The URL can be used to link to this page

Home My WebLink AboutAgenda Packet 02/10/2004 �9 CITY OF ATASCADERO CITY COUNCIL AGENDA TUESDAY, FEBRUARY 10, 2004 7:00 P.M. Atascadero Lake Pavilion 9315 Pismo St. Atascadero, California REDEVELOPMENT AGENCY: 6:30 P.M. REGULAR SESSION: 7:00 P.M. PLEDGE OF ALLEGIANCE: Mayor Luna ROLL CALL: Mayor Luna Mayor Pro Tem Scalise Council Member Clay Council Member O'Malley Council Member Pacas INTRODUCTIONS: 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 five minutes. Please state your name and address 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.) 1 APPROVAL OF AGENDA: Roll Call 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.) 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.) 1. City Council Meeting Minutes —January 13, 2004 ■ City Clerk recommendation: City Council approve the City Council minutes of the meeting of January 13, 2004. [City Clerk] 2. Single Family Planned Development Zone Change 2003-0048 - Master Plan of Development (CUP 2003-0098) Vesting Tentative Tract Map 2003-00324900 Obispo Road, APN 049-102-055 (Shores) ■ Fiscal impact: The project would likely have a slight negative impact on City revenues. As a general rule, single-family dwellings require services that exceed the revenue generated by the proposed uses. ■ Staff recommendation: Council adopt on second reading, by title only, draft Ordinance A approving Zone Change 2003-.0048 based on findings. [Community Development] 3. Single Family Planned Development Zone Change 2003-0053 - Master Plan of Development (CUP 2003-0102) - Vesting Tentative Tract Map 2003-0034 5785 San Jacinto Ave (Bennett) ■ Fiscal impact: The project would likely have a slight negative impact on City revenues. As a general rule, single-family dwellings require services that exceed the revenue generated by the proposed uses. ■ Staff recommendation: Council adopt on second reading, by title only, draft Ordinance A approving Zone Change 2002-0053 based on findings. [Community Development] 2 4. Wastewater Master Plan and Municipal Code Amendments ■ Fiscal impact: Minor, the majority of the changes are administrative in nature. ■ Staff recommendation: Council adopt on second-reading by title only, the draft Ordinance amending Title 7, Chapters 1 through 13 of the Atascadero Municipal Code pertaining to Wastewater. [Public Works] B. PUBLIC HEARINGS: 1. Toloso Tree Removal =Appeal of the Planning Commission's Decision to Deny Tree Removal Permit 2003-0039(8270 Toloso Road: Messer/Tonneson) ■ Fiscal impact: None ■ Staff recommendation: Council review the information submitted by the applicant for compliance with the Council's direction of November 25, 2003, and approve Tree Removal Permit 2003-0039 as revised by adopting Draft Resolution A. (Community Development) 2. Noise Regulation - Discussion of I Potential Regulation of On Premises Motorcycle Track Uses ■ Fiscal impact: None has been identified. ■ Staff recommendation: This item is on for discussion only. The City • Council will not enact any ordinances nor adopt any resolutions as a result of this hearing. The City Council will give staff direction on the contents of any ordinance to be proposed to address the use of motorcycle tracks in residential zones in the City of Atascadero. (City Attorney) C. MANAGEMENT REPORTS: 1. Dove Creek Negative Declaration Contract Approval ■ Fiscal impact: Authorization of the contract will result in the expenditure of $27,410. These funds will be reimbursed to the City by the applicant. ■ Staff recommendation: Council authorize the City Manager to execute a contract with Padre Associates, Inc. for contract environmental services for the Dove Creek Planned Development project to be reimbursed by the project applicant. (Community Development) 3 D. ATTORNEY REPORTS: 1. Emergency Resolutions ■ Fiscal impact: Unknown • City Attorney recommendation: Council adopt the draft Resolution continuing in full force and effect the resolutions declaring the existence of a state of emergency and directing the City Manager to take direct and immediate acts to repair or replace public facilities and authorize the mayor to execute it. E. COMMITTEE & LIAISON REPORTS: (The following represent standing committees. Informative status reports will be given, as felt necessary.): Mayor Luna 1 . Finance Committee 2. Integrated Waste Management Authority (IWMA) 3. County Mayor's Round Table Mayor Pro Tem Scalise 1 . Atascadero State Hospital Advisory Board (appointed by Governor) 2. Local Agency Formation Commission (LAFCO) (City Selection Committee appointment) 3. S.L.O. Council of Governments (SLOCOG)/S.L.O. Regional Transit Authority • (SLORTA) Council Member Clav 1 . Water Committees Council Member O'Malley 1. Finance Committee 2. City/ Schools Committee 3. Air Pollution-Control District (APCD) 4. League of California Cities - Grassroots Network 5. Economic Vitality Corporation, Board of Directors (EVC) Council Member Pacas 1 . City/ Schools Committee 2. Atascadero Youth Task Force 4 F. INDIVIDUAL DETERMINATION AND/OR ACTION: 1 . City Council 2. City Clerk 3. City Treasurer 4. City Attorney 5. City Manager G. 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. 1 _Marcia M r under the penalty of cClure Torgerson, City Clerk of the City of Atascadero, declare u e p y i perjury that the foregoing agenda for the February 10, 2004 Regular Session of the Atascadero City Council was posted on February 3, 2004 at the Atascadero City Hall Annex, 6905 EI Camino Real, Suite 6, Atascadero, CA 93422 and was available for public review in the Customer Service Center at that location. Signed this 3rd day of February 2004 at Atascadero, California. • Marcia McClure Torgerson, C.M.C., Cit Cler City of Atascadero 5 City of Atascadero WELCOME TO THE ATASCA DERO CITY COUNCIL MEETING The City Council meets in regular session on the second and fourth Tuesday of each month at 7:00 p.m., at the Atascadero Pavilion on the Lake, 9315 Pismo St., Atascadero, Matters are considered by the Council in the order of f 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 Annex business hours at the Central Receptionist counter 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. 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) 461-5000. 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 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 podium. If you wish to speak for, against or comment in any way: • You must approach the podium and be recognized by the Mayor • Give your name and address (not required) • Make your statement • All comments should be made to the Mayor and Council • All comments limited to 5 minutes (unless changed by the Council) . • 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. Access to hook up your laptop to the City's projector will 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 podium 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). I TO HAVE ITEMS PLACED ON AGENDA All business matters to appear on the Agenda must be in the Office of the City Manager 14 days preceding the Council meeting. Should you have a matter you wish to bring before the Council, please mail or bring a written communication to the City Manager's office in City Hall prior to the deadline. 6 ITEM NUMBER: A- 1 DATE: 2/10/2004 Ron . . CITY OF ATASCADERO ls�4a CITY COUNCIL DRAFT MINUTES TUESDAY, JANUARY 13, 2004 7:00 P.M. CLOSED SESSION: 1. PUBLIC COMMENT CLOSED SESSION - None 2. Call to Order 0 CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Subdivision a of Government Code Section 54956.9) Creekside Parcel Associates et al v City of Atascadero et al, San Luis Obispo Superior Court Case Number CV 020192 ' Council Member O'Malley announced that he would step down on this issue due to a conflict of interest. 3. Adjourn 4. CLOSED SESSION REPORT City Attorney Roy Hanley announced that there was no reportable action. REGULAR SESSION: 7:00 P.M. Mayor Luna called the meeting to order at 7:00 p.m. and Council Member O'Malley led the Pledge of Allegiance. CC Draft Minutes 01/13/04 Page 1 of 8 1 ROLL CALL: Present: Council Members Pacas, O'Malley, Clay, Scalise and Mayor Luna Absent: None Others Present: City Clerk Marcia McClure Torgerson Staff Present: City Manager Wade McKinney, Assistant City Manager Brady Cherry, Administrative Services Director Rachelle Rickard, Public Works Director Steve Kahn, Community Development Director Warren Frace, Information Technology Director Andrew Fruin, Deputy Community Services Director Geoff English, Police Chief Dennis Hegwood, Fire Chief Kurt Stone and City Attorney Roy Hanley. INTRODUCTIONS: City Manager Wade McKinney introduced Janine Judy, new Administrative Secretary in the City Manager's office. COMMUNITY FORUM: John Davis, Pastor of Christ Chapel, led those present in a prayer. Joanne Main, Atascadero Chamber of Commerce, thanked City Staff, Police and Fire Departments for doing a good job in taking care of the community following the San Simeon earthquake. She stated that on Thursday, January 22 from 7 to 9:00 p.m. in the Atascadero Lake Pavilion, the Chamber would be hosting a tax relief symposium given by Central Coast Enrolled Agents. Eric Greening stated he is thankful that more people were not lost as a result of the earthquake and thanked the Mayor, Council and staff for going beyond the call of duty. He asked to what extent staff has analyzed the Governor's proposed budget and whether lobbying efforts might be necessary. Dave Mayfield, representative of SLO County Mental Health, extended his agency's sympathy for the loss of life and damage as a result of the earthquake. Mr. Mayfield explained the services offered by his agency to those experiencing difficulty in dealing with the trauma of the earthquake. Warren Miller explained to the Council the problem in his neighborhood concerning a motorcycle track on private property. Mr. Miller stated that several neighbors are unhappy with this activity and would like the Council to address this issue on a future agenda. CC Draft Minutes 01/13/04 Page 2 of 8 2 Mayor Pro Tem Scalise suggested forming an ad hoc committee to review this issue, as it is a citywide problem. • Jim Griffin spoke about the sameP roblem as Mr. Miller. He stated that he understands that the motorcycle owner has rights, but he also knows that the neighbors have rights also. Mr. Griffin explained that not only is this activity noisy, but it causes a dust and erosion problem for the neighborhood. Vernon West stated his property is adjacent to the property mentioned by his neighbors tonight. This motorcycle track impacts himself and his wife, who has a problem with asthma, in that they are unable to use their patio, living room or lawn area due to the track's disruptive nature. Mayor Luna closed the Community Forum period. There was Council discussion on the motorcycle track issue. There was Council consensus to have this item on the February 10th Council agenda. APPROVAL OF AGENDA: MOTION: By Mayor Pro Tem Scalise and seconded by Council Member O'Malley to approve the agenda. Motion passed 5.0 by a roll-call vote. COUNCIL ANNOUNCEMENTS AND REPORTS: Mayor Pro Tem Scalise announced that she would be stepping down on the 4th recommendation on the Atascadero Road Program report. Mayor Luna gave a State of the City address in which he stated how proud he was of the people of Atascadero and how they truly rose to the occasion after the earthquake and put our community first. He stated that the City Council is prepared to deal with the upcoming budget problems facing Atascadero as a result of the State taking more and more of our tax money to solve their financial problems. Council Member Clay empathized with Paso Robles and their losses from the recent earthquake. He also commended Atascadero City staff on their efforts to reestablish City operations following the San Simeon earthquake. Council Member O'Malley requests Council reconsideration of: • CC Draft Minutes 01/13/04 Page 3 of 8 3 1. Single Family Planned Development Zone Change 2003-0048 - Master Plan of Development (CUP 2003-0098) Vesting Tentative Tract Map 2003-0032, 4900 Obispo Road, APN 049-102-055 (Shores) •Mayor Luna explained to the audience the rules of reconsideration as listed in the Atascadero Municipal Code. Council Member O'Malley explained that tonight he is asking the Council to only re- consider hearing this issue on a future agenda. PUBLIC COMMENT Eric Greening asked for clarification of what issues would be discussed at this future hearing. Dan Higgenbothum expressed his concern with the number of houses going in on this project, landscaping and with re-opening this issue. Randy Lawrence stated he would not be able to attend the next meeting where this issue will be heard, so he expressed his concerns with this project. Ron Schmelzer stated he has similar concerns as the previous speaker, including traffic and road safety impacts. Mayor Luna closed the Public Comment period. MOTION: By Mayor Pro Tem Scalise and seconded by Council Member O'Malley to bring this item back to the Council for reconsideration. l City Attorney Hanley advised that Council Member O'Malley should make the motion for this item. MOTION: By Council Member O'Malley and seconded by Council Member Clay to have this item reconsidered by the Council Motion passed 3:2 by a roll-call vote. (Pacas, Luna opposed) A. CONSENT CALENDAR: 1. City Council Meeting Minutes — November 25, 2003 ■ City Clerk recommendation: City Council approve the City Council minutes of the meeting of November 25, 2003. [City Clerk] 2. November Disbursements — November 2003 Accounts Payable & Payroll ■ Fiscal impact: $1,246,258.35. ■ Staff recommendation: City Council approve certified City accounts payable, payroll and payroll vendor checks for November 2003. • [Administrative Services] CC Draft Minutes 01/13/04 Page 4 of 8 4 . 3. City Treasurer's Report— September 2003 ■ Fiscal impact: None. ■ City Treasurer recommendation: City Council approve the City Treasurer's report for September 2003. [City Treasurer] 4. Zone Change 2003-0069 — 805 EI Camino Real (Kelly Gearhart / Wilson Land Surveys) ■ Fiscal impact: The project would likely have a slight negative impact on City revenues. As a general rule, single-family dwellings require services that exceed the revenue generated by the proposed uses. The project is conditioned to participate in an assessment district to fund maintenance and emergency service costs. This condition is expected to minimize the project's fiscal.impact on the City. ■ Staff recommendation: Council adopt on second reading by title only Draft Ordinance A, approving Zone Change 2003-0069. [Community Development] MOTION: By Council Member Clay and seconded by Council Member O'Malley to approve Items #A-1 through 4. Motion passed 5:0 by a roll-call vote. (Item #A-4 Ordinance No. 435) • B. PUBLIC HEARINGS: None C. MANAGEMENT REPORTS: 1. Atascadero Road Program ■ Fiscal impact: $91,000 for Atascadero Road Program distributed among projects as follows: Paving $40,000, Cold Mix Program $1,000, and Assessment District Engineering $50,000 (all included in 2003-05 budget) ■ Staff recommendation: City Council: 1. Receive an updated report on the Atascadero Road Program. 2. Receive report on Cold Mix Project. 3. Receive the Local Road Priority List and 2004 Spring Local Road paving project. 4. Direct Staff to continue the formal process of the Assessment District formation process. [Public Works] Mayor Pro Tem Scalise announced that she would be stepping down on Recommendation #4. Public Works Director Steve Kahn gave the staff report on the first three staff recommendations, and answered questions of Council CC Draft Minutes 01/13/04 Page 5 of 8 5 PUBLIC COMMENT Eric Greening asked if drainage system damage from the earthquake has been assessed. Mr. Kahn responded, yes, and there has been no damage assessed at this time. FEMA allows that if damage is discovered at a later time, it can still be reported and assistance for repairs would be available. Mayor Luna closed the Public Comment period. Mayor Luna recessed the hearing at 8:20 p.m. Mayor Luna called the meeting back to order at 8:30 p.m. Mayor Pro Tem Scalise left the room for the discussion on Recommendation #4. Public Works Director Steve Kahn gave the staff report on the fourth staff recommendation, and answered questions of Council PUBLIC COMMENT Richard Maynard stated that his street, Cortina Avenue, has been omitted from the list, even though residents have submitted a petition and gone through"the process. Public Works Director Kahn stated that he does have their petition; this • street is on the list and is part of the 650. Mayor Luna closed the Public Comment period. MOTION: B Council Member Pacas and seconded b Council Y Y Member Clay that staff continue the formal process of the Assessment District formation process. Motion passed 4:0 by a roll-call vote. Mayor Pro Tem Scalise rejoined the hearing. 2. Earthquake Status Update a. Oral Report— City Manager City Manager Wade McKinney gave an oral update to the Council concerning the earthquake, the damage to City Hall, and the creation of the City Hall Annex. Additionally Mr. McKinney spoke about the following: • $65 million estimate of damage in Atascadero • Explanation of FEMA assistance • Disaster Assistance Centers • Steps that are being taken to repair City Hall CC Draft Minutes 01/13/04 Page 6 of 8 6 I Severe damage to the Printery, which has been red tagged There was Council consensus to request a fixed Disaster Assistance • Center for Atascadero. PUBLIC COMMENT Eric Greening commented that the County Board of Supervisors would be asking for four Disaster Assistance Centers for the county. He asked several questions regarding the aftermath of the earthquake in Atascadero. Mayor Luna closed the Public Comment period. b. Emergency Resolutions City Attorney recommendation: City Council approve the draft Resolution continuing in full force and effect the resolutions declaring the existence of a state of emergency and directing the City Manager to take direct and immediate acts to repair or replace public facilities and authorize the Mayor to execute it. [City Attorney] City Attorney Roy Hanley commented on the recommendation for continuing the state of emergency. • MOTION: By Council Member O'Malley and seconded by Council Member Clay to approve the draft Resolution continuing in full force and effect the resolutions declaring the existence of a state of emergency and directing the City Manager to take direct and immediate acts to repair or replace public facilities and authorize the Mayor to execute it. Motion passed 5:0 by a roll-call vote. (Resolution No. 2004-001) E. COMMITTEE & LIAISON REPORTS: Council Member O'Malley 1. Air Pollution Control District (APCD): The APCD worked with City staff and is allowing rebuilding of chimneys. 2. League of California Cities - Grassroots Network: Council Member O'Malley has been appointed to the Community Services Policy Committee. There will be an all day meeting on Friday devoted to the State budget. 3. Economic Vitality Corporation, Board of Directors (EVC): The EVC has worked with local businesses to help them with planning and funding/loans. • CC Draft Minutes 01/13/04 Page 7 of 8 7 F. INDIVIDUAL DETERMINATION AND/OR ACTION: 1. City Clerk • City Clerk Marcia Torgerson announced that the terms of two Planning Commissioners would be expiring next month. Council Members Clay and O'Malley will be making these appointments. G. ADJOURNMENT: Mayor Luna adjourned the meeting at 10:15 p.m. to the next regularly scheduled meeting on January 27, 2004. MEETING RECORDED AND MINUTES PREPARED BY: Marcia McClure Torgerson, C.M.C., City Clerk • CC Draft Minutes 01/13/04 Page 8 of 8 8 ITEM NUMBER: A-2 DATE: 2/10/2004 10-9 Atascadero City Council Staff Report Community Development Department Single Family Planned Development Zone Change 2003-0048 4900 Obispo Road, APN 049-102-055 (Shores) RECOMMENDATIONS: Council adopt on second reading, by title only, the attached Draft Ordinance, enacting Zone Change 2003-0053 adding the PD-17 zoning overlay district to an RSF-X site. DISCUSSION: The proposed project consists of a zoning map change for the purpose of placing a PD-17 overlay zone over the subject site (currently zoned RSF-X) with a corresponding master plan of development (CUP) that would allow an 8-unit single- family residential development on the 2.36-acre site. On January 27, 2004, the City Council conducted a public hearing to consider a zone change of the Zoning Map of the City of Atascadero consistent with the Master Plan of Development for the PD-17. FISCAL IMPACT: The project would likely have a slight negative impact on City revenues. As a general rule, single-family dwellings require services that exceed the revenue generated by the proposed uses. ATTACHMENTS: Attachment 1: Draft Ordinance A 9 ATTACHMENT 1: Draft Ordinance A DRAFT ORDINANCE A AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ATASCADERO APPROVING ZONE CHANGE 2003-0048, AMENDING THE OFFICIAL ZONING MAP DESIGNATION OF APN 049-102-055 FROM RSF-X TO RSF-X/PD-17 (4900 Obispo Road/Shores) The City Council hereby finds and declares as follows: WHEREAS, an application has been received from Ron Shores (2940 Ardilla Way, Atascadero, CA 93422) Applicant and Property Owner to consider a project consisting of a zone change from RSF-X (Residential Single-Family) to RSF-X/PD-17 (Residential Single- Family with Planned Development Overlay #17) with the adoption of a Master Plan of Development, and a eight-lot residential Tentative Tract Map on APN 049-102-055 and, WHEREAS, the site's General Plan Designation is SFR-X (Single-Family Residential -X); and, WHEREAS, the site's current zoning district is RSF-X (Residential Single-Family); and WHEREAS, the Planning Commission has determined that it is in the best interest of the City to enact this amendment to the Official Zoning Map to protect the health, safety and welfare of its citizens by applying orderly development of the City; and, WHEREAS, the laws and regulations relating to the preparation and public notice of environmental documents, as set forth in the State and local guidelines for implementation of the California Environmental Quality Act(CEQA) have been adhered to; and, WHEREAS, a timely and properly noticed Public Hearing upon the subject Zone Change application was held by the Planning Commission of the City of Atascadero at which hearing evidence, oral and documentary, was admitted on behalf of said Zoning amendments; and, WHEREAS, the Planning Commission of the City of Atascadero, at a duly noticed Public Hearing held on Tuesday, September 16, 2003, studied and considered Zone Change 2003-0048, after first studying and considering the Proposed Mitigated Negative Declaration prepared for the project, and, 10 WHEREAS, the Atascadero City Council, at a Public Hearing held on January 27, • 2004, studied and considered Zone Change 2003-0048, after first studying and considering the Draft Mitigated Negative Declaration prepared for the project, and, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ATASCADERO HEREBY ORDAINS AS FOLLOWS: SECTION 1.Findings for Approval of a Zone Change to the Official Zoning Map of Atascadero Creating a PD-17 Planned Development Overlay District 1. Modification of development standards or processing requirements is warranted to promote orderly and harmonious development. 2. Modification of development standards or processing requirements will enhance the opportunity to best utilize special characteristics of an area and will have a beneficial effect on the area. 3. Benefits derived from the overlay zone cannot be reasonably achieved through existing development standards or processing requirements. 4. Proposed plans offer certain redeeming features to compensate for the requested modification. SECTION 2.Findings for physically unique sites with one or more mature trees 1. That flexibility from the above setback standards is necessary to enable the • environmentally superior design alternative; 2. That at least fifty percent (50%) of each individual lot will be landscaped; and 3. That at least sixty percent (60%) of the net area of the overall site will be landscaped. SECTION 3. Approval. The Atascadero City Council, in a regular session assembled on December 9, 2003 resolved to introduce for first reading an ordinance that would rezone the subject site consistent with the following: 1. Exhibit A: Zone Change Map SECTION 4. 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. 11 INTRODUCED at a regular meeting of the City Council held on January 27, 2004, and PASSED and ADOPTED by the City Council of the City of Atascadero, State of California on January 27, 2004, by the following roll call vote: AYES: O'Malley, Scalise, Clay NOES: Pacas and Luna ABSTAIN: None ABSENT: None CITY OF ATASCADERO By: George Luna. Mayor ATTEST: Marcia McClure Tor erson C.M C • g ., City Clerk APPROVED AS TO FORM: Roy A. Hanley, City Attorney 12 • Exhibit A: Zone Change Map ZCH 2003-0048 Official Zoning Map Change APN 049-102-055 Existing Zone: RSF-X Amended Zone: SFR-X/PD-17 s W Project Site EI Camino Real `,�� Del Rio Road 13 ITEM NUMBER: A-3 DATE: 2/10/2004 's ■n n n 67-9 Atascadero City Council Staff Report - Community Development Department Single Family Planned Development#7 Zone Change 2003-0053 5785 San Jacinto Ave (Bennett) RECOMMENDATION: Council adopt on second reading, by title only, the attached Draft Ordinance, enacting Zone Change 2003-0053 adding the-PD-7 zoning overlaydistrict to an RMF-10 site. DISCUSSION: The proposed project consists of a zoning map change for the purpose of placing a p p p J g PD-7 overlay zone over the subject site (currently zoned RMF-10) with a corresponding master plan of development (CUP) that would allow a 5-unit single- family residential development on the 0.457-acre site. On January 27, 2004, the City Council conducted a public hearing to consider an amendment of the Official Zoning Map of Atascadero consistent with the Master Plan of Development for PD-7. FISCAL IMPACT: The project would be fiscally neutral and have no impacts on City revenues. As a general rule, residential planned development overlay zones do not require services beyond that which would be permitted within an underlying residential zoning district. ATTACHMENTS: Attachment 1: Draft Ordinance A 15 ATTACHMENT 1: Draft Ordinance A DRAFT ORDINANCE A AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ATASCADERO, CALIFORNIA, APPROVING ZONE CHANGE 2002-0053, AMENDING THE OFFICIAL-ZONING MAP DESIGNATION OF APN 029-301-039 FROM RMF-10 TO RMF-10/PD-7 (5785 SAN JACINTO AVE/BENNETT) The City Council hereby finds and declares as follows: WHEREAS, an application has been received from Rex Bennett (5785 San Jacinto Ave, Atascadero, CA 93422) Applicant and Property Owner to consider a project consisting of a zone change from RMF-10 (Residential Multi-Family) to RMF-10 / PD-7 (Residential Multi-Family with Planned Development Overlay#7) with the adoption of a Master Plan of Development, and a five lot residential Tentative Parcel Map on APN 029-301-039 and, WHEREAS, the site's General Plan Designation is MDR (Medium Density Residential); and, WHEREAS, the site's current zoning district is RMF-10 (Residential Multiple-Family); and WHEREAS,the Planning Commission has determined that it is in the best interest of the City to enact this amendment to the Official Zoning Map to protect the health, safety and welfare of its citizens by applying orderly development of the City; and, WHEREAS, the laws and regulations relating to the preparation and public notice of environmental documents, as set forth in the State and local guidelines for implementation of the California Environmental Quality Act(CEQA)have been adhered to; and, WHEREAS, a timely and properly noticed Public Hearing upon the subject Zone Change application was held by the Planning Commission of the City of Atascadero at which hearing evidence, oral and documentary, was admitted on behalf of said Zoning amendments; and, WHEREAS, the Planning Commission of the City of Atascadero, at a duly noticed Public Hearing held on Tuesday,November 4, 2003, studied and considered Zone Change 2003- 0053, after first studying and considering the Proposed Mitigated Negative Declaration prepared for the project, and, 16 • WHEREAS, the Atascadero City Council, at a Public Hearing held on January 27, 2004, studied and considered Zone Change 2002-0053, after first studying and considering the Draft Mitigated Negative Declaration prepared for the project; NOW, THEREFORE, the Planning Commission takes the following actions: NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ATASCADERO HEREBY ORDAINS AS FOLLOWS: SECTION 1. Findings for Approval of a Zone Change to the Official Zoning Map of Atascadero Creating a PD-7 Planned Development Overlay District. The City Council finds as follows: 1. Modification of development standards or processing requirements is warranted to promote orderly and harmonious development. 2. Modification of development standards or processing requirements will enhance the opportunity to best utilize special characteristics of an area and will have a beneficial effect on the area. 3. Benefits derived from the overlay zone cannot be reasonably achieved through existing development standards or processing requirements. 4. Proposed plans offer certain redeeming features to compensate for the requested • modification. SECTION 2. Approval. The Atascadero City Council, in a regular session assembled on January 27, 2004 resolved to introduce for first reading an ordinance that would rezone the subject site consistent with the following: 1. Exhibit A: Zone Change Map SECTION 3. A summary of this ordinance, approved by the City Attorney, together with the ayes and noes, shall be published twice: at least five days prior to its final passage in the Atascadero News, a newspaper published and circulated in the City of Atascadero, and; before the expiration of fifteen (15) days after its final passage in the Atascadero News, a newspaper published and circulated in the City of Atascadero. A copy of the full text of this ordinance shall be on file in the City Clerk's office on and after the date following introduction and passage and shall be available to any interested member of the public. • 17 INTRODUCED at a regular meeting of the City Council held on January 27, 2004, and PASSED • and ADOPTED by the City Council of the City of Atascadero, State of California, on January 27, 2004, by the following roll call vote: AYES: Councilperson O'Malley, Pacas, Scalise, Clay, and Luna NOES: None ABSTAIN: None ABSENT: None CITY OF ATASCADERO By: George Luna, Mayor ATTEST: Marcia McClure Torgerson, C.M.C., City Clerk • APPROVED AS TO FORM: Roy A. Hanley, City Attorney 18 • Exhibit A: Zone Change Map 2003-0053 1 � r � 1 5 \\ 1-7 Project Site ` • Existing. General Plan:MDR Zoning District:RMF-10 Proposed: General Plan:MDR Zoning District:RMF-10/PD-7 r 19 ITEM NUMBER: A-4 DATE: 2/10/2004 1919 ie Atascadero City Council Staff Report - Public Works Department Amendment of the Atascadero Municipal Code Pertaining to Wastewater RECOMMENDATION: Council adopt on second reading by title only and adopt the draft Ordinance amending Title 7, Public Works, Chapters 1 through 13, of the Atascadero Municipal Code. DISCUSSION: On January 27, 2004, the City Council conducted a public hearing to consider amending the Title 7, Public Works, Chapters 1 through 13, of the Atascadero Municipal Code. There were no changes made by the City Council to the Ordinance during its first reading and it is ready for final adoption as attached. FISCAL IMPACT: Minor, the majority of the changes are administrative in nature. ATTACHMENTS: Draft Ordinance 20 DRAFT ORDINANCE "A" AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ATASCADERO, CALIFORNIA, AMENDING TITLE 7 CHAPTERS 1 THROUGH 13 OF THE ATASCADERO MUNICIPAL CODE PERTAINING TO WASTEWATER The City Council hereby finds and declares as follows: WHEREAS,the Municipal Code Title 7 Public Works Chapters 1 through 13 was approved in 1988 and amended in 1993, WHEREAS,the City of Atascadero has agreed to consider,in good faith, an ordinance addressing the requirement for an owner of an existing residential dwelling to connect to public sewer, WHEREAS, the City has initiated an update to change, clarify and modify of provisions of the Municipal Code Title 7 Chapters 1 through 13 pertaining to Wastewater, NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ATASCADERO HEREBY ORDAINS AS FOLLOWS: 1) Title 7 Public Works Chapters 1 through 13 of the Municipal Code shall be removed in its entirety, Y 2) Insert the following as Title 7 Public Works Chapters 1 through 10 of the Municipal Code, 7-1.001 Establishment. There is established a Wastewater Division of the Public Works Department, and rules and regulations concerning the Atascadero wastewater disposal facilities. These regulations are established and adopted to protect and promote the public health, safety and welfare, pursuant to authority of California Health and Safety Code Sections 5470 through 5474.10 7-1.002 Application. The provisions of this title shall apply to any person, or persons, including corporations, and others connected to the Atascadero wastewater disposal facilities. 7-1.003 Liability for violations. Any person violating any provisions of this title shall be liable to the City for all damages to City property, and/or fines levied resulting therefrom. A violation of any provision of this title is a misdemeanor. Penalties for violation of this title shall be as set forth in Chapter 3 of Title 1 of this Code. 7-2.001 Definitions. "Apartment" means a residence, as herein defined, which is part of or located in a multiple- family dwelling as herein defined. 21 "Bath" means a room containing one or more water closets, bathtubs, shower stalls, and wash • basins which are intended and suitable for human use and are connected to the sewer system. "Biochemical oxygen demand (BOD)" means the quantity of oxygen utilized in the biochemical oxidation of organic matter, after five (5) days, using standard laboratory procedures and expressed in milligrams per liter(MG/1). "Building" means any structure used for human habitation or a place of business, recreation, or other activity and containing sanitary facilities. "Building sewer" means that portion of any sewer beginning two (2) feet from any building and extending to and including its connection to a public sewer. "Cleanout" means a branch fitting installed in a sewer or pipe for the purpose of providing access for cleaning. "Commercial establishment" means a building or portion thereof used for, or intended for use for, commercial, business or governmental purposes, including but not limited to stores, markets, theaters, business offices, government offices and other places of business, but not including eating establishments, laundromats, or other business establishments previously defined herein. "Condominium unit" means a residence occupied or suitable for occupancy in whole or in part as a home or living quarters either permanently or temporarily by a single family, their guests and servants, but not including an apartment or other unit of multiple-family dwelling as defined herein. "Domestic wastewater" means water bearing only those wastes derived from the ordinary living processes and of such character as to permit satisfactory disposal to, and treatment at the City wastewater treatment plant. "Eating establishment" means a building or portion thereof, upon the premises of which are • provided facilities for dining, eating and/or beverage consumption by the public, and which is held out by the owner or operator thereof as a place where food and/or beverages may be purchased for consumption upon the premises, including establishments designated as restaurants, cafes, drive-ins, coffee shops, ice cream parlors, bars, and bowling alleys, and other such establishments where food or drink served. "Extension" means expansion of a service area "Fixture" means any sink, tub, shower, toilet, or other facility connected by drain to the sewer. "Garbage" means solid wastes from the preparation, cooking, and dispensing of food and from the handling, storage, and sale of agricultural products. "Garbage grinder" means a unit designed and used to grind or otherwise treat garbage so that it can be disposed of through the sewer system. "Grease" means all fat, grease, oil, wax or other trichloro-trifluoroethane soluble matter of animal, vegetable, petroleum or mineral origin. "Hotel" means a building or group of buildings containing six or more sleeping rooms or suites of rooms designed as, and occupied or suitable for occupation as, a temporary abiding or sleeping place for persons who, for compensation, are lodged with or without meals, including buildings designed as hotels and boarding, lodging houses, rooming houses, but not including those defined herein as multiple-family dwellings, motels, trailer courts, or dormitories, sanitariums, hospitals, asylums, orphanages, or buildings where persons are housed under restraint. "Hotel room" means a room or suite of rooms in a hotel as herein defined, designed as, and occupied or suitable for occupation as, one sleeping or living unit. • 22 "House trailer" or "mobile home" means a transportable structure designed, built and equipped as, and occupied or suitable for occupation as, a home or living quarters, either permanently or • temporarily,by a single family and their guests and servants. "Industrial user" means a person who discharges nondomestic wastewater into the City sewer system. "Kitchen" means a room, all or any part of which is designed, built and equipped as, and is used or is intended to be used for the cooking and/or other preparation of food for human consumption. "Lateral sewer" means that portion of a sewer lying within a public right-of-way or easement, which connects, or is intended to connect, a building sewer to a main sewer. "Laundromat" means a building or portion thereof designed, equipped, and used or intended for use as a self-service laundry, where there is no pickup or delivery service and no steam or hand laundry of any type. "Lot" means any piece or parcel of land, bounded, defined, or shown upon a plot or deed recorded in the office of the County Recorder of San Luis Obispo County; provided, however, that in the event any structure is located upon more than one parcel of land all under one ownership and as herein defined, the term "lot" shall include all such parcels of land. "Main sewer" means that sewer, excluding lateral sewers, whose main purpose is to accept wastewater from laterals and convey it to the wastewater treatment plant. "Manager" means the manager of the Wastewater Division Public Works Department. "Manhole" means a structure for the purpose of providing access of a man to a buried sewer. "Motel" means a building or group of buildings containing two or more rooms or suites of rooms, and designed, intended, or used primarily for the accommodation of transient automobile travelers, including establishments designated as motels, auto courts, tourist cabins, motor • lodges, motor courts, and by similar designations. "Motel unit" means a room or suite of rooms in a motel as herein defined, designed as, and occupied or suitable for occupation as, one sleeping or living unit. "Multiple-family dwelling" means a building or group of buildings designed as, and occupied or suitable for occupation as, a home or living quarters, either permanently or temporarily, by more than a single family, including buildings, designated as apartment houses, apartment buildings, duplexes, triplexes and condominiums, but not including motels, hotels, dormitories, or trailer courts as herein defined. "pH." The logarithm of the reciprocal of the weight of hydrogen ions in grams per liter of solution. "Permit" means any written authorization required pursuant to this Municipal Code. "Person" means any individual, firm, company, association, society, corporation, group, governmental agency or educational institution. "Public sewer" means that portion of a sewer lying within a public right-of-way or easement, and maintained by, and subject to the jurisdiction of, the Wastewater Division of the Public Works Department. "Residence" means a building or portion thereof, or a group of buildings, designed as and occupied or suitable for occupation in whole or in part as a home or living quarters, either permanently or temporarily, by a single family and their guests and servants, including a house and an apartment or other unit of multiple-family dwelling as herein defined. "School" means an institution of learning which offers instruction in the several branches of learning and study required to be taught in the public schools by the Education Code of the State • 23 • of California, including preschool or nursery, elementary, junior and senior high and parochial and private schools and junior colleges, colleges, and universities. "Sewer" means a pipe or conduit for carrying wastewater. "Sewer connection charge" means the charge levied by the City for connection to the mainline sewer. (a) "Sewer connection fee" means the fee assessed to assure upgrade of sewer system. (b) "Sewer extension fee" or "extension fee" means the fee assessed to assure expansion of sewer system and wastewater treatment plant. "Sewer tap charge" means a charge by the City for the actual physical connection from a building sewer to the mainline sewer. "Shall" is mandatory; "may" is permissive. "Trailer court" means an area containing two or more trailer spaces as herein defined, including areas designed as trailer courts, trailer camps, and by similar designations. "Trailer space" means an area which is laid out and provided with facilities including a sewer connection for, and is occupied or is suitable for occupation by, a house trailer as herein defined. "Wastewater" means any water-carried wastes from residences, business buildings, public buildings, institutions, and industrial facilities. "Wastewater treatment plant" means the arrangement of devices and structures used for treating wastewater generated within the City. 7-3.001 Sewer connection availability. For the purposes of this chapter a public sewer shall be deemed to be available to a building if the sewer is installed in a public right-of-way or easement adjacent to the lot upon which the building is located. 7-3.002 Public nuisance declared. The City Council finds and declares failing septic systems to constitute a public nuisance, and finds it to be in the public interest that such property, to which a public sewer is available, be required to connect thereto. 7-3.003 Sewer connection requirement. When a public sewer becomes available to a building served by a private sewage disposal system, the building shall be connected to the public sewer upon failure of the private sewage disposal system or before any modification of, or addition to the building, which will require the private sewage disposal system to be enlarged except for minor residential additions (less than 400 sf) that are on a lot 1 (one) acre or greater in size and the private sewage disposal system design complies with Appendix K of the Uniform Plumbing Code and the "Water Quality Plan for the Central Coast Basin". A septic system has failed if public or environmental- health is jeopardized by (a) effluent or sewage escaping to the surface, or otherwise jeopardizing ground or surface water, or (b) inadequate percolation results in sewage backup into buildings, or(c) a public nuisance is caused by odor generation that results in formal complaints, and the system cannot be repaired or replaced consistent with Appendix K of the Uniform Plumbing Code within thirty (30) calendar days. The private disposal system shall be abandoned in the manner prescribed by the City Building Division in accordance with the currently adopted edition of the Uniform Plumbing • Code. 24 • 7-3.004 New buildings: Connection required. Any newly constructed building to which a public sewer is available shall be connected to the public sewer prior to its use for human occupancy, unless a variance is granted by the City Council 7-3.005 Variances. Variances referred to in Sections 7-3.003 and 7-3.004 may be granted upon written application to the City Council by the applicant setting forth the basis for such request. Variances may be granted only upon affirmative showing that no health hazard, public nuisance, or inequity to other property owners will result there from. 7-3.006 Cease and desist areas: Connection required. Any building located or proposed to be constructed in an area where the Regional Water Quality Control Board has prohibited on-site sewage disposal systems shall be required to connect to the public sewer, without exception. (Reference: California Health and Safety Code Sections 5410- 5415; the Porter-Cologne Water Quality Control Act, Chapter 4, Article 5 and Chapter 5, Article 1.) 7-3.007 Notice to connect to the public sewer. For existing buildings, it shall be the duty of the Director of Public Works or his authorized representatives to notify such person or persons to connect to the public sewer and properly abandon any on-site sewage treatment/disposal system. Such notice is to be delivered by certified • mail (a) In the event the person or persons owning any building required to connect to the public sewer in accordance with the provisions of this chapter, fails to connect to the public sewer in the manner provided in this chapter, the Public Works Director shall request that the City Council authorize the mailing of written notice of the required sewer connection to all persons owning property described in the resolution. Such written notice shall be mailed to each person to whom such described property is assessed in the last equalized assessment roll available on the date the resolution was adopted by the City Council. The address of the owners shown on the assessment roll shall be conclusively deemed to be the proper address for the purpose of mailing such notice. Such notice shall be mailed at least fourteen (14) days prior to the time fixed for hearing objections by the City Council. 7-3.008 Form of notice. The notice shall be substantially in the following form: NOTICE TO CONNECT TO THE PUBLIC SEWER SYSTEM Notice is hereby given that on the day of , 20_ the City Council passed a resolution declaring that this "building" shall connect to the public sewer system and properly abandon any on-site sewage treatment/disposal system. Otherwise the City will connect said • residence and have properly abandoned any on-site sewage treatment/disposal system and all 25 costs of connection and abandonment plus 25% for overhead and all applicable fees assessed • upon the property upon which the work was performed, will constitute a lien upon such property until paid. Reference is hereby made to the resolution for further particulars. A copy of said resolution is on file in the office of the Department of Public Works. All property owners having any objections to the proposed mandatory connection are hereby notified to attend a meeting of the City Council of the City of Atascadero to be held when their objections will be heard and given due consideration. Dated this day of , 20 Director of Public Works City of Atascadero 7-3.009 Hearing of objections. (a) At the time stated in the notices, the Council shall hear and consider all objections to the proposed mandatory sewer connection. (b) At the conclusion of the hearing, the Council shall allow or overrule any objections. At that time, the City acquires jurisdiction to proceed and perform the work of connection/abandonment. The decision of the Council is final. 7-3.010 Order to connect. • If objections have not been made or after the Council has disposed of those made, it shall order the Director of Public Works to conduct the work of connection/abandonment. 7-3.011 Connection and on-site system abandonment by the City. In the event the person or persons owning the property required to connect to the public sewer system fail to connect to the public sewer system and properly abandon any on-site sewage treatment/disposal system in accordance with provisions of this chapter within six (6) months after the hearing of objections and order to connect to the public sewer system, it shall be the duty of the Director of Public Works to cause the building to be connected to the public sewer system and provide for the proper abandonment of any on-site sewage treatment/disposal system. This work will be conducted in such a manner so as to minimize damage to existing landscape and structures. However, the City shall assume no responsibility for incidental damage done or for the return of the work site to its original condition. It shall be unlawful for any person to interfere, hinder or refuse to allow them to enter upon private property for such purpose in accordance with the provisions of this chapter. Any person owning such residence in the City shall have the right to connect to the public sewer and abandon any on-site sewage treatment/disposal system, at his own expense, at any time prior to the arrival of the Director of Public Works or his representatives for such purpose. 7-3.012 Account and report of cost of connection. • 26 The Director of Public Works shall keep an account of the cost of connecting each building to the public sewer, the cost of abandoning any existing on-site sewage treatment/disposal system • and all applicable fees associated with each connection. An itemized written account, showing such cost, shall be submitted to the Council for confirmation. This account shall identify and refer to each building in a manner sufficiently reasonable to identify the same. This account shall include all expenses proposed to be assessed against each property, including the property owners share of the cost of extending the public sewer system to serve the building mandated for connection. All or part of this entire sum may be paid at the time of owner notification. Any portion of the amount assessed each property owner not repaid upon owner notification shall become a lien on said property which shall be repaid to the City through a municipal tax assessed over a fifteen (15) year period at a ten percent (10%) annual rate of interest. Any portion of the amount assessed not repaid, upon transfer of property ownership shall be repaid in full. 7-3.013 Notice of report and hearing. The Public Works Department shall post a copy of the assessment list on or near the door of the Council meeting room, together with the notice of the filing thereof and of the time and place when and where it will be submitted to the Council for hearing and confirmation. The posting shall be for at least five (5) calendar days prior to the submission to the Council. 7-3.014 Hearing of report: Modification: Confirmation of report. At the time and place fixed for receiving and considering the report, the Council shall hear the same, together with any protests or objections of the property owners liable to be assessed for e connection. Upon the conclusion of such hearing, the Council shall then confirm the report by motion and the amount thereof shall constitute a lien on the property assessed until paid. The confirmation of the assessment by the Council shall be final and conclusive. 7-3.015 Report to Assessor and Tax Collector: Filing copy of report with County Auditor. A certified copy of the report shall be filed with the County Auditor on or before the annual deadline set by the County Auditor for entry of such assessments on the County tax roll. In the event that the report cannot be prepared in time for the County Auditor to enter the assessment on the next immediate tax roll, the certified copy may be filed with the County Auditor before the deadline the succeeding year. 7-3.016 Collection of assessment: Penalties and procedures for foreclosure. The amount of the yearly assessment for connection and reimbursement shall be collected at the time and in the manner of ordinary municipal taxes. If delinquent, the amount is subject to the same penalties and procedure of foreclosure and sale provided for ordinary municipal taxes. 7-4.001 Permit required. It is unlawful for any person other than the City to make any connection with any public or building sewer, or to construct or alter any public or building sewer, within the City without first obtaining a permit from the City for such work. 7-4.002 Application. Any person desiring a permit for work involving sewers shall make application in writing to the • City giving such information as it may require, on blanks to be furnished for that purpose. If it 27 appears that the work to be performed is to be done according to the regulations contained in this title and otherwise provided by law governing the construction of such work, a permit shall be issued upon payment of the required fees. 7-4.003 Application exemptions. Nothing contained in this chapter shall be deemed to require the application for, or the issuance of, a permit for the purpose of removing stoppages or repairing leaks in a building sewer, except when it is necessary to replace any part of such sewer. 7-4.004 Fees. Sewer Connection fees shall be paid according to the category of building sewer. Fees for connection shall be set by Resolution of the Council. 7-4.005 Fees credited where. Permit fees shall be credited to the general operating account for the Wastewater Division of the Public Works Department. 7-4.006 Sewer tap charge. For each connection of a building sewer to a public sewer, a sewer tap charge shall be collected by the City before the permit for the construction is issued. 7-4.007 Sewer extension fee. In addition to such fees as shall be assessed for sewer connection and sewer taps, applications for • sewer service shall be assessed a sewer extension fee as applicable. 7-4.008 Fees deposited where. Connection fees and extension fees shall be deposited in the City's Sewer Facilities Fund (Chapter 9 of this title), and shall be used to pay the cost of system upgrade and expansion. 7-4.009 Fees payable when. Fees assessed pursuant to this chapter for extensions, permits, connection and tap charge shall be payable at the time of permit issuance. 7-5.001 Procedures. Extensions of the public sewer system of the Wastewater Collection Facilities shall be made as follows: (a) Any person desiring an extension of the public sewer system shall make a request in writing to the City for a preliminary investigation of the feasibility of said extension. (b) Requester shall submit improvement plans of the proposed extension, prepared by a registered civil engineer in the State of California, for approval by the City Engineer. (c) The person requesting said extension shall execute and file a written sewer extension performance agreement, the terms of which shall be subject to approval by the City Engineer, whereby said person agrees to complete all required improvements at his expense and to the satisfaction of the City Engineer, within the time period specified within the agreement. Said person further agrees to provide the City Engineer with a detailed cost breakdown of his actual expenditures for any improvements authorized in the agreement. The agreement shall also provide for inspection by the City Engineer, or his designated representative, of all • improvements, and reimbursement of the City by the requester, for the costs of the inspection. The City will invoice the requester for such inspection costs and any amount unpaid thirty (30) 28 days from the date of the City's invoice shall bear interest at ten percent (10%) per annum beginning within thirty (30) days after the date of the invoice. The sewer extension performance agreement may also provide: (1) for the construction of the improvements; and (2) for an extension of the time under conditions that are unspecified. No extension of time shall be granted except upon certification by the City Engineer that such extension is justified. In addition to the requirements of this section said person shall provide the City with a one hundred percent (100%) performance and fifty percent (50%) labor and material bond or other suitable security as deemed appropriate by the City Attorney (d) No hookup to the public sewer will be permitted until all improvement work has been completed to the satisfaction of the City Engineer and all charges have been paid by the requester in accordance with the provisions of this title. (e)Bonds will not be released until record drawings have been received by the City Engineer. 7-5.002 Reimbursement when. The City may approve a reimbursement agreement with persons who have paid for public sewer extensions. Application for reimbursement must be submitted within 6 months of acceptance of sewer extension. Said agreements shall provide for reimbursement of the excess cost borne by said persons, at such time within fifteen (15) years as money is paid to the City for service from said sewer extension. The City shall require the applicant to file and have approved by the City Engineer a reimbursement map showing the method and amount of cost spread to each future connection to the sewer extension. 7-5.003 Proportional share of cost required. No sewer service shall be provided to any lot by lateral sewer connection to a sewer extension until the owner of said lot has paid a proportional share of the cost of said sewer extension, or • has entered into an agreement with the city to pay said share of the costs. 7-5.004 Evaluation. In consideration of the extension requests, the City Engineer may require an engineer's evaluation of adequacy of existing sewer mains affected by the service extension. This would include an evaluation of the downstream line capacities as well as any possible upgrading of existing lift stations. 7-5.005 Extensions to go to far property line. Sewer line extensions shall be brought to the far property line unless otherwise approved by the Director of Public Works for cases where future extensions are not practical due to perimeter or problem lots or lots that are shown in the sewer master plan to be served from another direction. 7-6.001 Inspection of work. All work done under the provisions of this title shall be subject to inspection by the City. Up to the time of the inspection all work shall remain uncovered and convenient for the inspector's examination. If any pipes are enclosed or covered in any way whatsoever, so as to tend to obstruct a thorough inspection of the drainage system, said obstruction must be removed upon notice to do so from the City, before an inspector shall be required to inspect the work. When, upon examination by the inspector, it appears that any such work is defective, either in its construction or material, the same shall be made to conform to the approved plans. 7-6.002 Pipe and joint testing. 29 • All piping and all joints shall pass an air pressure test as per UPC 318. After backfilling and compaction, the pipeline shall also pass a mandrel test. Television inspection shall also be required. 7-6.003 Certificate of inspection. When it appears to the satisfaction of the City that any work authorized by these regulations has been constructed according to, and meets the requirements of, all provisions of this title and other applicable laws, and that all the fees for the doing and inspection thereof have been paid, the City shall cause to be issued to the person, firm or corporation constructing such work a certificate of final inspection. 7-7.001 Independent connections required. Every building in which plumbing fixtures are installed or located shall be separately and independently connected with public sewer, except that, on a case by case basis the City Engineer may approve the connection of more than one building to the public sewer by a common building sewer, if the City Engineer determines that requiring a separate and independent connection would cause or aggravate a hardship, and that such approval is consistent with good engineering practice and will impose no burden or hardship on the City. 7-7.002 Uniform Plumbing Code requirements. The requirements for building sewers as set forth in the latest adopted versions of the Uniform Plumbing Code shall apply in the City and are incorporated herein by reference. However, where the regulations of this title are more restrictive than said Plumbing Code, this Code shall apply. 7-7.003 Installation, maintenance and replacement. Installation, maintenance, and replacement of the building sewer shall be the responsibility of the connecting property owner. 7-7.004 Materials requirements. Materials shall be as per the current edition of the Uniform Plumbing Code on private lots, and as per current City Standards within the public right-of-way. 7-8.001 Storm water, etc. prohibited. No person shall discharge or cause to be discharged any storm water, surface water, groundwater, roof runoff, subsurface drainage, uncontaminated cooling water, or unpolluted industrial process waters to any sanitary sewers. 7-8.002 Regulated Discharge Swimming pools may be discharged into the sanitary sewer system upon issuance of a permit to do so and shall be performed in a method and at a time approved by the City Engineer. 7-8.003 Other prohibited discharges designated. No person shall discharge or cause to be discharged any of the following described waters or wastes to any public sewers: 30 (a) Any gasoline, benzene, naphtha, fuel oil, or other flammable or explosive liquid, solid or gas that has a closed-cup flashpoint of less than one hundred forty degrees Fahrenheit (140T) or • sixty degrees Celsius (60°C) using the test methods specified in 40 CFR 261:21; (b) Any waters or wastes containing toxic, infectious, or poisonous solids, liquids or gases in sufficient quantity, either singularly or by interaction with other wastes, to injure or interfere with any waste-water treatment process or constitute a nuisance or hazard to humans, animals, the local environment, or create any hazard in the hazardous condition to occur in the sewage system; (c) Any waters or wastes having a pH lower than 5.5 or higher than nine (9), or having any other corrosive property capable of causing damage or hazard to structures, equipment and personnel or the wastewater treatment and collection system; (d) Solid or viscous substances in quantities or of such size capable of causing obstruction to the flow in sewers, or other interference with the proper operation of the wastewater treatment collection works such as, but not limited to, ashes, cinders, sand, mud, straw, shavings, metal, glass, rags, feathers, tar, plastics, wood, unground garbage, paper materials such as newspapers, dishes, cups;milk containers, and meat processing plant wastes such as animal skins, intestines, fleshings, and paunch materials retained on a screen having eight(8)meshes per inch each way; (e) Any liquid or vapor having a temperature higher than one hundred fifty degrees (150°) Fahrenheit; (f) Any water or wastes which may contain more than one hundred (100) parts per million, by weight, of fat, oil, grease, or wax; (g) Any waters or wastes containing suspended solids or oxygen demanding pollutants of such character and quantity that unusual attention or expense is required to handle such materials at the wastewater treatment plant; • (h) Any noxious or malodorous gas or substance capable of creating a public nuisance; (i) Any water added to a wastewater discharge for the sole purpose of dilution as a means to achieve compliance with any pretreatment standard or local limit; 0) Any waters or wastes containing any radioactive materials or wastes of such half-life or concentration that they do not comply with regulations issued by appropriate authorities (Sections 30285 and 30287 of the California Code of Regulations); (k) Any waters or wastes containing color which is not removed in the ordinary wastewater treatment plant process. 7-8.004 Grease, oil and sand interceptors. Grease, oil and sand interceptors shall be provided when, in the opinion of the City, they are necessary for the proper handling of liquid wastes containing grease in excessive amounts or any flammable wastes, sand, or other harmful ingredients; except that such interceptors shall not be required for the private living quarters of dwelling units. All interceptors shall be of a type and capacity approved by the City and shall be located so as to be readily and easily accessible for cleaning and inspection. 7-8.005 Pretreatment facilities. Where pretreatment of discharge is required by the City, the necessary facilities shall be provided, operated and maintained at the user's expense. Detailed plans showing the facilities and their operating procedures shall be submitted to the City for review. Such plans must be acceptable to the City before construction is begun. Any changes in the pretreatment facilities or method of operation must be reported to and approved of by the City prior to implementation of . 31 • the proposed changes. Operational difficulties or failures of pretreatment facilities shall be reported immediately to the City. 7-8.006 Control manhole. When required by the City, the owner of any property served by a building sewer carrying industrial wastes shall install a suitable control manhole in the building sewer to facilitate observation, sampling and flow measurement of the discharge. Such manhole, when required, shall be accessible and safely located, and shall be constructed in accordance with plans approved by the City. The manhole shall be installed by the owner at his expense and shall be maintained by him so as to be safe and accessible at all times. 7-8.007 Measurements and tests. All measurements, tests and analyses of the characteristics of water and wastes shall be determined by the testing procedures specified in 40 CFR Part 136. When required by the City, the industrial user shall provide safe and secure access to the proper sampling point for the determination of compliance with federal categorical standards and/or local discharge limits. This may require the installation of a control manhole as described in Section 7-8.006. All testing shall be performed by an approved laboratory and conducted at the expense of the discharger. 7-9.001 Established. A sewer facilities account is established to consist of revenue obtained from connection fees, sewer extension fees, and designated revenues from the sewer service charges. 7-9.002 Purpose. The sewer facilities account shall be primarily to finance expansion, replacement and upgrade of the wastewater treatment facilities, and the replacement or enlargement of trunk sewer lines or other sewer lines or capital improvement items, including equipment. 7-9.003 Use. When moneys are available from the account, the City Council may utilize these moneys to construct public sewers in streets or easements to extend service to previously unsewered areas when the costs of such sewer construction are to be reimbursed by the owners of the properties requesting such extensions. Before moneys from said account are so used, the City Council shall enter into an agreement with the owner or owners of the properties to be served. 7-10.001 Imposed. There is levied and imposed upon any occupied premises within the City, having any sewer connection with the sewerage system of the City, or otherwise discharging wastewater which ultimately passes through the City's sewerage system or to which a public sewer is available according to Section 7-3.001 of this title, and upon the owner or occupant thereof, a monthly service charge as provided by resolution of the City. 7-10.002 Unclassified uses. For premises having a sewer connection but for which a specific classification for sewer service has not been set forth in the resolution referenced in Section 7-10.001, the City shall charge such a rate as in its sole discretion it deems most applicable for the type of use being made of the 32 premises in relation to the uses made of classified premises and the rate fixed for said classified premises. • 7-10.003 Computation information to be furnished to City. Whenever required, sewer service charge rate computation information shall be furnished to the City. In the event of failure to furnish rate computation information when requested and within the time allowed, the City may compute the rate based on such information as it finds reasonably available and such computation shall be conclusive and final. 7-10,004 Truck disposal accepted when. Truck disposal of sanitary wastes may be accepted by the City at the treatment plant during normal daytime working hours. 7-10.005 Collection by County tax roll. The City elects to have current and delinquent sewer service charges collected on the County tax roll in the same manner as its general taxes, pursuant to Health and Safety Code Sections 5473 through 5473a. 7-10.006 Collection by suit. As an alternative to any other procedures provided for herein, the City may collect any delinquent sewer service charges and penalties thereon by suit, in which event judgment therefor shall include the cost of suit and reasonable attorney's fees arising from such action. 3) Renumber existing p P Chapter 14 of Title 7 to Chapter 11 of Title 7 4) Renumber existing Chapter 15 of Title 7 to Chapter 12 of Title 7 5) A summary of this ordinance, approved by the City Attorney, together with the ayes and noes, shall be published 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: • 33 • ATTEST: CITY OF ATASCADERO Marcia McClure Torgerson, City Clerk Jerry L. Clay, Sr., Mayor APPROVED AS TO FORM: Roy A. Hanley, City Attorney • 34 ITEM NUMBER: B- 1 DATE: 02/10/04 a EB+q Atascadero City Council Staff Report - Community Development Department Appeal 2003-0002 Appeal of the Planning Commission's Decision to Deny Tree Removal Permit 2003-0039 (8270 Toloso Road: Messer/Tonneson) RECOMMENDATION: Council review the information submitted by the applicant for compliance with the Council's direction of November 25, 2003, and approve Tree Removal Permit 2003-0039 as revised by adopting Draft Resolution A. REPORT-IN-BRIEF: This is a continued hearing from the November 25, 2003 City Council hearing, appealing a Planning Commission action that denied a request for a tree removal permit to allow for the construction of a single family residence at 8270 Toloso Road (see Attachment 1, Location Map). The applicant's appeal is contained in a letter from the applicant dated October 14, 2003 (refer to Attachment 2), which contains the following points: 1. Findings for approval of Tree Removal Permit should have been made. 2. The process for obtaining a building permit has been followed exactly as directed by the Community Development Department. During the November 25, 2003, public hearing, the Council directed the applicant to revise the proposed site plan and to save an additional 9 trees. DISCUSSION: Background: This project was first heard before the Planning Commission on September 16, 2003. At that time, the applicant was requesting the removal of thirty-four (34) native trees (see Site Plan 1). During public testimony a number of neighbors spoke and submitted 35 ITEM NUMBER: B- 1 DATE: 02/10/04 correspondence in opposition to the tree removal permit request. The Planning Commission on a 7-0 vote referred the project back to the applicant to redesign the project to reduce the overall tree removal and/or present cost comparisons for the applicant's preferred design. The Commission's direction to the applicant was to reduce tree removal and impacts by minimizing pad grading, incorporating foundation stem walls and considering a smaller building footprint (see Attachment 3, Pertinent Planning Commission Minutes of September 16, 2003.) 36 ITEM NUMBER: B- 1 DATE: 02/10/04 Site Plan 1: Planning Commission referred back to Applicant on September 16,2003 I< y GVO& O 0701 OLZB \� 1 y d ►{u a` A NY7d JOYN/YW ONY JNIMO Yp tl Zia ho kit ll, �� t l � I I� t � {t t t! t ;III; C��;sl i ' �� !ti!°� ' �� 1 !� ° ! @$ • � ' {J ! � t I t i!►Ci i)�'{1 ! � i` I{i c els� t�l la i 3 : C '�8� Ie �� jl 11 i•{i�;�t!!�I, �I k,l I�8 3��'�',�. �!�! �•! {°�i lilt ! ` l [[ ! ♦i i 1 i f , ��*. li i Clmt �:Y t 81 �li, g� 00 s Typical Tree Removal Symbol Original Grading Limit ff 44, 4A ,J y ■K( itr. �° �... -.ter —,:Y�'-��•.`---w 1 _ , .�J — y . �3 a aroa oso�ot A The project was reheard by the Planning Commission on October 7, 2003. The applicant presented a revised site design, which included a smaller cut pad and limited use of retaining walls. Cost comparison data of different design alternatives was not submitted. 37 ITEM NUMBER: B- 1 DATE: 02/10/04 The design revision consisted of the limited use of stem walls along the northern foundation line but still had a cut and fill pad. This revision reduced the tree removal request from thirty-four (34) trees to nineteen (19) trees (see Site Plan 2). The Commission voted 4-3 to deny the request for tree removal. See Attachment 4, Pertinent Planning Commission Minutes of October 7, 2003. Site Plan 2: Planning Commission denied on October 7,2003 Relocation of Grading Limits f x Placement of Stem Walls a '1. Trees to Remain �.. 1 ff' N` apt Pit GY02! aso p I After reviewing the revised site design, the Planning Commission determined that the required findings for native tree removal could not be made. In denying the tree removal request on October 7, 2003,the Planning Commission determined that many of the provisions of Finding No. 5 had not been met. 38 ITEM NUMBER: B- 1 DATE: 02/10/04 The Native Tree Ordinance requires that one of the following findings be made prior to issuance of a tree removal permit: 1) The tree is dead, diseased or injured beyond reclamation, as certified by a tree condition report from an Arborist-This was not demonstrated by the project Arborist. 2) The tree is crowded by other healthier native trees, thinning (removal) would promote healthier growth in the trees to remain, as certified by a tree condition report from an Arborist This was not demonstrated by the project Arborist. 3) The tree is interfering with existing utilities and/or structures, as certified by a report from the Site Planner-This was not demonstrated by the Site Planner. 4) The tree is inhibiting sunlight needed for existing and/or proposed active or passive solar heating or cooling, as certified by a report from the Site Planner - This was not demonstrated by the Site Planner. 5) The tree is obstructing proposed improvements that cannot be reasonably designed to avoid the need for tree removal,as certified by a report from the Site Planner and determined by the Community Development Department based on the following factors: • Early consultation with the City-The applicant did consult with Staff and was advised to reduce the number of trees requested for removal. • Consideration of practical design alternatives - Practical design alternatives were not presented to the Planning Commission per direction at the September 16,2003 hearing. • Provision of cost comparisons (from applicant) for practical design alternatives - Cost comparisons of practical design alternatives were not submitted. • if saving tree eliminates all reasonable uses of the property; -This was not demonstrated by the applicant or the applicant's arborist, or • if saving the tree requires the removal of more 'desirable trees — This was not demonstrated by the applicant or the applicant's arborist. 39 ITEM NUMBER: B-1 DATE: 02/10/04 The applicant appealed the Planning Commission's decision and the appeal was heard by the City Council on November 25, 2003. At the public hearing, the City Council directed the applicant to revise the proposed site design to save an additional 9 trees shown on the . site plan below. Site Plan 3: City Council direction to Applicant { #C Proposed new grading line i Proposed Building , •"' ,' 11!26103 Council Footprint Preserve trees #19 12,13,14,16,16 I Vie' &redesign with u w• ! arborist report '1 L;>-- .�� a #G " f Trees 24"or I rf #10 49 } { a Greater dU t #17 r I r 6 19 Trees to be removed , .............r ..... f # ... X. 34 Trees t #... #13 #E #K Two Native Oak Trees of 24"r] #M }.. _{;• � moi' Proposed New Grading Line is �r #O ProposedSbQSSCB�ig ss:aze « M��r �`� #P j • ` .f 11126/03 Council Preserve trees 1, `> ' Proposed Driveway 2,3,4,g, _.' - f ••, redesign with _ r ' arborist report Analysis: The applicant has provided a revised grading plan and new arborist reports that incorporates the use of retaining walls to protect the required trees. The nine trees to be saved are trees 1 through 4 and 12 through 16. The applicant is proposing Allen block retaining walls with aeration tubes to protect trees 1, 2 and 3. Tree 4, a 24 inch White Oak, will be protected with a wood retaining wall and will be impacted approximately 47%. Trees12 throughl6 and trees F through H will also have wood retaining walls. Impacts to the trees range from 0 to 47%. Protection measures are shown on the following site plan and arborist report. It appears that the revised site plan and arborist report are consistent given by Council on November 25, 2003. 40 ITEM NUMBER: B- 1 DATE: 02/10/04 Site Plan 4: Response to City Council direction of November 25,2003 S AN qNf a4WAilA RUAR(i} -I 1 .n.°Fo�A. .v�rmr.K>a..yyavofwwt,s R AbMhr q,enq Au' I %.: ua.mcoo"�"rw nwa �� 'n.mxr'"r�o..f 8wnw a crow a•.l esr S% I. / _ � k •yIN D)sOrpghfll'm , I ', �. •w Y ms Axe a:t a 6 Too'/✓oj!R•✓aF!,s•R ra AN. spot i I.. "" uu r3 Se"� I Ap/ ll�aG R"4 ' o !4 IFk of oI le p� i I _.R�I �... f,•�£. mow.>. 5.-re aw I pusrbwN7RDE /t .�'`I AAILMME WrA4dk/TG�:. l / � °pO•' /I— d f/SE Q"MNfiJP.IRfI/X3 a TARlaMa•fREpIfTLY.I+fXRO I - : c Au mrAsmrxAneAxre '' l � a,anwAfmvraf,raavrini � _-__. � � A9 RMY ASp6S4BfE"ffY1L 798:80 1=pHphYA"aWRAw'AREAS. Q I FF- 7 soAx Ar1N A',F.IST-CIXACN FP-701-17 ' u A. - �,. , ji--O 5 A(1 fMSAAA.Sa.I ARE 0 ` { R • [r • 797m �" % ARC B • a AU TwAIAY;p fEWA) wewd AE uw aRa A CnI j �,, 11 Ksvprar ui j p g 1-1. 2 f�rHrawl M 0 I I ' i 8 $ dg. '�' uAs rerE,ar 6 • C 1 �»0 1 • .1 j I r�•a �, ru - -, / �- eAr� � � I + ±..� g -`/ • •w'iao.�ti a nvrmay.aa4nra utn I IGXA£1PEOCAY'A Of'RFQOW,? '- T w.vRrt TI _ L.xa. _L""""--i irerwio�row�w. !1.�/ 1\��. • i _, '�. FS FlN/57/E'Q 1 .° FP .�WrfED,lig EP PA iw_,M,,OF wAL ORIVEWA EWWO;79EE''7u o i i s �� R+.xa j'oNS�UCTlON``: EA7S71NGi I ` E % xesrAu Plro7a'oni r KwaoxA�.• .WA QrxwsinrcrPq I �5 44N3iq�rer ravcF 41 ITEM NUMBER: B- 1 DATE: 02/10/04 TREE PROTECTION,PRESERVATION, AND REMOVAL REPORT: 8270 Toloso Rd,;Atase This is a wooded parcel with some 270 trees. The proposed-site disturbance requires less than 5 to of forest impact.This represents agreservation of over 95-of existing forest. To accommodate the new construction.,a.maximum of 10 trees will-be removed.A list of these trees are included(see # 1-10). A'list of trees close to disturbance.areaswhich may be impacted,are identified for implementation oftree.protection mitigation measures(see #A U).All trees in close proximity will be pruned and will be monitored by Art Tonneson,Arborist or by his authorized representative to the standards of the international Society of Arboriculture . ❑ Tree protectionmeasures shall be in.place and prior to issuance of building/constructionipermits for this project. ❑ Tree fencing shall consist of minimum 4-foot high-chain link,snow or safety fence staked at the drip line or at the:line of encroachment shown for each tree or group of trees. ❑ Trees to be removed',shall be identified with pink or red flagging. ❑ A tree removal permit shall be posted and visible from the street. ' ❑ All existing trees shall remain unless other wise noted. ❑ Low branches in danger of being torn form trees shall be pruned prior to the start of any heavy equipment work. ❑ Any roots two inch or,greater in diameter that are encountered during excavation' shall be clean cut by hand and sealed with an approved tree seal. ❑ Vehicles and stockpiled material shall be stored outside the drip line of the trees to remain. ❑ The Precise Grading Plan shall identify tree protection fencing around the drip line of each existing on-site tree and/or native shrub mass within 20 feet of construction activity. ❑ Grading and excavation and grading work shall be consistent°with the City of Atascadero Tree Ordinance. Special precautions when working around native trees include: I. All existing trees outside of the limits of work shall remain. 2. Earthwork shall not exceed the limits of the project area. 3_ All trees within the area of work shall be fenced for protectionrwith` 4-foot chain link,snow,or safety fencing placed per the approved tree protection or grading. Fencing shall remain in place until completion of all construction activities. 42 ITEM NUMBER: B- 1 DATE: 02/10/04 The-develVa-,shall,contrad wit.a cerLi'ied.arteria,during a 1 ph sec j t i ile ent on. Thb.c�ec�. sts�t be:res c�risil�le.fbr o toring the roject during all plmscs;ofconstcu o throggh pro �i�?pietion, ;fd1lows: A�A wriacn as reement'between tice arborist and the developer ciuflixiing arbonstm onito ing schedule for each construction phase ough A inspection. B As specified;by the arborist repact a)ane all trees in acti*e develop tareas: cx.be saved for;° tictu ral.:stri;�tigt° .acid ccvwn cleaning.by a licensed and certffie&arborist; 1n:16cadons wherepav ng is to.occur id un th-e tree:canop ,. Na grading°or.=trenrc :is=allowedwithin-the fence ;protectecl;ar . Any roots,that ate 4 inches in,diarrietr:sir larges are riot to.be:cut until inspected and approved by;tlie:on-sitearborist. C)YTpon"PrOje t:completion and, '0 gccup a p �s r pport:sl all be rt pared by thgpro ect aftris cern yir g: oat tlt irc protectiou plait etas.intplen�eot4 the trees designated for,larote+ doi were protected du ng car action,andthe;co ction-se ated- e,prote on am no lenges requires]for tree protection. Signed , Due Certified ArbonIst L icens 19 I 43 ITEM NUMBER: B- 1 DATE: 02/10/04 i ,PROT CTION-827t1.?`O OSA:ROAD For MULE MESSED By ART TONE SON NVCTSA—#1'99 ie #i,' ,; txti3l h�i� Allen lii c nirag. datl: "Trb tiuml�oftre�e. Aeration tuE s sla�ill kae: c every: deet-�aciicWar al6ng block wall.aW:10 ket-in length. A.er�ttcrrt.tins�vill' r:,pl�tce�at,nat��ral marc under ill, Tree will""�iave�v��d:2 x 12 retai�ira wa �'frt�s ,ti�riilc. Tree#12,1.i,14,"1 16,F, C.astd.l i will here woad 2 x 12°ret�ziniza wa114-6'from the trunk. Trees#A an-d B CoRdfrut will beat least 4'fro fimpka Trees#C=artci I3,I:U'-tc 1 from focitings an will have standard tree protecti Trees,#Q iuid U wiU be S'"from 2'-e�p-septic"trench. Trus:#R Axid S wild be 2#3' from 2'deep:septic tench Tree#1 Will,be 51' qm 2- froth 2'deep septic trench. S Tree roots ercuuntered.will be.addressed"and manitored:as per the mates en:the_plam dirt,`. 1211-5/03: 44 ITEM NUMBER: B- 1 DATE: 02/10/04 Section NumberSpecies Size: Status: ches impact (DBH,) I 1 -5 WO ; 24 SAVE(monitor)5% ' 2 WO 22 SAVE(monitor)27% 3 `' WO 16 SAVE(monitor)O% 4-6 WO 24 SAVE(monitor)47% 5 WO'. 23 Remove(1) 6 LO' 12 Remove(2) 7 ` WO : 5 Remove.(3) 8 WO 8 Remove(4) 91 WO 14 -Remove(5) 10 WO 10 Remove(6) 11 WO 21 Remove(7) 12 -5 WO 6 8AVE(monitor)5% 13-5 WO 6 SAVE(monitor)0% 14-S WO 8 SAVE(monit6r)20% 15-6 , WO 10 SAVE(monitor)25% 16 -4v WO 8 SAVE(monitor)30% 17 WO 12 Remove(8) 18 WO 8 Remove"(9) 19 WO 12 Remove" 10)x" IV A WO 12 Monitor 8 WO 12 Monitor Next C WO 4 Monitor to D WO 18 Monitor house F WO 12 Monitor G WO 8 Monitor H WO 8 Monitor V Q WO 26 Monitor R " WO 6 Monitor" Sewer S WO 1-8 Monitor T WO 10 Monitor U- WO 10 Monitor i 45 ITEM NUMBER: B- 1 DATE: 02/10/04 FISCAL IMPACT: None. ALTERNATIVES: 1. The City Council may uphold the Planning Commission's denial of TRP 2003-0039 and deny the appeal. 2. The City Council may grant the appeal and approve TRP 2003-0039. The Council would need to make Finding No. 5 from the Tree Ordinance. 3. The City Council may approve TRP 2003-0039 subject to additional modifications of the project. 4. The City Council may determine that more information is needed on some aspect of the project and may refer the item back to the applicant and Staff to develop the additional information. The Council should clearly state the type of information that is required and move to continue the item to a future date. ATTACHMENTS: Attachment 1: Location Map, Zoning and General Plan Attachment 2: Letter from Applicant, dated October 14, 2003 Attachment 3: Pertinent Planning Commission Minutes of 09/16/03 Attachment 4: Pertinent Planning Commission Minutes of 10/07/03 Attachment 5: Planning Commission Resolution No. 2003-0091, Denying TRP 2003- 0039. Attachment 6: Pertinent Draft City Council Minutes of 11/25/03 Attachment 7: Draft Resolution A Granting an Appeal of the Planning Commission Decision Denying Tree Removal Permit 2003-0039, 8270 Toloso Road and Approving Tree Removal Permit 2003-0039 for Removal of 10 trees Attachment 8: Draft Resolution B Denying Appeal 2003-0002 and Upholding the Planning Commission's Denial of TRP 2003-0039 O 46 ITEM NUMBER: B- 1 DATE: 02/10/04 Attachment 1: Location Map,General Plan and Zoning Highway 41 IT � � � r 4 Project Site ; a V r � r �. P . � t `'' ; ? �', �. � P � JAC ¢> ' W 3 N� < � E , Castenada . Fri r33 �.� yrt�tt* {'"z , 'ate r , f � p 11,11"viii l �� r a� � t 2 s° ' r,.+M � x tg 4 �' � Toloso Road � n4,-Ac�,�kafl ty 14 : r a r✓ & � ; Ir.. .4�,. '; tet:.'� ;..._a. 47 ITEM NUMBER: B- 1 DATE: 02/10/04 Attachment 2: Letter from Applicant,dated October 14,2003 .MICHAEL D. MESSER CONSTRUCTION 9265 Carmelita Av. Atascadero.•CA 9342' RECEIVED Phone(805)466-6001 Fax(805)466-8658 4007(acalinet.net OCT 1 4.2003 October 14,2003 1COMMUHrrY DEVELOPMW City of Atasc. ��ffJ/r6500 �,`OQ Atasc.CCA 93422 s��• �7 7�� w' Reason: Appeal.Planting Commission Decision on Oct.7*item#4(Tree removal permit 2003-0039: 8270 Toloso rd(messer) Dear City Council: I disagree with the P/C decision not to approve Draft Resolution PC 2003-009.I am asking that the city Council move to reverse the actions of the Planning Commission for the following two reasons: Findings for Approval of Tree Removal Permit The Planning Commission failed to find as follows: Pursuant to the Tree Ordinance(Ordinance No 214).In considering any tree removal request,at least gmof the below stated following findings must be made. The Planning Commission could not make.aLof the necessary findings Finding 45 clearly states: "The tree is obstructing proposed improvements that cannot be reasonably designed to avoid the need for tree removal,as certified by a report from the site planner and determined by the community development DDcparttnent based on the following factors. My interpretation and understanding is clear as it reads: 1": Site planner:myself(Mike Messer) clearly certifies and 2n* The Community Development Dept clearly stated(in their recommendationto approve)they determined the finding had been satisfied,based on the following factors.there for finding#5 is satisfied. My understanding is the Planning Commission is expanding finding #5 to state that the Plamrine Commissipn mustdetem*=based on the following factors. If in fad this is the intentof the ordnance than I would put forth as the staff clearly stated in their recommended approval that the design in fact meets the described five factors: Early consultation with City Consideration of practical design alternatives Provision of cost comparisons If saving tree eliminates all reasonable uses of the property of If saving the tree requires the removal of more desirable trees. I am willing to provide any and all information that may be needed. 48 ITEM NUMBER: B-1 DATE: 02/10/04 Attachment 2: Letter from Applicant,dated October 14,2003, Page 2 2) Clearly,all that aside,the process of obtaining a building permit has been followed exactly as directed by the Community Dev Dept All recommendations followed,thus,this Design is such as directed and incorporation with the City Planning Dept,and carries the support and determination all tree ordinance Requirements are satisfied\ At this point in time The applicant,myselt has been placed in the position of being invested approx. $20-30,000 and 9 months of cooperation. I feel the planning commission should stand behind the direction and early determination by Staff to recommend approval of this design or unfairly burden financially the applicant.It is not a financially viable altemative to start over. Thank you for your consideration: Mike Messer 49 ITEM NUMBER: B-1 DATE: 02/10/04 Attachment 3. Pertinent Minutes of the Planning Commission Hearing of September 16,2003 TREE REMOVAL PERMIT 2003-0039.•8270 TOL OSO ROAD Request to remove thirty-three (33) native oak trees, two of which are in excess of 24"dbh, m conjunction with the development of an 3,416 square-foot single-family home located at 8270 Toloso Road (APN 056-411-023) Staff recommends: The Planning Commission adopt Resolution PC 2003-0091 to approve the request to remove twenty-four (24) native oak trees subject to the guidelines and mitigation required by the Atascadero Native Tree Ordinance. Associate Planner Kelly Gleason provided the staff report and answered questions of the Commission. Chairperson Fonzi entered into the record a letter from Gordon R. Hensley, Executive Director of Environment in the Public Interest. (Exhibit A) PUBLIC COMMENT Mike Messer, applicant, described the home he wishes to construct and spoke about the site and the i process he pursued in an attempt to save more trees on the property. He felt the proposed project is the best he can do in order to make this home design work on the site. Mr. Messer answered questions of the Commission. Commissioner Jones asked the applicant to describe the process he went through with staff to determine how to save more trees on the site, i.e. the use of stem walls, etc. Mr. Messer stated that he has not considered the use of stem walls and that originally they had a much larger pad for the house and allowed for a larger yard in the back which then pushed the toe of the fill further out and impacted more trees. Chairperson Fonzi questioned whether the applicant had considered a two story home rather than a long one story. Mr. Messer stated that he had not, he has a house plan that he has built before and is pleased with, and this is the house he wants to build. Vice Chairperson Kelley asked Mr. Messer if he had given any thought to a raised foundation as it seems on that lot the cost of tree removal and the mitigation fees would be more costly than just doing a raised foundation, which would create fewer impacts on the lot. The applicant stated that he is looking at this project from the point of view of either himself or somebody living in the house and enjoying the area with a little yard to enjoy the view, and he feels the submitted plan is the best use of the property. 50 ITEM NUMBER: B- 1 DATE: 02/10/04 Attachment 3: Pertinent Minutes of the Planning commission Hearing of September 16,2003 Page 2. Eric Greening felt that the Commission would be unable to make the findings as required. Many of the remaining lots in the community are difficult to build upon and as a result many trees are being removed to accommodate single-family homes. He does not feel that the EIR on the General Plan countenanced the taking of the thousands of trees that this type of development would generate given the difficulty of building on those lots. Mr. Greening encouraged the Commission to be conservative in defining the word "reasonable, " and encouraged some of the construction alternatives already discussed by the Commissioners. He also reminded the Commission that most of these trees are in good condition, and the fact that they have a small diameter does not make them less valuable. Clement Salvadore, 8240 Toloso Road, stated that he has lived in the area for 12 years and is taken aback by the number of trees slated for removal on the applicant's lot. He felt this project is better suited to a flat lot with no trees, and is not suitable for Tolosa Road. Additionally the removal of this many trees is opposed to the intent of the Atascadero Native Tree Ordinance. Galen Little, 8265 Toloso Road, indicated that he lives directly across the street from the subject property as well as being a contractor and developer. He has looked at this site and felt something with a raised foundation would be more suitable to the lot. He encouraged the applicant to hire an • architect to design a structure for the site instead of forcing the site to fit the current house plan. Mr. Little answered questions of the Commission. Thomas Marks, 8251 Toloso Road, gave a brief history of the development of this area. He expressed shock over the number of trees to be removed and felt the applicant should design his home to fit the property. Robert Johnson, Toloso Road, said he agreed with the other speakers and felt the plan for this home was not appropriate for the lot. He also felt the home should be built for the lot and felt the photographs in the staff report misrepresented the terrain of the site, as they made it look flat when in reality there is in excess of a 30 degree slope. Ron Kapal, 8165 Casenada Lane, stated that he supports the views of the other speakers. Commissioner Jones requested that the applicant respond to the concerns addressed by the previous speakers. Mr. Messer made the following responses: 1) he will live in the home once it is built, it is not a spec home, 2) this is not just a dollars and cents approach to developing the property, and 3) he wants the house to work on the site. Regarding stem walls and other designs, he stated he had looked at doing a two-story house and felt certain constraints such as the driveway approach, and the buildable area(which is very narrow) would still require grading. Chairman Fonzi closed the Public Comment period. 51 ITEM NUMBER: B- 1 DATE: 02/10/04 Attachment 3: Pertinent Minutes of the Planning Commission Hearing of September 16,2003 Page 3. Ile Vice Chairperson Kelley stated he believes in property rights and feels there is not a lot of area on this lot to build a house without impacting trees, however, if the applicant would just do the stem wall and use that type of construction, all tree impact to the right of the site would be eliminated. He also felt the decision to build a one or two story house should be made by the applicant. Commissioner Jones indicated that he would have a difficult time making the findings that would satisfy the Atascadero Native Tree Ordinance as well as those presented by staff. He feels that the applicant hasn't considered other design alternatives, and it appears hasn't discussed any alternatives with staff and for this reason he is unable to vote for the project as it currently stands. Commissioner O'Keefe thanked the neighbors for coming out and speaking on behalf of a more site-sensitive design. She indicated that she also was unable to make the finding that practical design alternatives were looked at, something that is a requirement in the Tree Ordinance. For this reason she is unable to support this particular design on this lot. Commissioner Porter felt that there are practical ways through design alternatives to save many of the trees on the property, and he is hopeful that the applicant will take some of the suggestions discussed by the Commission and try to implement them on this lot. He also is unable to make the findings required. Commissioner Beraud stated that she was in accordance with the views expressed by the Commission. She reviewed the criteria the applicant must meet to make the findings, and felt the Commission must set standards for this type of lot that will assist the planning staff in suggesting design alternatives to future applicants. Commissioner Beraud will vote against the project. MOTION: By Commissioner O'Keefe and seconded by Chairperson Fonzi to deny the request for the removal of the 24 trees that the applicant is requesting. Vice Chairperson Kelley suggested continuing this item rather than denying it so the applicant could work with staff without paying additional fees. Chairperson Fonzi asked staff for direction on this suggestion. Director Frace indicated that the Commission could take either option; both would have the same effect. If the permit were denied the project would have to be redesigned and reprocessed for Commission approval. If it is sent back to staff for the applicant to redesign, there would be the same effect. Director Frace stated that staff understands that the Commission feels the tree removals and grading are excessive and that they would like to see the project redesigned to minimize the tree removals. He felt it would be cleaner to just refer the item back to staff with this direction and staff could work with the applicant to redesign the project and bring it back to the Commission. 52 ITEM NUMBER: B- 1 DATE: 02/10/04 Attachment 3: Pertinent Minutes of the Planning Commission Hearing of September 16,2003 Page 4 Commissioner O'Keefe withdrew her motion, and Chairperson Fonzi withdrew her second. MOTION: By Commissioner Jones and seconded by Commissioner O'Keefe to direct the applicant to go back to staff to work with staff to satisfy the conditions of the Tree Ordinance to consider alternative designs and also some of the cost comparison design work that needs to be done and to have staff bring it back at such time that it is ready for the Commission to hear. AYES: Commissioners, Jones, O'Keefe, Porter, Beraud, Bentz, Kelley and Chairperson Fonzi NOES: None ABSTAIN: None Motion passed 7:0 by a roll-call vote. 53 ITEM NUMBER: B- 1 DATE: 02/10/04 Attachment 4: Pertinent Minutes of the Planning Commission Hearing of October 7,2003 TREE REMOVAL PERMIT 2003-0039:8270 TOLOSO ROAD(MESSER1 Community Development Director Warren Frace provided the staff report and answered questions of the Commission. Mike Messer, applicant, explained what he had done to revise his plan and answered questions of the Commission. Art Tonneson,project arborist, answered questions of the Commission. PUBLIC COMMENT Galen Little, 8265 Toloso Road, felt the home should be designed for the lot as opposed to designing the lot to accommodate the house. Additionally, he felt there were still too many tree removals on the site. Tom Marks, 8251 Toloso Road, explained that part of the grading on the lot had been done recently while testing for a septic system and this has impacted the trees. He indicated that stem wall design is not fit for this type of property and that this home should be constructed in another part of town where the property is flat. Mr. Parks feels the home must be designed to fit the property. Gement Salvadore, 8240 Toloso Road, agreed with the two previous speakers and felt the trouble with the applicant's house is that it is not suitable for this particular piece of land. The footprint of the home is too large for the steep slope on the property and too many trees will have to be removed. Chairperson Fonzi closed the Public Comment period. Commissioner O'Keefe read from the Minutes of the last meeting where the applicant was encouraged to consider alternate designs and also some of the cost comparison design work. She stated there were no alternative designs and the Commission is still dealing with the same house plan. Therefore, in her opinion, the applicant basically ignored what the Commission previousyrecommended. Regarding, the pad, she cannot see that it adds any merit to what the applicant proposes to do because the topography of the land requires a decent design, specicalya raised foundation. Also Commissioner O'Keefe felt the applicant is not following the General Plan or the Tree Ordinance, which states preserving native trees are to be encouraged and the design of a building will be such that it takes this into consideration. 54 ITEM NUMBER: B- 1 DATE: 02/10/04 Attachment 4: Pertinent Minutes of the Planning Commission Hearing of October 7,2003 Page 2. • Vice Chairperson Kelley felt that the pad as it exists is not suitable for a building because it will have to be completely re-compacted, therefore considerable grading must be done regardless of the type of house the applicant builds. He stated that the applicant did add stem walls as requested and brought back the toe of the grading saving numerous trees. Vice Chairperson Kelley felt the applicant had done the best he could given the constraints of the site. Commissioner Bent.Z agreed that the applicant has made a significant effort at reducing the tree impacts, effectively eliminating his backyard. He feels the applicant has the right to build a house on his property and he supports the project. Commissioner Beraud expressed disappointment that no alternative designs were presented for consideration. She appreciates the applicant's efforts to decrease the number of tree removals, but would still like to see the alternative designs. Commissioner Jones indicated that he was still having dculty making some of the findings for the project, specifically, on item#C, the proposal on the comparisons forpractical design alternatives. MOTION: By Commissioner O'Keefe and seconded by Commissioner Beraud to deny the applicant's request to remove the trees and that the applicant come back with alternative designs. AYES: Commissioners O'Keefe,Beraud, Jones, and Chairperson Fonzi NOES: Commissioners Porter,Bentz and Kelley ABSTAIN: None 55 ITEM NUMBER: B- 1 DATE: 02/10/04 Attachment 5: Planning Commission Resolution 2003-0091 Denying TRP 2003-0039 • APPROVED ORIGINAL OCT 2 11003 PITY OF ATASCADE RESOLUTION PC 2043-0091 PLAtJNiNG A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ATASCADERO DENYING A TREE REMOVAL PERMIT FORTHE REMOVAL OF NATIVE OAK TREES. LOCATED AT 8270 TOLOSO ROAD (TRP 2003-0039:Mtke Messer) WHEREAS;an application for a Tree Removal Permit has been received from Mike Messer,9265 Carmelita Avenue,Atascadero,California 93422,to allow the removal of two native oak trees located at 8270 Toloso Road and, WHEREAS,the proposed project is located within the Rural Estates land use designation of.the City of Atascadero's General Plan Land Use Diagram;and, WHEREAS,the proposed project is located in the Residential Suburban zoning district;and, WHEREAS;the Planning Commission reviewed the proposed Tree Removal application on September 16,2003,at 7:00 p.m.in the Rotunda Room of City Hall located at 6500 Palma Avenue and considered testimony and reports from staff,the applicant,and the public;and, WHEREAS,the Planning Commission determined that the necessary findings for native tree removal could not be made as the project was designed and directed the applicant to revise the proposed development to preserve additional native trees on the project site,and WHEREAS,the Planning Commission reviewed the revised proposal for Tree Removal application on October 7,2003,at 7:00 p.m.in the Rotunda Room of City Hall located at 6500 Palma Avenue and considered testimony and reports from staff,the applicant,and the public;and, WHEREAS,the Planning Commission determined that the necessary findings for native tree removal could not be made based on the revised project design,and. NOW,THEREFORE,the Planning Commission takes the following actions: SECTION 1.Denial of Anulieation. The Planning Commission finds as follows: 1. Alternative designs were not presented for Planning Commission review. 2. The revised site design was substantially the same plan presented at the September 16,2003 Commission hearing. 56 ITEM NUMBER: B- 1 DATE: 02/10/04 Attachment 5: Planning Commission Resolution 2003-0091 Denying TRP 2003-0039 Page 2. 3. Based on the Arborist's Report and the Applicant's site design, the necessary findings, as outlined in the City of Atascadero's Native Tree Ordinance and listed below,could not be made. The tree is obstructing proposed improvements that cannot be reasonably designed to avoid the need for tree removal, as certf ed by a report from the Site Planner and determined by the Community Development Department based on the following factors: • Early consultation with the City; • Consideration ofpractical design alternatives; • Provision of cost comparisons (from applicant)for practicaldesign alternatives; • If saving tree eliminates all reasonable uses of the property;or • If saving the tree requires the removal of more desirable trees: On motion by Commissioner O'Keefe, and seconded by 'Commissioner Beraund the foregoing resolution is hereby adopted in its entirety by the following roll call vote: • AYES: Fonzi,Beraud,O'Keefe,Jones (4) NOES: Porter,Bentz,Kelley (3) ABSENT: (0) ABSTAIN: (0) ADOPTED: CITY OF ATASCADERO,CALIFORNIA Roberta Fonzi , Planning Commission Chairperson Attest: Warren M.Frace Planning Commission Secretary \\CiryhaWDvipmnt\-TRP- Tree Removal PermitsURP 03\TRP 2003.0039 8270 Toloso RoadWinal Reso for 10-7 PC Hearing doc 57 ITEM NUMBER: B -1 DATE: 02/10/04 Attachment 6: Draft,Pertinent Minutes of City Council Hearing, November 25,2003 3. Appeal of the Planning Commission's Decision to Deny Tree Removal Permit 2003-0039 - Appeal 2003-0002 (8270 Toloso Road - Messer/Tonneson) ■ Fiscal impact: None. ■ Staff recommendation: Council uphold the Planning Commission's denial of Tree Removal Permit 2003-0039 for the removal of nineteen (19) native trees for the construction of a single-family residence. [Community Development] Community Development Director Warren Frace gave the staff ,report and answered questions of Council Mike Messer, applicant, stated that he has one legal lot and is trying to build an average size house that fits the lot and does not impact the view. He has considered many alternatives, made practical design changes and worked with staff to address their concerns. Mr. Messer answered questions of Council PUBLIC COMMENT Gaylen Little, Toloso Road resident, urged the Council to require a house designed with a step foundation to conform to the lot. Tom Parks, Toloso Road resident, stated the applicant should be required to build a home , that fits the lot, not redesign the lot to fit the home. Robert Johnson, neighbor of this proposal, expressed concern that approval of the applicant's plan would set a poor design precedent for this neighborhood. Clement Salvadore, Toloso Road resident, stated the house proposed is inappropriate for the lot. Diane Johnson, neighbor to proposal, expressed concern with allowing this proposal to be built, as it will set a precedent. Ken Friend, Toloso Road resident, stated he agrees with his neighbors and would like to save as many oak trees as possible. Ron Cappel, Castenada Lane resident, stated he supports his neighbors and opposes this proposal. Mayor Clay closed the Public Comment period, Mayor Pro Tem Luna expressed his support for the Planning Commission denial. 58 ITEM NUMBER: B-1 DATE: 02/10/04 Attachment 6: Draft,Pertinent Minutes of City Council Hearing, November 25,2003 Page 2. Council Member O'Malley indicated that he was reluctant to encourage appeals of staff and Planning Commission decisions and feels the design for the site could be improved. He supports the use of stem walls. Council Member Scalise expressed concern that there were no set guidelines in place for this type of project. MOTION: By Council Member Scalise to grant the appeal. Motion failed for lack of a second. MOTION: By Mayor Pro Tem Luna and seconded by Council Member Pacas to uphold the Planning Commission's denial of Tree Removal Permit 2003-0039 for the removal of 19 native trees for the construction of a single family residence. Motion failed 2:3 by ,a roll-call vote. (O'Malley, Scalise, Clay opposed) Mike Messer asked the Council to be as specific as possible on what they would be looking for in this project. He stated that it would be too costly to build a home with stem walls and that this house pian fits in as close as possible to the building pad. Mr. Messer indicated that he would be in favor of going back to staff to adjust his plan. MOTION: BY Council Member Scalise to direct Mr. Messer to come back with a plan that saves the two 24-inch trees indicated in the yellow box on the exhibit and that would be placed on the January 13th agenda. Motion failed for lack of a second. Mike Messer made.suggestions for saving specific trees on the site. PUBLIC COMMENT Gaylen Little asked the Council to require a raised foundation to minimize grading. MOTION: By Mayor Pro Tem Luna and seconded by Mayor Clay to continue the hearing past 11:00 p.m. Motion passed 4:1 by a roll-call vote. (Scalise opposed) Joan O'Keefe asked if construction activity necessitated by the use of stem walls would impact the trees to the degree that their survival would be in question. Mayor Clay closed the Public Comment period. 59 ITEM NUMBER: B- 1 DATE: 02/10/04 Attachment 6: Draft,Pertinent Minutes of City Council Hearing, November 25,2003 Page 3. MOTION: By Mayor Clay and seconded by Council Member Scalise to grant the appeal with the recommendation of saving the nine trees as agreed by the applicant and request the applicant work with an arborist to insure these trees will not be impacted and that the applicant do his best to save any other trees he can on this lot. Motion failed 2:3 by a roll-call vote. (Pacas, O'Malley, Luna opposed) Council Member O'Malley stated that he prefers to see a different project, though he is reluctant to require it. He would like the applicant to bring back a project that mitigates the problems outlined, and this would be the applicant's last chance to do so. MOTION: By Council Member O'Malley and seconded by Mayor Clay to continue this item and direct the applicant to bring back the project with arborists' reports and work on it with staff bringing it back for Council to consider. Motion passed 3:2 by a roll-call vote. (Pacas, Luna opposed) 60 ITEM NUMBER: B- 1 DATE: 02/10/04 Attachment 7: Draft Resolution A-Granting an Appeal of the Planning Commission Action Denying TRP 2003-0039 and Approving TRP 2003-0039 for the Removal of 10 Trees DRAFT RESOLUTION B A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ATASCADERO GRANTING APPEAL 2003-0002 APPROVING A TREE REMOVAL PERMIT TO ALLOW THE REMOVAL OF TEN NATIVE OAK TREES LOCATED AT 8270 TOLOSO ROAD (TRP 2003-0039/MESSER) WHEREAS, an appeal of the Planning Commission's action to deny an application for Tree Removal Permit 2003-0039 has been received from Mike Messer, 9265 Carmelita Avenue, Atascadero, California 93422; and, WHEREAS, Tree Removal Permit 2003-0039 requested the removal of native trees located at 8270 Toloso Road; and, WHEREAS, the proposed project site is located within the Rural Estates land use designation of the City of Atascadero's General Plan; and, WHEREAS, the proposed project site is located in the Residential Suburban zoning district; and, WHEREAS; the Planning Commission reviewed the proposed Tree Removal application on September 1.6, 2003, at 7:00 p.m. in the Rotunda Room of City Hall located at 6500 Palma Avenue and considered testimony and reports from staff, the applicant, and the public; and, WHEREAS, the Planning Commission determined that the necessary findings for native tree removal could not be made as the project was designed and directed the applicant to revise the proposed development to preserve additional native trees on the project site, and WHEREAS, the Planning Commission reviewed the revised proposal for Tree Removal application on October 7, 2003, at 7:00 p.m. in the Rotunda Room of City Hall located at 6500 Palma Avenue and considered testimony and reports from staff, the applicant, and the public; and, WHEREAS, the Planning Commission determined that the necessary findings for native tree removal could not be made based on the revised project design and thereby adopted Resolution 2003-0091, denying TRP 2003-0039, and WHEREAS,the applicant, Mike Messer, has filed an appeal of the Planning Commission's action to deny Tree Removal Permit 2003-0039, and 61 ITEM NUMBER: B - 1 DATE: 02/10/04 WHEREAS, the City Council reviewed the appeal of the Planning Commission action on November 25, 2003, at 7:00 p.m. in the Rotunda Room of City Hall located at 6500 Palma Avenue and considered testimony and reports from staff, the appellant, and the public; and, WHEREAS, the City Council directed the appellant to revise the proposed development to preserve additional native trees on the project site, and; WHEREAS, the City Council reviewed the revisions submitted by the appellant on February 10, 2004, at 7:00 p.m. in the Lake Pavilion located at 9315 Pismo Street and considered testimony and reports from staff, the appellant, and the public; and. NOW,THEREFORE, the City Council takes the following actions: SECTION 1. Findings for Approval of Tree Removal Permit. The City Council finds as follows: The tree is obstructing proposed improvements that cannot be reasonably designed to avoid the need for tree removal, as certified by a report from the Site Planner and determined by the Community Development Department based on the following factors: 1. Early consultation with the City; 2. Consideration of practical design alternatives; 3. Provision of cost comparisons (from applicant) for practical • design alternatives; 4. If saving tree eliminates all reasonable uses of the property; or 5. If saving the tree requires the removal of more desirable trees. SECTION 2. Approval. The City Council hereby approves Tree Removal Permit 2003- 0039 subject to the following Conditions and Exhibits: Exhibit A: Tree Mitigation Table Exhibit B: Conditions Of Approval Exhibit C: Tree Protection Plan Exhibit D: Site Plan 62 ITEM NUMBER: B- 1 DATE: 02/10/04 On motion by Councilmember and seconded by Councilmember • the foregoing resolution is hereby adopted in its entirety by the following roll call vote: AYES: O NOES: O ABSENT: O ABSTAIN: O ADOPTED: CITY OF ATASCADERO, CA George Luna, Mayor • Attest: Marcia McClure Torgerson, City Clerk APPROVED AS TO FORM: Roy A. Hanley, City Attorney 63 ITEM NUMBER: B- 1 DATE: 02/10/04 Exhibit A:Tree Mitigation Table Tree Mitigation Table 1 Evergreen Native Trees(inches) Decidumm Native Trees(inches) Totals dbh nates dbh notes 1 12Ard-es ij eOak 1 23-Indies WYiteOak 2 2 5•ird-es 3 3 8-indies 4 4 14indies 5 5 1044 dies 6 21-ird-es 7 12 indies 8 8-ird-es 6 6 12 indies Total 124ndies TOW 11341 does 12541 dies NFtigalion Re*d.ena Tree Fuld Payrrent: $ 100.00 Tree Find Paflnw t: $ 1,883.33 Is 1,913<i m 64 ITEM NUMBER: B- 1 DATE: 02/10/04 EXHIBIT B: Conditions of Approval for TRP 2003-0039 • Conditions of Approval Timing Responsibility Mitigation TRP 2003-0036 /Monitoring Measure PR Phar to Removal PS:Planning Services BL Business License &S:Butting Services BP:Building Permit FD:Fire Depadment TO:Temporary Occupancy PD:Police Departrnent F0:Final Occupancy CE City Engineer WW:Wastewater CA:City Attorney Planning Services 1. The applicant shall pay$1,983.33 into the tree fund as FO PS mitigation for the tree removal as shown in the attached table.Should the number of necessary tree removals be decreased or increased through project alteration,the total fee shall be recalculated based on the requirements set forth in the Atascadero Native Tree Ordinance.Any additional removal request for trees in excess of 24"dbh will require Planning Commission approval. 2. No tree removals shall be allowed prior to the issuance of BP PS an approval letter. 3. All underground utilities shall be routed with the proposed BP PS driveway. • 4. Native trees with greater than 50%dripline encroachment BP PS shall require a mitigation deposit consistent with fee requirements set forth in the Atascadero Native Tree Ordinance.Deposits shall be refunded once a certified arborist establishes a high chance of survivability for such impacted trees. 5. A Pre-construction meeting shall be required prior to BP PS building permit issuance. 6. Monitoring of construction activities by a certified arborist shall be required throughout the entirety of the project. 7. Prior to building permit final,a letter from the certified project arborist certifying construction activity in relation to on-site trees shall be required. 8. All development shall be consistent with the City Council BP PS approved site plan of February 10,2004 shown in Exhibit D and the tree protection report shown in Exhibit C. 65 ITEM NUMBER: B- 1 DATE: 02/10/04 EXHIBIT C: Tree Protection Plan for TRP 2003-0039 TREE PROTECTION PRFS}yRVATION,AND REMOVAL REPORT: 8270 Toloso Rd,Atasc.- This is a wooded parcel with some 270 trees. The proposed site.disturbance requires less than 5%of forest impact.This represents a preservation of over 95%of existing forest. To accommodate the new construction.a maximum of 10 trees will be removed.A list of these trees are included;(see'#1-10). A list of trees close to disturbance areas which may be impacted,are identified for implementation of tree protection mitigation measures(see #A-U) All trees in close proximity will be;pruned and will be monitored by Art Tonneson,Arborist or by his authorized representative to the standards of the international Society of Arboriculture. ❑ Tree protection measures shall.be in place and prior to issuance of building/eonstfuction permits for this project. Tree fencing shall consist of minimum 4-foot high chain link,snow or safety fence staked at the drip line or at the line of encroachment shown for each tree or group of trees. ❑ Trees to be removed shall be identified with pink or,red flagging: ❑ A tree removal permit shall be posted and visible from the street, ❑ All existing trees shall remain unless other wise noted. Low:branches in danger of being torn form trees shall be pruned prior to the start of any heavy equipment work. ❑ Any roots two inch or greater in diameter that are encountered during excavation shall be clean cut by hand and sealedmith an approved tree seal. ❑ Vehicles and stockpiled material shall be stored outside the drip line of the trees to remain. ❑ The Precise Grading Plan shall identify tree protection fencing around the drip line of each existing on-site tree and/or native shrub mass within 20 feet of construction activity., ❑ Grading and excavation and grading work shall be consistent with the City of Atascadero Tree Ordinance. Special precautions when working around native trees include: i. All existing trees outside of the limits of work shall remain. 2. Earthwork shall not exceed the limits of the project-area. 3. All trees within the area of work shall be fenced for protection with 4-foot chain link,snow,or safety fencing placed per the approved tree protectiomor grading. Fencing shall remain in place until completion of all construction activities. ❑, The developer shall eontract-with a ce tified arborist:durbg all phases of project implementation The certii ied:arborlsfs shall be responsible for monitoring the project during all phases..of constructions through project completion;as follows., A)A written agreement ven the arborist and the deveioper.outlining a arborist-moititodug schedulc for each eonstuetionphase ft-.igh final inspection. B)As:spcciified by the arborist report: o)Prune all trecs.inactive developmemt.areasto-be saved for sYructural strength.ai dcrown cleaning by a licensed and.certifled:arborist> In locations4here paving is to occur within'the tree canopy,. No grading or ttvntching.is,allowedwithin thefeneed protected area.. Any;roats,tha:are 4 inches W diame(er or larger are not to be cut uutil inspected--and approv4by the.on-site arborist. U on :'extcompletion-and C) p ,pro rior to- rial,cecn an a foal status � J , .p. p cY report-shall port<shall be prepared by the project:arbonst certifying thatthe tree; protection.pl_ was implemented,the trees designated.for protectica ware protected during construction,and the construction-related tree protection measures are an-o`1d`ngerrrequue4 fortree protection. signed '/� Daze Certified Arborist License#199 66 ITEM NUMBER: B- 1 DATE: 02/10/04 EXHIBIT D: Site Plan for TRP 2003-0039 • I •�, -_—�..-------�.__ �enmm�f snot .:J -_•t\-, lei p o"O ."�.. ...-.°..p.. i = wn4.v velwwbe kYnpgp'. / �. a::y-w aisagM Wzfp1! mr +vo i �� $ [ f'J "rE IMxPWie uWW nM. r i• aw D=boffgm = r , P Q .0 1-02 ,a ; e C•,, aac scr ° s : C/) !'' 'w 1 1 2 " a j .'f" 1-4 xrR � ¢ rnrmAt-aee°s�aowa PA tr m rw MP W.wee y gg�Y�yg'y 7 I mM1 EMSIWfi IRfC.TO ' a ea III r sAxcurc�s+evcs �,• +�`„� 1\°� Q ArAscAc�no�sran aerruc svregy�e Ml$fALL FRb1EYJlii i 1 // UGt�sr�er cava agntflc sow .t ' h 67 ITEM NUMBER: B-1 DATE: 02/10/04 Attachment 8: Draft Resolution B-Upholding the Planning Commission Action Denying TRP 2003-0039 • DRAFT RESOLUTION B A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ATASCADERO UPHOLDING THE PLANNING COMMISSION'S ACTION TO DENY A TREE REMOVAL PERMIT FOR THE REMOVAL OF NATIVE OAK TREES LOCATED AT 8270 TOLOSO ROAD (TRP 2003-0039:Mike Messer) WHEREAS, an appeal of the Planning Commission's action to deny an application for Tree Removal Permit 2003-0039 has been received from Mike Messer, 9265 Carmelita Avenue, Atascadero, California 93422; and, WHEREAS, Tree Removal Permit 2003-0039 requested the removal of native trees located at 8270 Toloso Road; and, WHEREAS, the proposed project site is located within the Rural Estates land use designation of the City of Atascadero's General Plan; and, WHEREAS,the proposed project site is located in the Residential Suburban zoning district; and, WHEREAS; the Planning Commission reviewed the proposed Tree Removal application on September 16, 2003, at 7:00 p.m. in the Rotunda Room of City Hall located at 6500 Palma Avenue and considered testimony and reports from staff,the applicant, and the public; and, WHEREAS, the Planning Commission determined that the necessary findings for native tree removal could not be made as the project was designed and directed the applicant to revise the proposed development to preserve additional native trees on the project site, and WHEREAS, the Planning Commission reviewed the revised proposal for Tree Removal application on October 7, 2003, at 7:00 p.m. in the Rotunda Room of City Hall located at 6500 Palma Avenue and considered testimony and reports from staff, the applicant, and the public; and, WHEREAS, the Planning Commission determined that the necessary findings for native tree removal could not be made based on the revised project design and thereby adopted Resolution 2003-0091, denying TRP 2003-0039, and 68 ITEM NUMBER: B- 1 DATE: 02/10/04 WHEREAS, the applicant, Mike Messer, has filed an appeal of the Planning Commission's action to deny Tree Removal Permit 2003-0039,and • WHEREAS, the City Council reviewed the appeal of the Planning Commission action on November 25, 2003, at 7:00 p.m. in the Rotunda Room of City Hall located at 6500 Palma Avenue and considered testimony and reports from staff,the appellant, and the public; and, WHEREAS, the City Council directed the appellant to revise the proposed development to preserve additional native trees on the project site, and; WHEREAS, the City Council reviewed the revisions submitted by the appellant on February 10, 2004, at 7:00 p.m. in the Lake Pavilion located at 9315 Pismo Street and considered testimony and reports from staff, the appellant, and the public; and. NOW,THEREFORE, the City Council takes the following actions: SECTION 1. Denial of Appeal. The City Council upholds the action of the Planning Commission on October 7, 2003, denying Tree Removal Permit 2003-0039 as shown in Exhibit A and Exhibit B and finds as follows: L Alternative designs were not presented for Planning Commission review. 2. The revised site design was substantially the same plan presented at the September • 16, 2003 Commission hearing. 3. Based on the Arborist's Report and the Applicant's site design, the necessary findings, as outlined in the City of Atascadero's Native Tree Ordinance and listed below, could not be made. Finding#S not made The tree is obstructing proposed improvements that cannot be reasonably designed to avoid the need for tree removal, as certified by a report from the Site Planner and determined by the Community Development Department based on the following factors: • Early consultation with the City; • Consideration of practical design alternatives; • Provision of cost comparisons (from applicant) for practical design alternatives; • If saving tree eliminates all reasonable uses of the property; or • • If saving the tree requires the removal of more desirable trees. 69 ITEM NUMBER: B-1 DATE: 02/10/04 4. The revisions submitted by the Appellant for review by the City Council on February . 10, 2004 are substantially the same development submitted at the November 25, 2003 City Council meeting. 5. Based on the Arborist's Report and the Appellant's site design, the necessary findings, as outlined in the City of Atascadero's Native Tree Ordinance and listed in Item 5 above,could not be made. On motion by Council Member , and seconded by Council Member the foregoing resolution is hereby adopted in its entirety by the following roll call vote: AYES: - O NOES: Q ABSENT: Q ABSTAIN: Q ADOPTED: CITY OF ATASCADERO George Luna, Mayor Attest: Marcia McClure Torgerson, City Clerk 70 ITEM NUMBER: B-1 DATE: 02/10/04 APPROVED AS TO FORM: Roy A. Hanley, City Attorney Attachments: Exhibit A—Resolution 2003-0091 Denying TRP 2003-0039 Exhibit B—Site Plan,dated October 7,2003 \\Cityhall\CDvlpmnt\-TRP- Tree Removal Permits\TRP 03\TRP 2003-0039 8270 Toloso Road\Council Appeal\Draft Reso for 11-28 CC Hearing.doc • 71 ITEM NUMBER: B-1 DATE: 02/10/04 Exhibit A: Planning Commission Resolution 2003-0091 TRP 2003-0039 A APPROVED R VED ORIGINAL OCT 2 1003 CITY OF ATA'C} E RESOLUTION PC 2003-0091 PLANNING A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ATASCADERO DENYING A TREE REMOVAL PERMIT FOR THE REMOVAL OF NATIVE OAK TREES " LOCATED AT 8270 TOLOSO ROAD (TRP2003-0039:Mtke Messer) WHEREAS,an application for a Tree Removal Permit has been received from Mike Messer,9265 Carmelita Avenue,Atascadero,California 93422,to allow the removal of two native oak trees located at 8270 Toloso Road;and, WHEREAS,the proposed project is located within the Rural Estates land use designation of the City of Atascadero's General Plan Land Use Diagram;and, WHEREAS,the proposed project is located in the Residential Suburban zoning district;and, WHEREAS the Planning Commission reviewed the proposed Tree Removal application on September 16,2003,at 7:00 p.m.in the Rotunda Room of City Hall located at 6500 Palma Avenue and considered testimony and reports from staff,the • applicant,and the public;and, WHEREAS,the Planning Commission determined that the necessary findings for native tree removal could not be made as the project was designed and directed the applicant to revise the proposed development to preserve additional native trees on the project site,and WHEREAS,the Planning Commission reviewed the revised proposal for Tree Removal application on October 7,2003,at 7:00 p.m.in the Rotunda Room of City Hall located at 6500 Palma Avenue and considered testimony and reports from staff,the applicant,and the public;and, WHEREAS,the Planning Commission determined that the necessary findings for native tree removal could not be made based on the revised project design,and. NOW,THEREFORE,the Planning Commission takes the following actions: SECTION 1.Denial of Application. The Planning Commission finds as follows: 1. Alternative designs were not presented for Planning Commission review. 2. The revised site design was substantially..the same plan presented at the September 16,2003 Commission hearing. i 72 ITEM NUMBER: B- 1 DATE: 02/10/04 • 3. Based on the Arborist's Report and the Applicant's site design, the necessary findings, as outlined in the City of Atascadero's Native Tree Ordinance and listed below,could not be made. The tree is obstructing proposed improvements that cannot be reasonably designed to avoid the need for tree removal, as certified by a report from the Site Planner and determined by the Community Development Department based on the following factors: • Early consultation with the City; • Consideration of practical design alternatives; • Provision of cost comparisons(from applicant)for practical design alternatives; • If saving tree eliminates all reasonable uses of the property;or • If saving the tree requires the removal of more desirable trees. On motion by Commissioner O'Keefe, and seconded by Commissioner Beraund the foregoing resolution is hereby adopted in its entirety by the following roll call vote: AWES Fonzis Beraud,O'Keefe,Jones (4) • NOES: Porter,Bentz,Kelley (3) ABSENT: (0) ABSTAIN: (a) ADOPTED: CITY OF ATASCADERO,CALIFORNIA Roberta Fonzi Planning Commission Chairperson Attest: Warren M.Frace Planning Commission Secretary \\Cityhaii\CDvlp=t\-TRP- Trce Removal PermitsiTRP 03\TRP 2003-0039 8270 Toloso RoadTinal Reso for 10-7 PC Hearing.doc 73 ITEM NUMBER: B-1 DATE: 02/10/04 Exhibit B: Revised Site Pian of January 26,2004 j --- - --- o--- -- ,may, 1 y.M•,rti..«e.q a i ✓- / w•i wvj.rtr+-+roti ��i � .nw.+.+ta•w DUST 6=Z I 1 a i �-..' � �,>�•-,,:�tom; _ � i v '�" l i ... e r oxo�wmlcr�•an°n c.0 arFsrom.r.a e Q i , FF.191.11 , _- �MIryA i-0 - -0 A a 'Vpor4 i t/Y�su"LgV°4t glhb�q I 1 Yw..� .P � $ �p wr wrRkFIXIM.D FPo:WN I `..'�y �}I'. � i'!' •,.. sl ---- �I -\�� .. / Fv.F.rys>/m;'tiw I '�=� 'Y .+PAs'•'��•e .,�.. 1. I r ,� con [rcrrD�P "--:�,�� off 1 snperlr.Yxlsrsv4` .i ";[snit rxnrYbni ne,qpi:Nq ..w I_. I._ l b•N 514 ^� � � ' F '"fo0 � 3 74 ITEM NUMBER: B-2 DATE: 2/10/2004 1918 1919 8 i �EB+oj Atascadero City Council City Attorney Report Discussion of Potential Regulation of On Premises Motorcycle Track Uses RECOMMENDATION: This item is on for discussion only. The City Council will not enact any ordinances nor adopt any resolutions as a result of this hearing. The City Council will give staff direction on the contents of any ordinance to be proposed to address the use of motorcycle tracks in residential zones in the City of Atascadero. DISCUSSION: At a recent City Council meeting members of the public addressed the City Council during the community forum portion of the agenda to request that the City adopt an ordinance regulating the use of property or motorcycles to prevent noise nuisance in their neighborhood. The City Council is not allowed to take any action other than briefly discussing the issue and directing the staff to bring the item back for action at a later date. The Council did direct that the issue be brought back, but no action was taken directing that an ordinance be adopted to address the issue, nor what contents such and ordinance would have. This'C�ty Council has expressed a desire through its strategic planning process to engage the community and seek input from a wide variety of its citizens before adopting regulations and laws. To further that goal, staff has sought publicity for this agenda item to make sure that everyone concerned about the use of motorcycles in this fashion would have a chance to address the City Council and express their viewpoints.This is a time for the citizens to do so. The main complaint of the citizens who want regulations is that the noise and dust pollution created by this type of use is a nuisance that ought to be regulated by the City. The argument is that the negative impacts are severe, and the attempts to work out the problems or compromise on the hours of operation in a neighborly fashion have failed. If the activity operates as a nuisance to a large enough population, it is argued that it is a public nuisance and the City should regulate it. 75 ITEM NUMBER: B-2 DATE: 2/10/2004 The City Council does have the power to regulate uses of land and prohibit nuisances. This power is derived from the general police power that is given to all cities by the State and Federal Constitutions. In the exercise of its police power, a city has broad discretion in determining what is reasonable in endeavoring to protect the public health, safety, morals and general welfare of the community. Carlin v. City of Palm Springs, 14 Cal. App. 3d 706. The City is therefore faced with two questions. First, should the City use its police powers to regulate the use of motorcycle tracks in residential zones? Second, if the answer to the previous question is yes, how best do we regulate the use? The answer to the first question is purely a matter of policy for the City Council to decide. If it decides that regulation is in order. Then there are choices to be made, based upon alternatives and recommendations supplied by City Attorney and staff. From a staff perspective, any ordinance regulating this type of activity should be drafted in such a way as to minimize the time required of staff to determine whether or not a violation has occurred. The existence of a violation should be determinable by objective facts. There are many alternatives available to regulate this type of activity. First, the offended citizens have a right to seek a civil remedy in court at their own expense. This right exists even in the absence of a City Ordinance regulating the existence of motorcycle tracks. In the case of Renz v. 33rd Dist. Agricultural Assn. (1995) 39 Cal.App.4th 61 the citizens owned and resided on real property which was south of the San Benito County Fairgrounds. Defendant parties began utilizing the fairgrounds for non-fair-time motorcycle races in the mid-1980's. The citizens complained about these races, and they became increasingly annoyed by noise and fumes emanating from the fairgrounds during these non-fair-time motorcycle races. The citizens hired their own attorney and brought suit against fairgrounds and the race operators seeking an injunction and damages for nuisance. They won the suit. The court issued a judgment granting a permanent injunction and awarding the citizens damages for the nuisance that was created by the motorcycle races. A second alternative is to create a procedure that allows city staff to document complaint dates and facts and lets the offended neighbors use those records to support civil suits brought by private attorneys on their behalf. Some jurisdictions in this state follow this procedure. A third alternative is to address the matter as an issue of use. This would be a zoning code approach. A regulation like this would not forbid private residential motorcycle tracks, but would regulate the total number of hours that such tracks could operate. Such an ordinance might also include days or times that the activity is not to take place. The neighbors opposing the use would be required to keep diaries or other evidence that the time rules had been violated. An example of a regulation concerning the use of leaf blowers is provided. A fourth alternative is to address the matter as an issue similar to a disturbance of the peace. Penal Code section 415 makes it a misdemeanor to unreasonably disturb the 76 i ITEM NUMBER: B-2 DATE: 2/10/2004 peace of another. This code section has withstood every legal challenge. Some cities have adopted similar regulations to address noise and other nuisances. The advantage • of this type of approach is that properly trained staff members are qualified to make the kind of decisions that must be made in order to enforce the regulations. These ordinances do require that there be a victim. The staff member cannot be the complaining party. The disadvantage of this approach is that although the standards meet the constitutional standards for enforceability, there is still some element of subjectivity involved. Disturbing the peace standards are based upon what would offend a reasonable person. There may be many in the City who are not offended by motorcycle noise and dust and would oppose the ability of the City to cite in these circumstances. This approach might also create a problem for the staff member who correctly feels that the disturbing the peace standards have not been legally met , but is addressing a victim who subjectively feels highly offended by the activity and does not understand or agree with the decision not to prosecute. Not all private nuisances should be addressed by the city as criminal activity. Some victims of the noise and dust will not agree with this. The last alternative that bears discussion in this memorandum is to ban the use altogether. The advantage of this method is that it is easily and objectively verifiable by the staff member. If the motorcycle is going around and around and making noise, it is a violation and a citation can be issued. The disadvantage of this approach is that it forbids completely an activity that many may enjoy. One reason most cities do not have regulations for this type of activity is that they do not enjoy the large lot and fairly rural • atmosphere we enjoy in Atascadero. We have lots large enough to allow the activity (which most cities do not) but, unlike large ranches, when the activity takes place on our lots, the noise and dust can travel to other parcels. FISCAL IMPACT: None has been identified ALTERNATIVES: Thoroughly discussed above. ATTACHMENT: Ordinance examples from other public entities 77 11.96.010 Unlawful noises - Standards for determination. Notwithstanding the provisions of Chapter 11.94, and in addition thereto, it shall be • made unlawful for any person to wilfully make or continue, or cause to be made or continued, any loud, unnecessary, or unusual *noise Nwhich disturbs the peace or quiet of any neighborhood or which causes discomfort or annoyance to any reasonable person of normal sensitiveness residing in the area. The standards which shall be considered in determining whether a violation of the provisions of this section exists shall include, but not be limited to,the following: (a) The level of the *noise if; (b) The intensity of the *noise N; (c) Whether the nature of the*noise Nis usual or unusual, (d) Whether the origin of the*noise Nis natural or unnatural; (e) The level and intensity of the background*noise N, if any; (f) The proximity of the*noise Nto residential sleeping facilities; (g) The nature and zoning of the area within which the *noise Nemanates; (h) The density of the inhabitation of the area within which the*noise N emanates, (i) The time of the day or night the*noise Noccurs; 0) The duration of the*noise 41; (k) Whether the *noise Nis recurrent, intermittent, or constant; and (1) Whether the *noise itis produced by a commercial or noncommercial activity. (Ord. 1987 N.S. § 3, 1995). 11.96.020 Leaf blowers- Restrictions on use. (a) As used in this section, the following terms shall have the meanings set out below: (1) "Leaf blower" means any device, and its associated equipment, designed or operated to produce a current of air generated by a power source to push, propel, or blow leaves, dust, cuttings, refuse, or any other waste or debris material. Street sweeping vehicles are not leaf blowers. (2) "Continuous airborne sound" is sound which is measured by the slow response setting of a meter manufactured to the specifications of A.N.S.I. Standard S1.4- 1983 "Specification for Sound Level Meter" or the most recent revision thereof. (3) "Real property line" is either(a)the imaginary line, including its vertical extension, that separates one parcel of real property from.another, or(b)the vertical and horizontal boundaries of a dwelling unit that is one in a multi-dwelling unit building. (b) It is unlawful for any person to operate within fifty feet of the real property line of adjacent public or private property a gasoline or other fuel-powered combustion engine leaf blower or any leaf blower that is capable of producing continuous airborne 78 sound that exceeds 56 dBA measured at fifty feet in any direction. (c) It is unlawful for any person to operate a leaf blower that is capable of producing continuous airborne sound that exceeds 62 dBA measured at fifty feet in any direction. (d) It is unlawful for any person to operate any leaf blower to push, propel or blow leaves, dust, weeds, cuttings, refuse or any other waste or debris material into the air in a manner which allows them to settle on public property or on private property not belonging to the same owner of the property on which the blower is being operated. Any materials so pushed, propelled or blown shall be gathered and removed immediately by the person operating the leaf blower. (e) This section does not authorize any activity or environmental harm or impact, including *noise Mor air pollution, that would otherwise be a harm, hazard, nuisance, or trespass, or violate any other law. (f) Public agencies, including the city of Pacific Grove, shall fully comply with the provisions of this section. (g) A violation of this section shall be an infraction. (Ord. 01-03 § 1, 2001). WA s f�sl1 "The police department shall obtain and maintain properly calibrated sound • pressure (decibel) meters. Appropriate police personnel shall receive training in the use of sound pressure (decibel) meters." • 79 Section 13.40.030 General noise regulations. A. Notwithstanding any other provisions of this chapter, and in addition thereto, • it shall be unlawful for any person to willfully or negligently make or continue, or cause to be made or continue, any loud, unnecessary, or unusual noise which disturbs the peace and quiet of any neighborhood or which causes any discomfort or annoyance to any reasonable person of normal sensitiveness residing in the area. Non-commercial public speaking and public assembly activities conducted on any public space or public right-of-way shall be exempt from the operation of this section. B. The violation of any of the provisions of this chapter is declared to be a public nuisance and may be abated as provided in Sections 11.40.010 through 11 A4.030 of the Berkeley Municipal Code. C. If it is determined by the responding agency that a sound level in excess of the levels prescribed by this chapter exists, the following procedures shall be followed: 1. A written warning shall be issued by the noise control office(r)or his agent to the person responsible for the event causing the disturbance: 2. If the disturbance persists for more than fifteen minutes following the notice, or recurs within an eight-hour period, then the person responsible for the event causing the disturbance shall be guilty of a violation of this chapter. Any such violation shall be an. infraction. D. The factors which will be considered in determining whether a violation of the provisions of this chapter exists shall include, but not be limited to, the following: • 1. The sound level of the alleged objectional noise. 2. The sound level of the ambient noise. 3. The proximity of the noise to residential sleeping facilities. 4. The nature and zoning of the area within which the noise emanates. 5. The number of persons affected by the noise source. 6. The time of day or night the noise occurs. 7. The duration of the noise, its tonal or musical content. (Ord. 5500-NS § 1 (part), 1982) 80 9.07.030 Description of representative offensive conduct. • The following acts, among others, are declared to be loud, disturbing and unnecessary noises in violation of this section, but said enumeration shall not be deemed to be exclusive namely: (a) Horns, signaling devices, etc. The sounding of any horn or signaling device on any automobile, motorcycle, or other vehicle on any street or public place of the city, except as a danger warning; the creation by means of any such signaling device of any unreasonably loud or harsh sound, and the sounding of any such device for an unnecessary and unreasonable period of time. The use of any signaling device except one operated by hand or electricity; the use of any horns, whistle or other device operated by engine exhaust; and the use of any such signaling device when traffic is for any reason held up. (b) Radios, phonographs, etc. The using, operating, or permitting to be played, used or operated any radio receiving set, television set, musical instrument, phonograph or other machine or device for the producing or reproducing of sound in such a manner as to disturb the peace, quiet and comfort of the neighboring inhabitants or at any time with louder volume than is necessary for convenient hearing for the person or persons who are in the room, yard area or chamber in which such machine or device is operating and who are voluntary listeners thereto. The operation of any such set, instrument, phonograph, machine or device between the hours of seven p.m. and seven a.m. in a residential district or between two a.m. and seven a.m. in a business or commercial district in such a manner as to be plainly audible at a distance of fifty feet from the building, structure or yard area in which it is located shall be prima facie evidence of a violation of this section. . (c) Live music. Amplified music, being performed by any live band of two or more persons or by any solo performer between the hours of seven p.m, and seven a.m. or between two a.m. and seven a.m. in a business or commercial district, in such a manner as to be plainly audible at a distance of fifty feet from the building or structure in which it is located shall be prima facie evidence of a violation of this section. (d)Electronic sound devices in vehicles. To play, continue to play, or allow to be played a radio, tape player, compact disc player, record player, or other similar amplified electronic sound device from any vehicle so that the sound or music emanating therefrom can be heard at a distance of more than one hundred feet at any time of day shall be prima facie evidence of a violation of this section. Exception: The use of loud speakers as described in subsection (e) of this section for which a registration statement as described in Section 9.07.035 has been properly filed with the police department. (e) Loud speakers, amplifiers for advertising. The using, operating or permitting to be played, used or operated of any radio receiving set, musical instrument, phonograph, loudspeaker, sound amplifier, or other machine or device for the producing or reproducing of sound which is,cast upon the public streets for the purpose of commercial advertising or attracting the attention of the public to any building or structure for commercial purposes. Exception: The use of sound emanating equipment as described in subsection (e) for which a registration statement as described in Section 9.07.035 has been properly filed with the police department. (0 Yelling, shouting, etc. Yelling, shouting, hooting, whistling or singing on the public streets between the hours of two a.m. and seven a.m. in a business or commercial district 81 or at any place in a residential district between the hours of seven p.m. and seven a.m. for an unnecessary, unreasonable period of time so as to annoy or disturb the quiet, comfort or repose of persons in any dwelling, hotel or other type of residence or of any persons in the vicinity. (g) Steam whistles. The blowing of any locomotive steam whistle or steam whistle attached to any stationary boiler except to give notice of the time to begin or stop work or as a warning of fire or danger, or upon request of proper city authorities. (h)Exhausts. The discharge into the open air of the exhaust of any steam engine, stationary internal combustion engine, motor boat, or motor vehicle except through a muffler or other device which will effectively prevent loud or explosive noises therefrom. (i)Loading, unloading,opening boxes. The creation of a loud and excessive noise in connection with loading or unloading any vehicle or the opening and destruction of bales, boxes, crates and containers. 0) Construction or repairing of buildings. The erection(including excavating), demolition, alteration or repair of any building or general land grading and contour activity using equipment in such a manner as to be plainly audible at a distance of fifty feet from the building other than between the hours of seven a.m. and seven p.m. except in.case of urgent necessity in the interest of public health and safety, and then only with a permit from the zoning administrator, which permit may be granted for a period not to exceed three days or less while the emergency continues and which permit may be renewed for periods of three days or less while the emergency continues. If the building inspector should determine that the public health and safety will not be impaired by the erection, demolition, alteration or repair of any building or the excavation of streets and highways within the hours of seven p.m. and seven a.m., and if he shall further determine that loss or inconvenience would result to any party in interest, he may grant permission • for such work to be done within the hours of seven p.m. and seven a.m. upon application being made at the time the permit for the work is awarded or during the progress of the work. (k) Schools, courts, churches, hospitals. The creation of any excessive noise other than that resulting from construction or excavation work on any street adjacent to any school, institution of learning, church or court while the same are in use, or adjacent to any hospital, which unreasonably interferes with the workings of such institution, or which disturbs or unduly annoys patients in the hospital, provided conspicuous signs are displayed in such streets indicating that the same is a school, hospital or court street. (1) Pile drivers, hammers, etc. The operation between the hours of seven p.m. and seven a.m. of any pile driver, steam shovel, pneumatic hammer, derrick, steam or electric hoist or other appliance, the use of which is attended by loud or unusual noise except in case of urgent necessity in the interest of public health and safety, Y wa and then only with permit from the building inspector or the director of public services authorizing such devices to be operated during the otherwise prohibited hours while the emergency continues. (m) Blowers and motor driven cycles. The operating of any noise creating blower or power fan or any cycle powered by an internal combustion engine, the operation of which causes noise due to the explosion of operating gases or fluids, unless the noise from such blower or fan is properly muffled and such engine is equipped with a muffler device sufficient to reduce such noise to a level which will not disturb the surrounding neighborhood. The noise limits set forth in Section 23130 of the California Vehicle Code 82 shall be deemed to be the applicable standard for noise emissions; provided, however, the basis For measuring such limits for devices operated on private property shall be a distance of fifty feet from the property line of the parcel of real property on which the device is located or where the neighboring property is lawfully devoted to residential use, within any point on such neighboring property which complies with the required yard setbacks as established in the zoning regulations for the applicable district. (Ord. 611 N.S. § 1, 1991; Ord. 466 N.S. § 1 (part), 1982) • i 83 COST RECOVERY FOR RESPONSES T DISTURBANCES Sections. 10.16.100 Definitions. 10.16.110 Responses to disturbances. 10.16.120 Charging for responses. 10.16.130 Hearing before appeals hearing board. 10.16.100 Definitions. The definitions in this section apply to the following terms as used in this part. A. "Disturbance" shall include conduct creating any disturbing or loud or sound; any conduct which disrupts the peace and quiet of a neighborhood; and any conduct which interferes with the quiet enjoyment of neighboring property by persons lawfully thereon. B. "Response" shall mean the arrival of a police officer at the scene of a disturbance to render whatever service is reasonably required in order to stop a disturbance. C. "Responsible party" is any person who owns, leases or is lawfully in charge of the property where the disturbance takes place, or any person who organizes, controls or participates in a disturbance. If the responsible person is a minor, then the parent or guardian who has physical custody of the child at the time of the disturbance shall be the responsible person who is liable. (Ord. 24314.) 10.16.110 Responses to disturbances. A. No responsible party shall cause, permit or tolerate a disturbance. B. Whenever a police officer at the scene warns any responsible party present to discontinue the disturbance, the responsible party 84 shall be liable for the actual cost of each subsequent response required for a disturbance within twelve hours of the first response. C. At the first response, the responding police officer shall give an oral and/or written warning to one or more of the responsible parties present that the disturbance must cease immediately, and that if a second or subsequent response to the disturbance is required within twelve hours following such notice, a response fee shall be charged to any responsible party for all responses after the first response. D. All responsible parties shall be jointly and severally liable for the response charge regardless of whether or not a responsible party received an oral or written warning pursuant to Section 10.16.110.0. (Ord. 24314.) 10.16.120 Charging for responses. A. The response charge shall be the actual cost of police services including, but not limited to, personnel and equipment, incurred for each subsequent response within the twelve-hour period following the first response. • B. The bill or charges shall be served by the chief of police upon the responsible party within thirty days after the last response to a disturbance. C. The total amount of the response charge shall be deemed to be a civil debt to the city and the director of finance may take such action to recover the costs as the city is authorized to do by law for the recovery of a civil debt. The bill of charges shall state the response fee. D. The bill of charges and any other notices required by this part shall be served upon the responsible party in accordance with Section 1.04.140 of this code. If the responsible party has no last known business or residence address, then the scene of the disturbance shall be deemed to be the proper address for service of notice. E. The bill of charges shall include a notice of the right of the person being charged to request a hearing before the appeals hearing board within ten days of service of the bill to dispute the imposition of a response charge or the amount of the charge. 85 (Ord. 24314.) 10.16.130 Hearing before appeals hearing board. • A. Any request for a hearing to dispute the imposition of a response charge or the amount of the charge must be in writing and received by the secretary of the appeals hearing board within ten days of the date of service of the bill of charges. B. The hearing shall be conducted in conformance with Part 29 of Chapter 2.08 of Title 2 and the rules and regulations of the appeals hearing board. C. The decision of the appeals hearing board shall be final. (Ord. 24314.) Endnotes 2 ' For statutory provisions on loud or unreasonable see Penal Code § 415. • 86 ITEM NUMBER: C- 1 DATE: 2/10/2004 ion 57-9 Atascadero City Council Staff Report - Community Development Department Dove Creek Planned Development CEQA Contract Authorization RECOMMENDATION: Council authorize the City Manager to execute a contract with Padre Associates, Inc. for contract environmental services for the Dove Creek Planned Development project to be reimbursed by the project applicant. • DISCUSSION: Background: The City of Atascadero received an application for a Planned Development (ZCH 2003-0049) and Vesting Tentative Tract Map for the Dove Creek project site on April 21, 2003. The project has been determined to be subject to environmental review under the requirements of the California Environmental Quality Act (CEQA). Due to the complex environmental issues and current staff workload an RFP was issued for a contractor to prepare the necessary environmental documents. Padre Associates was the only firm that responded to the RFP and has been determined to be a qualified firm. Analysis: The Dove Creek project is a complex project with a mix of commercial and residential uses on a 65-acre site. The site has biological, wetlands, noise, archaeology, aesthetics, and traffic issues that will require mitigation. The applicant has determined that they are prepared to mitigate all of these impacts to a level of "less,than significant" in order to meet the requirements for a mitigated negative declaration (MND) as required by CEQA. Furthermore, the applicant has also determined that the project description presented to the City Council and Planning Commission at the November study session will not revised and will be used for the environmental analysis. Staff has advised the applicant that traffic issues related to the Caltrans interchange at Santa Barbara Road and US 101 may not be able to be addressed by an MND. Also staff has advised the applicant that if the project description changes during the hearing process that additional environmental review may be required. \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 87 ITEM NUMBER: C- 1 DATE: 2/10/2004 The applicant is aware and knowledgeable of these issues and risks and has requested that the contract for a MND be authorized. FISCAL IMPACT: Authorization of the contract will result in the expenditure of $27,410. These funds will be reimbursed to the City by the applicant. ATTACHMENTS: Consultant Services Agreement \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 88 ITEM NUMBER: C-1 DATE: 2/10/2004 • CONSULTANT SERVICES AGREEMENT FOR THE CITY OF ATASCADERO Mitigated Negative Declaration Contract for Villages at Dove Creek Mixed-Use Development This agreement is made upon the date of execution, as set forth below, by and between Padre Associates, Inc, hereinafter referred to as "Consultant", and the City of Atascadero, California, a Municipal Corporation, hereinafter referred to as "City". The parties hereto, in consideration of the mutual covenants contained herein, hereby agree to the following terms and conditions: 1.00 GENERAL PROVISIONS 1.01 TERM: This agreement will become effective on the date of execution set forth below, and will continue in effect until terminated as provided herein. 1.02 SERVICES TO BE PERFORMED BY CONSULTANT: Consultant agrees to perform or provide the services specified in "Description of Services" attached hereto as "Exhibit A" hereby incorporated herein. Consultant shall determine the method, details and means of performing the • above-referenced services. Consultant may, at Consultant's own expense, employ such assistants, as Consultant deems necessary to perform the services required of Consultant by this agreement. City may not control, direct or supervise Consultant's assistants or employees in the performance of those services. 1.03 COMPENSATION: In consideration for the services to be performed by Consultant, City shall pay and Consultant shall receive therefor compensation as set for in "Exhibit B". 2.00 OBLIGATIONS OF CONSULTANT 2.01 MINIMUM AMOUNT OF SERVICE BY CONSULTANT: Consultant agrees to devote the hours necessary to perform the services set forth in this agreement in an efficient and effective manner. Consultant may represent, perform services for and be employed by additional individuals or entities, in Consultant's sole discretion, as long as the performance of these extra-contractual services does not interfere with or presents a conflict with City's business. • 2.02 TOOLS AND INSTRUMENTALITIES: Consultant shall provide all tools and instrumentalities to perform the services under this agreement. \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 89 ITEM NUMBER: C-1 DATE: 2/10/2004 2.03 WORKER'S COMPENSATION AND OTHER EMPLOYEE BENEFITS: City and Consultant intend and agree that Consultant is an independent Consultant of City and agrees that Consultant and Consultant's employees and agents have no right to worker's compensation and other employee benefits. If any worker insurance protection is desired, Consultant agrees to provide worker's compensation and other employee benefits, where required by law, for Consultant's employees and agents. Consultant agrees to hold harmless and indemnify City for any and all claims arising out of any claim for injury, disability, or death of any of Consultant and Consultant's employees or agents. 2.04 INDEMNIFICATION: Consultant hereby agrees to, and shall, hold City, its elective and appointive boards, officers, agents and employees, harmless and shall defend the same from any liability for damage or claims for damage, or suits or actions at law or in equity which may allegedly arise from Consultant's or any of Consultant's employees' agents' negligent operations, errors and omissions, be by Consultant or by any one or more persons directly or indirectly employed by, or acting as agent for, Consultant; provided as follows: a. That the City does not, and shall not, waive any rights against Consultant which it may have by reason of the aforesaid hold-harmless agreement, because of the acceptance by City, or the deposit with City by Consultant, of any of the • insurance policies hereinafter described. b. That the aforesaid hold-harmless agreement by Consultant shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid negligent operations of Consultant or any agent or employee of Consultant regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 2.05 INSURANCE: Consultant shall not commence work under this contract until s/he ". shall have obtained all insurance required under"Exhibit C 3.00 OBLIGATIONS OF CITY 3.01 COOPERATION: City agrees to comply with all reasonable requests of Consultant necessary to the performance of Consultant's duties under this agreement. 4.00 TERMINATION OF AGREEMENT 4.01 TERMINATION ON NOTICE: Notwithstanding any other provision of this agreement, at any time, without cause by giving at least thirty (30 days prior written notice to the other parties to this agreement. \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 90 ITEM NUMBER: C- 1 DATE: 2/10/2004 • 4.02 TERMINATION ON OCCURRENCE OF STATED EVENTS: This agreement shall terminate automatically on the occurrence of any of the following events: (1) Bankruptcy or insolvency of any party; (2) Sale of the business of any party; (3) Death of any party; (4) The end of the thirty 30 days as set forth in Section 4.01; (5) End of the contract to which Consultant's services were necessary; or (6) Assignment of this agreement by Consultant without the consent of the City. 4.03 TERMINATION BY ANY PARTY FOR DEFAULT OF CONSULTANT: Should any party default in the performance of this agreement or materially breach any of its provisions, a non-breaching party, at their option, may terminate this agreement, immediately, by giving written notice of termination to the breaching party. 4.04 TERMINATION: This Agreement shall terminate July 1, 2005 unless extended as set forth in this Section. The City, with the agreement of the Consultant, is authorized to extend the term of this Agreement beyond the termination date, as needed, under the same terms and conditions set forth in this Agreement. Any such extension shall be in writing and be an amendment to this Agreement. . 5.00 SPECIAL PROVISIONS None 6.00 MISCELLANEOUS 6.01 REMEDIES: The remedies set forth in this agreement shall not be exclusive but shall be cumulative with, and in addition to , all remedies new or hereafter allowed by law or equity. 6.02 NO WAIVER: The waiver of any breach by any party of any provision of this agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of this agreement. 6.03 ASSIGNMENT: This agreement is specifically not assignable by Consultant to any person or entity. Any assignment or attempt to assign by Consultant, whether it be voluntary or involuntary, by operation of law or otherwise, is void and is a material breach of this agreement giving rise to a right to terminate as set forth in Section 4.03. 6.04 ATTORNEY FEES: In the event of any controversy, claim or dispute between the parties hereto, arising out of or relating to this agreement, or the breach thereof, the prevailing party shall be entitled, in addition to other such relief as may be granted, to a reasonable sum as and for attorney fees. 6.05 TIME FOR PERFORMANCE: Except as otherwise expressly provided for in this agreement, should the performance of any act required by this agreement to be • performed by either party be prevented or delayed by reason by any act of God, strike, lockout, labor trouble, inability to secure materials, or any other cause except financial \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 91 ITEM NUMBER: C- 1 DATE: 2/10/2004 inability not the fault of the parry required to perform the act, the time for performance of the act will be extended for a period of time equivalent to the period of delay and performance of the act during the period of delay will be excused; provided, however, that nothing contained in this Section shall exclude the prompt payment by either party as required by this agreement or the performance of any act rendered difficult or impossible solely because of the financial condition of the party required to perform the act. 6.06 NOTICES: Except as otherwise expressly provided by law, any and all notices or other communications required or permitted by this agreement or by law to be served on or given to any party to this agreement shall be in writing and shall be deemed duly served and given when personally delivered or in lieu of such personal service when deposited in the United States mail, first-class postage prepaid to the following address for each respective party: PARTY ADDRESS A. CITY OF ATASCADERO 6500 Palma Avenue Atascadero, CA 93422 Attention: Community Development Department B. Ia Nr Padre Associates, Inc • 1012 Pacific Street, Suite A San Luis Obispo, CA 93401 Attention: Krix Vardas 6.07 GOVERNING LAW: This agreement and all matters relating to this agreement shall be governed by the laws of the State of California in force at the time any need for the interpretation of this agreement or any decision or holding concerning this agreement arises. 6.08 BINDING EFFECT: This agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto, but nothing in this Section shall be construed as a consent by City to any assignment of this agreement or any interest in this agreement. 6.09 SEVERABILITY: Should any provision of this agreement be held by a court of competent jurisdiction or by a legislative or rulemaking act to be either invalid, void or unenforceable, the remaining provisions of this agreement shall remain in full force and effect, unimpaired by the holding, legislation or rule. 6.10 SOLE AND ENTIRE AGREEMENT: This agreement constitutes the sole and entire agreement between the parties with respect to the subject matter hereof. This agreement correctly sets forth the obligations of the parties hereto to each other as of \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 92 ITEM NUMBER: C- 1 DATE: 2/10/2004 • the sate of this agreement. All agreements or representations respecting the subject matter of this agreement not expressly set forth or referred to in this agreement are null and void. 6.11 TIME: Time is expressly declared to be of the essence of this agreement. 6.12 DUE AUTHORITY: The parties hereby represent that the individuals executing this agreement are expressly authorized to do so on and in behalf of the parties. 6.13 CONSTRUCTION: The parties agree that each has had an opportunity to have their counsel review this agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting parry shall not apply in the interpretation of this agreement or any amendments of exhibits thereto. The captions of the sections are for convenience and reference only, and are not intended to be construed to define or limit the provisions to which they relate. 6.14 AMENDMENTS: Amendments to this agreement shall be in writing and shall be made only with the mutual written consent of all of the parties to this agreement. Executed on 1 200_, at Atascadero Attest: CITY OF ATASCADERO • By: Marcia McClure Torgerson Wade G. McKinney City Clerk City Manager Approved as to form: By: Roy Hanley Consultant City Attorney \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 93 Exhibit A Work Scope • 4.1 project tasks As stated in Section 1.0, the Padre/LMCA team understands and will successfully execute the requirements outlined in the RFP pertaining to the,preparation of a Mitigated Negative Declaration (MND) for the proposed Villages at Dove Creek Mixed-Use Development. This includes an understanding and commitment to provide the deliverables (e.g., project description, Administrative Draft MND, etc.). Preparation of each deliverable is considered a task within the scope of services to be provided to the City, as is attendance at meetings, and coordination with the parties involved. Task 1 Kickoff Meeting With City Staff and Others. As requested in the RFP, the Padre Principal-in-Charge, Project Manager, and CMCA representative will participate in a kickoff meeting with City staff and other parties involved with the project. If necessary, key technical team members will also participate in the meeting. The kickoff meeting will provide an opportunity to review the City's requirements, confirm details of our approach to completing all necessary tasks, and review scheduled milestones. An important function of this meeting will be to finalize an understanding on the scope of the study. We will gather additional background materials relevant to the project and anticipate that the Task 2 - Draft MND Preparation This project phase includes all of the steps necessary to complete a Draft MND for submittal to the City for the proposed project. The Draft MND will contain all sections required by CEQA and if necessary NEPA. The Draft MND will evaluate potential impacts associated with the environmental issue areas identified in the Initial Study checklist. Based upon our past project experience issue areas that will require focused attention will include: • • Aesthetics/Visual Resources • Air Quality • Biological Resources • Cultural Resources • Drainage and Sedimentation • Land Use • Noise • Transportation/Traffic • Hydrology/Water Quality • Public Services • Utilities • Growth Inducement and Cumulative Effects The MND will contain the following: • Executive Summary, including impact and mitigation tables; . • Introduction \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 94 • Description of the proposed project; • Mitigation measures and monitoring provisions; • • Beneficial effects, if any; • References; • Comments received; • Responses to comments received; • Bibliography; • Agencies and individuals consulted during preparation; and, • Any required technical appendices. • II \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 95 Specific tasks and analysis that would be completed to prepare the Draft MND are described below. Subtask 2.1 - Project Description. The Padre team will prepare a detailed project description based upon information provided to the City by the decommissioning contractor. The project • description will identify the project objectives as determined by the City in conjunction with Padre's input during the project definition phase. A draft project description will be delivered to the City for review and comment. To accelerate the schedule, we will begin developing the setting sections for the environmental analyses concurrently with development of the project description. We will revise the project description based upon the comments received on the draft version. All subsequent environmental analyses will be based upon this approved project description. Should the project description be revised later in the process, it may be necessary to conduct additional analyses not currently included in the project scope of work. Subtask 2.2 - Administrative Draft MND (MND) Preparation. Upon City authorization to proceed we will begin compiling background data, conduct field studies, preparing impact analyses and other items necessary for the development of the Administrative Draft MND. The preparation of the Administrative Draft MND will use the information contained in the previous area studies to the extent possible. The Initial Study will be prepared using the format currently approved by the City and will address all required issues areas identified in the CEQA guidelines. Analysis that is more detailed will be conducted for issues areas were potential impacts have been identified and where previous studies have not been conducted. As such, the sections will include a description of the environmental setting, an identification of potential significance criteria, and an analysis of potential impacts. If necessary, mitigation measures will be identified to reduce or eliminate the identified potential impacts. Task 3 - Draft MND After receiving the City's comments pertaining to the Administrative Draft MND, and meeting with City staff and others (if desired by the City) to review the comments, Padre will produce the public Draft MND. An intermediate product, an Administrative Draft MND screen-check, will also be provided to City staff prior to printing of the public draft. Padre staff will work with the City to develop a circulation list for the Draft MND. Task 4 - Final MND Preparation. This task will result in the preparation of the Final MND. Subtask 4.1 - Response to Comments. The Padre team, in conjunction with City staff, will respond to public and agency review comments on the Draft MND. All comments will be responded to in writing in a separate appendix in the Final MND. If required, text changes and revisions will be made in the Final MND. Subtask 4.2 - Prepare Administrative Final MND. The Administrative Final MND will include the Draft MND with changes to the text in response to comments, and appendices containing comments on the Draft MND and responses to those comments and the proposed MMRP. Subtask 4.3 - Prepare Final MND. After receiving clearance from the City, we will prepare and deliver the Final MND, which will incorporate any changes requested by the City during the review of the Administrative Final MND. An interim product, which contains the proposed Final MND revised pages only or one single sided copy of the Final MND with the highlighted revisions in response to the review of the Administrative Final MND will also be provided. Task 5 - Meetings The Padre Project Manager will be available to meet with City staff, the applicant, and others to discuss the City's comments on any phase of the MND process. Task 6 - Public Hearings. Padre will participate in any public hearings on the MND as well as attendance at the City's MND certification hearing and approval hearing on the proposed project. 4.2 Impact Issues and assessment methodology This section provides a brief description of Padre's approach to preparation of the key issue area impact analyses to be provided in the MND. \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 96 Aesthetics. The RFP and attached maps indicate that project components will be seen from Highway 101, Santa Barbara Road, EI Camino Real, and San Diego Road. While the applicant has include designation of 18 acres of open space and recreational amenities, including a centrally • located one-acre park, tot-lot pocket park, and trails connecting to pedestrian walkways, much of the project has the potential to impact the visual character of the area. The RFP indicates that a visual analysis is currently in progress. Padre will perform a peer review of this study, identify impacts, and recommend mitigation. Air Quality. Construction activity will produce short-term emissions of engine exhaust from diesel and gasoline-powered equipment, emissions from materials delivery and worker vehicles, and fugitive dust from soil disturbance. Long-term emissions may occur with the future residences and tenants of the commercial buildings. Long-term air quality impacts would include vehicle and household emissions attributable to natural gas combustion. Vehicle trips would result in exhaust, evaporative and tire/brake wear emissions on a daily basis. The trip generation rates would be based upon the results of the traffic study prepared for the project. Biology. Padre staff will review existing biological and environmental studies pertaining to the project site and surrounding area. This will include a peer review of the Biological Assessment prepared by Althouse and Meade, Inc., September 23, 2003. These data will be analyzed for relevance and applicability to the proposed project. In addition, Padre will contact appropriate resource agencies to determine sufficiency and applicability of previous surveys. Padre staff will prepare a biological setting section that will describe existing conditions, regulatory overview, and a description of field surveys. Project impact discussions will include, but will not be limited to the following issue areas: • Result in a substantial adverse effect on any species identified as a candidate, sensitive, or special-status, either directly (due to construction activities) or through habitat modifications; • • Result in a substantial adverse effect on any habitat or other sensitive natural community through fragmentation and/or direct loss (i.e., perennial grassland); • Result in a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act through installation of the proposed access route (e.g., direct removal, filling, hydrological interruption, or other means); and, • Interfere substantially with the movement of any native resident or migratory fish or wildlife species associated with Paloma Creek and the North Fork Paloma Creek. Cultural Resources. Based on the City RFP and review of associated documents, Cultural Resource Management Services (CRMS) will assist the Padre Team by conducting a peer review of existing cultural resources surveys conducted at the site will be performed, including the Archaeological Testing and Mitigation Plan for Dove Cemetery, prepared by Statistical Research Inc. (April 2003) and Cultural resources survey of a 69 acre property adjacent to Paloma Creek near the City of Atascadero, San Luis Obispo County, California, prepared by C.A. Singer & Associates, Inc. (October 1998). The objectives of this task will be to determine: (1) previously surveyed tracts within or near the project, (2) previously recorded sites within or near the project, (3) characteristics of previously recorded properties, and (4) dates of previous survey and excavation programs and technical reports. Assessment of whether the proposed project is within previously surveyed areas will be made. Padre, with oversight from CRMS, will identify short-term, long-term, and secondary impacts to cultural resources due to project implementation. Geology and Soils. Using the soils reports prepared for the project, Padre will prepare a discussion of potential impacts. The impact analysis will include an evaluation of the projects' consistency with the regulations, policies, and guidelines presented in the setting section. Impact discussion will • include the proposed project's impact on geologic stability of steeper slopes and septic systems, and any potential landslide hazards that may have a significant impact on the project. \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 97 Hydrology & Water Quality. Padre will review the Applicant's drainage documentation and analyses for the project. Those documents consist of one report titled, "Drainage Report for Dove Creek Development" (Drainage Report) prepared by Cannon Associates, and the Dove Creek Tentative Map and preliminary grading plans. Padre will . conduct a preliminary review of the applicant-supplied information to determine if it meets the County of San Luis Obispo Flood Control requirements. Analysis will involve: • Evaluation of the proposed conceptual grading plan to determine if the project will significantly increase storm water runoff, contribute to existing drainage problems, or alter existing waterways; • Determination of any significant increases in erosion or sedimentation because of short- term or long-term project impacts; and. • Determination if the project may create or contribute to any surface water pollution. Land Use. The Villages at Dove Creek Mixed-Use Development project includes the construction 284 dwelling units and 60,000 square feet of commercial development. This differs from the City's General Plan, which holds the site to 200 dwelling units and allows 300,000 square feet of commercial development. A consistency analysis will be prepared by CMCA and will include determination of the proposed project's consistency with the County's adopted plans, ordinances, and policies, including the City of Atascadero's General Plan and Land Use Ordinance, and regional planning documents. Noise. Based on the City RFP and review of associated documents, Padre will conduct a peer review of the recently completed Noise Analysis and Mitigation Recommendations, prepared by Mr. David Lord, PhD. (October 2003). The objectives of • the review are to determine whether adequate noise measurements were taken for determining short-term and long-term impacts. The findings of the study will be reviewed with respect to the noise level standards contained in the Uniform Building Code and the Safety and Noise Element of the City of Atascadero General Plan 2025, adopted June 25, 2003. Impacts will be identified for inclusion in the CEQA document. Transportation/Traffic. The potential impacts that could be encountered during implementation of the proposed project include traffic congestion, increased vehicular trips, and a reduction in the level of service on Santa Barbara Road and EI Camino Real and associated intersecting roads. Padre will review the baseline environmental setting established in previous EIRs, City of Atascadero General Plan Circulation Element and the traffic study for this project (upon completion). This information will be used to examine the intersections and traffic controls in the study-area. Padre will examine the A.M and P.M. peak hour intersection traffic counts for the existing study-area intersection, the existing levels of services for the study-area intersections and intersection deficiencies (if any, based on City standards). Padre will examine the calculated average daily, A.M. and P.M peak hour trip generation estimates for the project, the assigned project-generated peak hour traffic to the study area intersections based on distribution and assignment patterns. Padre will also examine the existing + peak hour levels of service at the study-area intersections, which will be used to determine the traffic and circulation impacts. Public Services. The evaluation of the proposed project on public services will include contacts with public service representatives to identify any significant impacts • (including fire, schools, and utilities). In addition, the impact discussion will include a review \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 98 of available data on possible impacts to residents from electro-magnetic fields emitted from nearby high-voltage electrical lines. Thresholds of significance for public service impacts will be established as the first subsection to the impact analysis. The impact analysis will focus on impacts to public services as compared to City-adopted thresholds of significance. The assessment will also include evaluation of the project's consistency with the regulations, policies and guidelines described in the setting. Utilities/Service Systems. Padre proposes to analyze the proposed project's impact on utilities and service systems. Thresholds of significance for water and wastewater capacity impacts will be established in the impact analysis. The impact analysis will focus on the impact of the proposed project on the ground water and surface water resources of the project area, including water quality and quantity. The impact analysis will also include an evaluation of the projects' consistency with the regulations, policies, and guidelines presented in the setting section. 4.3 CUMULATIVE EFFECTS AND OTHER REQUIRED SECTIONS The cumulative impact discussion will be provided at the end of each issue area should potential impacts be identified. The discussion will include an explanation of cumulative impacts considering past, current, and reasonable foreseeable projects. Our proposal assumes that a list and map of the cumulative projects (approved and pending) is to be provided by the City. Additional project information will also be requested from agencies that may have projects slated in the same general area and time as the project. In addition, all sections required under the CEQA Guidelines will be included in the MND. • \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 99 Exhibit B Budget i Senior Project Staff Senior Technician Graphics word Time Sub Professional Professional Professional Technician Processing Tasks Work Item (Hours) Cost Cost $105 $90 $80 $65 $55 $50 $45 1 Project Management/Coordination 10 $850 2 8 2 Review Existing Information 10 $890 2 4 4 3 Project Description 10 $645 1 3 2 2 2 Environmental Assessment 9 Adminstrative Draft EA 75 $11,545 $5,700 18 30 15 8 4 10 Draft EA 26 $1,760 2 8 8 6 2 Adminstrative Final E4 20 $1,325 2 5 5 6 2 11 Final EA 20 $1,325 2 5 5 6 2 Subtotal 141 $15,955 12 Public Hearing 4 $320 4 8 Res onse to Questions 14 $970 4 4 4 2 Padre Staff Hours 189 $19,630 1 1 29 1 4 1 63 33 J 2 28 12 Supplies,Travel,and Communications $500 Subs $6,630 Printing Admin Draft-10 copies $500 General Administrative $150 Subtotal Direct Charges $7,780 Total Cost $27,410 • \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 100 Exhibit C • Insurance Terra Insurance"Company (A Itlsk"RetantiQn Group)" Twc�Fifer Atversue,Suite 100 Corxe-Madera CA 9492S CERTIFICATE-OF INSURANCE DATE 'mi NAME AND A DRESS'OF INSURED 1012=Pacific"Strait,. tote A San Luis"Obispo,CA;53401 This-certifies thaE;the ensurartre paiicy(described I lou-"hy.a ptili.ty:nuc ts�r�writtemonM fOrrns-In se,by the Cottiparl -AAs bet:n,1"ued. "This certificatO 1S,no a pcsli4y ori Bind r'a�i insuraocb and doas-nc6t°alter, m-end '';t+errd i7te ccrvera +e atfi�iri�ed=6y that pollcy; Notwithstandlrr0 arty requirerrtent;tert€a ctr c Clition trf arty casptra,,ct or other'doctrmdctt to<whi+c(t(t�ii��cer#�catc:,t>3ay,tr'taz��the irtsurance�fxrtied by the P-�aiic7r"issub}ecesa ,�Il=of its tsroi3�+a�tcLtrsia r�f".ct+tiidl(iia`rr$. TYPE:OF INSEJItACFIGE` PmfessiouailEsnviron=lmal L iahility PC}LICWNUMBER EFFEcnvE'SATE E)(PtitAli10N.DAkTE L1a1159 01/01/04, 12J31/04; uMMS OF LIABILITY 400-0,000 ECM ctAN s o(,o;a0c ANNUALAGGREGATE GGRECATE PROJECT DESCRIPTION" Nohc, p�cifiad'- CAt4CELEAtipN If-,tht,,described pttliey istsancr£lled,mater- liy alter d:nr thrtr geci by . the C66t0atiy"before:Its PJMttorl d4ii,,"the:Company will lrttall arriLfiar notice" o"th+s certif"ite.holier thlrj! 0�dary "Lit advance 1f tete ddaCadpll�ya ica�nll bre }ie insured before"-its"ettpiraition.date,:the Cnrrip�ry ttilll"ttmall ri�cittt�n rlc�tite°tct the certificate"holder,vithin thirtyj�30)clays"cxf the-nntice to th bm y`tr�r»tke lnsureth isStllltiic MMArlx: TERRA INSURA ,Ir COMPANY (AAisk Retention Croup) This is"s:specimen ccrkifteate of insutncc.If you require a true; certi�caie of itiranee,iatcssc contact Terra Insurance Company. Pre-silent \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 101 01"12�j2�64 111.;;05 199644285e SAME-AS=X4TES 2m TIF IL a � dF " (g44)`�t?'« 6� �'ff11bDER1�F1CJf� iiA8�94�i1;A ��7RF ir,�TlAirf" l�vsrtflkti Rick lnam�eianay g� Ot'iC'Y Nt1Q CtlNP ;?[C,�'#�F1T�=E�Pt�11 "��IF�C74' �;1p6u1��6�77� NOt�1E��i '�.�y�'H"D8'NC1�`Ill�. .T1r�G7�N9fi -. ttae,��e sue .° NNa� Vanfcrr�,"�A�3A43 � 9 :MkY ,POLICI1pbCASTEDa�1OW"K4't6EEii" 1ryb RikrEl�7Rl11P ?_YPal1k?ANY?1GA gr�klY�(iiTna�O@lr, OL Phi GAFh118i#4VAJFE1' MTNtA#� @1"PACG T,Td' �DC�1 tLAN1I� PFbF1, Alam � I owuwwBy43 05 its it9Qtt" s CLiINaS. # +'�►�1!f �AA7GlL'Y ! NfC1ii�f4TY' " l�td`WINIl41i1t}Ift� f NG�i�S'NCb�t4kE'ii5 4YtlllliAY '. "i. AWAUfl1 . rnfFogtAYr€ 7pWBffilf4lJf9(i@[IJ4[li(X1.py Com' �C4+5NiG4NWiC� C neutlz�rldc,� e _ dwtMOM"oraNa�wuegtrr se I e� .n .,.... _� :'=EA,.l7BS61a6hhNJILft' _. asaafarf7R coo 6lAPN7N5li ,tia EKY aaxMcava akxcua tepE�N` fbt 0;"' C'�F111.1Mac " t OLDER � �+ofsn�wrarfrrwR"Keq+raoNha�aa�.a�� " da �+wamkrl�rloN '17Yt�1 ;'rtplp;tilMo�ifHSAPtlkNt�R1, Ck7YlUUif =',.�0 o�cr�w ,�{ " +l�"R41►gECNCRYEt1�tf7�{Ai1W®6'7ti!'l+ttf�,Q�7�'p0.i4' 1h�1�M�'►L1C060friihtd�. 1lD QNLIGA'lllBrWi'Ext61d,6�°!'4EAtW ICRiD i7f -WIN i frS"MMIMR n �tl�as r�v�srast �,�o�ta xea�r � e \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 102 v...s f''AIW, • 3° ,T„ PwOr Ju t � tTrR�;ttt, 2 . F7 M- E' OS.O,�«�OD3�DSe03�2if��` T3dsla;eaeei !" ot- hBwtF R hd.W ' �Wcw€rq�.i�,y� '�►cxraanxi� '_,tn� n` 'we,wAloke, ��.nc !vimrir�pypr Y^ate O�tirn O' dr air !:i pve�a WIN rrrt ' 2e'tul:L Tr IIM$fi 2iDIMQ IMVM8S Com: 'SI.QOOp{lCi.4',� Ii. • Bt913�91�T1' c. t TO T.AN�WD�S ��QC6 +2 ,F4i p ix S[4LY t � NOTICE�+vpEt'TXy$ 0S.;Q3 6o'g:t3 I mwtioara 2851 1C4ULL DR �" CJ4 �9Qit3 se:[� I. \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 103 INSURANCE REQUIREMENTS: Consultant Services The Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, employees, or subconsultants. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 2. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. 4. Errors and Omissions Liability insurance as appropriate to the consultant's profession. Minimum Limits of Insurance. Consultant shall maintain limits no less than: 1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 3. Employer's Liability: $1,000,000 per accident for bodily injury or disease. 4. Errors and Omissions Liability: $1,000,000 per occurrence. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. . Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 1. The City, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased, hired or borrowed by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, official, employees, agents or volunteers. 2. For any claims related to this project, the Consultant's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it. 3. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 4. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Verification of Coverage. Consultant shall furnish the City with a certificate of insurance showing maintenance of the required insurance coverage. Original endorsements effecting general liability and automobile liability coverage required by this clause must also be provided. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences. \\DS\CManager\CM Group\Agendas- Working Folder\City Council\021004-Dove Creek CEQA Contract.doc 104 ITEM NUMBER: D- 1 DATE: 02/10/2004 UP Im 19191 _ ■ 1976 _ Atascadero City Council City Attorney Report Emergency Resolutions RECOMMENDATION: City Council adopt the draft Resolution continuing in full force and effect the resolutions declaring the existence of a state of emergency and directing the City Manager to take direct and immediate acts to repair or replace public facilities and authorize the mayor to execute it. DISCUSSION: Government Code sections 8550 et seq. grant emergency powers to Cities in dealing with a natural disaster such as an earthquake. As the Director of Emergency Services the City Manager is authorized to issue a declaration declaring a state of emergency. The declaration gives the city certain powers and immunities that do not exist in the absence of such a declaration. The declaration is also required for many FEMA or other reimbursement purposes. Such a declaration by the Director/City Manager must be ratified by the City Council within seven (7) days and the City Council must thereafter review the matter again within 21 days in order for the declaration to remain in force and effect. The City Council met in emergency session on December 24, 2003 and passed such a resolution. This regular council meeting is within 21 days of the prior resolution. Pursuant to Public Contract Code section 22050 the City Manager has the authority under the declared emergency to take immediate action to procure necessary equipment, services, and supplies for the purposes of repairing and or replacing public facilities. Such acts must also be ratified within seven (7) days by action of the City Council and the City Council may direct that the City Manager continue to take such direct actions without following contract bid procedures. To do so the City Council must find, based upon facts contained in the minutes (but not required to be in the resolution or in a written staff report) that the emergency will not permit a delay resulting from a competitive solicitation for bids and the action is necessary to respond to the emergency. This action requires a 4/5 vote for approval, or if less than 5 are present a unanimous vote of the City Council. This action must likewise be reviewed within 21 105 ITEM NUMBER: D- 1 DATE: 02/10/2004 days for the powers to continue. The City Council also ratified and so directed the City Manager at its meetings of December 24, 2003, January 13, 2004, and January 27, 2004. The City Council, if it finds that the facts still warrant based upon the presentation • of staff, may also continue the contracting procedures in full force and effect. The conditions expressed in the oral reports of December 24, 2003, January 13, 2004 and January 27, 2004 still exist. City facilities and City services are not yet restored to the level that we can provide services at the expected level. If we were to have to follow normal contracting procedures we would be unduly delayed (by weeks) in our ability to restore the public facilities. We will continue to place these declarations on all regular agendas until the cause for the suspension of contracting procedures no longer exists and until the emergency is no longer current. We are still suffering aftershocks and additional damage to public facilities. The full extent of the damage and the reasonable measures to fix them are not yet known. FISCAL IMPACT: Unknown ALTERNATIVES: None ATTACHMENT: Draft Resolution 106 DRAFT RESOLUTION RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ATASCADERO CONTINUING PROCLAMATION OF EXISTENCE OF A LOCAL EMERGENCY AND AUTHORIZING EMERGENCY CONTRACTING PROCEDURES (by City Council of Atascadero acting through its Mayor) WHEREAS, Atascadero Municipal Code Title 4 Chapter 4, Emergency Organization and Functions, empowers the Director of Emergency Services to proclaim the existence or threatened existence of a local emergency when said city is affected or likely to be affected by a public calamity and the City Council is not is session; and WHEREAS, the Director of Emergency Services of the City of Atascadero did find; That conditions of extreme peril to the safety of persons and property have arisen within said city, caused by earthquake; and That the City Council of the City of Atascadero is not in session (and cannot be immediately be called into session); • WHEREAS, the Director of Emergency Services did, based upon those findings, declare a local emergency pursuant to local, State, and Federal Law, on December 23, 2003; and WHEREAS, the City Council convened for an emergency meeting pursuant to State Law at the earliest possible time and within 7 days of such proclamation on December 24, 2003, which meeting was duly noticed pursuant to the emergency meeting procedures contained in the Ralph M. Brown Act; and WHEREAS, The City Council also ratified and authorized the use of a ergency contracting powers by the City Manager; and WHEREAS, The City Council revisited the issues and proclaimed the continuation of the emergency and re directed the City Manager to take direct and immediate action to restore public facilities on January 13, 2004 and January 27, 2004; and WHEREAS, The City Council is required to revisit those resolutions within at least 21 days for them to remain in force, and WHEREAS, the conditions of extreme peril to the safety of persons and property, and the conditions authorizing the use of emergency contracting powers by the City 107 Manager did and still exist within Atascadero, caused by earthquake and subsequent after shocks. NOW, THEREFORE, IT IS HEREBY PROCLAIMED that: 1. The Resolutions proclaiming an emergency and authorizing and direct the City Manager to take direct and immediate action to restore public buildings and services are hereby continued in full force and effect; and 2. A local emergency now and still exists throughout the City of Atascadero; and IT IS FURTHER PROCLAIMED AND ORDERED that during the existence of said local emergency the powers, functions, and duties of the emergency organization of this city shall be those prescribed by state law, by ordinances, and resolutions of this city, as approved by the City Council This resolution was unanimously adopted by the City Council of the City of Atascadero on February 10, 2004 in Atascadero, California, and the Mayor was directed to execute it. Dated: By: Dr. George Luna, Mayor City Of Atascadero • 108