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HomeMy WebLinkAboutMinutes 080895 Approved as Submitted Meeting Date: 9/12/95 ATASCADERO CITY COUNCIL AUGUST 8, 1995 MINUTES CLOSED SESSION: The City met in Closed Session at 6:30 p.m. for purposes of discussions pertaining to: 1) CONFERENCE WITH REAL PROPERTY NEGOTIATOR Property: 9085 Morro Road Negotiating Parties: Brown / City of Atascadero Under negotiation: Price and terms of payment Closed Session was adjourned at 6:45 p.m. The City Attorney noted that the Council had authorized the City Manager to obtain an appraisal and negotiate. REGULAR SESSION: The Mayor called the meeting to order at 7:00 p.m. Councilperson Johnson led the Pledge of Allegiance. ROLL CALL: Present: Councilmembers Bewley, Carden, Johnson, Luna and Mayor Highland Absent: None Also Present: Muriel "Micki" Korba, City Treasurer and Lee Price, City Clerk Staff Present: Andy Takata, City Manager; Steve DeCamp, City Planner; Art Montandon, City Attorney; Brady Cherry, Director of Community Services; Brad Whitty, Finance Director; Mike McCain, Fire Chief; Bud McHale, Police Chief; Lt. John Barlow, Police Department and John Neil, City Engineer CC 08/08/95 Page 1 PRESENTATIONS: O Recognition to City Employees with 15 years of service Mayor Highland presented City watches to the following employees: Bud McHale, Sandi Bartelt, Valerie Humphrey, Debbie Cini, Mike McCain and Roland Snow. Also recognized, but not present, were Peter Gaw, Ken Dahlen, Bill White, Bill Swift and Frank Cardinelli. o Ceramic Mural at Pavilion: Request for conceptual approval (Linda Wargo, Atascadero State Hospital) Chief McHale introduced Linda Wargo, who shared details of the proposed Wetlands Sidewalk Mural Project for the Atascadero Lake Park Pavilion and requested conceptual approval. Brief Council questions followed. Discussion also ensued about the lack of a formal "art in public places" policy. The City Council gave conceptual approval for the proposed project and staff was requested to develop a draft policy to take before the Parks & Recreation Commission. o Special Presentation to Brian Sword, Streets Supervisor Captain Fred Motlo, representing the Atascadero Fire Firefighters Association, paid special tribute to Brian Sword, Streets Supervisor. COMMUNITY FORUM: The following Atascadero citizens and business owners protested the adult book/video store proposed for the downtown: Hans Drexler, Tom Austin, John Cole, Trey Littlejohn, Anna Hartig, Larry Clark, David Frye and David Lowe. Also speaking out against the proposed adult business was Paso Robles resident Regina Foster. Staff responded to questions regarding the current business license application. It The City Council directed staff to provide an agendized bi-monthly update to keep the public informed. Terry Ann Willingham, 980 Parkhill Road in Santa Margarita, appealed to the Council regarding her termination of employment at the Charles Paddock Zoo. The Mayor mentioned that this is a personnel matter and may not be taken up for discussion and/or action at a public meeting. A. CONSENT CALENDAR: The Mayor read the Consent Calendar, as follows: CC 08/08/95 Page 2 1. CITY COUNCIL MINUTES - July 25, 1995 City Clerk recommendation: Approve 2. GENERAL PLAN CONFORMITY REPORT - Consideration of Planning Commission report regarding the acquisition of certain real property in the City of Atascadero by the County of San Luis Obispo in order to expand the branch library Staff recommendation: Information only, no action required 3. RESOLUTION NO. 78-95 - Authorizing award of Bid #95-04 for EI Camino Real and State Hospital entrance signal and lighting project Staff recommendation: Adopt 4. RESOLUTION NO. 79-95 - Authorizing the execution of an agreement with North County Septic Service for septage dewatering concession Staff recommendation: Adopt 5. RESOLUTION NO. 80-95 - Authorizing the execution of a cooperative agreement with CalTrans for maintenance of signal preemption equipment at Del Rio Rd. and Hwy. 101 Staff recommendation: Adopt Councilman Luna pulled Items #A-3 and 4. MOTION: By Councilman Johnson, seconded by Councilman Luna to approve the Consent Calendar, Items #A-1 , 2 and 5; motion carried 5:0 by roll call vote. Re: 3. RESOLUTION NO. 78-95 - Authorizing award of Bid #95-04 for EI Camino Real and State Hospital ;entrance signal and lighting project Staff recommendation: Adopt Councilman Luna asked if the State was contributing financially to the project. John Neil reported that the primary funding source is State Highway Account grant monies. MOTION: By Councilman Luna, seconded by Councilman Carden to adopt Resolution No. 78-95; motion passed 5:0 by roll call vote. Re: 4. RESOLUTION NO. 79-95 - Authorizing the execution of an agreement with North County Septic Service for septage dewatering concession Staff recommendation: Adopt Councilman Luna asked if a Regional Water Quality Control Board (RWQCB) permit is necessary and if there is any liability to the City. Brady Cherry replied that a permit is required and that the RWQCB has approved the use. Art Montandon explained that the only liability the City might incur would be risk of accepting additional septage and CC 08/08/95 Page 3 the possibility of contamination. MOTION: By Councilman Luna, seconded by Councilman Bewley to approve; motion passed 5:0 by roll cal/ vote. B. PUBLIC HEARINGS: 1. RESOLUTION NO. 15-95 - Adopting the Economic Development Element of the Atascadero General Plan (GPA 94006) Staff recommendation: Adopt Steve DeCamp presented the staff report and summarized changes to the Element. He clarified that there had been no change to the technical appendix. Individual Council comments followed. Councilman Luna emphasized that, because statewide policies can and will change, the document should be dated and have a basic end goal. He stressed the need to identify who the "customer" is: developer or taxpayer. He noted that his biggest complaint is language that provides for "corporate welfare" (tax abatements or other government hand-outs to business). Councilman Luna asserted that direct taxpayer support to business is wrong and he won't support it. He stressed that if the City is going to "give away the store", then a policy for direct and verifiable taxpayer pay- back should be adopted as well. He spoke in favor of developing cooperative polices in the North County that will avoid competition with other communities for tax dollars and concentrating on improving economic infrastructure. Councilman Johnson spoke in support of a formal recommendation by the Economic Round Table to include language in Section E-4 clarifying that improvements should occur at the U.S. 101/41 interchanging and to develop and maintain an inventory of industrial property. He commented that he is concerned about the lack of infrastructure in the City and noted that incentives should be used with wisdom and care. He disagreed that the document "gives away the store" and noted that every project has to come back for approval before it can go forward. Councilman Carden asked what happened with the technical comments he submitted previously regarding incentives. Steve DeCamp reported that the Planning Commission felt it would be more appropriate for those comments to be addressed as part of an overall strategic economic planning process. Councilman Carden spoke in favor of adopting the Economic Element and, in addition, pursuing the implementation of a re-development authority. speculated that, given the financial status of City, the City will not be able to hire a full-time economic development director and contended that the Council has the potential to take on the task. Councilman Luna agreed and stated that it is about time that the Council pick a project area and get started. He added that one of the key elements in the document he can support is re-development of the downtown. CC 08/08/95 Page 4 Councilman Carden mentioned that he would like to see language added that would allow for a North County branch of Cuesta College or other higher education institution. Discussion ensued. Councilman Luna recommended that other research, like the western launch pad, and support services might also be included. Public Comments: Rush Kolemaine, Potrero Road resident, mentioned that he would have liked to have heard or seen other ways to enhance City revenues. He noted that he supports re- development and the addition of language pertaining to institutions of higher learning. Mr. Kolemaine urged adoption the Economic Element. Micki Ready, Manager of the Chamber of Commerce, commented that the Planning Commission did a good job of incorporating most of the Chamber's suggestions, but asked that those recommendations not included be reconsidered. She summarized them as follows: Prioritize basic community goals, continue the promotion of the Alternate A Highway 41 realignment and core of the downtown, create an economic develop corporation headed by an economic development director and add "contractors" to Section 3 on Page X-3. Jim Edwards, Planning Commissioner, spoke in favor of adopting and emphasized that though the document may not be perfect, it is breathable and can come back for periodic updates. Doug Lewis, Tunitas resident, remarked that he does not like the word, "customer" and the attitude that's implied. He also asked what the City's cost was for the consultant's economic study. Andy Takata reported that the Palmer/Koert report cost $30,000 and was paid for by grant monies from the State. ---End of Public Testimony--- Brief discussion ensued regarding establishing priorities. Steve DeCamp indicated that the document will be reviewed and updated every five years and confirmed that the document would have to come back for approval anytime there is a change. There was general agreement that it would not be appropriate to prioritize goals and objectives in the Element. By mutual agreement, the following revisions were approved. 1. Change the word, "customer', to "consumer". 2. Add Item #7 to Section F relative to other institutions of higher learning, and/or research and support services. 3. Add the two recommendations of the Economic Round Table relative to industrial inventory (to be added as Section F-6 on Page X-8) and CC 08/08/95 Page 5 101/41 interchange improvements (Section E-4, Page X-6). The Mayor called a 10-minute break at 9:10 p.m. The meeting was resumed at 9:22 p.m. 2. ORDINANCE NO. 289 - Amending Zoning Ordinance text to allow "offices" in the downtown pedestrian retail overlay zone (ZC 95004) Staff recommendation: (1) motion to waive reading in full and read by title only, and (2) motion to introduce on first reading by title only Steve provided the staff report and recommendation. There were no questions or comments from the Council or public. MOTION: By Councilman Luna, seconded by Councilman Bewley to waive the reading in full of Ordinance No. 289; motion passed unanimously. MOTION: By Councilman Luna, seconded by Councilman Bewley to introduce Ordinance No. 289 on first reading by title only; motion passed unanimously. 3. BUSINESS IMPROVEMENT ASSOCIATION (BIA)REQUEST-Consider extension of January 1990 Agreement and October 1990 Amendment #1 for City's continued payment of property taxes and maintenance on BIA public parking lot Staff recommendation: Review & provide direction Brad Whitty provided an overview of the BIA request and requested direction. He reported that the City has paid $29,740 to date towards improving the parking lot, including approximately $500 per year in property taxes. If the property were deeded to the City, he said, the City would save the cost of the property taxes paid each year. Responding to Council inquiry,the Finance Director reported that periodic and minimal landscape maintenance costs average $1 ,000 per year. Andy Takata noted that the BIA presently attempting to raise $30,000 for parking at the Carlton Hotel and they want to use the property as collateral for acquiring the loan. The Finance Director clarified that fees collected by the City on behalf of the BIA are remitted in full to the BIA. There was no public testimony. There was consensus to extend the provisions of the present agreement. Andy Takata noted that staff will bring the contract renewal back in the future. CC 08/08/95 Page 6 4. CONSIDERATION OF APPLICATIONS FILED BY THE ATASCADERO MUTUAL WATER COMPANY (AMWC) - Conditional use permit, variance and road abandonment for the relocation and upgrade of existing pump facilities located near the intersection of San Gabriel and San Marcos Roads A. Resolution No. 10-95 - Summarily vacating an unimproved portion of San Marcos Road right-of-way Staff recommendation: Approve Steve DeCamp, City Planner, provided the staff report and recommendation to approve the negative declaration, conditional use permit, variance and road abandonment. Brief Council questions followed. Public Comments: Ken Weathers, General Manager of the Atascadero Mutual Water Company, provided background about the objectives of the pump booster station upgrade and spoke in favor of staff's recommendation. Councilman Luna commented that the street is not a City-accepted road and suggested that the Water Company meet with staff and endeavor to bring it up to City standards. Steven Ward, 10012 San Marcos Road, spoke in opposition commenting that the Water Company told him seventeen years ago that the booster station would be temporary. He shared concern about the number of trees lost, landscaping needs, weed abatement, broken pipes and noise. Mr. Ward submitted a letter (see Exhibit "A") written by his attorney outlining additional concerns regarding issues of liability, potential loss of property value, noise levels and the proposed size of the structure. He urged the City Council to take no action until legal counsel can negotiate a resolution outside of the courts. He said that he could support a compromise which would include improvements to the existing building instead of a new, large industrial building, and added that the Water Company should bear some of the burden of costs for improving the road. ---End of Public Testimony--- Art Montandon noted that he had received a copy of the letter submitted by Mr. Ward and summarized the concerns as already articulated. He explained that a great deal of staff time and legal work has been dedicated to this matter to date. In addition, the City Attorney reported that the Water Company has argued that they have a right to build any where in the City easements due to the rights created many years ago when the Colony was established, including exemption from City zoning laws as supported by State Law. The Water Company, he stated, argues that they already have the legal right to proceed without Council approval. CC 08/08/95 Page 7 Referring to the letter submitted by Mr. Ward, Councilman Luna asked if there was a way to reach an amicable resolution. The City Attorney noted that there have been negotiations and some compromises have been reached on both sides. Expanding, Ken Weathers clarified that the proposed structure is not a large industrial building and explained that community input and consensus had been achieved in the design. Addressing noise, Mr. Weathers reported that the building was designed pursuant to the City's Noise Element and predicted that noise levels will be reduced with the new station. In addition, he stated that new pipes will be installed thereby eliminating problems associated with leaky and/or broken pipes. He also commented that the Water Company does not need the road abandonment and suggested that a contractual agreement be arranged. Steve DeCamp responded to Council inquiry regarding the right-of-way and road abandonment. He confirmed that the City already owns the property where the preferred alignment is proposed. The City Attorney advised that consideration be given to a subsequent abandonment which would result in the granting of a utility easement to the Water Company for those portions that would be abandoned. He commented that the Water Company would maintain control and the City would no longer have ownership. He added that this proposal would not affect Mr. Ward's tax situation. MOTION: By Councilman Carden, seconded by Councilman Johnson to approve the Negative Declaration; motion passed 5:0 by roll call vote. MOTION: By Councilman Carden, seconded by Councilman Johnson to approve the Variance; motion passed 5:0 by roll call vote. MOTION: By Councilman Carden, seconded by Councilman Johnson to approve the Conditional Use Permit; motion passed 5:0 by roll call vote. By mutual agreement, the City Council took no action on the road abandonment and directed staff to re-examine the issue. C. REGULAR BUSINESS: 1. DISCUSSION ON THE COUNTY/CITY TAX EXCHANGE AGREEMENTS ON ANNEXATIONS Staff recommendation: Review & provide direction Mayor Highland reported that mayors and managers countywide have discussed the evolving state of County-City tax exchange agreements relative to annexations and object to present policy that places the negotiations regarding tax exchange between the county and city at the tail end of the process. He explained that the thirty-day process places the city into a position whereby they must agree, or the annexation CC 08/08/95 Page 8 dies. The Mayor said that there is general support for moving the tax agreement period far earlier in the LAFCO process and noted that this matter is the primary agenda item for the Joint Cities Meeting scheduled for September 28th. He added that he would like to see the Council take a formal position, by resolution, on the issue before the Joint meeting. Discussion ensued. The City Council directed staff to contact the League of California Cities to determine what, if any, position the League has adopted. 2. MILLHOLLIN MINE - Status Report Staff recommendation: Receive report Art Montandon provided the status report and responded to brief Council inquiry about present operations. Public Comments: Tom Torgerson, 6200 Llano, indicated that he desired to give his five-minute allotment to his wife, Marcia Torgerson, who read a prepared statement (see Exhibit "B") relative to pending litigation and urging resolution. Chuck Greenberg, 11655 Cenegal Road, also read a prepared statement requesting that the matter be resolved (see Exhibit "C"). Daphne Fahsing, 5105 Llano Road, read a prepared statement arguing that a strip mine has no place in a residential neighborhood(see Exhibit "D"). ---End of Public Testimony--- The City Attorney apprised the Council of the legal status of the litigation and clarified that the State Bar does not permit him to discuss the case with the petitioners, in this case, the neighbors. Responding to inquiry from members of the Council, Mr. Montandon explained that the Interim Operations Agreement with the County allowed the City some control about operations, but explained that during the course of the litigation the agreement has expired. He confirmed that the mine is continuing to operation without a permit and the reclamation plan approved by the County is the only document that allows any control. At 1 1:00p.m., the Council by motion duly moved and seconded, unanimously agreed to extend the meeting beyond the hour of eleven o'clock. The Mayor allowed additional testimony by the public. The Mayor allowed for additional testimony from the public. Marcia Torgerson stated that the reclamation plan in place states that the County will not remove more than 7,000 cubic yards per year and urged the City Council to enforce it. Daphne Fahsing urged the Council to take a stand. CC 08/08/95 Page 9 Individual Council comments followed. Mayor Highland stated that he wants to see resolution. Councilman Luna suggested that until a development agreement is reached between the City and Mr. Millhollin, the City should enforce the 7,000 cubic yards per year limitation and indicated he would like this matter to come back for action. By consensus, the City Council directed the CityAttorney to re-open negotiations with legal counsels and seek resolution. 3. CABLE CONSORTIUM COMMITTEE Staff recommendation: Provide direction Andy Takata reported that there has been interest by the public to represent Atascadero on the Consortium for Community Media and requested direction. Mayor Highland spoke in favor of appointing a member of the public because it will save staff time. Brad Whitty responded to Council inquiry about scheduled meetings. Councilman Luna expressed concern that there may not be enough time to advertise and interview before meetings begin in late September. Public Comments: Rush Kolemaine commented that he has the expertise needed to serve on the Consortium and spoke in favor of opening up the matter for public participation. ---End of Public Testimony--- By mutual concurrence, the City Council directed the City Clerk to open a recruitment, advertise and solicit applications from members of the public interested in serving. 4. RESOLUTION NO. 75-95 - Supporting request that CalTrans retain the temporary Curbaril Bridge structure following the completion of the Hwy. 41 Realignment Project (Cont'd from 7/25/95) Staff recommendation: Adopt Councilman Carden, original sponsor of the resolution, reported that there is no longer a need to move forward. He explained that initially the Council of Governments (COG) was planning to consider requesting CalTrans to retain the temporary bridge on Hwy. 41 at Curbaril and he believed Atascadero should have some input prior to COG's adoption of any position. COG, he explained, is no longer moving forward on the matter and suggested that the Council take no action on the proposed resolution. Councilman Luna spoke in favor of adopting the resolution and stated that the City loses nothing by requesting that the bridge stay in place until the Highway 41 realignment and bridge project is completed. Councilman Johnson proposed that the Council table the matter until the project is underway. CC 08/08/95 Page 10 By consensus, the City Council agreed to take no action now and table the matter until after construction begins. Public Comments: Jim Edwards, Citizens Transportation Advisory Committee (CTAC) representative, reported that the resolution was defeated on a 5 to 3 vote by CTAC and expressed approval for taking no action. The resolution, he added, serves no purpose because CalTrans has already indicated that the bridge will not be removed until after there is a replacement bridge. ---End of Public Testimony--- 5. ORDINANCE NO. 291 -Amending Atascadero Municipal Code Sections 2-9.02 and 2-9.08 re: terms of office for members of the Planning Commission City Clerk recommendation: (1) Motion to adopt on second reading by title only MOTION: By Councilman Luna, seconded by Councilman Johnson to adopt on Ordinance No. 291 on second reading by title only; motion passed 5.0 by roll call vote. 6. ORDINANCE NO. 292 -Amending Atascadero Municipal Code Section 2-13.03 re: terms of office for members of the Parks & Recreation Commission City Clerk recommendation: (1) Motion to adopt on second reading by title only MOTION: By Councilman Luna, seconded by Councilman Johnson to adopt on Ordinance No. 292 on second reading by title only; motion passed 5.0 by roll call vote. D. COMMITTEE REPORTS (The following represent ad hoc or standing committees. Informative status reports will be given, as felt necessary.): 1. S.L.O. Council of Governments/S.L.O. Regional Transit Authority - Councilman Carden reported on the meeting of August 2, 1995. 2. City/School Committee - The City Manager reported that the next meeting would be in September. 3. Economic Round Table - Councilman Johnson reported that the Round Table had met in a special workshop on August 4th. There will be no regular meeting on the 16th, he said. 4. North County Council - Mayor Highland reported that the Executive Committee meets on August 24th and commented that they are putting CC 08/08/95 Page 11 together a position regarding water resource management in the North County. E. INDIVIDUAL DETERMINATION AND/OR ACTION: 1. City Council Councilman Johnson requested that staff bring back the administrative decision appeal process and related fee for study by the Council. Councilman Luna spoke in support and commented that the process should not be costly to the applicant. The City Manager noted that the appeal fee is established by resolution and took direction to bring the matter back sometime in September. 2. City Clerk Lee Price reported that the City will sponsor a test claim with the State Commission on State Mandates for cost reimbursement of the "Special Notice to Voters" being sent out this month informing voters that the municipal election date has changed from June to November. The City Clerk requested that the Council select dates to interview applicants for City Treasurer and for the City's Planning Commission. The City Counc/I agreed to meet at 5:30 p.m. on Wednesday, August 16th to interview candidates for City Treasurer. In addition, they agreed to meet at 7:00 p.m. on Tuesday, August 29th for purposes of interviewing applicants for the Planning Commission. 3. City Treasurer Micki Korba reported that the City Treasurer's Report for July will be on the next regular agenda. 4. City Manager Andy Takata reviewed items slated for the next agenda and reported that staff had recently met with School District representatives and members of the public regarding juvenile loitering and related problems. THE MEETING WAS ADJOURNED AT 11:59 P.M. THE CITY COUNCIL WILL MEET ON WEDNESDAY, AUGUST 16, 1995, 4TH FLOOR CLUB ROOM, FOR THE PURPOSE OF INTERVIEWING APPLICANTS FOR CITY TREASURER FOR CONDUCTING THE FY 1995/96 BUDGET HEARING. CC 08/08/95 Page 12 MINUTES RECOR D AND PREPARED BY: t f LEE PRICE, CiYy Clerk Attachments: Exhibit A (Ogle & Merzon) Exhibit B (Torgerson) Exhibit C (Greenberg) Exhibit D (Fahsing) CC 08/08/95 Page 13 CC08/08/95 LAW O F F I'C E S Exhibit "A" OGLE & MERZON A PARTNERSHIP INCLUDING A PROFESSIONAL CORPORATION CHARLES E.OGLE' 770 M O R R O BAY BOULEVARD FAX:(MM 772-7/13 JAMES B.MEIMN MORRO BAY.CALIFORNIA 93"3-0720 MAIL TO: POST OFFICE BOX 720 CHARLES G.KIRSCHNER 9805)772-7353 •PROBATE 772-8703 CHARLES P.OGLE ya wwemorw.aoRvotw� i 1 July 28, 1995 Kc7m :0F ddMr. Ken Weathers, General Manager8rio Atascadero Mutual Water Company P.O. Box 6075KSOFFIR Atascadero, CA 93423 Mr. Gary Kaiser, Associate Planner Community Development Department City of Atascadero ^ 6500 Palma Avenues E` Atascadero, CA 93422 Re: San Gabriel Booster Station; Stephen and Mary Ward COMMUNI i Y Qt":NJ ELOP"'-'" Gentlemen: This firm has been retained by Stephen and Mary Ward to address the Atascadero Mutual Water Company's plan to replace the existing pump booster station at San Gabriel Road. As I am sure both of you are aware, my clients own property adjoining the existing booster station. They feel that the existing station is a nuisance due to noise output and poor visual quality. My clients contend that the new station could present a commensurately greater nuisance in both respects. The Wards are further concerned that the proposed abandonment of a portion of the San Marcos Road right of way, and the resulting addition of land area to their lot, could trigger a reassessment by the County Assessor and a loss of Proposition 13 tax protection. The Wards see even the slightest chance of such loss as unacceptable. My clients are appreciative of the AMWC's efforts to date to improve the visual quality of the proposed structure. Their previous concerns over the height of the structure and the "industrial" appearance have been ameliorated somewhat by the new stucco/tile roof design, and the lowering of the floor below grade. Theyremainconcerned, however, about the overall size of the structure. They feel that the structure should be built to house only two pumps, and that a second pump station be built someplace else to house the two additional proposed pumps. i Mr. Weathers Mr. Kaiser July 28, 1995 Page 2 As it stands, the Wards and their neighbors are bearing the burden of a giant pump house to benefit other neighborhoods which will themselves suffer no impact. On the question of noise, it appears that the AMWC and the City assume that the new structure will constitute an improvement over the current noise level. Obviously, this is a convenient assumption, as it allows the AMWC to avoid the cost of an environmental impact report and any required mitigation. From the Ward's perspective, however, this assumption should not be made, and no negative declaration contemplated, without an engineers' opinion regarding noise levels. The property tax issue could be resolved if the AMWC agreed to expand its offer to indemnify to include any increased property tax liability incurred by the Wards (and anyone else entitled to the Wards' Proposition 13 protection) as a result of this project. In sum, the Wards feel that the City should require the AMWC to show why it is not feasible to build two smaller pump stations rather than the currently proposed large station. If it is established that the large station is necessary, it should not be contemplated without an engineer's opinion regarding noise levels. Finally, as between themselves and the AMWC, the Wards insist upon the expanded indemnity as aforestated. I invite either of you to contact me if you have any questions or concerns. Sincerely, �zn CHARLES P. OGLE CPO:mn Z.kC Mtv'ricz WARD.SMVfflaT-rat.aoi CC08/08/95 Exhibit "B" MARCIA MCCLURE TORGERSON 6200 Llano Road Atascadero, CA 93422 805-466-7980 August 8, 1995 �- l� Atascadero City Council – 8 RE: Millhollin Mine FF CITY OF AT CADEROO Councilmen: CITY CIERK'S FACE I would like to thank you, Mr. Mayor, for putting this issue on your agenda. I would like to comment on the City Attorney's report in front of you tonight. Up until the day the City decided to sign the Interim Operations Agreement (IOA)_ with the Millhollins, I felt the City was attempting to protect , neighborhood from the potential unlimited expansion of this Mine. In my opinion, when the City signed that agreement, allowing the removal of more than twice the amount of rock that the existing reclamation plan allows, you decided that the threat of a lawsuit from the Millhollins was more important than fulfilling your lead agency responsibilities. It was at that point that I felt you had left the neighborhood "out in the cold." Many of the neighbors felt that since the City was no longer looking out for their best interests, then we had to protect ourselves. The City Attorney refers in his report to motions that were filed three times .challenging our lawsuit. He fails to mention to you that the first two motions were denied by the Court. l am submitting for the record the judge's ruling on the first two motions (which is page one of the attached documents). As you can see, the judge denied the City's and Millhollin's motions because he felt there was sufficient evidence for our first cause of action and in the second cause of action, the judge states that the Court agreed with us, the neighborhood, in that the !OA is in fact a "reclamation plan" because SMARA makes no reference to IOA's. Which means that the IOA did not comply with the Public Resources Code. The judge goes on to state that the City-also failed to certify the IOA to the director (the State) as required by the Public Resources Code. The third motion by the City and Millhollins was successful only because our original pleading was in reference to the Interim Operations Agreement. By the time the third motion was heard by the judge (7 months after our initial filing), the IOA had expired and therefore, the judge assumed that the Mine was no longer operating. Of course, as we all know, the Mine is continuing to operate after the IOA. That is why we have filed a new petition; to clarify to the judge that our pleading is to the operation of the Mine totally, not just with an IOA. Concerning the restraining order we requested, again the judge ruled that since the IOA had expired, a restraining order was not 1 ' j necessary. 'Here again, he was assuming that the Mine is not operating without an IOA, which is incorrect. Concerning the comments the City Attorney made in his report about me personally, I am deeply concerned. First of all, as you read that paragraph, you come to the conclusion that I was lying to you when I spoke at your July 25, 1995 meeting. In researching my claim that the State Mining and Geology Board advised the neighborhood concerning the filing of our lawsuit, the City Attorney didn't bother to come to me to ask me who I had spoken to. Instead, he had a staff member call the State and came up with the answer that no one at the State office would make such a statement. If the City Attorney had just come to me, I could have saved him and the City a lot of effort. 1 would have been glad to explain my comments, if he had only bothered to ask. Since he did not ask, I feel I must now waste your time defending myself because of his comments. For the record, I and others in the neighborhood have spoken to several people at the State Department of Mining and Geology from approximately November 1993 to the present; Pam Ciccerelli, legal department, Tim Kustic, compliance department, and others. They all advised us, the neighborhood, on steps we should take towards the lead agency to encourage you to fulfill your responsibility to the neighborhood. They all advised us that if after pressuring the lead agency, the neighborhood felt that the lead agency had failed to take appropriate enforcement action, then our remaining recourse is in the Courts. Tim Kustic, Principal Compliance Engineer, sent a letter to the City, -dated February 18, 1994, which is page two of the , attached documents, reminding you of your lead agency responsibilities. You also might be interested to know that earlier this year, the City Attorney and Mr. Millhollin's attorney claimed in court that we, the neighborhood, had violated procedure by not filing a formai complaint with the State before ever filing a lawsuit. They claimed this was grounds for a dismissal. The judge denied their request, but I pursued the issue because I would have thought in all the conversations I had had with the State, they would surely have instructed us to file a formal complaint if it was required by law. So, I called the State Mining and Geology Board. For the first time, I was forwarded to the head of the department, Executive Officer, John G. Parrish, Ph.D. He told me that if we had been unable to get the lead agency to resolve the problems, then our remaining recourse was to have filed the lawsuit. He also told me we were not required to file a formal complaint with the State before filing a lawsuit. i asked him to send me a letter to verify his statement. His letter, dated March 22, 1995, is pages three and four of the attached documents. In his letter, he summarized all of the advice he had given me over the telephone. His summary of the situation shows what a complex issue this is. I would like to read the last paragraph that will reveal to you, in black and white, the truthfulness of my comments to you at your last meeting and my comments to you tonight: 2 -"Other than the inquiries to the Department and the Board regarding procedures and information that you made in the past, you are not required to file any formal complaint with the State Mining and Geology Board. The issue to which you and your neighbors are addressing is one of operations, not reclamation, and therefore belongs in the sphere of lead agency responsibility. if the lead agency fails to act in this case, or believes it is i prohibited by law from taking action in this case, then your recourse is directly to the Courts. " I think it is a terrible thing that a private citizen who speaks at a public meeting can be attacked publicly by a City representative because he either doesn't believe her or does not like what she said. l guess he thought my comments made him look bad. I think his false accusations make him look worse. A City Attorney should not attempt to intimidate the public for the purpose of suppressing the truth. What concerns me most about these false accusations from the City } Attorney, is that if this portion of his report is false, how do you know if other portions of his report were also improperly researched? 1 would like to ask that in the future, it the City Attorney has any doubts regarding the accuracy of any comments 1 044ht publicly make, I hope that you will make sure that he will come to me first to verify the information before publicly making false accusations regarding my honesty. The real issue here, which the attorneys keep trying to divert from, is that we have a reclamation plan that was incomplete even by 1978's standards. Mining standards have grown significantly since then, so this reclamation plan does not come near meeting today's standards. Herein lies the Catch-22 The Millhollins have an incomplete reclamation plan, but because it was approved by the State in 1980, it is valid. In the mean time, the City has allowed a residential neighborhood to develop around the Mine. For approximately 40 years, the Mine operated without any complaints. Now, the County has expanded the operation to at Feast 4 times what the neighborhood was used to. Please remember that we all moved out there knowing the mine was there. Up until approximately 1992, no one complained about the operation because it did not bother them. It was only when the County decided to expand their operations that the problems started. The current mining operation is not compatible with the neighborhood. As the State Board has explained to me repeatedly, the only way to resolve this issue, if the lead agency is not willing to strongly pursue an amended reclamation plan, is in the Courts. The reclamation plan needs to be amended to current standards if the Mine is going to continue to operate. i The development plan that the Millhollins have submitted calls for the mining of an additional 120,000 cu. yds. of rock. They say that the_mine will be closed and I the removal will be considered grading. Well, not according to SMARA. Mr. Millhollin not only plans on removing the 120,000 cu. yds of rock, but he also i plans on selling it to the County. That's mining. So, do not be fooled by a proposed development pian. Don't be fooled into believing that there will not be 3 i any more mining. Because to achieve that subdivision, there will be an enormous amount of mining for many years to come which is all the more reason for an amendment to the reclamation plan to bring it up to current standards. In the past, you the lead agency, have interpreted that the Millhollin reclamation plan allows for 7,000 cu. yds. of rock to be removed yearly. If you enforce that immediately and work towards resolving this matter, you will be taking the appropriate steps under SMARA that are required of a lead agency. You should not make the neighborhood do your job. The City and the neighborhood should be working together. Did you know that since June of 1993, which was the date that the City started trying to pressure the Millhollins for an amended reclamation plan, the County has removed approximately 35,000 cu. yds. of rock? The longer this goes on, the more damage that is occurring on the site that will require more and more extensive restoration. The neighborhood has been ready to go to trial on this issue since last November. Due to the City's and Millhollin's numerous motions, continuances and delays in court, we do not even have a trial date yet. It seems as though both the City and the Millhollins do not want a judge to preside over this issue. If we all want to settle this issue and we can not agree among ourselves, then why not set a trial date, let a judge rule on the issue, and be done with it? Why should we all spend thousands of dollars on delay tactics from which only the attorneys will profit? Sincerely, Marcia McClure Torgerson Im Attachments i I I I 4 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN LUIS OBISPO DATE: March 16, 1995 DEPARTMENT NO. VII ! PRESENT: HON. CHARLES A. PICCUTA JUDGE M. Graves, DEPUTY CLERK None, BAILIFF Not Reported, REPORTER 8 FA TLE COUNSEL i NTA LUCIA NEIGHBORS ASSOCIATION, Kate M. Neiswender California Corporation., PLAINTIFFS) VS. John Belsher CITY OF ATASCADERO, ET AL. , Arthur Montandon DEFENDANTS) ACTION NO. : CV76423 PROCEEDINGS: Ruling on Submitted Matter The above entitled matter having been heretofor ordered to stand submitted, the Court now rules as follows: The gist of the first cause of action in that in the disguise of an enforcement- action', ' the'City has allowed the expansion of quarry operations without compliance with CEQA protocol. This states a cause of action sufficient to overcome the demurrer. /�— The second-cause of.action. alleges: (1),that.the Interim Operations Agreement is in fact 'a "reclamation: plan:".. (The Court. agrees.:.SMARA makes no reference to an"'interim operations agreement". (IOA.) (2) That the IOA does not comply with Pub. Res. Code 52772 and 2773 and (3) that City failed to cerify-the.IOA to the director- as required-'by Pub. Res. Code S2774(c) .., These allegations state a cause..of -action under-CCP.S1085 sufficient to overcome the demurrers. Until the City complies with S2774(c), the director is deprived of the opportunity to determine whether the lead agency has approved a reclamation plan which is not-consistent with SMARA. In overruling the demurrers to the first cause of action, the court found the specific reference in 52774(c) to CEQA significant. Respondent and Real Party shall file their returns within 10 days [CRC 325(e) ). This minute order shall serve as the court's formal order. The Clerk shall give notice. Under penalty of perjury, I hereby certify that I am not a party to this action, that I deposited in the United States mail at San Luis Obispo, California, first class mail, postage prepaid, in a sealed cnvolope, a copy of the foregoing Minute Order addressed as set forth below. Ms. Kate M. Neiswender Mr. John Belsher 1575 Spinnaker Dr., Ste. 206 1012 Pacific St. , Ste. A-1 Ventura, CA 93001 San Luis Obispo, CA 93401 Mr. Arthur r. Montandon Mr. John Paul Daly City Attorney, City of Atascadero County Counsel's Office 6500 Palma Ave. Room 386 County Government Center Atascadero, CA 93422 San Luis Obispo, CA 93408 LARRY REINER, Exe ive Officer/Clerk of the Court by Deputy Dated: F 1-4-H- —'44 1•N 1 1Y;Mh 10:t:I i Y 111• H1 K-A 1414-M 1 11-1 (A 1:KT1 4h 1—MF41h M-10( sTATE OF CAUFQRNIA•TNi RlsoVRCIS Al2INCY PM WILSON.Gewmer ARTMEW OF CONSERVATION 00 I CC 0► MINE RECLAMATION P��K iuts. A 5 14rn�nt.,CA rttaas-31=a WIN SM1198 4�$ T�I�oamwdadons 0 Owe@ for 00 ONt Fury 180 1994 ptai s=♦taaa Gary Kaiser, Associate Planner Ataseadero Community Development $Soo Palma Avenue Atascadero, CA 93422 RE: California Mine YD# 91-40-0001, Millhollin Quarry Dear Mr. Kaiser: The Department of Conservation (Department) has received the enclosed letter regarding the -referenced surface mining operation located in the City I Atascadero. Since the primary implementation: enforcement of the Surface Mining and Reclamation Act (SMARA) is the lead agency's responsibility, the enclosed letter is being forward to the City of Atascadero for investigation of the complaint, From pervious correspondence, our office realizes the limitations of the previously approved reclamation plan for this operation. However,_ production in excess of-the approved amount is a clear violation of the approved' reciamation plan. The lead agency should"determine-if the"operator has violated the approved reclamation plan. If so, appropriate enforcement` actions. may be warranted. As you may be aware, the Department's office of Mine Reclamation acts as an enforcement backstop if lead agencies neglect their SMARA responsibilities. SMARA Section 2774.4 allows for the State Mining and Geology Board (Board) to assume lead agency SMARA responsibilities, except permitting, for no less than three (3) years if the Board determines a lead agency has failed to take appropriate enforcement actions. If the Department initiates- enforcement actions, the lead agency would automatically be referred to the Board for possible takeover of SMARA duties. If you have questions regarding lead agencies responsibilities, please contact our office at (916) 329-9198. Sincerely, Tim�Xu Principal Compliance Engineer TKJcs Enclosure 'fATE OF CALIFORNIA -THE RESOURCES AGENCY PETE WILSON, Governor DEPARTMENT OF CONSERVATION STATE MINING AND GEOLOGY BOARD 80Street, MS 24-05 Sa ento, California 95814-3528 OeWayne Holmdahl, Chairman Bob Grunwald, Vice Chairman TELEPHONE: (916) 322-1082 Sands Figuers TOO LINE: (916) 324-2555 Alvin Franks Raymond Krauss Julie Mann Robert Munro Sheila M. Murphy Lee Thibadeau March 22, 1995 Marcia McClure Torgerson 6200 Llano Road Atascadero, California 93422 Re: California Mine ID #91-40-0001, Millhollin Quarry Dear Ms Torgerson: Thank you for your letter of February 20th regarding the operations of the above referenced mine. The delay in responding was because of my waiting for the results of a field inspection of the Millhollin Quarry that occurred about two weeks ago. Mr. Tim Kustic, PrincipalCompliance Engineer for the Department of Conservation's Office of Mine Reclamation, recently toured the Millhollin facilities and spoke with several individuals with the City of Atascadero, lead agency for this mine operation. Mr. Kustic expressed some of your concerns and those of your neighbors to the City officials regarding the operation of the Millhollin Quarry. The City officials seem well aware of their responsibilities as lead agency in seeing that the Mi?ihollin Quarry is in compliance with the Surface Mining and Reclamation Act (SMARA). Mr. Kustic reports that the mine site itself is exceptionally clean, and that the City's inspections are quite thorough. Although the quarry's current.reclamation pian is feeble by today's standards for those plans, its plan is valid and the operation is in compliance with the original plan. The vested status of the quarry exempts it from being subject to local conditional use/mining permits. These permits govern the actual, daily operation of the mine, and the issuance and enforcement of use permits are solely the province of the lead agency. It is my understanding that recent mining operations at the mine site have substantially increased, and that this expanded activity is causing an annoyance to those nearby; however, i Millhollin Quarry Page 2 t because this irritant is the result of operations -- and not a change in the reclamation requirements -- it is up to the lead agency to manage the issue. The City of Atascadero has little recourse under SMARA,;because of the,vested status of the mine. Its only courses of action are negotiation with the mine operator, or legal' restraining actions through the Courts. `The courses of action by the citizenry are either, direct negotiation with the mine operator, community pressure on the City officials, or action through thi'Cou'rts. From my understanding of the situation, the City has decided to negotiate with the mine operator for best terms. You and your neighbors have determined that previous negotiations have not yielded the results you desired, and so have decided to take action in the Courts. Other than the inquiries to the Department and the Board regarding procedures and information that you made in the past, you are not required to file any formal complaint with the State Mining and Geology Board. The issue to which you and your neighbors are addressing is one of operations, not reclamation, and therefore belongs in the sphere of lead agency responsibility. If the lead 'agency,fails to act in this case, or believes it is prohibited by law from taking action in this case, then your recourse is directly to the Courts. Sincerely, 77'- Jo G. Parrish, Ph. D. ecutive Officer i , 9 3 CC08/08/95 EXHIBIT "C" MAYOR HIGHLAND, MEMBERS OF THE CITY COUNCIL, I WOULD LIKE TO MAKE A FEW BRIEF COMMENTS IN REGARD TO THE MILHOLLIN QUARRY, AND WHAT I FEEL ARE MISREPRESENTATIONS OF THE NEIGHBORHOODS ATTITUDE BY THE CITY ATTORNEY . I FIND IT EXTREMELY DISTURBING, THAT THE CITY I ATTORNEY STATES IN HIS REPORT THAT THE NEIGHBORS FILED SUIT AGAINST THE CITY OF ATASCADERO BECAUSE `THE CITY` NOT DONE ENOUGH, FAST ENOUGH'ABOUT THE OWARRY OPERATION. WE FELT THAN AND STILL FEEL NOW THAT WE HAVE LEGITIMATE CONCERNS ABOUT THIS ONGOING MINING OPERATION IN A RESIDENTIAL AREA. THE NEIGHBORS FILED SUIT TO DEMAND THAT THE CITY AS LEAD AGENCY ACT TO ENFORCE ENVIRONMENTAL LAWS TO PROTECT THE NEIGHBORHOOD AND STOP THE DAMAGE TO THIS AREA. WE FEEL THIS DAMAGE IS STILL CONTINUING TODAY. UNLIKE THE CITY ATTORNEY, THE NEIGHBORS FEEL THAT THEY HAVE BEEN EXTREMELY PATIENT ABOUT THIS MATTER. THIS IS DEMONSTRATED BY THE FACT THAT MR. HIGHLAND IS NOW THE THIRD MAYOR THAT WE HAVE SPOKEN BEFORE AT THESE CITY COUNCIL MEETINGS. THE NEIGHBORS FILED SUIT ONLY AS A LAST RESORT AFTER REQUESTING 30 DAYS TO STUDY THE INTERIM OPERATING AGREEMENT THAT THE CITY COUNCIL ITSELF HAD RECEIVED ONLY 24 HOURS BEFOREAS YOU KNOW, WHAT REQUEST WAS DENIED. BY CONTRAST, THE QUARRY OPERATION HAS BEEN GRANTED NUMEROUS EXTENSIONS BY THE CITY AND INDEED THE CITY HAS NOT ENFORCED THE TIMETABLE IN ITS OWN INTERIM OPERATIONAL AGREEMENT. WE DO NOT FEEL OUR POSITION IS UNREASONABLE WE DO FEEL THAT WE HAVE BEEN SUBJECTED TO EVERY CONCEIVABLE LEGAL DELAYING TACTIC OVER THE LAST NINE MONTHS WHILE THE MINING OPERATIONS PROCEED AND WE WATCH THE DAMAGE TO THIS AREA CONTINUE. RECLAMATION OF THIS AREA, IF IT DOES TAKE PLACE WILL ONLY BE MADE MORE COMPLICATED AS MORE AND MORE MATERIAL IS REMOVED FROM THIS SITE ON A DAILY BASIS. IN CLOSING, I MUST REPEAT THAT A LAWSUIT AGAINST THE CITY WAS NOT SOMETHING THAT THE t NEIGHBORS TOOK LIGHTLY OR IN ANY WAY WISHED i TO DO. IT WAS OBVIOUSTO ALL OF US THAT A LAWSUIT WAS OUR ONLY REMAINING OPTION. ALL OF THE NEIGHBORS WOULD LIKE NOTHING MORE THAN TO HAVE THIS MATTER RESOLVED AS QUICKLY AS POSSIBLE. -� CHUCK GREENBERG 11655 CENEGAL e ATASCADERO CC08/08/95 Exhibit "D" Re: Millhollin Mine Daphne Fahsing, 5105 Llano Rd. August 8 , 1995 I ' d liketo comment on a few points in Mr. Montandon' s report to your council . Mr. Montandon states that the opponents of the quarry feel the City has not done enough fast enough. . . . Until the formation of the Interim Operations Agreement the City did seem to be making the effort to try to satisfy all parties . However, a main contention was the removal of "the mountain" , and that has not been resolved, and the City has since done nothing to "address the concerns of the citizens, " as Mr. Montandon claims in his report. By allowing the County to remove dirt in a way which makes it now necessary to take the mountain down (because if you 've been out to the site recently you 've seen that it is a dangerous situation) you have betrayed the neighborhood and the entire city. Since Santa Lucia Neighbors filed suit , Mr. Montandon has worked diligently with Mr. Millhollin's attorney to ensure that his many delaying actions are approved and supported, in detriment to the welfare of the Paradise Valley environment. Mr. Millhollin' s attorney has applied numerous delaying tactics, which the City has supported, while the quarry remains in operation. Once the Interim Operations Agreement expired, without the agreed-upon requirements being completed by the Millhollins, no further operations should have been allowed until litigation is resolved. That would have stopped the delaying actions, and the lawsuit could have proceeded. Instead, Mr. Millhollin 's attorney has filed yet another appeal, for delay of the EIR determination, The argument is not valid that people knew the mine was there and shouldn't have moved there if they didn' t like it. The fact is, the peoplewerethere before the quarry operations expanded to an unacceptable degree. It has become, plain and simple, a strip mine and a strip mine has no place within a residential neighborhood or inside City more. . . . . . . . . . . Millhollin Mine - Daphne Fahsing page 2 limits . I have no objection to a development taking its place. I do object to the removal of the .top of the mountain, because I believe it will change the climate on both sides of the hili . It also sets a precedent for anybody else who wants to claim special privileges for developments in similarly sensitive areas. The mountain will now have to come down because of the way material has been removed over the last few months . Mr. Millhollin doesn 't live here - we do. Why has he been allowed to do this? 0000000