TOWN COUNCIL
MINUTES
CALL TO ORDER
Vice Mayor Slavitz called the regular meeting of the Tiburon Town Council to order at 7:35 p.m. on Wednesday, September 4, 2002, in Town Council Chambers, 1505 Tiburon Boulevard, Tiburon, California.
ROLL CALL
PRESENT: COUNCILMEMBERS: Berger, Fredericks, Slavitz, Thompson
ABSENT: COUNCILMEMBERS: Gram
PRESENT: EX OFFICIO: Town Manager McIntyre, Town Attorney Danforth, Senior Planner Watrous, Director of Public Works/Town Engineer Echols, Chief of Police Odetto, Director of Administrative Services McVeigh, Administrative & Financial Analyst Stott, Town Clerk Crane Iacopi
CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL – EXISITNG LITIGATION
(Section 54956.9(a))
Tiburon Residents (TRAUMAS) v. Town of Tiburon and MERA
Xanadu v. Town of Tiburon
ANNOUNCEMENT OF ACTION TAKEN IN CLOSED SESSION, IF ANY
Vice Mayor Slavitz said that no action was taken in closed session.
ORAL COMMUNICATIONS
Kathy Dougherty, 108 Sugarloaf, asked the Council to rescind its July 31 vote to approve the 145 Sugarloaf location for siting of the MERA antenna. She said that the decision was based on incomplete and, in several instances outlined by Mrs. Dougherty, incorrect data.
Mrs. Dougherty also questioned why no one on Town Staff nor MMWD could tell the residents why some of the trees had been marked at that location.
Bob Dougherty, 108 Sugarloaf, asked whether anyone on Town Staff or the Council had had an opportunity to follow up on his questions about whether components of the antenna could be moved across the street from 145 Sugarloaf. Mr. Dougherty also asked if anyone had talked to Mr. Rosenburg [about the Angel Island location].
Councilmember Thompson remarked that Mr. Rosenburg had given his answer regarding the Angel Island location to the Ark. Mr. Dougherty said that he had hoped to hear directly rather than through a reporter. Thompson said that he had left a message to talk to Mr. Rosenburg.
CONSENT CALENDAR
1) Approval of Town Council Minutes – August 7, 2002
Councilmember Berger said it might be useful to elaborate on Mr. Lefkof’s remarks on page 2 of the minutes. Town Clerk Crane Iacopi said that the "public comment" portion had been fully transcribed and was part of the administrative record of the TRAUMAS v. Town of Tiburon lawsuit. Town Attorney Danforth said the remarks had been transcribed at TRAUMAS’ request.
2) Approval of Town Council Minutes – August 8, 2002
3) Approval of Town Council Minutes – August 21, 2002
Councilmember Fredericks asked for a correction to a name (Dinny Waters) on page 17.
4) Recommendation by Director of Community Development – Authorize Future Annexation Agreements in the Vicinity of Teaberry Lane and Paradise Drive
a) 11 Teaberry Lane (Ellis) – AP No. 58-091-25
b) 22 Teaberry Lane (Schein) – AP No. 58-071-03
c) 25 Teaberry Lane (Owner’s Name) – AP No. 58-071-08
d) 3369 Paradise Drive (Iceberg) – AP No. 58-071-02
5) Recommendation by Town Attorney – Amicus Brief Request
a) The County of v. Los Angles v. Superior Court – (Court of Appeal Case B160694)
6) Recommendation by Town Manager – Commemoration of September 11, 2001
a) A Resolution of the Town Council of the Town of Tiburon Commemorating September 11, 2001 and Declaring September 11 a Perpetual Day of Mourning and Remembrance In the Town of Tiburon
MOTION: To adopt Consent Calendar Items 1 through 6, as amended.
Moved: Thompson, seconded by Fredericks
Vote: AYES: Unanimous
ABSENT: Gram
ABSTAIN: Slavitz, August 7, 2002 minutes
PUBLIC HEARING
7) Appeal of Design Review Board Decision – Approval of a new single-family dwelling located at 3 Palmer Court –
Assessor’s Parcel Nos. 55-201-01
Applicants – Thomas & Olivia Kress
Appellants – Art & Florence Kenney
Senior Planner Watrous gave the report. He said that on July 18, 2002, the Tiburon Design Review Board ("DRB") approved a Site Plan and Architectural Review application for construction of a new single-family dwelling on property located at 3 Palmer Court. The decision was subsequently appealed by the owners of the adjacent property, 654 Tiburon Boulevard, Art and Florence Kenney.
Mr. Watrous said that because more than 50% of the existing structure at 3 Palmer Court was being demolished, it was considered a new residence. He also said that the existing structure was being replaced by a two-story dwelling.
Watrous said that in reviewing the project on June 6, 2002, the DRB heard concerns by several surrounding property owners regarding potential view and privacy impacts that were in part shared by the boardmembers. The hearing on the application was continued to July 18 to allow the applicant to address these concerns. The applicants, Tom and Olivia Kress, then submitted revised plans which included the following changes:
The proposed house was moved four feet to the east.
The driveway for the proposed three-car garage was relocated to the south approximately 30 feet.
A rear stairway window facing the uphill neighbors was removed.
According to Watrous, the Design Review Board determined that the modifications made to the proposed house significantly addressed the previously raised concerns of the neighboring property owners.
In particular, the Board determined that the roofline of the proposed house would only block a small portion of the view of the shoreline from the Kenney’s home at 654 Tiburon Boulevard and
that the project was consistent with the principles of the Hillside Design Guidelines for view protection.
Watrous said that the Design Review Board therefore voted to approve the application as submitted.
Mr. Watrous outlined the basis of the Kenney’s appeal and gave the Staff responses:
The proposed plans would results in view and privacy impacts on the appellants’ house.
Mr. Watrous said that the minutes reflected the fact that the DRB members had visited the site and viewed the story poles for the project from the appellants’ home prior to making their determination that the potential view impact was not significant therefore consistent with the principles of the Hillside Design Guidelines.
There were errors and/or omissions in the presentations made to the DRB.
Mr. Watrous said the appellants noted that a utility easement across the subject property had not been shown on the submitted plans and that story poles had not been erected for the proposed garage structure. They also noted that the July 18 Staff report indicated that the proposed structure had been moved to the west, when, in fact, the building had been moved to the east.
Mr. Watrous said that by the time the DRB met on July 18, each of the above issues had been addressed and resolved.
The applicants did not correctly follow Town procedures by working with neighbors regarding the design of the house.
Senior Planner Watrous said that on July 18, the Board acknowledged that the applicants could have done a better job of working with their neighbors but also noted that the redesigned project was in keeping with the Town’s Hillside Design Guidelines, as required.
The DRB did not adequately consider all of the information presented by the appellants in making a decision on this application.
Mr. Watrous said that the minutes reflect that the DRB used all of the evidence to arrive at an informed decision regarding this application.
Based on the above findings, Mr. Watrous recommended that the Council conduct the hearing and deny the appeal.
Vice Mayor Slavitz opened the public hearing.
Art Kenney, 654 Tiburon Boulevard, said that the DRB did not have all the facts in making their decision and asked the Council to amend that decision only with regard to the proposed second story and location of the swimming pool at 3 Palmer Court. He asked the Council to consider moving the second story 20 to 30 feet to the east and lowering it by a couple of feet so that the Kenney’s "unique" view of the shoreline path and Bay would not be impacted.
Mr. Kenney said that these modifications would also address the privacy concerns of the remaining neighbors, as well.
Mr. Kenney said that if the Kress’ had met with the neighbors, they could have suggested four or five alternatives, which might have included undergrounding of utility lines; a one-story house; and excavating into the hillside like the proposed garage design.
He said that one of the reasons Mr. Kress gave to the DRB for not considering these ideas was that if the second story was moved to the east it would put it directly under a power line. He said this was not true and that it would still be 30 feet from the power line.
He also said that a reason was given that moving it would adversely affect the Newman’s view. However, Kenney said that the residents of 5 Palmer Court cut their trees every year to help maintain this view.
Mr. Kenney also said that Mr. Kress had said that a revised floor plan would not work for a family but Mr. Kenney said he had met with two architects who disagreed. Mr. Kenney then submitted his "amateur" renditions of his proposed changes to the Council.
In addition, Mr. Kenney said he had conferred with an engineer who said that the lot was large enough to accommodate a one-story residence.
Mr. Kenney concluded that if the Design Review Board knew that the second story could have been moved 20-30 feet and that the bedroom would still be 20 feet from the power lines, they would have been able to make a more informed decision.
Councilmember Thompson said that the undergrounding of utilities was a great idea and asked the audience whether the Palmer Court neighbors would join an assessment district to accomplish this. Mr. Kenney replied that he would "definitely" join; Thompson said that he wanted to go on record as supporting such a project.
Thompson moved on to the issues of the appeal. He said that Mr. Kress had submitted a letter in which he stated his many attempts to try to work out the issues with the neighbors, including the Kenneys.
Mr. Kenney said that his recollection of the events differed considerably from Mr. Kress’. He said that in the beginning they had a very nice meeting in which Mr. Kress said that he did not want to block the Kenney’s view and that he would talk to this architect about the issues. However, when Mr. Kenney met with the applicant’s architect, he reportedly stated that he was there only to look at the story poles and not to make any changes to [his client’s] plans.
Vice Mayor Slavitz asked about the issue of removing trees or maintaining them at ridgeline height to ameliorate the loss of views for the Kenneys. Mr. Kenney said that he would be happy with either option, but stated that he had not raised this issue because the DRB had suggested removal and replacement of certain trees on the property.
The Vice Mayor then opened the hearing to the appellant.
Tom Kress, 3 Palmer Court, introduced his family, architect, landscape architect, and sound engineer who were in the audience.
Mr. Kress said that he hoped that the Town Council would support the DRB’s decision and the recommendation of Town Staff. He said that the DRB was comprised of architects and experts who had spent over two months reviewing his application and he rejected the assertion of the appellants that the board did not follow proper policies and procedures. He further stated that the view impact of the second story on the appellants was not found to be inconsistent with the Hillside Design Guidelines and would impact less than 10% of the Kenney’s view and was not from a ceremonial room. Mr. Kress also said that he had documented his attempts and actual meetings with his neighbors.
Mr. Kress said the proposed two-story house was designed on an 80/20 ratio and that it would have been more advantageous for them to build a larger second story, but they did not propose to do so based on the neighbors’ concerns. He went on to say that he had offered $20,000 to the Kenneys to help underground the utility pole, but said they had refused the offer. Mr. Kress said he had concluded that the Kenney’s would not compromise and wanted nothing less than the moving of the second story 30 feet to the east or its entire removal.
Mr. Kress said that the house was redesigned and moved four feet after the first DRB hearing to appease the Kenneys. He said he had now "given up" trying to appease them, even through he had tried to meet them again after the appeal was filed. Mr. Kress said that he had incurred considerable extra expense to make the requested changes and that the 13 weeks of delay had cost him an additional $55,000.
Councilmember Thompson said that his reading of the [Kress] log had shown that he met with the Kenneys only once in June or July, and asked whether that was also the date of the DRB meeting on July 18. Mr. Kress said that was incorrect and that he had met with the Kenneys on June 16.
Councilmember Fredericks asked Mr. Kress which changes to the plans he thought were of benefit to the Kenneys. Mr. Kress said that the offer to remove the utility pole was first.
Mrs. Fredericks asked whether cutting trees on his property might also benefit the Kenneys. Mr. Kress said that he had offered that, as well.
Mr. Kress then introduced his architect, Larry Walter, who guided the Council through the design concepts of the proposed Mediterranean style villa.
In addressing the issue of the second story, Mr. Walter said that the second story was situated in order to "balance" the two wings of the house and was located 40 feet from the power line. He concluded that moving the second story would "do violence" to the design and move it too close to the power pole.
Councilmember Berger asked some a question about the style of roof, "hip" versus gabled roof, and whether Mr. Walter had considered lowering the pitch of the roof.
Mr. Walter said that changing to a hip roof would make the house look more like a pagoda and would not allow the trefoil window that his client wanted, but that it could be done. He said that the other option would be to change ridge direction which would remove the "hip" look but was not as desirable to the overall design of the house.
Councilmember Fredericks asked the architect whether the second story would still be 20 feet from the power line if it was moved 20 feet to the east. Mr. Walter measured the distance on the drawings and said that it would be 12 feet, not 20 feet, from the power line.
Vice Mayor Slavitz asked whether Mr. Walter had discussed moving the second story 10 or 20 feet in his meeting with the Kenneys. Mr. Walter said that he was not comfortable redesigning his client’s house per someone else’s specifications and that said that the Kenneys told him they wanted 30 feet, not 10 or 20.
Vice Mayor Slavitz opened the hearing to the public.
James Newman, 674 Hawthorne, said that Mr. Kenney had never been to his house and questioned how he could speak to whether his proposed changes would be of benefit to him. However, he said that he had met with Mr. Kress who had shown him the initial plans. These plans would have impacted his water views, but Mr. Newman said that they had agreed to a compromise. He said that Kress contacted him numerous times; however, the proposal to move the second story 30 feet to the east would be unacceptable as it would be right in the middle of his water view.
Mr. Newman recommended that the Council stick with the DRB decision.
Mark Lomas, 650 Tiburon Boulevard, located above the Kenney home and contiguous to the Kress home, said he had concerns about privacy and the loss of his "natural" views, as well as how the home would impact his own plans for future development.
Lomas said he felt that the DRB had "turned a deaf ear to him" and that no compromises to his concerns were offered by either the applicant or the DRB. Although he said that he did not want the Newmans to lose their views, Mr. Lomas suggested that all three families sit down and work out some sort of compromise.
Councilmember Fredericks asked precisely what compromise Mr. Lomas was asking for. Mr. Lomas replied that he would like to see the second story moved 20 feet to the east but not so as to impact the Newman’s view.
Vice Mayor Slavitz asked Mr. Lomas whether his view would be impacted by the Kress’ new home. He said that he would lose the "natural outlook" that currently existed and that he would look directly into the master bedroom and deck.
Frank Bersotto, 670 Hawthorne, 48-year resident, across from the Kenney home, said that he did not understand the Kenney’s point of view. He said that the Kenneys did not seem to be concerned about [trimming] their trees and that when they built their home it had "wiped out" a large part of his own view. But Mr. Bersotto said he was supported the Kress’ application.
Douglas McVickar, 2 Palmer Court, said he was concerned about the location of the proposed pool, which was directly across from his front yard. He said that Mr. Kress had never offered to discuss the design with him. He said that the pool would be noisy and that even though their acoustical engineer said that the installation of a glass wall would mitigate the noise, McVickar thought it would turn into a "laundry line" for towels. He suggested that the pool be moved to the easement area or to the east of the house, and that if the Council allowed it to remain where it was, to require a six foot wall not made of glass.
Councilmember Berger asked if the pool was located above the front yard of 2 Palmer Court. Mr. McVickar replied that it was 10 to 15 feet above the front yard.
During his rebuttal portion of the appeal hearing, Mr. Kenney said that even if the bedroom was moved 30 feet it would be "no where near the power line," and that his engineer had measured the distance.
With regard to Mr. Newman’s comments, Mr. Kenney said that they had used a photograph taken from Hawthorne Terrace but he agreed that he had not been to the Newman’s home.
Mr. Kenney commented that if the home at 5 Palmer Court home was required to be excavated into the hill, why couldn’t 3 Palmer Court also be, a change that would help both he and the Newmans.
Kenney also said there were some misstatements in the Kress log [of contacts with neighbors] and that he was not even around on some of the stated dates.
In summary, Mr. Kenney reiterated that the DRB decision was based on incomplete and inaccurate information, and that moving the second story would be a reasonable compromise.
Vice Mayor Slavitz closed the public hearing.
Councilmember Berger thanked everyone for their careful thought and consideration of this matter. However, he said that the second story could not be moved 30 feet which would put it "off the end of the house." He said a maximum would be 24 feet, but that the effects on moving the story would have to be weighed on the different parties—the Newmans, Kresses, and Kenneys.
In terms of compliance with the Hillside Design Guidelines, Councilmember Berger said that the Kress design was in compliance and was "very much on the side of staying within what we expect" (in interpreting the "do’s and don’ts" of those guidelines).
Berger said that the Kress drawings were an example of "how to put a second story on properly," and he agreed with their architect that it should remain centered on the house. He said that the second story was "expressed as a two-story façade" and that it would be less imposing if it was moved.
Councilmember Berger did say that the one thing that could be improved which would not hurt the Kress family and would help the Kenneys would be to change the roof to a "hip" design. He said this would allow the roof to come in on all four sides at the same slope but would cut the ridgeline by half. He said it was a simple solution that would not change the floor plan and that although it was more imposing the way Mr. Walter had designed it, it was not necessary, and furthermore, would help lower the "mass" of the house, resulting in an improvement of view for both the Kenneys and the Newmans.
Councilmember Fredericks said that in her evaluation of the project and the appeal, she looked at the relative burdens and benefits to the parties. She said that the Kenney’s views of the bike path, walking path, and shoreline were "serial views" which were important to them and would be disrupted by the second story. However, Fredericks said she liked Councilmember Berger’s idea and thought it would be a reasonable compromise. She noted that although it might be a "burden" to the Kress family to change the design, there were already "hips" on the house.
Councilmember Berger commented that what was visible to the owners was the eave line of the home, rather than the ridgeline, and that the proposed change would have "no effect on how it’s perceived as the Kress family moves around it." The only persons noticing the change would be the neighbors, according to Berger.
Councilmember Thompson said that the community would be well served by an organized tree and utility removal program. However, he said that the neighborhood in question was terraced quite well in order to preserve "equity of view sharing."
Thompson pointed out that "change is inevitable," and that two story homes would become part of the neighborhood as people remodel. He said that it was not a good idea to shift the second story and that moving the house four feet (as previously requested by the DRB) was a good idea.
Thompson said that he would like to see required tree trimming and enforcement but that he would vote to deny the appeal.
Vice Mayor Slavitz concurred with the comments of his fellow council members. He said that the Kenney’s concerns regarding the view that they had lived with for so long were valid, and that he liked the idea of working out a compromise as expressed by Mr. Lomas.
But Slavitz said that moving the second story 20 or 30 feet would hurt other neighbors while helping the Kenneys. Slavitz said the "hipping" of the roof was a valid compromise. He also agreed that the sound from the pool was minimized "as much as it could be" by the installation of the glass wall.
MOTION: To deny the appeal in part and to grant the appeal in part, and direct Staff to return with a resolution including the direction of Council with regard to the "hipping" of the roof of the new single-family dwelling at 3 Palmer Court.
Moved: Berger, seconded by Fredericks
Vote: AYES: Unanimous
ABSENT: Gram
8) Recommendation by Director of Public Works/Town Engineer – Repeal and Replace Chapter 30 of the Town Code to further regulate the use of Leaf Blowers within the Town of Tiburon
Introduction and first reading of Ordinance
Read by Title only
a) An Ordinance of the Town Council of the Town of Tiburon
Repealing the Existing Chapter 30 of the Tiburon Municipal
Code and Adopting a New Chapter 30 Regulating the Use of
Powered Leaf Blowers and Hedge Trimmers
Director Echols said that the proposed ordinance incorporated changes requested by the Council which would regulate the use of electric leaf blowers in residential areas to the hours of 8:00 a.m. and 4:00 pomp on any day, in addition to banning the use of gas-powered leaf blowers and hedge trimmers in residential areas all together.
Councilmember Fredericks asked for clarification of the previous ordinance. She asked whether it regulated the use of gas-powered leaf blowers by gardeners on Saturday and Sunday, and whether the new ordinance would now allow their use on weekends.
Councilmember Berger said that the use of electric leaf blowers was unrestricted before [in the current ordinance].
Vice Mayor Slavitz opened the public hearing.
Dinny Waters, Mar West Street, said his concern was the unrestricted use of gas-powered leaf blowers in commercial areas. He said that he appreciated the proposed revisions but that he would still like to see the start times of use in commercial areas changed to 9:00 a.m. versus 8:00 a.m. He said that approximately 50% of the people he surveyed in his neighborhood had agreed that this would be desirable, and that now the blowing started as early as 7:00 or 7:15 a.m.
Councilmember Berger agreed. He said that he "walked the gauntlet" every day on his way to the ferry. He also said that he understood that the landscapers wanted to use their blowers in the Pt. Tiburon lot before the cars starting arriving early in the morning.
Town Engineer Echols said they had said it would create a hardship for them to keep the lot clean if the hours were restricted further, but said that he thought that 8:00 a.m. was a reasonable compromise.
Mr. Waters asked what people did before they had blowers, but he said that the neighborhood had certainly been "numbed" by this noise for the last seven years.
George Landau, 82 Sugarloaf Drive, said that the Town was "doing better" on this issue but that some fine tuning remained. He requested that leaf blowing not be allowed on weekends (in residential areas) and at the very least, not as early as 8:00 a.m. Landau said that construction was not allowed to start that early on weekends, so why should blowers be allowed.
Helen Lindqvist, Cazadero Lane, said that she had a combination (electric) leaf blower/sucker, which vacuumed up the debris. She asked why people couldn’t use such vacuum devices. But Mrs. Lindqvist said that as a "good neighbor" she did not operate her machine on Sundays.
Vice Mayor Slavitz closed the public hearing.
Councilmember Berger recommended that the start times of use of all blowers be limited to 9:00 a.m. He said that the Council should be tougher on this issue, and that the landscapers would find a way around this problem. He said that the blowers were "really loud and really obnoxious."
Councilmember Fredericks said that not only was the sound obnoxious but that it was too bad that the landscapers used gas versus electric blowers.
Councilmember Thompson said that he had been inclined to adopt the first proposed ordinance and see how it went.
Vice Mayor Slavitz said that 9:00 a.m. seemed pretty severe. Berger replied that it was a "quality of life issue."
MOTION: To amend the proposed ordinance to change the start times of use in both residential and commercial areas to 9:00 a.m.
Moved: Berger, seconded by Fredericks
Vote: AYES: Unanimous
ABSENT: Gram
MOTION: To read the ordinance, as amended, by title only.
Moved: Berger, seconded by Fredericks
Vote: AYES: Unanimous
ABSENT: Gram
Vice Mayor Slavitz read, "An ordinance of the Town Council of the Town of Tiburon repealing the existing Chapter 30 of the Tiburon Municipal Code and adopting a new Chapter 30 regulating the use of leaf blowers and gas-powered hedge trimmers."
MOTION: To pass first reading of the new ordinance, as amended.
Moved: Fredericks, seconded by Berger
Vote: AYES: Berger, Fredericks, Slavitz, Thompson
ABSENT: GRAM
COUNCIL, COMMISSION AND COMMITTEE REPORTS
Councilmember Fredericks reported on a meeting with neighbors concerning Raccoon Lane drainage issues.
WRITTEN COMMUNICATIONS
Town Council Weekly Digest – August 23, 2002
Town Council Weekly Digest – August 30, 2002
Town Manager McIntyre said he was having conversations w/ Library Director Mazzolini regarding proposed Library expansion – item to come before Council in future. Councilmember Fredericks said she was the Council representative to Library task force studying this matter and that the next meeting would take place on September 23 (at Library).
Town Manager McIntyre said that Victoria Arnett had resigned from Heritage & Arts Commission thereby creating a vacancy.
Finally, the Town Manager acknowledged receipt of letter on Raccoon Lane drainage issues and said Staff would follow up.
ADJOURNMENT
There being no further business before the Town Council of the Town of Tiburon, Vice Mayor Slavitz adjourned the meeting at 9:35p.m., sine die.
_________________________________ JEFF SLAVITZ, VICE MAYOR
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK