintained facilities and/or lowered maintenance service levels in City Parks. DISCUSSION: Background: On March 27, 2007, the Council authorized the placement of a Veterans Memorial on undeveloped property in Atascadero Lake Park. This project, sponsored by the Veterans Memorial Committee, is designed to include some minor landscaping and a small detention basin in an area adjacent to the Memorial. The Veterans Memorial Committee has secured the necessary building permits for this project and is proceeding with construction. Completion is anticipated by early November, 2008. Un- landscaped area between the Veterans Memorial and Highway 41/ Morro Road was to be planted in turf at a later date by others. The Veterans Memorial Committee has approached staff with an offer to install a portion of the Great Lawn area, so designated in the Atascadero Lake Park Master Plan approved by Council on October 23, 2001 . The Veterans Memorial offer is to install approximately 7,500 square-feet of turf. The total area of the Great Lawn is approximately 22,000 square-feet. Analysis: The Great Lawn area, as proposed in the Lake Park Master Plan, is designed to be a turf area of roughly one-half acre, intended to provide a visual draw to the Lake Park from the intersection of Morro Road and Portola Road. This turf area would also be available to park users for both pas-sive and active uses. - 89 ITEM NUMBER: C-4 DATE: 10/14/2008 The City's budget for FY 2007/2009 includes $270,000 for a project to improve the frontage of Atascadero Lake Park. This project is intended for frontage improvements such as, pedestrian facilities, landscaping, lighting and signage on the Morro Road and Portola Road frontages of Atascadero Lake Park. This Lake Park Frontage Improvement project is in preliminary design stages and will be scheduled for review with the Parks and Recreation Commission early next year. Staff feels that now is an opportune time to install the Great Lawn as the Veterans Memorial Committee project will complete approximately 30% of the proposed turf installation project. In addition, grass in this location will provide a planned and desired enhancement to the Lake Park and funds are now available if included with the adjacent and related Lake Park Frontage Improvement project. Staffs' recommendation for the installation of the Great Lawn at this time is contingent on the approval of a corresponding turf-reduction / service level reduction project at one or more City parks. The primary concern with the installation of additional turf is the increased ongoing maintenance and operating costs. The Public Works Department Parks Division is currently working at full capacity and is not in a position to take on additional maintenance responsibilities without a corresponding decline in service levels at another park location. As a result, staff also requests authorization to reduce a corresponding amount of turf and/or service level reductions at another City maintained facility to off-set the increased maintenance costs of the Great Lawn. Options for turf removal locations and/or service level reduction would be relegated to low-use, non- essential turf areas and facilities. Conclusion: Staff recommends that the City Council authorize an amendment to the permit for the Atascadero Veterans Memorial project to allow for the proposed landscaping modifications and authorize the expenditure of up to $35,000 of the previously allocated Lake Park Frontage Improvement project funds for purposes of installing the balance of the Great Lawn at Atascadero Lake Park. FISCAL IMPACT: Approval of this recommendation will result in the expenditure of approximately $35,000 in previously allocated to the Lake Park Frontage improvement project. ALTERNATIVES: 1. Deny the request for an amendment to the Veterans Memorial landscaping plans 2. Select an option not listed. ATTACHMENTS: a iap of the proposed Great Lawn area. - 0o o � '-^� mr - � "I r • N � .o A J 0 11 LL z Z . ❑ b J r Z W p co ��•• i -'�W � •-ice � ,�� � 1' pyo V r,WN W�3 o CL - ° 0 a - M � • ^-L'4.1R: 'i):�i?`��.;t Y•r<i'�a:,7r :%:`:;:sl'�Ti.i:i!{�'. ❑ 4 Ai r ,,',�,,•.� c�;y;,t,�,tsi.�r t�'rt. Vt .rte tiv^"`'* • uyw'„/r,'��=:yry;.�v:t,a= ..�+o".'yrY,.' F:ti' M V`. ,LS,Y'^.'�l✓y`.r�i,f,:�,yN'may yy�.Y"v �4 ,�_• ! �, ' .� �. � f•,fc�Lr�t. .!'�:16r�x�w,nryl ya'�;%y.{'�,���� �t•�.or-� r G r.j';IC I'E-'"'+�^��`,��r. �tiy'°+Qi,.t '�',.5\�51r.���{�„yt,a 7• �r!�!. y':'S.p ?? � u•� fr mwe- %� ♦, :Q; �t�J�I��J�{y.: �1r�t�i�°yWtitr•'pG +•1�`�•���.1' {2!!?t•.„,t Vic,d�•r b. U U N I U93 I I I I L ��� ITEM NUMBER: C-5 DATE: 10/14/2008 TM ®® W Atascadero City Council Staff Report - Public Works Department Wrestling Bacchantes — Location Selection Process RECOMMENDATION: Council endorse the location selection process and provide decision parameters relevant to the future placement of the Wrestling Bacchantes. DISCUSSION: Background: The sculptured group known as the Wrestling Bacchantes was created by Italian artist Petrilla and exhibited at the 1904 World's Fair by the Italian Government. It was then purchased by Atascadero Founder E.G. Lewis for display in the Atascadero Colony Civic Center. They were displayed at various locations in the Civic Center prior to their most recent installation in the Sunken Gardens. Ethos, a well respected art conservation firm located in Cambria, was contracted to evaluate the statue, resulting in the 2004 Condition Assessment Report and Conservation Treatment Proposal. The report described in detail the condition of the statue and the various factors that had contributed to their deterioration. Factors such as rain, temperature fluctuations and water condensation; microbiological growth, road vibrations, and vandalism all contributed to the deterioration. Additionally, previous restorations had created stress points which over time resulted in cracks in the original marble. On December 12, 2006, the Atascadero Community Redevelopment Agency awarded a contract for $235,100 to Ethos for the restoration and conservation of the Wrestling Bacchantes. The restoration is currently well underway at the Ethos studio in Cambria. It is anticipated that the restoration will be complete and the statue ready for return in summer 2009. Analysis: A decision to return the Bacchantes to their previous location in the Sunken Gardens or to relocate the statue to an alternate location needs to be made well in advance of their scheduled return. Relevant issues to consider for the future placement of the Wrestling Bacchantes include, but are not limited to: " ' . _ 93 ITEM NUMBER: C -5 DATE: 10/14/2008 • Costs associated with the display • Best viewing location and/or housing . Public exposure • Indoors or outdoors . Size and weight of the statue • Protection against vandalism • Protection from the environment Staff suggests that a process be established to determine a publicly-owned location for the renovated statue. A public participation process through the Parks and Recreation Commission is recommended and outlined in Exhibit A. Staff also recommends that the City Council establish criteria and parameters regarding the potential future location of the completed statue so that staff can focus efforts on viable locations that would garner future City Council and community support. Staff is requesting Council direction on criteria relevant to the future placement of this Wrestling Bacchantes and listed in the conclusion below. Conclusion: Staff recommends that the City Council approve the Statue Location Determination process and provide direction regarding the parameters and criteria for the search process. Staff requests direction regarding the following items: 1. Indoors, outdoors or consider both? 2. If outdoors, then should the structure be covered or exposed? • (The restored statue will be coated for potential outdoor display conditions. A consolidation/coating will be applied to the restored statue that will help to protect the marble from pollution and rain (actually changing the chemistry of the marble so that it is less soluble or absorbent) 3. Consider downtown locations only, or citywide options. 4. Financial constraints • Limit funds,to existing allocation after renovation costs • Increase or reduce funding for this project based on Council direction. o Per previous City Council policy, if the Council recommends an increase of funding for this project, staff requests direction regarding the source of funding from a project to be reduced, deleted, or postponed. FISCAL IMPACT: Funding will be needed to administer the process and to complete an engineer's estimate of the construction cost for the various display options suggested. The 2007- 2009 Budget currently has $ 51,980.00 that is unencumbered for the Project. If additional funding for the selected display is necessary, staff will bring it back to Council to determine which projects should be reduced, deleted, or postponed. ALTERNATIVES: 1. Council make determination now to return the statue to its former locations in the - - Sunken Gardens 94 ITEM NUMBER: C- 5 DATE: 10/14/2008 2. Direct staff to evaluate and make recommendations directly to the Council at a future meeting. 3. Refer the statue relocation process directly to the Parks and Recreation Commission for a recommendation. 4. Select an option not listed. ATTACHMENTS: Exhibit A — Recommended Statue Location Determination Process Exhibit B - Photographs of the Wrestling Bacchantes 95 ITEM NUMBER: C - 5 DATE: 10/14/2008 EXHIBIT A RECOMMENDED STATUE LOCATION DETERMINATION PROCESS 1. Staff to establish a list of potential statue locations based on parameters determined by the City Council. Suggested parameters will be discussed below. 2. Direct the Parks and Recreation Commission to appoint Wrestling Bacchantes Relocation Panel members representative of the following: a. Parks and Recreation Commissioner b. Representative of Ethos c. Historical Society Member d. Atascadero Main Street representative e. Planning Commission member f. Public Works Department staff member g. Public member at large 3. Conduct a Public Forum and Workshop hosted by the Wresting Bacchantes Relocation Panel to include the following elements: a. A presentation made by Ethos outlining display and care recommendations. Ethos' participation in the workshop is key when considering the care and preservation of this important piece of Atascadero history. b. Staff presentation of the list of potential statue locations with pros and cons of each, along with financial constraints. c. Conduct a ratings exercise with the Workshop participants, ranking the potential locations. d. Ad Hoc Committee members to make a recommendation to the Parks and Recreation Commission of the top three potential locations. 4. Staff will evaluate the top three recommended sites and prepare a feasibility report on each based on factors including cost, protection, environmental impacts, and physical constraints. 5. Parks and Recreation Commission will make a recommendation to Council after considering staff evaluation. 6. City Council consideration and approval ITEM NUMBER;: C -5 DATE: 1011412008 EXHIBIT B tr 1 9 r�� c S d 4/ t� va a R iq f K� j .. F f. The Wrestling Bacchantes arrive in Cambria lrqpn, A. E a _1 97 ITEM NUMBER: C -5 DATE: 10114/2008 ' s "�� z v is a i i"IN ', r Awl 1 ITEM NUMBER: C - 5 DATE: 10/14/2008 4 E.=,3 SEE On ig E r? — � a pp, r �E ER- '. x.* d � s is 99 ITEM NUMBER: C - 5 DATE: 10/14/2008 � rc n f � z �t r it I N• • 100 City oAtascadero Office of the City Clerk TO: City Council FROM: Victoria Randall Deputy City Clerk SUBJECT: Additional Information Provided to City Council after Agenda Packet Distribution DATE: October 9, 2008 Attached is additional information that was provided after the City Council Agenda Packets were distributed. This information pertains to: Agenda Item Number Council Announcements and Reports, item #1b City Council Meeting Date: 10/14/08 This information will also be distributed to those on the Agenda Packet mailing list. xc: W. McKinney 2310 East Ponderosa Drive - Suite 25 - Camarillo, California 93010-4747 E111 ' voice 805.987.3468 - fax 805.482.9834 www.bwslaw.com BURKE, WILLIAMS & SORENSEN, LLP MEMORANDUM TO: City Council Members FROM: Brian A. Pierik, City Attorney DATE: October 9, 2008 RE: Ballot Measure Advocacy And The Law: Legal Issues Associated With City Participation In Ballot Measure Campaigns The agenda for the City Council meeting on October 14, 2008 will include under Council Announcements and Reports the following item requested by Mayor Mike Brennler: Council consideration and/or action to allow Ballot Measure D-08 to be included in the Candidate Final Word Forum scheduled for November 1 , 2008. 1 have attached to this Memorandum a copy of the paper prepared for the League of California Cities in September 2003 entitled: "Ballot Measure Advocacy And The Law: Legal Issues Associated With City Participation In Ballot Measure Campaigns." I hope this League paper is helpful in your understanding of the issues presented on this subject. � (,, - inland Empire -- Menlo Park )ranoe Counry -- Palm Deser' V(-,Jura C^ mtv I 11 i I I t E 3 LEAGUE OF CALIFORNIA I T r C BALLOT MEASURE ADVOCACY AND THE LAW: LEGAL ISSUES ASSOCIATED WITH CITY PARTICIPATION IN BALLOT MEASURE CAMPAIGNS September 2003 T his paper was Prepar ed wiiii the assistance of Steven S. Lucas Nielsen, Merksamer, Parrinello, Mueller& Naylor, LLP siucas@NMGovLaw.com and Betsy Strauss Special Counsel, League of California Cities City Attorney, City of Rohnert Park Munilaw@aol.com INTRODUCTION The electorate through the initiative and referendum process is increasingly making important policy decisions affecting California cities? Whereas cities have specific statutory authority to participate in the legislative process at the state and federal levels, their authority to take part in the initiative and referendum process is more limited. What role may cities and city officials play in the initiative and referendum process? The following series of questions and answers provide some general guidelines. USE OF PUBLIC RESOURCES TO SUPPORT A BALLOT MEASURE May cities contribute public funds to a ballot measure campaign that has qualified for the ballot? No, the courts have made it clear that government cannot use public funds to 'take sides" in a campaign.3 Doing so gives one side an unfair advantage that may distort the electoral process. But this does not mean that cities cannot CONTENTS prepare and disseminate a fair and impartial analysis of the measure. Introduction-= Is there a difference between using public resources to develop a measure for the ballot and to support the measure once it has Use Of Public qualified? Resources To Support A Ballot Yes, public resources may be used to develop a measure for the ballot.' And Measure local agencies have prepared ballot measures for years.' Taking A Position May cities form a nonprofit corporation and use public funds to finance On A`Ballot its operation for the purpose of qualifying a statewide initiative Measure measure that relates to the day-to-day functions of every city in the state? Campaign Activities In Support Of A No,the money for such an effort may not come from public funds. Because a city Ballot Measure cannot directly fund such an operation; it cannot do so indirectly.6 Fundraising Is there a difference between the generally accepted practice of using ActivitiesllOf A Ballot tI Support Measure public funds for legislative lobbying efforts and using such funds to promote a ballot measure? Civil And Criminal Penalties For Yes, courts have drawn a clear distinction between the two activities.' Various Misuse Of Public statutes specifically authorize the use of public funds for lobbying activities, such Resources as traveling to Sacramento to testify at a legislative hearing.a There are no similar provisions permitting the use of public funds in election campaigns.' Conclusion PAGE 1/13ALLOT MEASURE ADVOCACY AND THE LAW The legislative process contemplates public involvement to assist in explaining the potential benefits or detriments of proposed legislation. Courts do not see public agency lobbying as undermining or distorting this process. However,the use of public funds to directly influence the electorate is seen as a potential threat to the integrity of the electoral process. According to California courts, permitting a public agency to"take sides"in an election campaign may give one side an unfair advantage 10 The importance of governmental impartiality _ in electoral matters cannot be overstated." There are two What is the difference between "informational" and "express simple, but very, advocacy"materials? important'rules city officials and Purely informational materials present a fair and balanced presentation of the employees should relevant facts.12 Materials of express advocacy are those that explicitly and by follow if they want to their own terms urge the election or defeat of an identified candidate or the get involved in passage or defeat of an identified measure t3 Express terms of advocacy include campaignactivities: ,'vote for,""cast your ballot,"and "defeat."14 Don't use public funds and campaign May individual city officials use public resources to support a ballot on your,own time. measure? No, a city official may not use public resources to support or oppose a ballot measure or engage in campaign activity.15 "Public resources" include any property owned by the local agency, including buildings, facilities, funds, equipment,telephones,supplies,computers,vehicles,and travel 16 The misuse of public resources for campaign purposes may result in civil and criminal penalties.17 May cities use city staff, equipment, and supplies to generate promotional materials on behalf of ballot measures that have already qualified for the ballot? No,just like public funds,cities may not use public resources to support a ballot measure. To do so raises the possibility that the electoral process may be distorted by giving one side an unfair advantage in the campaign. TAKING A POSITION ON A BALLOT MEASURE May a city council officially endorse or oppose a ballot measure? Yes,the decision by a city council to go on record in support of or in opposition to a ballot measure has been held to be a permissible use of public resources. The council's decision should be made during a regular meeting that is open to the public and to the expression of the public's views.18 If the City Council adopts a resolution endorsing or opposing a ballot measure,the resolution should include a statement that no public funds shall be used in the campaign for or against the measure. PAGE 2/13ALLOT MEASURE ADVOCACY AND THE LAW May an elected official take a position on a ballot measure? Yes, a public official has a first amendment right to speak out on governmental matters upon being elected to office.19 However,a public official should not use public resources to campaign for or against a ballot measure. City officials should not take part in ballot measure campaigns while on"city time"and should be careful to separate their official work from their political and campaign work. Public resources may,not be used for, May a public employee support or oppose ballot measures? campaign Materials, that,expressly Yes, a public employee does not give up his or her constitutional rights upon advocate a position joining a publicagency.20 With certain exceptions,no restrictions may be placed on a ballot measure.' on the political activities of public employees.21 Terms of express advocacy include: However, public employees must be careful not to use public resources to •Vote for advocate a position on a ballot measure.22 Asa precautionary measure, many • Elect cities prohibit or restrict their employees from engaging in political activities during • Cast your work hours or while on city property.23 ballot • Defeat May cities analyze the effect of ballot measures on cities and publicize •Vote against this information? Yes, cities may use public resources to objectively evaluate a ballot measure's impact on the City.21 The results of a fair and impartial analysis may then be made available to the newspapers,advocacy groups,and others who may make use of the information if they choose.zs Public funds must be used only for materials that are strictly informational and not for those that expressly advocate a position. CAMPAIGN ACTIVITIES IN SUPPORT OF A BALLOT MEASURE May city officials respond to telephone calls, letters, and e-mails about a ballot measure while on city time? Yes, but only as long as their response is limited to (1)stating that the city has either endorsed or opposed the measure and (2) presenting fair and impartial information about the measure.26 An official must be careful not use public resources to"take sides"on the measure. Incidental and minimal use of public resources by a local officer is not subject to criminal prosecution.27 May a public employee respond to a request for information on a public agency's analysis of or position on a ballot measure? Yes, as long as the employee provides a fair and impartial representation of the facts.28 The response may include speaking to public or private organizations interested in the city's position.21 PAGE 3/13ALLOT MEASURE ADVOCACY AND THE LAW May city officials add a link from the city's website to a ballot campaign website? City officials No, this would be an inappropriate expenditure of public resources. . . .yees May city officials hold a campaign rally in support of or in opposition to a ballot measure on the steps of city hall or elsewhere on city property? Distribute campaign materials through Yes,as long as city officials do not take part in the rally while on city time and the the;city's internal public facility is open and available for the expression of all viewpoints on the mail system: measure or for any other political activity.30 It is a good practice for a city official to inform the audience that he or she is appearing as a private party and not as Place campaign; an official of the city. literature on employeebulletin May a public employee wear his or her uniform when engaged in boards. political activities after work hours? Make public No, a public employee is specifically prohibited from participating in any sort of appearances political activity while in uniform.31 speaking'in favor of the ballot measure May a public employee make a presentation on a public agency's during compensated position on a ballot measure at local organizations, such as the work hours. Chamber of Commerce? Walk precincts, draft Yes,as long as the employee presents fair and impartial information on the ballot campaign;ads,or measure. It is good practice to use a prepared script that may be used each time perform other the presentation is made. campaign tasks during compensated work hours. FUNDRAISING ACTIVITIES IN SUPPORT OFA use city copy BALLOT MEASURE machines, telephones, fax machines`, May city officials use city funds to attend a fundraiser in support of a computers, ballot measure? stationery, etc. for campaign purposes. No, it is a crime to use city funds to attend a political fundraiser.32 Urge other city May elected officials solicit ballot measure campaign contributions employees to vote from city vendors? for he measure during compensated' Yes, because it is not a conflict of interest for an elected city official to solicit or work hours. receive a campaign contribution from a vendor.33 However, public resources Send or receive must not be used in making these solicitations. Elected officials should not campaign-related e- engage in such fundraising activities while on city time. Any solicitation should mails on city admonish and advise vendors that they may not charge back the amount computers. contributed to the city either directly or indirectly. PAGE 4/13ALLOT MEASURE ADVOCACY AND THE LAW I May a city official obtain a list of city vendors for fundraising activities? Yes, if such a list exists, it is a public record and therefore is available to anyone asking for it. If no vendor list exists, it is not a misuse of public resources if the city would create a list for anyone who asked for such a list. If the city creates the list for the purpose of allowing fundraising from and the list, this would be a misuse of public resources. employees May city officials solicit financial support from their colleagues for a ballot measure? VVork,on the campaign'during No,city officials may not directly or indirectly solicit campaign contributions their personal time, from other local officials or employees. The only exception is if the including lunch solicitation is part of a general effort that incidentally includes local officials hours, coffee and employees.14 breaks, vacations, etc. May a public employee ask his or her fellow public employees for contributions to a ballot measure campaign? Make a campaign contribution to a No, local public employees may not solicit contributions from fellow ballot measure employees unless: campaign committee,using • The solicitation is made to a significant segment of the public in personal funds, which the fellow employees are included;35 or and/orattend a :,campaign -. • The funds are solicited to promote or defeat a ballot measure 'fundraiserdurtng . affecting the rate of pay, working hours, retirement, civil service, personal titrt'e or other working conditions.36 Make public Such solicitations should not take place during city time or make use of appearances during; public resources. personal time, advocating h ' In addition, an employee or officer of one city may solicit contributions ballot measure. from officials and employees of a different city. Have the 'City May an elected official contribute his or her own campaign council adopt a political action committee funds to qualify, support,or oppose resolution at a public meeting that a measure for the ballot? officially endorses the ballot measure Yes,as long as the contribution is reasonably related to a political,legislative, and confirms the or governmental purpose of the committee.31 However, there may be prohibition on using federal income tax implications for doing so. Candidate campaign funds governments funds are tax-exempt under Internal Revenue Code section 527 only when used for political primarily for"exempt functions.1131 Such purposes are generally limited to purposes., expenditures for a candidate to get elected or for officeholder purposes once a candidate is elected.39 How should such contributions from campaign funds be reported? PAGE 5/13ALLOT MEASURE ADVOCACY AND THE LAW The Fair Political Practices Commission says the recipient of the funds should report the receipt of funds as contributions received; the local official's campaign committee should report the contribution as an expenditure made and as a contribution made.40 Are there any other restrictions in the Political Reform Act that might restrict a local elected official's participation in ballot measure campaigns? The Fair Political Practices Commission notes that a local elected official who also serves as an appointed,voting memberof another agency(e.g.,a Local Agency Formation Commission, special district board,joint powers authority or regional planning agency)may, under certain circumstances, be prohibited from accepting, soliciting, or directing contributions on behalf of a ballot measure committee.41 CIVIL AND CRIMINAL PENALTIES FOR MISUSE OF PUBLIC RESOURCES Are there potential criminal consequences for misusing public resources? Yes,improper use of public resources can be a criminal offense.42 Local officials should be careful to separate their official city work from their political and campaign work. One potential consequence of a criminal conviction for misappropriation of public resources is disqualification from holding any office in the state.as Are there potential civil consequences for misusing public resources? Yes, the individual involved may be required to reimburse the agency for the value of the resources used.44 The person may also be responsible for the attorney fees of the party challenging the use of resources.41 In addition, engaging in such activities gives rise to reporting obligations for public agencies under the Political Reform Act.46 Failure to comply with the requirements may subject an agency to additional penalties.41 CONCLUSION Public officials and employees have many ways to exercise their right to promote or oppose ballot measures. The key is not to use the public's time, money, or other resources to do so. Public resources may be used,however,to provide objective analysis and information about a ballot measure. Charges that a city official or employee has misused and misappropriated public resources are extremely serious. When the propriety of any activity is in doubt, it is the League's view to err on the side of caution. PAGE 6/13ALLOT MEASURE ADVOCACY AND THE LAW ENDNOTES Through the initiative process,groups originate and seek to pass laws and constitutional amendments without resort to the Legislature. No subject is exempt from the process and the only constitutional restrictions are that an initiative proposal must deal with only one main subject and must not constitute a"revision"(as opposed to a mere "amendment")of the state Constitution. See Cal. Const. art. Il, § 8. Up through the 1998 election, over 560 initiatives have appeared on California ballots,with about one-fourth of them being approved. The average cost to qualify an initiative for the ballot was approximately$700,000. (It is believed that average cost to qualify an initiative for the ballot in 2003 would be over$1 million.) Bernard L. Hyink & David H. Provost, Politics and Government in California 98-103 (1511 ed. 2001). 2 Government Code section 50023 provides: The legislative body of a local agency,directly or through a representative,may attend the Legislature and Congress,and any committees thereof,and present information to aid the passage of legislation that the legislative body deems beneficial to the local agency or to prevent the passage of legislation that the Iegislative body deems detrimental to the local agency. The legislative body of a local agency,either directly or through a representative,may meet with representatives of executive or administrative agencies of the state,federal,or local government to present information requesting action that the legislative body deems beneficial to,or opposing action deemed detrimental to,such local agency. The cost and expense incident thereto are proper charges against the local agency. Cal. Gov't Code § 50023. 3 See Stanson, 17 Cal.3d at 217. See also Schroeder v. Irvine City Council, 97 Cal.App.41h 174, 118 Ca1.Rptr.2d 330(41h Dist. 2002)(governmental agency cannot spend public funds for a partisan campaign advocating the passage or defeat of a ballot measure). 4 See League of Women Voters v. Countrvwide Criminal Justice Coordination Committee, 203 Cal.App.3d 529, 250 CalRptr. 161 (2� Dist. 1988). 5 See Cal. Elec. Code ' 9222. 6 See California Legislative Counsel Op. No. 154 (September 18, 1980). See Stanson v. Mott, 17 Cal.3d 206, 130 Cal. Rptr. 697 (1976) (holding that California Department of Parks and Recreation could not spend public money to prepare promotional material and pay for speakers expenses to support a 1974 park bond measure). 8 See Cal. Govt. Code §§ 50023, 53060.5, 82039, and 86300. 9 See Stanson, 17 Cal.3d at 218. 10 See id. at 217. 11 See id. at 218-219. 12 See Stanson, 17 Cal.3d at 220(discussing with approval Citizens to Protect Public Funds v. Board of Education, 13 N.J. 172, 179-180, 98 A.2d 673, 676 (1953), which recognized the broad legislative and fiscal authority possessed by locally autonomous schools boards to make reasonable expenditures to give voters relevant facts to aid them in making an informed judgment when voting). 13 See Governor Gray Davis Committee v. American Taxpayers Alliance, 102 Cal.App.411 449, 125 Cal.Rptr.2 534 (151 Dist. 2002). PAGE 7/BALLOT MEASURE ADVOCACY AND THE LAW 14 See Cal. Code Regs., tit. 2, § 18225(b)(2). California Government Code section 8314 provides: It shall be unlawful for any elected state or local officer, including any state or local appointee, em- ployee,or consultant,to use or permit others to use public resources for a campaign activity,or personal or other purposes that are not authorized by law. Cal. Gov't Code § 8314(a). See also Cal. Gov't Code § 54964. '6 See Cal. Gov't Code 8314(b)(3). 17 California Government Code section 8314 provides for civil penalties including fines of up to one thousand dollars for each day a violation occurs,plus three times the value of the unlawful use of public resources. California Penal Code section 424 provides for criminal penalties of up to four years in state prison. Furthermore,a conviction disqualifies the party from holding any office in the state. See also People v. Bastin, 77 Cal_App.3d 635 (1978)(county supervisor prosecuted for misusing public funds for improper political purposes);People v. Sperl, 54 Cal.App.3d 640, 126 Cal.Rptr. 970(2°0 Dist. 1976) (county marshal convicted of Penal Code section 424 for having deputies make telephone calls in connection with testimonial dinner for political candidate). IN See League of Women Voters, 203 Cal.App.3d at 560. See also Choice-in-Education League v. Los Angeles Unified School District, 17 Cal.App.4`h 415, 21 Cal.Rptr.2d 303 (2°' Dist. 1993) (schools district's expenditure of funds to broadcast a public meeting where the school board adopted a resolution opposing an initiative was permissible and serves purposes unrelated to advocating a partisan position on an initiative.) 19 See City of Fairfield v. Superior Court of Solano County, 14 Cal.3d 768, 780-82, 122 Cal.Rptr. 543, 550-51 (1975)(city councilman has not only a right but an obligation to discuss issues of vital concern with his constituents). 20 See Bagley v. Washington Township Hospital District, 65 Cal2d 499, 55 Cal.Rptr. 401 (1966) (hospital district's prohibition of employees from participating in any ballot measures pertaining to the district was unconstitutionally overbroad);Rosenfield v. Malcolm, 65 Cal.2d 559, 55 Cal.Rptr. 505 (1967) (holding that county cannot dismiss a county employee on the grounds that it disagrees with the employee's activities). 21 See Cal. Gov't Code § 3207. California Government Code section 54964(x) provides: An officer,employee, or consultant of a iocai agency may not expend or authorize the expenditure ot- any of the funds of the local agency to support or oppose the approval or rejection of a ballot measure or the election or defeat of a candidate,by the voters. Cal. Gov't Code § 54964. - See Fair Political Practices Commission v. Suitt, 90 Cal.App.3d 125, 153 Cal.Rptr. 311 (3" Dist. 1979) (state employees may not participate in campaign activities during work hours or use public resources for campaign activities). 24 See Stanson, 17 Cal.3d at 221. See also Cal. Elec. Code § 9212 (permitting local agency to prepare a report analyzing the effects a proposed local initiative measure may have on the city). 25 See id. at fn.6 (The need for the dissemination of a fair and impartial analysis of a ballot measure by a local agency is somewhat diminished by the preparation of pro and con ballot arguments and an impartial analysis of the ballot measure by the Legislative Analysis. But nothing"suggests that other public agencies are foreclosed from providing objective information on a proposed ballot measure"). 26 California Government Code section 8314(d) provides: PAGE 8/BALLOT MEASURE ADVOCACY AND THE LAW Nothing in this section shall prohibit the use of public resources for providing information to the public about the possible effects of any bond issue or other ballot measure on state activities,operations,or policies, provided that(l)the information activities are otherwise authorized by the constitution or laws of this state,and (2)the information provided constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment regarding the bond issue or ballot measure. Cal. Gov't Code § 8314(d). -' California Government Code section 8314(e) provides: The incidental and minimal use of public resources by an elected state or local officer,including any state or local appointee,employee,or consultant,pursuant to this section shall not be subject to prosecution under Section 424 of the Penal Code. Cal. Gov't Code § 8314(e). 28 See Stanso», 17 Cal.3d at 221, 130 Cal.Rptr. at 707-08. '9 Id 30 See Cal. Gov't Code § 3207 (allowing local agencies to prohibit or restrict officers and employees from engag- ing in prohibited activity during work hours and on the local agency's premises). 31 ,See Cal. Gov't Code § 3206. 32 California Penal Code section 72.5(b) provides: Every person who,knowing a claim seeks public funds for reimbursement of costs incurred to gain admittance to a political function expressly organized to support or oppose any ballot measure,presents such a claim for allowance or for payment to any state board or officer,or to any county,city,or district board or officer authorized to allow or pay such claims is punishable either by imprisonment in the county jail for a period of not more than one years,by a fine of not exceeding one thousand dollars(S 1,000),or by both such imprisonment and fine, or by imprisonment in the state prison,by a fine of not exceeding ten thousand dollars(S 10,000),or by both such imprisonment and fine. Cal. Penal Code § 72.5. -- See Cal. Gov't Code § 82030. See also Breakzone Billiards v. City of Torrance, 81 CaLApp.4" 1205 (2000) (an elected official does not have a financial interest in a contract between a vendor and the city). 34 California Government Code section 3205(a) provides: An officer or employee of a local agency shall not, directly or indirectly,solicit a political contribution from an officer or employee of that agency,or from a person on an employment list of that agency,with knowl- edge that the person from whom the contribution is solicited is an officer or employee of that agency. Cal. Gov't Code § 3205(a). 35 See Cal. Gov't Code § 3205 35 California Government Code section 3209 provides: Nothing in this chapter prevents an officer or employee of a state or local agency from soliciting or receiving political funds or contributions to promote the passage or defeat of a ballot measure which would PAGE 9/BALLOT MEASURE ADVOCACY AND THE LAW affect the rate of pay,hours of work,retirement, civil service,or other working condition of officers or employ- ees of such state or local agency,except that a state or local agency may prohibit or limit such activities by its employees during working hours and may prohibit or limit entry into governmental offices for such purposes during working hours. Cal. Gov't Code § 3209. 37 See Cal. Gov't Code § 895125. 38 See 26 U.S.C. § 527(c). 39 See 26 U.S.C. § 527(e)(2) (definition of"exempt function"). 40 See California Fair Political Practices Commission, Response to League of California Cities' Request for Informal Assistance No. 1-92-567, September ll, 1992, at 2-4. 4' See California Fair Political Practices Commission, Response to League of California Cities' Request for Informal Assistance No. 1-89-669; February 7, 1990, at 5-6. .See also Cal. Gov't Code § 84302. 4' See Cal.Penal Code §§ 72.5(b)(use of public funds to attend a political function to support or oppose a ballot measure); 424 (misappropriation of public funds); 484-87 (theft). 43 See Cal. Penal Code § 424(a)(7). 44 See Cal. Gov't Code § 8314. 45 See generally Tenwolde v. County of San Diego, 14 Cal.App.4" 1083, 17 Ca1.Rptr.2d 789 (41'Dist. 1993), rev. denied June 10, 1993. 46 See Cal. Gov't Code § 84203.5. 47 See Cal. Gov't Code § 831 I6(sanctions include cease and desist orders,the filing of required reports,state- ments,or other documents,and monetary penalties of up to five thousand dollars for each violation). PAGE 10/BALLOT MEASURE ADVOCACY AND THE LAW C0 ity of At Office of the City Clerk TO: City Council FROM: Victoria Randall Deputy City Clerk SUBJECT: Additional Information Provided to City Council after Agenda Packet Distribution DATE: October 13, 2008 Attached is additional information that was provided after the City Council Agenda Packets were distributed. This information pertains to: Agenda Item Number Council Announcements and Reports, Item #1a City Council Meeting Date: 10/14/08 This information will also be distributed to those on the Agenda Packet mailing list. xc: W. McKinney City ® Atascadero Office of the City Manager TO: City Council FROM: Wade McKinney City Manager SUBJECT: Supplemental Information for Agenda Item LDATE: October 13, 2008 The attached memo from Geoff English pertains to the DeAnza Estates bridges and is provided for your information. This item is on the City Council agenda for October 14 th, under Council Announcements and Reports. Attachment 1 CITY OF ATASCADERO �ERo� PUBLIC WORKS DEPARTMENT 6907 El CAMINO REAL, ATASCADERO, CA 93422 Telephone (805)461-5000 * Fax (805)461-7612 n TO: Wade G. McKinney, City Manager FROM: Geoff English,Interim Public Works Direct9-� �r---,- SUBJECT: DeAnza Estates Bridges: History & Current Status MATE: October 10, 2008 The purpose of this memorandum is to provide information related to the inspection and permitting of the two bridges installed in association with the DeAnza Estates and Casa Rio (senior cottages) Developments, Tract 2498. Specifically, this memorandum provides: • A brief history and current status • An explanation of the inspection and permitting concerns • Safeguards implemented in the current permitting process HISTORY AND CURRENT BRIDGE STATUS DeAnza Estates Railroad Bridge: Mr. Kelly Gearhart is the applicant for DeAnza Estates Railroad t3ridge and was responsible to produce all engineering calculation, reports, studies, plans, specification, fees and permits. The City conducted its regular plan check process and, in addition, retained the services of Psomas Engineering to provide a peer review of the bridge foundation design. Psomas returned several recommendations to the City which were subsequently incorporated into Mr. Gearhart's bridge plans. Permission to construct this bridge was also required from the California Public Utilities Commission since this bridge crosses the Union Pacific Railroad (UPRR). The California Public Utilities Commission requires that a public agency apply for any railroad crossing. The City Council authorized City staff to apply for a railroad crossing on October 10, 2000. A Railroad crossing agreement was approved by the California Public Utilities Commission and UPRR on September 22, 2004. The DeAnza Railroad Bridge construction was completed in early 2005. The City inspected the bridge during construction and requireduired the developer to provide special inspections by the bridge manufacturer, civil, geotechnical, and structural engineers. Mr. Gearhart subsequently submitted the pertinent inspection documents to the City for review and approval. The City Engineer reviewed the Final certification documents and finalized the Bridge on May 19, 2008. Graves Creek / Casa Rio Bridge: The on-site improvement plans for the senior cottages were submitted in April of 2004 by Mr. Gearhart representing Graves Creek Estates LLC. A building permit was issued in September of 2004. Notes on the issued building permit indicated that the bridge structure was not part of the on-site improvement permit (BLD-2004-3696) and was to be issued under a separate permit for the purposes of calculating fees and tracking inspections. Structural plans for the bridge foundation were included in the on-site improvement permit and issued with the permit plan set (BLD-2004-3696). Mr. Gearhart never applied for an additional bridge structure building permit as required. The Graves Creek bridge structure itself is the same structure that was approved for use for the DeAnza Railroad Bridge. Therefore, a plan check review of the Graves Creek bridge structural calculations and design was not needed, however; a peer review of the foundation design was completed by Psomas. Construction ori the Graves Creek Bridge started in late 2004 and was completed in early 2005. Construction for this bridge was consistent with the construction of the Railroad Bridge, including the foundation plan and structural plans. During the construction process, all bridge construction inspections were conducted by a contracted inspector, Fugro Engineering and the bridge manufacturer. This third party inspection provided independent oversight and expertise. Because the inspections were done by special inspectors and not the Public Works Department, the lack of a permit was not identified during construction. Public Works has copies of the inspection logs and final report from Fugro Engineering that certifies the bridge was built in substantial compliance with the plans. Copies of all the plans and reports for the bridge are in the permit file. As part of an internal review process in June of 2008, the Public Works Director determined that the proper permits and fees had not been issued for the bridge. This was of immediate concern to staff, and to correct this oversight, a permit addendum was created for the Graves Creek bridge structure. In addition, the on-site improvement permit, originally finaled by Public Works on 06/01/07 was re- opened and "re-activated" to include the bridge as an addendum. This permit will need to be finaled in total once the bridge is accepted and all documentation is transferred to the file. Attachment #1 is a permit compliance timeline for Graves Creek Bridge. Additionally, the fees that were calculated for the on-site improvement permit (BLD-2004-3696) did not include the engineer's estimate (public improvement permit fees are based on a percentage of the engineer's estimate). It appears from looking at the original EDEN application data (The permit fee computer software used at the time), that the fee calculation error was primarily caused by difficulties with the permitting software. The previous software could be confusing at times and occasionally an incorrect fee could be produced by software complications. As will be discussed in more detail later, the new CDS permitting system has been put into operation and has been designed to eliminate incorrect permit fee entries/miscalculations. When the bridge permit addendum was created the permit fees were recalculated and it was determined that a public improvement fee of$24,054.07 is outstanding on this permit. This fee is for the Graves Creek Bridge and the on-site public improvements (roads, drainage facilities, utilities, etc.) for the senior cottages project. The fees are due and payable now and staff is making effort to collect them. INSPECTION AND PERMITTING CONCERNS DeAnza Estates Railroad Bridge There are no outstanding issues with the DeAnza Railroad Bridge. This bridge has been permitted and finalized. Graves Creek Bridge/ Casa Rio: Upon review of City records it became apparent that as the result of an oversight, certain documents and fees were not secured in a timely manner. Since June 2008, staff has been working to finalize this permit and to make sure all the proper fees and documentation are in order. On July 14, 2008, the City sent a letter (Attachment 92) to Mr. Gearhart notifying him the permit for the bridge was not complete and that final inspection reports needed to be submitted. On September 18, 2008, staff followed up with additional correspondence (Attachment 43) to Mr. Gearhart, requesting the below listed reports and fees be submitted prior to October 15, 2008. So far Mr. Gearhart has not contacted the City, but he has submitted the final construction report from Fugro Engineering. Staff has not yet received a formal response from Mr. Gearhart and does not know if he intends to comply with all of the City's demands. Staff will continue to pursue compliance with the conditions stated in the September 18th correspondence to Mr. Gearhart. PERMIT PROCESS IMPROVEMENTS: Public Works staff has been working with Community Development staff since 2007, to develop a fee policy so that application of fees to projects is consistent and correct. The new fee policy has helped Public Works and Community Development eliminate confusion and properly determine the fee for permits. In addition, a new building permit software program, which was activated in late 2007, has been designed with an improved user interface that simplifies the determination of Public Works fees and minimizes the possibility of staff errors when entering fees. Changes to the fee and permitting system are described further below: 1. Staff has created a written procedure manual for Public Works fee implementation. The procedure manual lists all Public Works fees and clearly provides information on how and when fees are assessed. 2. The CDS Permit Tracking software has replaced the EDEN Permitting system that was very difficult to use. CDS is a standalone, integrated, user friendly program. CDS allows staff to track project routing, fees, and inspections. CDS has eliminated problems associated with incorrect fee assessment and review tracking. 3. Checklists have been developed for a number of typical projects that assist applicants by helping them organize their project. The checklists are available at the permit counter and on the City website. 4. Intake Meetings with staff are now required for larger projects prior to project submittal. 5. Difficult or complex projects are reviewed weekly at a meeting of staff from each of the departments that is involved in development issues. Staff believes that the system changes outlined above will eliminate future permitting and fee issues. Staff will continue to improve and streamline the permit tracking and review as opportunities arrive. ATTACHMENT #1- Graves Creek Bridge Timeline ATTACHMENT #2- Correspondence dated July 14, 2008 ATTACHMENT #3- Correspondence dated September 18, 2008 ATTACHMENT #1 DeAnza- Graves Creek Bridge Permit Compliance Timeline 2004 • April — Senior Cottages on-site improvement plans submitted • September — Permit issued. Bridge is not a part of the permit • "Late 2004" Construction begins on Graves Creek Bridge 2005 • "Early 2005" Bridge is completed o Plans for bridge foundation are included in the plans for the Senior Cottages. Bridge is inspected by Frugro and Public Works 2007 • June — Onsite improvements finaled — bridge was not included as it was assumed not to be a part of the permit. 2008 • June — Permit was re-activated to include bridge. o Permit addendum created to resolve discrepancy related to permitting of the bridge structure. • July — Public Works sent a letter to Kelly Gearhart requesting bridge construction reports. No reply received. • September — Public Works sent a letter to Kelly Gearhart regarding unpaid plan check fees, documentation, and inodification of one pedestrian ramp. ATTACHMENT 2 ®lf�far� o © li 191811 ? �, 19791 CITY OF A,TASCAD R \�$CAD�i� 6907 El CAMINO REAL, ATASCADERO, CA 93422 Telephone (805)461-5000 * Fax (805)461-7612 July 14, 2008 Kelly Gearhart Gearhart Development 6205 Alcantara Ave Atascadero, CA 93422 DeAnza Graves Creek Bridge Final Inspection Reports Dear Mr. Gearhart The Graves Creek Bridge was constructed to provide access to the senior housing development at the DeAnza Tract. We have reviewed our files and have determined that the Graves Creek Bridge's final inspection reports have not been submitted. Therefore, we are unable to final the bridge permit an it is still active. We request that you provide all final inspection reports to the City by July 25, 2008. The reports include the final construction inspection report from Fugro Inc., signoffs from the foundation and grading engineers that the bridge was constructed in conformance with the City approved plans and any final signoff or certifications from the Bridge Manufacturer. We look forward to receiving the aforementioned reports and working with you to finalize your bridge permit. Should you have any questions, please feel free to call me at 805-470-3180. Since fly, c Steve B. Kahn Public Works Director City of Atascadero cc: Warren Frace, Community Development Director Ken Forman, Building Official �I ATTACHMENT 3. iwfe pI rI j91$ i - CITY OF ATA CADER 6907 El CAMINO REAL, ATASCADERO, CA 93422 Telephone(805)461-5000 * Fax (805)461-7612 September 18, 2008 Kelly Gearhart Gearhart Development 6205 Alcantara Ave Atascadero, CA 93422 SUBJECT . DeAnza Graves Creek Bridge, Outstanding Issues Related to Building Permit BLD 2004-3696 Dear Mr. Gearhart The Graves Creek Bridge was constructed to provide access to the senior housing development at the DeAnza Tract. We sent you a letter on July 14, 2008 requesting the final construction reports so that the bridge may be finalized and accepted as complete. You have not responded to our request as of September 17, 2008. It has also come to our attention that there are outstanding plan check and inspection fees due. Lastly, the City has observed the bridge walkway ramps and there appears to be a problem with one of the pedestrian ramps. In order to final your bridge, we request the following be submitted: 1. A cashier's check or cash for the outstanding plan check fees totaling $24,054.07 for the bridge and on-site improvement permit (BLD 2004-3696). The unpaid fees are due forthwith. 2. A final construction report from Fugro Inc.; 3. A report certifying the grading, drainage and site improvements from your Civil Engineer; 4. A report from Ohio Bridge (US Bridge) stating the bridge is manufactured according to the approved plans and specifications; 5. Modification of the south side pedestrian ramp to meet accessibility standards; and 6. Correspondence or other permitting ermittin documentation from the Corps of Engineers, Fish and Game and other agencies that approves construction. We look forward to receiving the aforementioned reports and working with you to finalize your bridge permit. The reports and fees are due forthwith. If we do not receive the payment due and the requested information by October 15, 2008, we will refer this matter to our attorney for final resolution. We understand that it may take a short time to assemble all this information. Please contact me as soon as possible should any delays come up. Should you have any questions, please feel free to call me at 805-470-3180. Sincerely, Geoff B'-'English Interim Public Works Director City of Atascadero cc: Warren Frace, Community Development Director Ken Forman, Building Official David Athey, Deputy Public Works Director Mike Fox Rabobank Special Assets #95 PO box 6002 Arroyo Grande, CA 93421 Brook Carroll, ESQ. 100 town center drive 6t" floor Oxnard, CA 93036 City O Atascadero Office of the City Clerk TO: City Council FROM: Victoria Randall � - Deputy City Clerk SUBJECT: Additional Information Provided to City Council after Agenda Packet Distribution DATE: October 13, 2008 Attached is additional information that was provided after the City Council Agenda Packets were distributed. This information pertains to: Agenda Item Number Council Announcements and Reports, Item #1a City Council Meeting Date: 10/14108 This information will also be distributed to those on the Agenda Packet mailing list. xc: W. McKinney