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HomeMy WebLinkAboutMinutes 110999 Approved as submitted DATE: 12/14/99 e ®O Ito i MINUTES 6M ® 67-9 ATASCADERO CITY COUNCIL MEETING TUESDAY, NOVEMBER 09, 1999 7:00 P.M. REDEVELOPMENT AGENCY, 6:30 P.M. CLOSED SESSION: (Immediately following Redevelopment Agency Meeting) 1. Conference with legal counsel [Govt. Code §54956.9] Existing litigation: Atascadero Unified School District v City of Atascadero 2. Performance Review: City Manager (Govt. Code § 54957.6) City Attorney Roy Hanley announced there were no reportable actions taken in Closed Session. REGULAR SESSION, 7:00 P.M.: Mayor Johnson called the meeting to order at 7:05 p.m. and Mayor Pro Tem Arrambide led the Pledge of Allegiance. ROLL CALL: Present: Council Members Arrambide, Clay, Luna, Scalise and Mayor Johnson Absent: None Others Present: City Clerk Marcia Torgerson and City Treasurer David Graham Staff Present: City Manager Wade McKinney, Fire Chief Mike McCain, Community Services Director Brady Cherry, Community and Economic Development Director Paul Saldana, Police Lieutenant Bill Watton, Finance Technician Liz Carlock, Principal Planner Warren Frace, and City Attorney Roy Hanley. APPROVAL OF AGENDA: MOTION: By Council Member Luna and seconded by Council Member Clay to approve the agenda. Motion passed 5:0 by a roll-call vote. COMMUNITY FORUM: Ann Ketcherside, stated she was speaking for the Adobe Plaza business owners and they expressed concern that their businesses will suffer as a result of the construction of the new on and off-ramps at the Highway 41/Highway 101 interchange. She requested the Council and Planning Commission to consider the Adobe Plaza businesses when they review possible plans. She also expressed concern for the median on El Camino Real near the State Hospital and stated that she would like to have it removed. Mayor Johnson closed the Public Comment period. COUNCIL ANNOUNCEMENT AND REPORTS: 1. General Plan Amendment No. 98003 —The Mackey Project—Consideration by City Council of options concerning status of General Plan Amendment passed August 10, 1999. ■ Available actions include rescission, review or no action. [City Attorney] City Attorney Roy Hanley gave the staff report. He explained in detail the options available to the Council. Mayor Johnson asked the City Clerk to read into the record a letter received from an attorney representing former Council Member Ken Lerno. Derek Westen, 1800 Belinda Drive, Santa Barbara, stated in a prepared statement, read into the record by City Clerk Marcia McClure Torgerson, that previous Council Member Ken Lerno was unaware, on August 10, 1999, that Kelly Gearhart had purchased property close to the Mackey project. Mr. Westen also stated that Mr. Lerno had obtained a letter of opinion from the most experienced law firm in California prior to his vote, using information Mr. Lerno believed to be true, and the letter stated that legally Mr. Lerno could vote on the issue (see Attachment A). PUBLIC COMMENT John Falkenstien, Cannon Associates, representing Mr. Mackey, stated he feels they complied with all City requirements. Speaking for Mr. Mackey, he said that he waives all rights to have the City Council consider this item. Mr. Mackey would be willing to have the Planning Commission reconsider the item. Mary Pellett, stated that it was reported that Mr. Mackey had been working on the project since 1998, however, Mr. Mackey did not purchase the property until April 29, 1999. CC 11/09/99 Page 2 Mayor Johnson closed the Public Comment period. Mayor Pro Tem Arrambide made a motion to rescind, thereby denying the Council action known as General Plan Amendment#98003, past August 10, 1999. This motion was seconded by Council Member Luna. City Attorney Roy Hanley stated, before the vote, that he has a draft Resolution for the Council to review as they might want to include it in their motion. Citizen Mary Pellett asked to speak. He stated that it was reported that Mr. Mackey had been working on the project since 1998, however, Mr. Mackey did not purchase the property until April 29, 1999. Mayor Johnson asked for audience cooperation to speak during the Public Comment periods only. Mr. Hanley explained that the Resolution he handed out as drafted is pretty close to the Council's motion. He commented that both the motion and the Resolution do not include any direction that the project be revisited. Mayor Pro Tem Arrambide responded saying that Mr. Hanley's comment was correct. Council Member Luna stated that the motion made is equivalent of the last statement made on the draft resolution presented by Mr. Hanley. MOTION: By Mayor Pro Tem Arrambide and seconded by Council Member Luna to adopt Draft Resolution 1999-x (next in order, Resolution No. 1999-069), rescinding approval of General Plan Amendment 98003 (see Attachment B). Motion passed 5:0 by a roll-call vote. 2. Atascadero State Hospital Expansion—Consideration of reviewing options. At the October 26, 1999 City Council meeting, the Council voted to have staff write a letter from the Council to the State Department of Mental Health expressing interest in consideration for expansion of the Hospital. The Council Members in favor would then sign the letter. Following independent evaluation, individual Council Members elected not to sign the letter of interest to the State. There were no questions of staff from the Council. Mel Hunter, California Department of Mental Health, stated that the Department is considering several sites for a facility. He asked the Council to reconsider being included in the study for potential sites. Council Member Luna stated that he did not sign the letter because of the amount of public comment he received concerning the facts of the project, and feels the Council should have been educated on the details of this issue before being asked to decide if they want Atascadero to be included in the study. He asked Mr. Hunter to educate the Council. CC 11/09/99 Page 3 Mr. Hunter explained that the Atascadero State Hospital (ASH) originally opened in 1954 and specialized in the treatment of sexual offenders. He reported that on January of 1996, the State passed a law which designated ASH as the treatment facility for repeat sexual offenders, and since that time AHS has treated, and is still treating, 270 patients. Mr. Hunter estimated that approximately six new patients are received per month and they are anticipating a need for additional beds. He informed the Council that patients are post-sentence inmates. Mr. Hunter stressed the fact that when inmates are released, they are released to the County in which they were committed. He stated that in the three and one-half years that the program has been in progress, only two families have followed their family member to Atascadero. Council Member Clay asked if the patients are directly paroled from ASH or if they go back to corrections. Mr. Hunter answered that the patients that have completed their correction time are released. He commented that none of the patients have yet completed the program. Mr. Hunter continued, saying that the program is not a time-based program, but an achievement program in which the courts must first be convinced that the patient will not be a threat to a community. Council Member Clay asked about the parole procedure. Mr. Hunter stated that parole can be renewed indefinitely. Council Member Clay asked if they can apply for a waiver that would allow the patient to be released in our community. Mr. Hunter replied that with this program, the patient would be returned to the county of commitment. Council Member Clay asked how many former patients live in San Luis Obispo County. Mr. Hunter responded saying there were none. Council Member Clay asked how the pay rate compares with other correctional facilities. Mr. Hunter stated that it is quite similar. Council Member Clay asked about the psychiatric technician positions at ASH. Mr. Hunter stated that there is a certification program at Cuesta College. Council Member Clay asked where the expansion would occur. Mr. Hunter replied that it would not be visible from El Camino Real and a possible direction of expansion is north of the existing facility. Council Member Clay asked if they would be willing to conduct an independent survey among the citizens to determine if a facility expansion is wanted, and he asked for clarification on the necessity of the State gaining the approval of the Council for this project. Mr. Hunter replied that he did not know if it would be possible for the State to build without community and Council approval. He stated that the City of Soledad voted not to participate and today they are not participating. He requested that a decision not be made until the community and Council has been better informed. He stated that he was unsure if the State would be able to conduct a community survey. Council Member Luna asked if the treatment population was different from that of the past. Mr. Hunter responded saying that from 1954 to 1982 ASH treated mentally disordered sexual offenders. He stated that the law was changed in 1982, requiring mentally disordered sexual offenders to be sentenced to prison, rather than being given the option of treatment. Council Member Luna asked what the re-offense number is for SVPs. Mr. Hunter replied that for AHS it is zero because no patients have yet been released. Council Member Luna asked for a clarification on the types of release used at ASH. Mr. Hunter stated that the judge may find the patient unqualified for commitment and release the individual to parole, unless they have completed parole, in which case they would be released to the community. Council Member Luna asked if it was possible for a patient, released in another county,to return to Atascadero. Mr. Hunter replied that it is possible. Mayor Johnson asked if a patient is released but under the conditions of the program, the individual would be breaking the conditions of the program by leaving the community in which he was released. Mr. Hunter confirmed the statement to be true, adding that if the individual did fail to meet the conditions, he would be returned to ASH for further treatment. CC 11/09/99 Page 4 Council Member Luna asked if the current program is temporary until a facility can be built. Mr. Hunter stated that the facility is the only one in the state and would probably be considered permanent for now. Council Member Luna responded with a quote from the State's website which stated that ASH is to be used to house sexually violent predators "only until the permanent housing and treatment facility is made available." Council Member Clay received confirmation from Mr. Hunter that these patients have more conditions placed on them than that of regular parolees. He also asked Police Lieutenant, Bill Watton, for the number of sexual predators currently living in Atascadero. Mr. Watton stated the numbers obtained from the Megan's Law list include predators who are living in correction or treatment facilities, however, we have approximately 1.5 predators per 1,000 citizens. Council Member Scalise asked if with the expansion of the facility, would maximum security be all-encompassing. Mr. Hunter replied that regardless of the expansion the security of the facility will be upgraded. Council Member Clay asked if pre-training could be given to citizens of Atascadero interested in employment at the new facility. Mr. Hunter stated that they can do some testing on-site and views the training as a great opportunity. PUBLIC COMMENT Virginia Powers, 7505 Carmelita, stated that she was pleased to hear Council Member Luna's and Council Member Clay's questions. She read a prepared statement expressing her opposition to the expansion of the Atascadero State Hospital. Ms. Powers stated that there was little, if any, public information provided by the supervisors from ASH. Joseph Curtis, 5170 Fresno Ave., stated he worked at the Atascadero State Hospital from 1970 to 1972. He suggested that the Hospital be replaced by a park or college. Mr. Curtis stated he is opposed to expanding the Hospital as he feels it is a very dangerous facility. Jerry Long, Portola Road, stated the he believes the State Hospital is a clean, environmentally friendly employer and urged the Council to consider adopting the expansion. Ann Ketcherside, thanked KSBY for informing the community that this item is on the agenda. She stated she is opposed to the expansion of the State Hospital. Ms. Ketcherside stated various incidences and examples to support her belief. Bob Powers, 7505 Carmelita, stated he is concerned what effect this expansion would have on the image of Atascadero. He expressed concern that it would have a negative impact on businesses. Ann Harrington, 6 Quail Ridge Drive, stated she is opposed to expanding the State Hospital. She asked Mr. Hunter why the law was done away with in 1982. Ms. Harrington stated that she believed it was because sexual predators cannot be cured. Fred Frank, 3615 Ardilla, urged the Council to oppose the consideration of being included in this study. He stated that the benefits do not outweigh the negative points. Mr. Frank expressed concern for the effect on our water supply,traffic, and safety. CC 11/09/99 Page 5 Morro Bay resident, teaches at Cuesta College. She stated to even include Atascadero in the study for this expansion, means there will be inherent risks. Elaine McKellents, 10205 El Camino Real, stated she is opposed to the expansion. She reported to have found that three out of four sexual offenders re-offend. Linda Mello, 9980 Santa Clara, said that she is opposed to the expansion of the Hospital. She expressed concern for the homes surrounding the facility. Al Veraguter, 6650 San Anselmo, worked for the Department of Mental Health at its inception. He worked for the Hospital for many years and is proud of his work there. But, he stated he is opposed to the expansion of the Hospital as the expansion would allow for extremely dangerous patients. Dorothy McNeil, 8765 Sierra Vista, in a prepared statement she commented that the Paso Robles City Council turned down a proposal for a private prison because of community opposition. She urged the Council to listen to the community and oppose this request for expansion of the Hospital. Ms. McNeil expressed concern for the safety of the children in our community (see Attachment Q. Daphne Fashing, 5105 Llano Road, stated that the Council has heard from the community tonight. She urged the Council to say thanks, but no thanks. Ms. Fashing stated that she was amazed that the Council would even consider it. Raymond Jansen, 6655 County Club Drive, urged the Council, in a prepared statement read by City Clerk Marcia McClure Torgerson, to determine to build quality in our personal lives and in our communityby not allowing the Hospital to expand (see Attachment D). City Clerk Marcia McClure Torgerson reported to the Council that she received twenty-five phone calls from citizens who opposed the expansion. Mayor Johnson closed the Public Comment period. Mayor Johnson stated that the rumor regarding the possibility of the new 1,500 patients replacing the current patients needs to be addressed. He commented that he was appalled to see letters from citizens of our community who trashed the ASH employees. Council Member Scalise thanked the citizens present for attending tonight. She commented that several times this evening she heard"we know nothing," and she added that the statement is true. She stated for the record that"if I heard Mr. Hunter correctly, the allowance for the Atascadero residents and residents of San Luis Obispo County would have an opportunity to highly scrutinize anything that is proposed for this town." Council Member Scalise stated that she understands that nobody would like to have the facility in their backyard, however, we do have a responsibility of being part of the solution and not part of the problem because "these" people do need to be kept incarcerated. She also stated that the current security level will be upgraded, which is needed. She went on to say that she feels we need to be informed before we make a decision. Council Member Scalise stated, for the record: "I believe that the Hospital we have currently has been a good community member and participant,and I would be interested in getting a little further information and letting all of the citizens of Atascadero look at this and participate. We've had a good show tonight, but it certainly is a small minority compared to the CC 11/09/99 Page 6 entire city. So, I would like to see us be in the informational loop and also be a very highly scrutinized group to look at the project when the information comes forth." Mayor Pro Tem Arrambide thanked the community for coming to this meeting. He stated that he has received many calls in opposition to this issue. He reported that he received a call from Ann Bergstresser, whose husband was killed by a patient at the Hospital, in which she asked him to have an open mind and allow the process of consideration. Mayor Pro Tem Arrambide expressed concern for the number of citizens who do not even wish to hear the information because they have made their decision. He stated that it is his obligation to hear the information before he makes a decision. He wanted to go on record for "being for openness and information." He stated that as of tonight, he has not yet joined the opposition, he may at the end, but first he would like to go through the process. Council Member Luna presented some information he obtained from the Department of Mental Health's website. He stated that he will keep an open mind, but he wants more information without asking to be included in the process. He also stated that he would like to see how open the department will be before he asks to be included in the process. Mayor Johnson stated he is not sure whether he will be in favor of this expansion. He stated he would like to have more information first. Mayor Johnson expressed concern for the fact that there is misinformation or wrong information being given. He stated, "Let's hear the information," and urged the State to get broad community input. City Manager Wade McKinney stated that the letter could be modified to read, "Request the California Department of Mental Health to provide the Community and City Council relative to the programs intended to be housed, the physical design of the property, and other information germane to such a decision. That the City Council refrains from at this point of taking any position relative to the Hospital, but feels the Community should be adequately informed." Council Member Clay stated he would not mind if this issue ended tonight. He expressed concern for the word"request," and the possibility of the department running an EIR without educating the public and hearing from the public. He stated that he would like to see a survey. Council Member Clay reported that the calls he received were split on the issue. Mayor Johnson stated that this issue came up when a request was received asking if we would be willing to consider the information. He also stated that the project was not generated by the City staff or Council. MOTION: By Mayor Pro Tem Arrambide and seconded by Council Member Scalise to ask the State of California to consider Atascadero as a site for the expansion of this treatment facility, that the process be for information gathering and environmental determination, and that this decision, a community decision, be reserved for the end of the process. Motion passed 3:2 by a roll-call vote. (Clay & Luna opposed) Mayor Johnson stressed that the Council is not advocating the project, rather inviting information. CC 11/09/99 Page 7 Council Member Luna asked how this motion differs from the first letter. Mayor Pro Tem Arrambide replied that he does not believe it is different, only that now the Council is not looking for unanimity. Mayor Johnson asked Council Member Luna how he would word it. Council Member Luna stated he liked what the City Manager said about specifically requesting information and encouraging the State Hospital to convince the citizens. Mayor Pro Tem Arrambide responded saying that he was aware of the comments and made his motion having understood what had been said. Council Member Clay asked if the entire Council would sign the letter again. Mayor Pro Tem Arrambide stated that he would not suggest that they all sign the letter if the Council does not agree with it. Council Member Clay asked if the Mayor would sign the letter. Mayor Johnson replied that either the City Manager or the Mayor would. Mayor Johnson commented that it would be fine of the City Manager to sign the letter. He stressed that this vote is not a commitment. Mayor Johnson called a ten minute recess at 8:55 p.m.. Mayor Johnson called the meeting to order at 9:05 p.m. A. CONSENT CALENDAR: Roll Call 1. City Council Minutes—October 13, 1999 ■ City Clerk recommendation: Council approve the City Council minutes of October 13, 1999 [Marcia McClure Torgerson] 2. City Council Minutes—October 26, 1999 ■ City Clerk recommendation: Council approve the City Council minutes of October 26, 1999 [Marcia McClure Torgerson] 3. Business Licensing Software—Agreement with Progressive Solutions ■ Fiscal Impact: $10,500 currently budgeted ■ Staff recommendation: Council authorize the Mayor to execute an agreement with Progressive Solutions for providing Business Licensing Software [Administrative Services Department] 4. Acceptance of Final Lot Line Adjustment Map#99004—ATAL 99-042, 6250 San Gabriel Road(Harry B. Larsen Family Trust/Wilson Land Surveys) ■ Fiscallmpact: None ■ Staff recommendations: Council: L Accept the Final Lot Line Adjustment Map #99004. 2. Reject without prejudice, the offer of road dedication. 3. Accept a 6-foot wide Public Utility Easement along the frontage of the new San Gabriel Road right-of-way. [Community Development Department] 5. Deferred Improvement Agreement—United Methodist Church of Atascadero ■ Fiscallmpact: None CC 11/09/99 Page 8 ■ Staff recommendation: Council authorize the Mayor to execute an agreement with The United Methodist Church of Atascadero to defer construction of the public improvements required by the conditions of approval for Conditional Use Permit No. 98014 [Community Services Department] 6. Bicycle Transportation Plan—Agreement with RRM Design Group ■ Fiscal Impact: $15,000 ($5,000 Urban State Highway Account Funds, $10,000 Regional State Highway Account Funds) ■ Staff recommendation: Council authorize the Mayor to execute an agreement with RRM Design Group to prepare a city-wide Bicycle Transportation Plan [Community Services Department] 7. Census Complete Count Program ■ Fiscal Impact: $7,900 ■ Staff recommendation: Council participate in the Census Complete Count Program and appropriate $7,900 for City's commitment from reserves. [City Manager's Office] City Clerk Marcia McClure Torgerson pulled Item#A-2 for corrections and stated she would bring it back to the Council at their next meeting. MOTION: By Council Member Luna and seconded by Council Member Clay to approve Items #A-1,3, 4, 5, 6, and 7. Motion passed 5:0 by a roll-call vote. B. PUBLIC HEARINGS: 1. Davis Property: General Plan Amendment#98002, Zone Change #98004, Tentative Tract Map#98013 - Mixed Use Cluster Residential Subdivision—(3900 Traffic Way/ Shores) ■ Fiscal Impact: Increase to City revenues would be nominal ■ Planning Commission recommendations: Council: 1. Adopt Resolution No. 1999-065, certifying the Mitigated Negative Declaration. 2. Adopt Resolution No. 1999-066, approving General Plan Amendment 98002. 3. Introduce for first reading by title only Ordinance No. 367, adding a Planned Development Overlay District-15 (PD-15) to the City Zoning Ordinance. 4. Introduce for first reading by title only Ordinance No. 368, rezoning the project site from RS (Residential Suburban) to RSF-X(PD-15), L (PD-15) (Recreation), and I(Industrial). 5. Adopt Resolution No. 1999-067, approving Tentative Tract Map 98013 as amended and subject to the Conditions of Approval. [Community Development Department] Community and Economic Development Director Paul Saldana gave the staff report and answered questions of Council. Council Member Clay asked for the vote of the Planning Commission. Mr. Saldana replied that the vote was unanimous. Council Member Clay asked about the sewer flow. Mr. Cherry stated that the gravity flow there will probably enable the City to eliminate a pump station. Council Member Clay suggested that the road expansion be done on the west side, if possible. He also CC 11/09/99 Page 9 expressed that he would like to see the improvement of the road from Dolores to San Benito and tree mitigation. Mayor Johnson asked for staff comment on the road improvement. Principal Planner Warren Frace explained that this project will be responsible for the dedication and widening of Traffic Way along the project area. Mayor Pro Tem Arrambide asked if there were vertical sight distance issues that would not be addressed by the widening of the road. Mr. McKinney stated that Assistant City Engineer John Neil reported that the only issues would be horizontal and those would be addressed. He also stated that the dedication is for sixty feet and it may be possible to crowd the road to one side, depending on tree impacts. Council Member Luna asked what the City would have to do with the archeology property that is in the Recreation Dedication. Mr. Saldana responded that a phase two archeology study, which would require boring and mitigation, would be necessary give the recommendations. Council Member Luna asked that if the site was determined to be sensitive would it become open space. Mr. Saldana affirmed that it may. Council Member Luna asked about the Industrial area. Mr. Saldana stated that it is available for development and mitigation would be necessary for development. Council Member Luna stated that with projects such at this and the Lakes, negative declarations are being given, and in this case, mitigated negative declarations. He asked if there is a traffic study for this project. Mr. Saldana responded saying that they estimated the number of trips in the area and found that the number would not warrant any additional traffic analysis. Council Member Luna commented that the Lakes project will also be going in, and asked if an accumulated traffic study would need to be done. Principal Planner Warren Frace stated that a formal traffic study was not conducted. He reported that the General Plan accounts for twelve to thirteen units on this parcel which would account for approximately 120 or 130 trips per day. He stated that with this project, there would be the equivalent of 36 units, or 360 trips per day, which did not warrant any changes other than those previously discussed. In reference to the Lakes project, Mr. Frace reported that an EIR had been conducted for that project and mitigation measures had been proscribed. Council Member Luna asked if there was a specific price value for these homes. Mr. Saldana replied that there is nothing specific proposed. Council Member Luna asked if any thought had been given to a density bonus, for affordable housing. Mr. Saldana stated that it was not pursued, nor did the applicant propose it. Council Member Scalise asked for a confirmation that traffic would not be backing out onto Traffic Way. Mr. Saldana confirmed that there would not be traffic backing out onto Traffic Way. Council Member Scalise also asked if the traffic circulation count included the industrial zone. Mr. Saldana reported that the count had included the industrial area and that Mr. Neil had found the number of trips to be below what was analyzed for that area. PUBLIC COMMENT Jim Shores, 5420 Allemonde, representative of the applicant group. Mr. Shores explained the proposed project in detail. He reported that he has met with some of the concerned neighbors and they feel they can support the project. Gaylene Tupen, 1422 Monterey Street, Suite C200, San Luis Obispo, biologist, explained the area of wetlands in this project and how it affects the lots proposed. She stated that the boundaries are preliminary and in order to get precise boundaries, a formal delineation is required, which Mr. Shores has scheduled. She reported that a soil study will also need to be CC 11/09/99 Page 10 done. She recommended that the studies be reviewed prior to the elimination of any lots to find the actual development constraints in the area. Council Member Luna asked if there was any condition of approval that would address the "wetlands" issue. Mr. Frace replied that there were a couple of conditions that came out of the recommendations of the initial study for mitigation of the project. He stated that the first would be to eliminate the three lots affected by the wetlands; secondly, the wetland delineation would be approved by the Corps. of Engineers, which would set the exact perimeters. Mayor Johnson asked if they would be able to add any lots back into the project if it was found in the final study that the lots were not impacted. Mr. Frace replied that tonight a master plan development would determine the number of lots that would be allowed, and if the study proved otherwise, the project could be brought back for amendments. He explained that it would be possible to continue to show the second lot on the tentative map, and depending on the wetlands delineation, adjust the final map which may result in the elimination of a lot. Council Member Clay asked if it would be possible to increase the number of lots from 36 (staff recommendation) to 39 (proposed, three lots possibly being in the "wetlands" area) and later possibly eliminate the three if necessary after the final study. Mr. Frace responded saying that the Council could made that motion, however, it is staff s recommendation that the two lower lots not be added back onto the tentative map. Council Member Clay asked if there are lots in Atascadero that have individual sewer pump stations. Mr. Neil state that there are, but it is not the preferred option. Jim Shores asked the Council to consider including the three lots until the soils study which might eliminate them from the project. He requested a phase final on the industrial buildings. He stated that the park will be for public use and not just for softball. He addressed some safety concerns he had. He urged the Council to keep the three lots,three, four, and five in the project, at least until the soil and wetlands study is complete. Council Member Clay asked if Mr. Shores would be willing to improve the road on the west side rather than both sides. Mr. Shores responded saying it would be possible. Council Member Clay asked if the applicant would be responsible for maintaining the sewer line. Community Services Director Brady Cherry stated that the applicant would not be responsible. Council Member Clay asked if the two lower lots were included, how would sewage be handled. Mr. Shores replied that they would probably pump them up to the cul-de-sac. Ed Farrell, supported this project in a prepared statement read by Linda Buss, 8025 Carmelita. He stated that Atascadero is in need of sport fields with the growth of the programs at the High School, Recreation Division, and with ASA leagues. Bob & Veronica Borba, expressed support for this project in a prepared statement read by Linda Buss, 8025 Carmelita. They stated that there is a shortage on fields and that this project would benefit our youth and our future. Atascadero Girls Softball Association, expressed their support for this project in a prepared statement read by Linda Buss, 8025 Carmelita. The Association stated that they believed the City would greatly benefit from this project. Judy Tarr, partner in this project, stated she feels this is a good project as it includes open space, a park, and industrial area. She also asked the Council to allow them to begin the industrial buildings now. She thanked the Council for their consideration. CC 11/09/99 Page 11 John Goers, 5200 Dolores, stated he feels this project should not be as down-zoned or split as it is. He suggested that the number of lots be 12-13 as they were originally. Lon Allan, 6850 Santa Lucia, President of Atascadero Historical Society, asked if the Estrada Adobe is going to be protected. Mayor Johnson stated the adobe is in the portion of the project that is not being developed. Council Member Clay suggested there should be a monument placed there. Richard Shannon, 5070 San Benito Road, stated that he is a neighbor of this project. He is also a realtor. Mr. Shannon reassured the Council that Mr. Shores and the Tarr's are reputable people and will do an excellent job of developing this site. He stated that Mr. Tarr's has had several successful projects in the north county. Mayor Johnson closed the Public Comment period. Council Member Luna asked about the phasing of the industrial project. Mr. Saldana stated that modifications have been made to allow for a phased final map. Council Member Luna asked if it would be possible to write the condition so that staff would recommend the one lot. Mr. Saldana replied that Condition 20 [on tape of meeting Condition 19 was referred to in error] could be modified to provide for"lot 3." He stated that deletion of the reference to "lot 3" in the paragraph which mentions "...lots 3, 4, 5... "and add"lot 3"to the last portion of Condition 20. Council Member Luna stated that he could support it. Mayor Johnson stated that he could also support it. Council Member Clay expressed that he would like to see all three lots built on, if possible. Mayor Johnson suggested that the road policy be looked at in the near future, outside of the project. Mayor Pro Tem Arrambide stated that logically,the acceptance of the roads would follow the acceptance of the sewer. Mr. McKinney stated that currently that is not the City's policy. He also stated that some of these issues will be addressed at the Roads meeting on November 30, 1999. Mayor Johnson clarified that the industrial phase is included in the proposal tonight. Council Member Clay asked to specify that the road be improved on the west side of the road. Mr. McKinney replied that they would attempt to kept it to the west side and maintain the horizontal sight distances. Council Member Clay asked if it would need to be in the condition. Mr. McKinney stated that if would probably not be necessary. Council Member Scalise asked about some of the traffic issues presented by Mr. Shores. Mayor Johnson stated that those issues could probably be addressed in the future. Council Member Clay expressed support for building on all three lots, if possible. Mayor Pro Tem Arrambide commended the applicant's efforts for this project. CC 11/09/99 Page 12 MOTION: By Mayor Pro Tem Arrambide and seconded by Council Member Clay to adopt Resolution No. 1999-065, certifying the Mitigated Negative Declaration. Motion passed 5:0 by a roll-call vote. MOTION: By Mayor Pro Tem Arrambide and seconded by Council Member Clay to adopt Resolution No. 1999-066, approving General Plan Amendment 98002. Motion passed 5:0 by a roll-call vote. MOTION: By Mayor Pro Tem Arrambide and seconded by Council Member Clay to introduce on first reading by title only Ordinance No. 367, adding a Planned Development Overlay District-15 (PD-15) to the City Zoning Ordinance. Motion passed 5:0 by a roll-call vote. MOTION: By Mayor Pro Tem Arrambide and seconded by Council Member Clay to introduce on first reading by title only Ordinance No. 368, rezoning the project site from RS (Residential Suburban) to RSF-X (PD-15), L (PD-15) (Recreation), and I (Industrial). Motion passed 5:0 by a roll-call vote. MOTION: By Mayor Pro Tem Arrambide and seconded by Council Member Luna to adopt Resolution No. 199-067, approving Tentative Tract Map 98013 as amended and subject to the Conditions of Approval, as amended: Condition 20, page 166 of agenda, deleting "3" to read "...lots 4 and 5..." and adding"lot 3" on the proposed Tentative Tract Map. Motion passed 5:0 by a roll-call vote. Mayor Johnson noted for the record, "This is the first developer in my time on the City Council that got a 5:0 vote." C. MANAGEMENT REPORTS: 1. General Plan Amendment Request—Traffic Way (Between San Benito Road and San Anselmo Road) ■ Fiscal Impact: None ■ Planning Commission recommendation: Council accept the neighborhood petition as an application for a General Plan Amendment and authorize staff to process the application as an exception to the General Plan Moratorium [Community Development Department] Community and Economic Development Director Paul Saldana gave the staff report and answered questions of Council. Council Member Luna asked the City Attorney if the fact that the Planning Commission took action on an item that was not listed on their agenda has any effect on the Planning Commission's recommendation. City Attorney Roy Hanley clarified for Council Member Luna CC 11/09/99 Page 13 that any potential defect in the Planning Commission's recommendation, should not have an effect on the action of the Council. Mayor Johnson asked if this would have an impact on the update of the General Plan. Mr. Saldana stated that this would be included in the process. PUBLIC COMMENT Robert Lilley, representing neighbors involved in this issue. Mr. Lilley explained why he feels his clients have a reasonable request as they were misled by staff and missed the deadline. He submitted a petition from his clients asking to be included in the next available General Plan Amendment cycle (see Attachment E). City Manager Wade McKinney explained to the Council that there are many potential applicants who were planning on submitting requests before the October deadline before the Council voted on the moratorium. They all have been offered to be included as exceptions to the General Plan Moratorium process. Council Member Luna asked when these citizens offered to pay part of the General Plan fees for the Shore's project. Mr. McKinney stated that he is unsure whether an offer has been made, although implications have been made. MOTION: By Council Member Luna and seconded by Council Member Clay to continue the meeting past 11:00 p.m. Motion passed 5:0 by a voice vote. Mr. Lilley stated that the petition was signed and no application was filed on the advice of Planning staff. Mike Wasley, 3000 and 306 Traffic Way, stated the neighbors submitted a petition and not an application as a response to advice from staff. He also stated that he was not informed that they were not included at the meeting on October 19, 1999. Henry Skibo, 3650 Traffic Way, agreed with Mr. Wasley that they were misled by staff as to what was required of them to be considered for the General Plan Amendment process. He expressed concern for the number of cars and homes that are in the area. Marvin Pellett, 4320 Del Rio Road, stated he is opposed to granting this request as it will be creating '/2 acre lots between 1+ acre lots. He urged the Council not to vote on something they do not fully understand. Gerald Johnson, 3300 Traffic Way, stated that he would like to be included in this process as 1/2 acre lots are plenty big. Henry Skibo, 3650 Traffic Way, stated that Mr. Pellett has quite a bit of property in the area and has even built a house recently on less than one acre. Marvin Pellett, 4320 Del Rio Road, stated that the house he built is on 2.88 acres. CC 11/09/99 Page 14 Mayor Johnson closed the Public Comment period. Mayor Johnson asked the City Attorney for his opinion. Mr. Hanley stated that he does not feel the City has an application for a General Plan Amendment. He also stated that if they had filed an application it would have been after the April 1 St deadline and would therefore have been cycled over to the October deadline. Mr. Hanley expressed that in his opinion the City is not liable for the misunderstanding. Mayor Johnson asked for a clarification that if the petition had been submitted on April 25, 1999, it would have been rolled over to the October update because of the timing. Mr. Hanley affirmed the Mayor's statement. He also informed the Council of the direction they could take. Mayor Johnson asked what the timing difference was. Mr. McKinney stated that from a staff perspective, it would be the same, approximately ten months. MOTION: By Council Member Luna and seconded by Council Member Clay to direct staff to incorporate the neighborhood's petition into the General Plan Update process and not allow an application for General Plan Amendment to be filed. Motion passed 5:0 by a roll-call vote. 2. Information Bulletin D. ATTORNEY REPORTS: 1. City Manaizer's Evaluation ■ Fiscal Impact: The amount of any raise or bonus approved, together with the marginally increased employer contributions required by law. ■ City Attorney recommendation: There is no recommended action from the City Attorney. This report is for informational purposes only. Mayor Pro Tem Arrambide stated that he had requested that rather than a bonus, the money be an adjustment to salary. He reported that as the second largest city in the County however, Mr. McKinney's salary is only the third highest. PUBLIC COMMENT John McGoff, 9192 Maple St., asked for clarification of the City Manager's contract with the City. Mayor Pro Tem Arrambide stated that it did not need to be amended because it allowed for a bonus and/or merit increase. Mayor Johnson closed the Public Comment period. MOTION: By Mayor Pro Tem Arrambide and seconded by Council Member Clay to move from a $4,000 bonus to a merit increase, as part of salary. Motion passed 4:1 by a roll-call vote. (Luna opposed) CC 11/09/99 Page 15 Council Member Clay asked if there are merit increases for other City staff also. Mr. McKinney replied that there are. E. COMMITTEE REPORTS: S.L.O. Council of Governments/S.L.O. Regional Transit Authority Mayor Johnson announced that they met last week and are starting a new round of funding of which we hope to receive allocated monies being one of two who do receive allocations. Finance Committee Council Member Luna reported that the Committee met last week to review the Investment Policy and take suggestions from the City Treasurer. The Investment Policy will come back to the Council on November 23, 1999. Water Committees Council Member Clay announced that the North County Water Group gave a show at the last meeting on the water quality and lower Salinas sediment problems. Integrated Waste Management Authority Council Member Luna stated that they will meet on Wednesday. Air Pollution Control District Mayor Pro Tem Arrambide stated that he would be meeting with the CEO of the District this week to talk about back-yard burning. Economic Vitality Corporation, Board of Directors Mayor Johnson announced that they would met next week. City/ Schools Committee Mayor Pro Tem Arrambide reported that he attended a three-day meeting put on by the School District for strategic planning. F. INDIVIDUAL DETERMINATION AND/OR ACTION City Council Mayor Johnson stated that he was pleased with last night's meeting (Main Street Program). G. ADJOURNMENT Mayor Johnson adjourned the meeting at 11:38 p.m. to the next regular session scheduled on November 23, 1999, at 7:00 p.m. CC 11/09/99 Page 16 MEETING RECORDED AND PREPARED BY: "w-- )2&UUc / wyhg�— Marcia McClure Torgerson, City C rk Melanie Whaley,Deputy City Clerk ATTACHMENTS: A- Prepared statement written by Derek Westen on behalf of Ken Lerno, November 9, 1999. B- Draft Resolution No. 1999-x C- Prepared statement written by Dorothy McNeil, November 9, 1999. D- Prepared statement written by Raymond Jansen, November 8, 1999. E- Petition by property owners of north Traffic Way, Atascadero, for the General Plan Amendment and Zone Change,November 4, 1999. CC 11/09/99 Page 17 Derek A.Westen,Esq 'C 805-963-7131 MU 11/9/99 66:02 PM L3213 Aitachment: :A Atascader'o City Council DEREK A . W E S?E Na Meeting Date: 11-09-99 ATTORNEY AT LAW 1800.:ELINDA DRIVE a fACSIMILE (806)963-7131 BANTA BARBARA,CALIFORNIA 83108 TELEPHONE: (806)963-7130 November 9, 1999 BY Hand Delivery of Facsimile: Hunorable Mayor and Members of the Citv Council C:itvofAtascadero 0560 Palma A tascadero,CA 93422 Re: General Pl:ui Amendment No. 98003;Mackey Project De:u- Mayor Mid Members of the City Council: This letter is written on lxhalfof Ken Lerno,foriner City Council Member,whom I represent. I received today, x d ha-,; reviewed, the City Attorney Report dated November 9, 1999, regarding Elle captioned manor. It appears to me that the factual matters recited therein are accurate. Based upon the information in the report, we concur that the vote cast by Council Member Ken Lerno on August 10, 1999, «Vas—unbeknownst to him—subject to a disqualifying conflict of interest. We concur that the vote should be set aside. Council Member Lerno categorically denies that on August 10. 1999, he had An,.Y-knowledge whatsoever that Kelly Gearhart had purchased propertyclose to the Mackey project. Prior to the August 10, 1999 hearing before the Atascadero City Council, Ken Lerno contacted me to ask whether California's conflict of interest rules precluded him from participating in consideration of the Mackey project. He told me that as an elected Council .Member he felt he had an obligation to cast a vote with respect to all project as to which he did not have a conflict of interest,and that he had a comparable obligation to abstain if he did have a conflict. I advised -Mr. Lerno that I am not an expert in that very- technical aspect of California law, and thar for an authoritative opinion on which he could rely, he should consult Pillsbury, Madison & Sutro in Sacramento, one of the leading law firms in California. I advised him that it was his responsibill ry as a Council .Member, and that he personally would need to incur the expense of obtaining authoritative advice. I assisted Council Member Lerno in summarizing the faces and coordinating with Pillsbury, Madison 8c Sutro. Based upon the facts we provided,on _, Pillsbury, Madison & Surra provided a formal,written opinion to Council Member Lerno advising him that under clear California law, he did not have a conflict of interest which would preclude him from voting. I De--ekA.Westen.Esq. 1Q 805963-7131 Rei 11/9/99 G6:04PM X313 DEREK A. WESTEN ATTORNEY AT LAW Honorable Mayor and Members of the CityCouncil -2- November 9, 1999 attach a copy of that letter. That opinion letter was the basis of the decision by Council Member Lerno that he had an obligation to vote, and he did so. Based upon the information available to Council Member Lerno,the vote was appropriate and necessary. Subsequent to that date, Council Member Lerno has learned that Mr. Gearhart did purchase property close to the Mackey project. That purchase renders Mr. Lerno's further participation inappropriate. He correctly withdrew his vote on the second reading. The information which rendered his vote inappropriate was unknown to him on August 10, 1999. Former Cotutcil Member Ken Lerno has lived in Atascadero almost all his life. He felt honored to be elected to the Ci cy Council. He cares deeply for the Ci ty and its residents. That is why he ran for City Council. In fact, he thought--and thinks today—that the Mackey project was good for the City of Arascadero. He believed that he had an obligation to vote if it was appropriate, just as he felr he should not vote if it was inappropriate. After consultation with me,he expended over$5,000 of his own money to obtain an authoritative written opinion from the most experienced law firm in California so that he could do what was right and best for the Cite of Atascadero and its residents. Although subsequent information has shown that the facts before him,which were the basis for his decision,apparently were not correct, his conduct was honorable,appropriate,and necessary. Council Member Lerno believes he fulfilled his highest obligations to the City of Atascadero and its residents and is proud of"his service to the City. Sincerely, Derek A. Westen t Corney at Law c.. Ken Lerno 11-09-1999 6: 17PM FROM DEREK: A WESTEN ESC] 805 963 7131 P. 1 FROM PM (WED) 8. 4' 99 t 55:P IST. 15:05/N4. 4862583129 P 2 Pillsbury ATTQC&YS AT LAW J00 CAF1?O UALL,SUrfb 1100 SAC3iAh!ffi' OXAWOMA%21"19 THLEMNB-(91A)12"?G0 FAX(914)M 1-3563 la&AW.Vi tArry•1or.m� Sofro LLP WrWN,5 dept aid ar�bs► �: (916a 3294719 m,m bw@pilWbw/iw.*wn August 4,1999 VIA FACSIMi & Mr.Ken Lem 7340 Morro Road Africa&-ro,CA 93422 Re: Conflict of Interest Issues Dear Mr.Lerno: As we discussed,this letter addresses whether or not you may participate in a pending decision of the City Coancil in the City of AtascAdero(currently scheduled for August 10, 1999) concerning a development on the so-called"Marckcy property"and whethn there are any restrictions on your ability to participate in or attempt to influence City decisions about development of the so-called"Rochelle property." 1. Factual Situation. you arc cumntly a member of the City Council of the City of Atascadero(the"City'0- Presently scheduled to come before the City Council on August 10, 1999 is a recommendation of ;tie City'a Planning Commission for approval of development of approximately 30 low to moderately priced homes on a five acre parcel,the so-called"Mackey property:' Approval of the M. ackey property project would result in extension of the sewer line along Traffic Way in the City to the Mackey property. On April 1, 1948,Mr.Kelly Gearhart submitted an application with the City for development of the Mackey property for a bus barn for the local school district. After filing,Mr. Gearhart determined that he would not be able to obtain the requisite govenumcatal approvals and did not pursue the application,aMough technically it remained pending. Mr.Gearhart then suggested to his friend,Mr.Dan Mackey,that he might wish to develop this parcel for a residential project. Mr.Msckey hired Cannon Associates to represent him and purchased the land$om Union Pacific Railroad on April 29, 1999. To avoid delay arising from general plan amendment"windows,"which would have resulted from filing a new application,Mr-Mackay SACR." 1 M LOSAMOM 1Ge,W YMX NOfCf W*4V1PWUX 00MMCCUNn 3*%MDMC* S4P MANCOM SiLXMNVALLLW WMS W070MUC TOXY+0 1MVt 11-09-1999 6: 18PM FROM DEREK k WESTEN ESO 805 963 7131 P. 2 FROM PM&S ;WED; B. 4' 99 15:11/01 15:05,1'0. 4862588129 P 3 August 4, 1999 Page 2 amended the Gearbart application by substituting his own application for a housing project. Although personally supportive of Mr.Mackey's plans,Mr.Gearhart has no financial relationship whatsoever A ith Mr.Mackey or his plans for development of the parcel in question. Moreover,Mr.Gearhart has no ownership or profit interest and wi11 not be building the Mackey project,if approved Mr.Gearhart and Mr.Mackey have both specifically confirmed these facts to you. Mr.Gearhart,you and your sister are each one-third co-owners of a parcel of property known as the"Rochelle property." The Rochelle property is located approximately 8,000 feet north of the Mackey property,also on Traffic Way. the Rochelle property is approximately 80 acres in size,although the owners are in escrow to sell a 27 acre piece of the parcel to the Westar Associates,Inc.which intends to develop the site for commercial purposes,including location of a shopping center anchored by a Home Depot store. The owners of the Rochelle property have previously obtained all of the approvals necessary for the proposed commercial project. However,as a condition for those approvals,a public sewer Linc must be extended fivm the current system boundary to serve the Rochelle property. As I understand it,the approval of the actual route of the sewer line,of which there are at least two alternatives,is a decision that will be made by City staff without ratification by the City Council. Mr_Gearhart also owns a 2-acre parcel,also along Traffic Way,which he is currently in the process of developing as residential property for a single family home. This parcel is adjacent to the Rochelle property,but some 7,000 feet from the Mackey property. One of the proposed sewer routes for the Rochelle property would run through Mr.Gearhart's rceideritia]lot under development. Although the route could be argued to be beneficial to the City's long term development interests,Mr. Gearhart has declared that he will not allow his residential property to be modified to accommodate a sewer connection to the Rochelle property.' It is not presently foreseeable that the City would cxwise rights of eminent domain to Compel acquisition of Mr. Gearhart's residential property to provide for a sewer route to coinfect to the Roehcllo property. Mr.Gearhart has asserted that there would be no increase or decrease in the value of his residential lot if the Mackey property is developed. Mor5over,it is your belief that development of the Mackey property would not have any financial effect on the value of either the Rochelle property or the small residential property owned by Mr.Gearhart. ! The proposed sewer eonnectiou along Traffic Way adjacent to the Rochelle Property is estimated at a cost of$800,000 to$1 million,according to an engineering firm study. One of the alternative sewer routes to connect the City grid to the Rochelle property would proceed along 91 Camino and would cost approximately 8280,000. 1074V t ll—z9-1999 6: 19PM FROH DEREK A WESTEN ESO 805 963 7131 P. 3 AWN F;U Af.&S (hED) 8. 4' 99 15:12/4T. t5:05/NJ. 4862588129 P 4 August 4, 1999 Page 3 H. Legal Analysis. A. Mackey property. You have asked us to address whether or not you may participate in the decision concerning approval of the Mackey property at the forthcoming August 10, 1999 Atascadero City Council meeting. The conflict of interest provisions of the Political Reform Act of 1974)as amended(the "Act")help to ensure that public officials perform their duties impartially, free from bias attributable to their own financial interests or those of persons who have supported them.See Gov't Code§ Section 81001(b). Specifically,Section 87100 prohibits any public official from making,participating in making,or otherwise using his or her official position to influence a governmental decision in which tht official has a financial interest. A public official has a "financial interest"in a governmental decision,within the meaning of the Act,if it is rea=ably foreseeable that the decision will have a material financial effect on one or more of the public official's economic interests. Gov't Code §87103;2 Cal.Code Revs. § 18700(a);see alio Downey Advice Latter,No.A-99-069. Recently,the Fair Political Practices Commission(the"FPPC")leas revised its conflict of interest regulations in order to simplify the analysis required to determine whether a disqualifying conflict of int=st is present. The first step is to determine whether you are a "Public official." As an Atascadero City Councilmember,you are a public official under the Act. Gov't Code§ 82048. The second step in the analysis is determine whether you will be participating in a governmental decision. The pending vote on the Mackey property constitutes,such.participation. See 2 Cal.Code Rego. §§ 18702.1, 19702.2,and 18702.3. The third atop in the analysis is to evaluate whether your economic interests could result in a conflict of interest. The FPPC has broken these down into six categories. • A public official has an economic interest in a business entity in which he or she has a direct or indirect investment of S 1,000 or mare. Gov't Code§Section 87103(a);2 Cal,Code Regs. § 18703.1(a); A public official has an economic interest in a business entity in which he or ahe is a director,officer,partner,trustee,employee,or holds any position of management. Gov't Code§Section 87103(d);2 Cal.Code Reg&§ 18703.1(b)); + A public official has an economic intact in real property in which he or she has a direct or indirect interest of$1,000 or more. Gov't Code§Section 87103(b);2 Cal.Code Rego. § 18703.2; 1074V I ! ;-C9-1999 6:20PM FRONT DEREK A WESTEN ESO 805 963 7131 P. 4 .M 8. 4' 99 15:12AT. 15:05,/N0. 4862588129 F 5 August 4, 1999 Page 4 • An official has an economic interest in any source of income,including promised income, totaling$230 or more witlun 12 months prior to the decision. Gov't Code§ Section 87103(c);2 Cal.Code Regs. § 18703.3; • A public official has an economic interest in any source of gifts to him or her if the gifts total $300 or more within 12 wouft prior to the decision. Gov't Code§Section 87103(e);2 Cal.Code Rigs, § 18703.4; • A public official has an economic interest in his or her personal expenses,income,assets,or liabilities,as well as those of his or her immediate family-this is known as the"personal financial effects"rule. Gov't Code§Section 87103;2 Cal.Code Rags. § 18703.5. Due to your co-ownership of the Rochelle property,you have an economic interest in real property under the Act. Moreover,it is likely that the FPPC would consider your co-ownership of the property with Mr.Gearhart and your sister to be a partnership,and therefore a"business entity"within the meaning of the Act. See Gov't Code§82005;Sawyer Advice Letter,No. 1-99- 085.If Mr. Gearhart's ownership interest in the Rochelle property were 501/o or more,you also would have an economic interest in Mr. Gearhart. In re Nord,8 FPPC Ops.6, 13,in. 16(1983); Sawyer Advice Letter,supra. Since Mr.Gearhart's ownership interest is less than 500/0,you bare no"eeonornic interest"in Mr. Gearhart. Thus,the conflict of interest analysis is limited to the foreseeable effects on the Rochelle property and/or the`partnership"that owns that property. It is not necessary to consider whether there would be any financial effects on W.Gearhart's residential property,or whether his public expression of support for the development of the Mackey property would creat D a conflict of interest.2 The fourth step in the analysis is to determine whether your economic interests aro directly or indirectly involved in the governmental decision concerning the Mackey property. Real property is du=tly involved in a decision if the decision concerns,among other things,altering the use of the property.Such decisions would include rezoning,annexing,selling, purchasing,leasing,assessing,redeveloping or authorizing a specific use of the property. See generally 2 Cal.Code Regs. § 18704.2. If real property is not directly involved in a decision,it is indirectly involved for purposes of applying the materiality regulations. 2 Cal.Code Regs. § 18704.2(b). Since the governmental decisions concerning the Mackey property would not alter the specific use of the Rochelle property,the Rochelle property is not directly involved in decisions concerning the Mackey property,; Therefore,the Rocbelle property is considered 2 The FPPC has advised that public support for a governmental decision by a source of income to a public official is not,by itself,a disqualifying interest. Lucas Advice Letter,No,A- 96.248. 3 Although Mr.Gearhart technically"initiated'the proceeding concerning the Mackey property,this fact does not affect the analysis since lV1r.Gearhart's one-third interest in the Rochelle property is insufficient to make him a source of income to you. See fn re Nord,supra. ro74Y1 1 '-29-1999 6:22PM FROM DEREK A 'WESTEN ESO 805 963 7131 P. 5 ;ail FY&S (WED) 8. 4' 99 t5:113/12T. 15:05/N0. 4862583129 P 6 August 4. 1999 Page 5 indirectly involved in the decisions concerning the Mackey property. Step five of the analysis concerns whether it is reasonably foreseeable that the decision will have the required material financial effect on your financial interests. In this case,any effects on the "partnership"and the Rochelle property are indistinguishable since the only Asset oftne"partnership"is the Rochelle property. N4rith respect to the Rochelle property,since it is more than 2,500 feet from the Mackey property,the"reasonably foreseeable effect of a decision is not material"unless: s There are specific circumstances regarding*,e decision,its effect,and the nature of the real property in which the official has an interest,which makes it reasonably foreseeable that the fair market value of the property will be affected by$10,000 or more(or the rental value by $1,000 or more per 12 month period);or • The effect will not be substantially the same as the effect upon at least 25%of the all the properties within a 2.300 foot radius of the official's property o:there are not at least 10 properties under separate ownership within a 2,500 foot radius of the official's property. 2 Cal.Code Regs. § 18705.21(b)(2)(A)and(B). You have indicated that development of the Mackey property will have no financial effect on the Rochelle property. Although extension of the sewer line is necessary for development of both the Mackey property and the Rochelle property,the facts provided indicate that the decisions concerning sewer service to t"rc two properties are not interrelated. This means that,consistent with the test in the FPPC regulation outlined above,there are no specific circumstances about the decision,its effect,and the natare of the Rochelle property which make it reasonably foreseeable4 that the requisite financial effect is present. Moreover,it also appears that the effect on nearby properties will be the same as that of the Rochelle property and that there are at least 10 properties within a 2,500 radius under separate ownership. Accordingly,the fiz?aneial effect on the Rochelle property is not material under the Act or FPPC regulations.' Since wider the analysis approved by the FPPC,the forthcoming decision coaceming the Mackey property will not have a material financial effect on your economic interests,then you may participate in the decision coneemin,development of the Mackcy property. ° "Reasonably foreseeable"is defined as being"substantially likely." 2 Cal.Code Regs. § 18706. 1 Although we believe it is not necessary to separately analyze whether there will be a material financial effect on the"partnership"that owns the Rochelle property,we also would conclude that there is no material financial effect on the"partnership." The materiality thresholds are set forth is 2 Cal.Code Regs. § 18705.1(b)(7),and,for the sante reason that there is no material financial effect on the Rochelle property,there would be no material financial effect on the partnersbip. 1074V I 11-09-1999 6:23PM FROM DEREK A WESTEN ESO 805 963 7131 P. 6 F30M FMCS (WED) 8. 4' 99 15:13!'07. 15:015/N0. 4852583129 P 7 August 4. 1999 page 6 B. Sewer connection to the Rochelle propaty. As we discussed,on the telephone,any future decision concerning a sewer connection to the Rochelle property must be analyzed separately from your participation in the decisions concerning the Mackey property. In short,as a Rochelle property co-owner,participating in a decision concerning sower connections to that property will be deemed material to your financial interests. See 2 Cal.Code Regs. § 19705.2(bXl)(B). Accordingly,you must recuse yourself from any such decisions that may come before you while you retain your interest in the Rochelle property. For example,you may not participate in any way in the public meetings of the City Council or Planning Commission during consideration of sewer service for the Rochelle property. In addition,you must not meat with or otherwise attempt to influence the decisions of City staff with respect to the development of the Rochelle property. III. Conclusion Based on the facts as summarized above,you may participate kr the forthcorning decision concerning the Mackey property. However.you must recuse yourself from any decisions concerning the Rochelle property while you retain your ownership interest.6 Should you have any questions concerning the foregoing,please do not hesitate to contact me. V ly ours - r an W.Meas CC: Derek A.Westaa,Esq. Ms.K.E.Donovan 6 If you Bell your interest in the Rochelle property,the new owner wi11 be a source of income to you for at least one year and disqualification may continue to be necessary for a longer period if the new owner owes you money from the purchase. See 2 Cal.Code Regs. § 111703.3(a). 1074V 1 Attachment." B Atascadero City Council ' Meeting Date: 11-09-99 DRAFT RESOLUTION NO. 1999-x A RESOLUTION OF THE COUNCIL OF THE CITY OF ATASCADERO RESCINDING APPROVAL OF GENERAL PLAN AMENDMENT 98003 (3055 TRAFFIC WAY: Mackey) WHEREAS, Dan Mackey, 188 Cedar Street,Ventura,CA 93001 (Applicant)requested a general plan amendment, a zoning change, and a tentative tract map to divide an approximately 4.47-acre site into 29 residential lots; and, WHEREAS, the site is located in the Suburban Single Family(SSF) land use designation of the General Plan which would be changed to High Density Multi-Family,which would allow the type and density of development proposed; and, WHEREAS, the site is located in the Residential Suburban (RS) zoning district which would be changed to the Low Density Multi Family zone with a Planned Development overlay (RMF-10 (PD7)),which would allow the type and density of development proposed; and, WHEREAS; the City Council conducted a public hearing on the proposed General Plan and Zoning Map amendments and tentative map on August 10, 1999,and considered testimony and reports from staff, the applicants, and the public, following which the project was approved; and, WHEREAS; the City Council failed to pass the rezoning ordinance at the second reading on September 14, 1999; and, WHEREAS; the City Council determined on November 9, 1999 that a deciding vote for approval of the General Plan Amendment was likely conflicted; and, NOW,THEREFORE,be it resolved that the City Council does hereby rescind approval of Resolution 1999-037 thereby causing denial of GPA 98003. Resolution 1999-x Page 2 On motion by and seconded by the foregoing resolution is hereby adopted in its entirety by the following roll call vote: AYES: NOES: ABSENT: ADOPTED: CITY OF ATASCADERO, CA Ray Johnson, Mayor ATTEST: Marcia M. Torgerson, City Clerk Approved as to form: Roy A. Hanley, City Attorney Attachment: C Atascadero City Council November 9, 1999 Meeting Date: 11-09-99 To Atascadero City Council From Dorothy F. McNeil Honorable Mayor and Councilmembers : Recently an outcry from citizens of Paso Robles caused the City Council to turn down the proposal for a privately-run prison. We sincerely hope this Council will reject this far more serious proposal to build a maximum security facility for 1,500 sexually violent predators at the Atascadero State Hospital. The Hospital is now under the Department of Mental Health and is considered a maximum security place for Patients, not Inmates which the 1,500 would be. These are criminals with multiple offenses of the worst kind who prey largely on children. When they have served their time , the state may judge them too dangerous to release and can hold them for an additional two years. Our Hospital now has about 200 of these rredators on hold. Technically they are not considered mentally ill . Bey may be a local store manager, your Uncle Sid or some other respected citizen. The SVP cannot be rehabilitated. ?,o one knows how many SVP' s remain in the community where they have been incarcerated. The state has never tracked them after they are released. The only responsibility the State hospital has is to get them a bus ticket to the county where they were arrested and sen- �anced. If they wish to return here they can buy a return ticket :.,n7itime and join the family or girlfriend who understandably may :ave roved here during their incarceration. Currently the decision as to whether the state can hold them after exviration of their sentence is in the hands of the courts because some of them have sued to be released. If we reject this 1,500 inmate expansion, rumor has it that the state may send our 800 vatients elsewhere and send us only SVP _' _,ates . How the state expects to staff such a facility raises a Serious question. The Hospital is now down over 100 level of care stiff, and many psychiatrists have left as a result of having to deal with the current 200 SVP�.s. Such a decision by the state would be highly irresponsible . Certainly no community wants to be saddled 'lith these predators. Our county has more than its share of prisoners :lith California Pen' s Colony, our Hospital and the Paso Robles Boys ' School . We offer enough of "good-paying jobs" with these facilities . That argument is a poor one for taking such a risk. Additionally, I wonder how this project would affect tourism we so often seek. Who wants to vacation in an area which may not be safe for children: I would not errant to be one of you who votes "yes" if any child here became another Polly Klass or had her arms and legs cut off after being molested. It would be too heavy a burden to carry. f� [,� 8765 Sierra Vista Rd. `�Atascadero, CA 93422 c Aascdet©Crtj�`Gfici h l teetin Date'�'1 :`D 9� N��/ — 81999 -• CITY OFS CITY CLERK'S OFFICE / A f r C J Attachment: E Atascadero City Council Meeting Date: 11-09-99 To : The Atascadero City Council From : Property Owners of North Traffic Way,Atascadero Subject : General Plan Amendment and Zone Change Date : 11/04/99 Per recommendation of the Atascadero Planning Commission on the 19th of October 1999, We, the undersigned property owners, herby request approval by the City Council of Atascadero for a General Plan Amendment and Zone Change from RS (residential suburban)to RSF-X (residential single family). We ask this be considered during the next available General Plan amendment cycle. We have been working with the Planning Staff since April of this year, attempting to have our neighborhood included in the process with the adjoining developments in the immediate area and thereby should not be impacted by the recently adopted moratorium: SIGNATURE NAME PRINTED ADDRESS ASSESSOR PARCEL# dq' _ qAWnAG e. .Jn k 3360 Imo► ;, Z o45 o-7 of -L 33aO1 F b11, crz. Elrz t oo ri! WA (>49 It>1(, D t �-- .� rn vi ly E. prfspN 33o�,trl� (e wy o�(�� o,t, - t -Z ��1`i j031 ( 00(4 Q.tC C�e1� 31 3O Ts.lzi O(41O 11 (0( 1 " l-l- I\ U')t< <J► 3co O er'a 14 a M6 00 3. o`f�T biz. , ooS 041 (C) 3( ,ooh 0 EX�``fv Sj��9l�h CA- copies: Ray Johnson, Mayor Wade McKinney, City Manager Mike Arrambide,Mayor Pro Tem Paul Saldano, Community Development Director OVA ♦ �, MAIN Ink Zzw so so R-'tiff 5010MOW 6A MM mm mm win ..ice: M �� ;�_ -_• a�� ,. MT40 � �►■r ., MAIN so ♦ `� �� SIE ■ � lllllj ��► ,�1 �,� f