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 CITY OF BRENTWOOD
REGULAR CITY COUNCIL MEETING
Minutes of September 10, 2002

A regular meeting of the City Council of the City of Brentwood was called to order at 7:00 p.m. in the Council Chambers located at 734 Third Street, with Mayor McPoland presiding.
ROLL CALL
Present: Councilmembers Beckstrand, Gomes, Hill, Petrovich, Mayor McPoland 
Absent: None

The meeting adjourned to closed session at 7:00 p.m. pursuant to Government Code §54956.9(a) – l

Conference with Legal Counsel-Existing Litigation pursuant to Gov’t Code § 54956.9 (a)
1. Trudie Rogers vs. City of Brentwood, Case No. C-02-01820

2. Merchant Fund LLC vs. Bankruptcy Court N.D. California No. 94-3282296

Closed Session adjourned at 7:15 p.m.

The meeting reconvened in open session at 7:30 p.m. with no reportable action.

PRESENTATIONS 

A. A proclamation proclaiming October 2, 2002 "Shelter in Place Education Day".
McPoland presented the Shelter in Place Education Day proclamation to Tammy Oksanon of the Contra Costa County CAER Group.

B. New Employee Introductions and Oaths of Allegiance. The following new employees were introduced and administered the Oath of Allegiance:

• John Rich, Public Works 
• George Vasquez, Public Works 
• Jamie Bertero, Public Works s
• Eunejune Kim, Engineering
• Yvette Toland, Administration
• Tim Herbert, Police Department
• Veronica Agraz, Police Department 
• India Welch, Police Department
• Jean Border, Police Department 

C. Presentation to Mayor and Council from the Arts Commission.

Chris Robinson, Chair of the Arts Commission announced that the City of Brentwood Arts Commission is sponsoring "A Day In The Park Art and Wine Festival" on October 12th and 13th in City Park. The free event is open to the public each day from 10:00 a.m. to 5:00 p.m. 


D. Proclamation declaring September 11, 2002, Patriot Day in Remembrance of the September 11, 2001 attack on America. 

Mayor McPoland read and presented the proclamation declaring September 11, 2002, Pariot’s Day in Brentwood. Mayor McPoland announced a remembrance ceremony to be held on September 11, 2002 at 7:30 a.m. in City Park.

AGENDA REVIEW

CONSENT CALENDAR

Item 12 Corrected staff report. (P. Ehler)

Item 17 Pulled per staff request. (B. Grewal/P. Eldredge)

NEW BUSINESS

Item 24 Amended staff report. (M. Oshinksy) 

Item 25 Amended staff report. (J. Stevenson)

Item 26 Supplemental Information. (G. Grewal)

CITIZEN COMMENTS

Bob Munion, Brentwood resident, reported on the Arts Commission Melodrama performance and expressed thanks to the City for their support.

Barbara Guise representing Tri-Delta Transit reported that PAL has asked Tri-Delta Transit to transport school children to the PAL program after school. While Tri-Delta Transit cannot run charter buses, they have come up with an alternative solution to the problem. 

CONSENT CALENDAR

1. Approved Minutes of August 27, 2002 and August 28, 2002. 

2. Approved Resolution No. 2657accepting the work performed by CB&I – Trusco Tank, a Division of CB&I Constructors, Inc., for construction of the Zone II 2mg Reservoir – Phase II, CIP Project No. 562-5627, and directing the City Clerk to file a Notice of Completion with the County Recorder. 

3. Approve Resolution No. 2658 approving a Professional Services Agreement with JSP Automation in the amount of $99,620 to assist the City with the integration, programming and installation of the Water Distribution Telemetry/SCADA System Project, CIP Project No. 562-5620 and authorize the City Manager to execute change orders up to 10% of the contract amount. 

4. Approve Resolution No. 2659 authorizing the City Manager to enter into Professional Services Agreements for materials testing services with Signet Testing Labs, Inc., in the amount of $100,000; and authorize the City Manager to approve change orders up to 10% of the contract amount; and for structural inspection and support services with ECO: LOGIC Consulting Engineers, in the amount of $150,000; and authorize the City Manager to approve change orders up to 20% of the contract amount for Sand Creek Road (East), CIP Project No. 336-3061. 

5. Set October 8, 2002 as the date for the appeal of Design Review No. 01-44 Mission Peak's Amber Park development generally located south of Lone Tree Way, west of Fairview Avenue, and east of the southerly extension of Empire Avenue. 

6. Approved Resolution No. 2660 approving the following actions: (1) approve an agreement for purchase of a fee parcel and an easement with Liberty Union High School District of Contra Costa County (La Paloma High School), for a portion of real property identified as APN 019-050-035, generally located on the south side of Lone Tree Way between Empire Avenue and Fairview Avenue, hereby accepting real property on behalf of the City, and authorizing the Mayor or City Manager and City Clerk or any of their designees to execute the agreement, and such other documents as may be needed to complete the transaction including acceptance of the Deeds; (2) authorizing the Mayor or City Manager and City Clerk or any of their designees to execute an Easement Deed, and such other documents as may be needed to complete the transaction to convey an easement across City owned property identified as APN 019-050-025 from the City of Brentwood to Liberty Union High School District of Contra Costa County, described in said purchase agreement. 

7. Approved Resolution No. 2661 approving the following actions: (1) approve an agreement for purchase of a fee parcel (property exchange) with Armando D. Dianda and George A. Baldocchi, also known as George Anthony Baldocchi, Dornie A. Mazzei and Linda D. Sutton, as Trustees under the terms of the will of Julia M. Dianda, also known as Julia Dianda, deceased, as established by Judgment of Final Distribution filed December 10, 1992 in Case No. P90-01086, Probate, Contra Costa County Superior Court, an undivided one-third (1/3) interest; George A. Baldocchi, Trustee of the George A Baldocchi Trust U/A/D 1/29/93, an undivided one-third interest; and Armando D. Dianda, Trustee of the Armando D. Dianda Trust U/A/D 12/23/97, an undivided 1/3 interest, for a portion of real property identified as APN 017-170-004, generally located at the intersection of Walnut Boulevard and Central Boulevard, hereby accepting real property on behalf of the City, and authorizing the Mayor or City Manager and City Clerk or any of their designees to execute the agreement, and such other documents as may be needed to complete the transaction including acceptance of the Deed; (2) authorize the Mayor or City Manager and City Clerk or any of their designees to execute a Grant Deed, and such other documents as may be needed to complete the transaction to convey a portion of City owned property acquired for Central Boulevard by Document #94-014223 (property exchange) from the City of Brentwood to the vested property owners referred to in Action (1) above and described in said purchase agreement. 

8. Approved Resolution No. 2662 establishing the compensation and classification description for Plan Check Engineer. The new classification title and description replaces the existing Plans Examiner description. 

9. Waived second reading and adopted Ordinance No. 717 approving an application from Paul Martin/William Currin for a Development Agreement concerning Tentative Subdivision Map No. 8281, generally located south of Lone Tree Way and west of Fairview Avenue. 

10. Waived second reading and amended Ordinance No. 718, Sections 10.13.210 and 10.13.220 of the Brentwood Municipal Code concerning stopping, standing, and parking and authorize the City Engineer to determine the appropriate time limits for vehicle parking for a period of time no longer than the notice, curb marking or sign state. 

11. Waived second reading and adopted Ordinance No. 719 amending the zoning for Planned Development 42 establishing development standards for Subarea D, generally located west of Brentwood Boulevard and south of Sand Creek Road. 

12. Approved Resolution No. 2663 submitting the General Obligation Bond tax rate to Contra Costa County for the 2002-03 tax roll. 

13. Approved Resolution No. 2664 authorizing staff to write-off uncollectible water, sewer and solid waste accounts in the amount of $20,296.68. 

14. Approve Resolution No. 2665 approving the following actions: (1) authorizing the Mayor or City Manager and City Clerk or any of their designees to execute a Quitclaim Deed conveying whatever interest the City may have in an Offer of Dedication as shown upon that certain Parcel Map entitled “MS 354-01”, filed in Book 181 of Parcel Maps at Page 1, to Lee E. Laird, Jr. and Jane Ann Laird, and any other documents necessary to terminate City interest in the dedication, as may be needed to complete the transfer; (2) authorizing the Mayor or City Manger and City Clerk or any of their designees to accept a Grant Deed from Lee E. Laird, Jr. and Jane Ann Laird and any other documents as may be needed to convey the offer of dedication described on said Parcel Map entitled “MS 354-01”, hereby accepting real property on behalf of the City, and authorizing the Mayor or City Manager and City Clerk or any of their designees to execute any documents necessary to complete the transaction; (3) authorizing the Mayor or City Manager and City Clerk or any of their designees to execute a Grant Deed conveying to the State of California (Caltrans) said described property referred to as an Offer of Dedication on Parcel Map entitled “MS 354-01, and any other documents necessary to complete the transaction.

15. Approved Resolution No. 2666 approving the following actions: (1) an agreement for purchase of a fee parcel (property exchange) with Lucia Albers and Monte D. Albers, wife and husband as to an undivided 49%, and Elizabeth Ann Iannaccone as to an undivided 51%, for a portion of real property identified as APN 019-060-053, generally located on the south side of Lone Tree Way adjacent to the railroad tracks and the intersection of the existing Fairview Avenue, hereby accepting real property on behalf of the City, and authorizing the Mayor or City Manager and City Clerk or any of their designees to execute the purchase agreement, and such other documents as may be needed to complete the transaction including acceptance of the Deeds; (2) authorize the Mayor or City Manager and City Clerk or any of their designees to execute Grant Deeds, and such other documents as may be needed to complete the transaction to convey the City owned property identified as a portion of APN 019-060-007 & 054 and the right of way owned by the City for the existing Fairview Avenue (existing Fairview right of way to be conveyed after the new realigned Fairview is open for traffic, all as part of the property exchange) from the City of Brentwood to Lucia Albers and Monte D. Albers, wife and husband, and Elizabeth Ann Iannaccone described in said purchase agreement. 

16. Approved Resolution No. 2667 approving a Professional Services Agreement with SP2, Inc. in an amount not to exceed $100,000 for general planning consultant and project management services for Fiscal Year 2002/03, and authorize the City Manager to execute change orders up to 10% of the contract amount. 

17. Approved a Resolution approving a Reimbursement Agreement with Brentwood Partners, LLC, concerning Subdivision Map No. 8617 improvements that will contain supplemental width, length, size and capacity. Pulled per staff and Council request.

It was moved/seconded by Petrovich/Gomes to approve Consent Calendar Item Nos. 1 – 16 as recommended by staff. Motion Carried Unanimously.

Item 17 

Approve a Resolution approving a Reimbursement Agreement with Brentwood Partners, LLC, concerning Subdivision Map No. 8617 improvements that will contain supplemental width, length, size and capacity. 

Councilmember Hill asked why it was necessary to pull this item per Agenda Review.

Bailey Grewal, City Engineer, explained that the item was pulled because there were still some outstanding issues between the City and the developer with regard to Exhibit A, Improvements.

It was moved/seconded by Hill/Gomes to continue Item 17 to September 24, 2002. Motion passed unanimously.

PUBLIC HEARINGS

18. Consideration of an Ordinance amending Chapter 14.01, Section 14.01.580 of the Municipal Code pertaining to delinquent accounts. 

Pamela Ehler, Director of Finance and Information Systems explained that it takes Utility Billing several days to process approximately 10,000 utility bills each month. The bills are all currently due on the last day of the month. This current method of generating the bills and processing the payments causes the majority of the workload to occur on a few specific days each month. The proposed amendment will separate the accounts into equal billing cycles so the workload will be evenly dispersed throughout the month. The five percent (5%) delinquency penalty will be added to the following month’s bill if not paid by the respective due date. 

The Public Hearing was opened.

There being no one wishing to speak the Public Hearing was closed.

ORDINANCE NO. 720

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD, AMENDING CHAPTER 14.01, SECTION 14.01.580, OF THE MUNICIPAL CODE PERTAINING TO DELINQUENT ACCOUNTS.

It was moved/seconded by Gomes/Beckstrand that the first reading of Ordinance No. 720 be waived and the same be adopted as recommended by staff. Motion passed by the following vote:

AYES: Councilmembers Beckstrand, Gomes, Hill, Petrovich, Mayor McPoland
NOES: None
ABSENT: None
ABSTAIN: None

19. Consideration of an Ordinance amending the PD-3 Zone by creating development standards for an approximate 10-acre general commercial site and an operating covenant (DA 02-02) between the City of Brentwood and Safeway, Inc. for the existing store located at 1125 Second Street and the proposed store located within the Balfour Village Center located at the southeast corner of Balfour Road and Fairview Avenue.

Eric Nolthenius, Associate Planner, explained that the following two items were for Council consideration:

• Introduction of an ordinance approving an amendment to the PD-3 Zone
• Consideration of an Operating Covenant between the City of Brentwood and Safeway, Inc.

The Planning Commission recommended approval of the amendment to PD-3 at its meeting of August 20, 2002, and recommended approval of the operating covenant at its meeting of July 30, 2002. A significant point of discussion during the Commission meeting was whether or not to allow financial institutions by right. The recommendation from the Commission is that they be permitted if there are at least three financial institutions in the CB Zone (downtown area), otherwise they would be conditionally permitted and require a use permit.

Mr. Nolthenius noted the following permitted uses from the Development Standards for PD-3:

f. Restaurants and cafes with up to 20 seats providing take-out service or having quick serve capability, there are no restrictions on the number or area of uses within the center. 

g. Restaurants and cafes with sit down facilities are limited to 11,500 sq. ft. within the center. 

Mr. Nolthenius turned the discussion over to Dennis Beougher, City Attorney, to discuss Exhibit B section 17.453.005(f) the requirement that prior to the issuance of any building permit an Operating Covenant must be entered into and recorded. This was taken to the Subcommittee and the language was split between the two members. Councilmember Petrovich felt that the language used in Paragraph 5 relating to the rezoning of the “no new grocery store area” was not needed and that there should not be any restriction on the City’s ability to rezone. Councilmember Beckstrand felt there was not a need for the Operating Covenant and it should be deleted from the PD-3 zoning regulation.

Mr. Beougher further stated that Paragraph 5 of the Operating Covenant has been reviewed by both he and the attorney’s representing Safeway and it is acceptable to them if it is acceptable to Council. 

The following actions are before Council:

• Is the Operating Covenant appropriate. 
• If necessary, is Paragraph 5 acceptable
• If Paragraph 5 is acceptable, then a decision needs to be made on the map depicting the “no new grocery store zone”.

The Public Hearing was opened.

Brad Beck representing the applicant, McNellis Partners, addressed Council regarding the development standards and asked that Council consider allowing financial institution by right.

Brandon Farrell representing Safeway Inc. addressed Council with regard to Item 5 in the Operating Covenant which is the rezone provision. Paragraph 5 is the provision within the Operating Covenant that he felt was fair to Safeway. He assured Council that Safeway remains committed to the downtown store and have agreed to enter into an Operating Covenant which will require them to pay a fee if the store should close.

Councilmember Hill commented that the General Plan adopted last year sets the land use for the City. He asked Mr. Farrell if he realized that there are areas within that zone that could accommodate a grocery store to open and that he would still be obligated under this provision.

Mr. Farrell responded affirmatively. The provision only applies if the City rezones the area from something other than commercial to commercial and only in the event that a store actually opens.

Those speaking in support of the new Safeway project. Some expressed concern regarding the fact that Safeway would have two locations in Brentwood:

• Emil Geddes, Antioch 
• Carmela Tota, Brentwood 
• Anna Kelly, Brentwood 
• Bill Bristow, Brentwood
• Tina Geddes, Brentwood
• Barbara Guise, Brentwood.
• C. Loren Comen, Brentwood
• Keith Rogers, Brentwood

Those in opposition of the Safeway project expressed concerns about the status of the downtown store and the location of the new Safeway store.

• Andy Kanyuh, Brentwood 
• Alta Ackerman, Brentwood

There being no one else wishing to speak the Public Hearing was closed.

Council then discussed the Safeway store with regard to the downtown store and the location of the new store; banking institutions and the Operating Covenant.

With regard to the Safeway Store Council had the following comments:

Councilmember Beckstrand felt that if we try to impose the restriction of an Operating Covenant on Safeway we will be impeding free enterprise. We are not imposing those same restrictions on any of the downtown businesses that have expressed interest in moving to the new location. She further stated that she felt a penalty of $1,000,000 is not enough to keep the Safeway store in the downtown if they decide to leave, but what amount would be appropriate? Councilmember Beckstrand concluded by stating she would like to see the Operating Covenant stricken from the Development Agreement. It is not the City’s job to hold Safeway accountable for its promises but rather the citizen’s responsibility.

Councilmember Gomes feels this is a good location for the new Safeway store. If Safeway closes the downtown store, the shopping center will rebound quickly with new tenants but the Operating Covenant is still necessary, because the City would need the $1 million dollars to rebound if the Safeway store did decide to pull their downtown store. 

Councilmember Hill feels this is a good location for the new store.

Councilmember Petrovich felt that Safeway will close the downtown store and if that happens he also feels the Longs drugstore will also close. He expressed concern that we will be left with abandoned buildings as we were with the Lucky Store but the City will not be able to renovate these as we did with Lucky Shopping Center. With the additional grocery stores opening in Brentwood, and the additional Safeway stores in Discovery Bay and Oakley, there will be many more choices for residents. Even though he feels Safeway will close the downtown location, he thinks is is a good location for the new store. 

Mayor McPoland stated that cities typically have one grocery store per 10,000 people. He also stated that there is currently no grocery store to serve the developments that are and will be built on the east side of town. Mayor McPoland further stated that given the volume of business done at the downtown Safeway store, he did not think they would close the doors.

With regard to banking institutions Council had the following to say:

Councilmember Beckstrand feels the City’s decisions on how we handle and administer the downtown bank ordinance have been inconsistent. She further stated that she would not be opposed to having a financial institution in the shopping center and feels it ought to be a permitted use.

Councilmember Gomes feels it is time that we permit the use of banks in shopping centers. 

Councilmember Hill commented that with our rapidly growing community, financial institutions are needed on the west and north side of town as a convenience to our residents. He further stated he felt we should not require a CUP for banking institutions and is in favor of permitting financial institutions by right.

Councilmember Petrovich is in favor of permitting financial institutions by right.

Mayor McPoland is not in favor of banks inside groceries stores and would prefer to see stand alone banks but feels that banks need to be provided for the convenience of our residents.

With regard to the Operating Covenant and Item No. 5 Council had the following to say:

Councilmember Beckstrand would like to see the Operating Covenant stricken from the Development Agreement

Councilmember Gomes said if everyone is agreeing to the Operating Covenants, we should keep them in. 

Councilmember Hill commented that the Operating Covenant is not a legal document that the City can require. It is more of a gesture by Safeway to enter into this agreement to further solidify our support. 

Councilmember Petrovich was in favor of keep the Operating Covenant but he is not in favor of giving Safeway zoning protection.

Mayor McPoland said he would like to see the Operating Covenant in effect should Safeway close the downtown store. 

After some discussion the clarification was made that Item 5 was approved by legal counsel for both parties as to form with the exclusion of the map. 

Mayor McPoland directed staff to pay special attention to the traffic light on Gladstone and make sure the timing of the light is set so that the residents will have sufficient time to cross the street.

Councilmember Hill asked staff to explain the map Safeway are requesting as a “no new grocery store area”. 

Mitch Oshinsky, Director of Community Development, explained that the boundary line on the map was redrawn by staff. The original boundary line cut through the middle of parcels and staff moved follow the parcel line.

Mr. Farrell commented that the applicant agrees with the changes that were made to the map.

It was moved/seconded by Hill/Gomes to approve the Operating Covenant with Item 5 and the Map as depicted in Exhibit A.

Councilmember Petrovich made an amended motion to accept the Operating Covenant but reject the map and Item 5. The amended motion failed due to lack of a second.

Mayor McPoland asked Councilmember Hill restate his motion and called for the question. 

RESOLUTION NO. 2668

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING THE OPERATING COVENANT BETWEEN THE CITY OF BRENTWOOD AND SAFEWAY INC. RELATED TO THE EXISTING STORE LOCATED AT 1125 SECOND STREET AND THE PROPOSED STORE LOCATED WITHIN THE BALFOUR VILLAGE CENTER PROJECT, LOCATED AT THE SOUTHEAST CORNER OF BALFOUR ROAD AND FAIRVIEW AVENUE (APN 010-030-029). 

Waive full reading and approve Resolution No. 2668 approving the Operating Covenant between the City of Brentwood and Safeway Inc., with Item 5, Automatic Termination and the map as depicted in Exhibit A. Motion passed by the following vote:

AYES: Councilmembers Beckstrand, Gomes, Hill, Mayor McPoland
NOES: Councilmember Petrovich
ABSENT: None
ABSTAIN: None

ORDINANCE NO. 721

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AMENDING THE PLANNED DEVELOPMENT NO. 3 (PD-3) ZONE BY CREATING DEVELOPMENT STANDARDS FOR AN APPROXIMATE 10-ACRE GENERAL COMMERCIAL SITE, LOCATED AT THE SOUTHEAST CORNER OF BALFOUR ROAD AND FAIRVIEW AVENUE (APN 010-030-029)

It was moved/seconded by Hill/Petrovich that the first reading of Ordinance No. 721 be waived and the same be adopted with the addition of the permitted use of banking institutions as recommended by staff. Motion passed by the following vote:

AYES: Councilmembers Beckstrand, Gomes, Hill, Petrovich, Mayor McPoland
NOES: None
ABSENT: None
ABSTAIN: None

Coucilmember Petrovich asked for a vote on Item 5, the rezoning issue.

Mr. Beougher responded that it was included in the Operating Covenant.

Councilmember Petrovich replied that it should have been a separate vote.

Council recessed for a break at 9:10 p.m.

Council reconvened at 9:21 p.m.

20. Consideration of an Ordinance approving a rezone (RZ 01-08) of approximately 46 acres from a combination of R-1-E and R-1-10 to PD-60 and approve a Resolution approving a Tentative Subdivision Map (TSM 8546) subdividing the site into 99 single-family residential lots and two remainder parcels for existing residences, located generally at the southwest corner of Lone Tree Way and the future O'Hara Avenue extension. 

Eric Nolthenius introduced the item explaining that there are two components: first is the rezone and second is approving a Tentative Subdivision Map to the site. At its meeting of August 20, 2002, the Planning Commission approved a request to rezone approximately 46 acres from a combination of R-1-E and R-1-10 to PD-60 with the adoption of specific development standards for the project site, and a tentative subdivision map subdividing the site into 99 single-family residential lots and two remainder parcels for existing residences. 

Due to the change in the policy made by the City Council earlier this year, all tentative subdivision maps with proposed lots smaller than 20,000 square feet abutting existing parcels of 1 acre or more are subject to Council review. The change in the policy also requires the developer to make a good faith effort to acquire a letter from all neighboring and/or affected property owners outlining their position either in favor of or in opposition to the transition. The proposed subdivision abuts five parcels along its east boundary that are larger than one acre in size, requiring that proposed lots facing or abutting those parcels be a minimum of 20,000 square feet in size. Prior to the Planning Commission meeting, letters were received from four of the five affected property owners indicating that they did not object to the proposed lot sizes. The remaining affected property owner did not speak at the meeting; however, the Commission was concerned that their positions had not been clearly identified. The applicants have since provided verification to staff that a letter was sent to each of the five affected property owners explaining the density transition policy and requesting their opinion on the proposed lot sizes adjacent to their properties.

Based on the Initial Study prepared for this project, a Mitigated Negative Declaration has been prepared in accordance with the requirements of the California Environmental Quality Act (CEQA). 

Mayor McPoland asked Mr. Nolthenius if there was a density bonus.

Erik Nolthenius responded that there was no density bonus.

Mayor McPoland asked the for a total on the number of lots the developer would have if he were required to have 20,000 square foot lots instead of 10,0000 square foot lots.

Erik Nolthenius responded that he was not sure of the exact number of lots.

The Public Hearing was opened.

Doug Latimore, Highland Partners Group, commended staff on the efforts with the project and asked if Council had any questions.

There being no one wishing to speak the Public Hearing was closed.

Councilmember Hill asked for an explanation of the level of improvements that are being contemplated on O’Hara.

Bailey Grewal, City Engineer, commented that the developer will construct one lane and provide full improvements on their side of the frontage. In addition they will do a median plus one lane on the opposite side of the street, but only to the property boundary. 

Councilmember Hill asked if there were any infrastructure improvements in the area north of their property boundary. 

Mr. Grewal responded that there is a portion where they will do a median plus one lane on each side, however closer to Lone Tree Way, there will be no median just two lanes and a left hand pocket. They are not conditioned to do curb or sidewalk work between Lone Tree and their boundary. They will do full improvements on their side with curb, gutter, sidewalk and landscaping.

Councilmember Hill asked why we did not do a reimbursement agreement with them to complete those improvements because O’Hara currently has a sidewalk to nowhere. 

Mr. Grewal responded that staff did look at some numbers for reimbursement based on 1999 loads. He noted that the developer will be doing more improvements on Lone Tree Way west of their project and the numbers were almost equal to their roadway fee.

Councilmember Hill commented that it still has no benefit for the community if you cannot walk on the sidewalk along O’Hara up to Lone Tree Way. He further stated that until there is a master plan for improvements he is not inclined to approve any project in this area. The plans for this development are very site specific with no benefit to the rest of the area.

Mayor McPoland commented that the builder is getting a density bonus by having the lot sizes reduced from 20,000 to 10,000 but the City is receiving no benefit from the builder. The sidewalk should be an amenity from the builder in return for the smaller lot sizes.

Councilmember Hill commented that the Density Transition Policy adopted early this year has provided flexibility to the Council to weigh in favor of a project that may be doing over and above what they required to do and when it makes sense from a land use policy and when abutting properties did not have the capacity to deliver the same type of zoning or density. He further stated that he views the policy as coming with a price. It is not enough to just get the neighbors to say they are in favor of it, because all that does is give those five neighbors double the density as well, because they are going to be looking for a reciprocal. 

Councilmember Petrovich asked the applicant and Dave Carlson representing Carlson Barbee and Gibson if they would be willing to do complete improvements along O’Hara including curb, sidewalk and gutter. 

Mr. Carlson confirmed that they would be willing to do complete improvements. 

Councilmember Hill stated that the sidewalk is one missing piece and there may be other missing pieces. He further stated that he can usually see what the City is getting because it is tied to a bigger plan. This plan is tied to nothing. He will not support it the way it is.

Mr. Stevenson clarified that Council is suggesting to extend a half street width improvements on the west; plus one lane on the east; and a sidewalk on the west up to Lone Tree.

It was moved/seconded by Hill/Beckstrand to refer item to the Housing Subcommittee and continue to September 24, 2002 Council meeting. Motion passed by the following vote:

AYES: Councilmembers Beckstrand, Gomes, Hill, Petrovich, Mayor McPoland
NOES: None
ABSENT: None
ABSTAIN: None

NEW BUSINESS

21. Approve a Resolution accepting the Certification of the Referendum Petition against Ordinance No. 709, and consider options as provided by State statute. 

Karen Diaz, City Clerk/Director of Administrative Services, explained that on August 7, 2002, the City was presented with a referendum petition containing 2,233 signatures to oppose Ordinance 709, the Rose Garden zoning amendment. 

The petition has been verified and it has been deemed that they do contain the appropriate amount of signatures, that being 10% or more, to cause Council to take the following actions: 
1. To approve the resolution contained in the staff report accepting the certification of the referendum petition that was conducted by the county, a
2. For Council to provide direction to staff as to which option they prefer for staff to come back with at the next council meeting. Those choices are:
• Direct staff to return with implementing documents for the City Council to repeal Ordinance No. 709; or

• Submit the measure to the voters at the next regular municipal election of the City Council to be held in November 2004. The cost to place the measure with the City Council/Mayoral election is estimated to be additional $5,000 to the election budget. Staff would return with implementing documents at the appropriate time; or

• Conduct a special election prior to the City’s regular election to vote on this measure at a cost of approximately $3.50 - $4 per registered voter. The approximate cost for a standalone election would be over $45,000. Staff to return with implementing documents.

RESOLUTION NO. 2669

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD ACCEPTING THE CLERK’S CERTIFICATION OF THE REFERENDUM PETITION AGAINST BRENTWOOD CITY COUNCIL ORDINANCE NO. 709

It was moved/seconded by Petrovich/Beckstrand to approve Resolution No. 2669 accepting the Clerk’s Certification of the Referendum Petition against Brentwood City Council Ordinance No. 709. Motion passed by the following vote:

AYES: Councilmembers Beckstrand, Gomes, Hill, Petrovich, Mayor McPoland
NOES: None
ABSENT: None
ABSTAIN: None

Dennis Beougher, City Attorney commented that he has been in contact with John Johnson, representative for Pulte homes and Mr. Johnson is in support of repealing Ordinance 709.

It was moved/seconded by Hill/Beckstrand that staff prepare the documents to repeal Ordinance 709. Motion passed unanimously.

22. Accept the City Hall Needs Assessment Report prepared by the Gibson/Salmon Group and direct staff to prepare a strategy to address interim space needs, and a strategy to plan for the construction of a new City Hall.

John Stevenson, City Manager, explained that the size of the current City Hall has a total of 19,000 square feet. If you take the number of employees and put them in the industry standard work spaces, what you need for that number of people is 46,500 square feet. In five years, with our projected growth we are going to need 51,500 square feet and at build-out of 57,500 square feet. Staff believes there are two separate and distinct projects necessary to address the space requirements for City Hall once City Council has accepted the Needs Assessment Report. These would be an interim space solution for City Hall and the planning and construction of a new City Hall.

Councilmember Hill asked how the number of future employees was determined. 

Mr. Stevenson responded that the numbers were derived from interviews with Department Directors and those findings were compared with six or eight cities in the county. Comparisons included the number of staff and the functions that they do with the build-out populations and they compared very closely.

Councilmember Hill stated that he felt the critical action will be in making sure that each department gets an equal portion of space to make sure that their working environment attains a standard level. 

Mayor McPoland stated that he would like to and direct staff to continue the strategy to address interim space need until September 24, 2002.

Council directed staff to continue the strategy to address interim space needs. and a strategy to plan the construction of a new City Hall until September 24, 2002.

23. Discussion and direction to staff concerning the zoning code relating to Financial Institutions. 

Mitch Oshinsky, Director of Community Development, explained that the zoning code is inconsistent as to how it regulates financial institutions. We have seven different sets of regulations in our current code on how we regulate banks. 

Councilmember Beckstrand asked if there were any statistics available that show that, in today’s electronic banking environment, having three banks downtown is really that critical to the viability of our downtown.

Mr. Oshinksy replied that with the changes in the nature of banking, he did not feel it was as critical.

Councilmember Hill said what we have isn’t working and unless there is a better solution we should repeal it. 

Mayor McPoland concurred. He also stated that it is a good opportunity for our residents to have banks in competition with each other. 

Council directed staff to prepare a zoning ordinance amendment allowing all commercial zones to have banks and allow those banks to have permitted use by right. 

24. Discussion and direction to staff concerning the regulation of temporary retail sales. 

Mitch Oshinsky, Director of Community Development, stated the critical issue raised by Council is whether to allow temporary retail sales on sites in the City. The existing Zoning Code allows such activities including parking lot sales, and other promotional uses, subject to approval of a Temporary Use Permit (TUP).

There appears to be some difference of opinion on Council as to how to regulate such uses. Therefore, we have provided four provisions for Council consideration on how to proceed. These provisions provide for limits on temporary sales, but also allow them under certain circumstances. 

Staff is seeking Council direction on whether these four, or any other provisions are acceptable. The provisions are:

Allow temporary uses subject to the issuance of a temporary use permit and a City Business license:

1. Allow outdoor retail sales only for merchandise customarily sold on the premises by a permanently established business physically located and doing business at the same location as the temporary use.

2. Allow outdoor retail sales not customarily sold on the premises when the sale will be by an existing Brentwood business or by business is located within 25 miles of the City of Brentwood, when such sales are on a site owned by a permanently established business located and doing business in the City. The entity conducting the temporary sale shall dedicate all retail sales tax collected at such sale to accrue to the City.

3. Allow outdoor retail sales not customarily sold on the premises when it is determined that the business conducting the sale has provided a significant amenity of community-wide benefit to the City. The entity conduction the temporary sale shall be located within 25 miles of the City of Brentwood and dedicate all retail sales tax collected at such sale to accrue to the City.

4. Allow outdoor retail sales not customarily sold on the premises when it is determined that the business conducting the sale is actively pursuing the opportunity to do business in the City at a permanent location. The entity conduction the temporary sale shall be located within 25 miles of the City of Brentwood and dedicate all retail sales tax collected at such sale to accrue to the City.

Mr. Oshinsky recapped a survey done by several cities outside the Brentwood area. 

Councilmember Hill asked if he had statistics on cities in our immediate area.

Mr. Oshinsky responded that the first provision reflects what they have done. Antioch is the only city in Contra Costa County that responded to the survey.

Councilmember Gomes stated that he would like to know what cities in Contra Costa County are doing.

Councilmember Beckstrand stated that she thought Council specifically asked at the last meeting for information from neighboring cities. She then asked if the reference to 25 mile radius was in reference to warranty items and being able to have a relationship with the party that sells you the item.

Councilmember Oshinsky confirmed that it was.

After further discussion Council directed staff to continue the item to September 24, 2002, and include specific information on constitutionality concerning, the inclusion or exclusion of vendors, a survey including cities in Contra Costa County, and the use of private property vs. public property.

Council recessed for a break 10:35 p.m.

Council reconvened at 10:40 p.m. 

25. Discussion and direction to staff as to whether the temporary use for an auto tent sale on private property is acceptable.

Mitch Oshinsky, Director of Community Development, stated that the issue here is to continue the item or act on this item tonight. 

Council directed staff to continue the item to September 24, 2002. 

26. Approve a Resolution authorizing the temporary closure of the Sand Creek Road/O’Hara Avenue Loop from Brentwood Blvd. to Central Avenue - Sand Creek Road (East), CIP Project No. 336-3061. 

Bailey Grewal introduced the item and explained that the utility improvements were part of the master plan. Mr. Grewal explained that staff examined three alternatives and the safest and most cost effective alternative would be to temporarily close the road from just west of the shopping center to just north of Central Avenue in areas of the road that allow motorists room to turn around. All traffic will then be detoured onto Brentwood Boulevard or Central Avenue, both of which will remain open and free from future construction activities for the next two months. City staff will work with the contractor to ensure that the portions of Sand Creek Road and O’Hara Avenue with business frontages remain open and accessible at all times to minimize the impact this road closure will have on local businesses. The project should take approximately four calendar weeks.

RESOLUTION NO. 2670

A RESOLUTION OF THE CITY COUNCIL OF THTE CITY OF BRENTWOOD AUTHORIZING THE TEMPORARY CLOSURE OF THE SAND CREEK ROAD/O’HARA AVENUE LOOP FROM BRENTWOOD BOULEVARD TO CENTRAL AVENUE.


It was moved/seconded by Petrovich/Gomes to approve Resolution No. 2670 authorizing the temporary closure of the Sand Creek Road/O’Hara Avenue Loop from Brentwood Blvd. to Central Avenue. Motion passed by the following vote:

AYES: Councilmembers Beckstrand, Gomes, Hill, Petrovich, Mayor McPoland
NOES: None
ABSENT: None
ABSTAIN: None

Reconsideration of the votes pertaining to Item 19.

It was moved/seconded by Hill/Beckstrand to reconsider Item 19. Motion carried unanimously.

Karen Diaz, City Clerk/Director of Administrative Services, explained that there are two actions needed for Item 19; a Resolution and an Ordinance to approve the zoning which pertains to the Operating Covenant.

It was moved/seconded by Hill/Petrovich that the first reading of Ordinance No. 721 be waived and the same be adopted as recommended by staff with the addition of the permitted use of banking institutions by right and removing the clause requiring recordation. Motion passed by the following vote:

AYES: Councilmembers Beckstrand, Gomes, Hill, Petrovich, Mayor McPoland
NOES: None
ABSENT: None
ABSTAIN: None

It was moved/seconded by Hill/Gomes to approve Resolution No. 2668 approving the Operating Covenant between the City of Brentwood and Safeway Inc., with Item 5, Automatic Termination and the map as depicted in Exhibit A. Motion passed by the following vote

AYES: Councilmembers Beckstrand, Gomes, Hill, Mayor McPoland
NOES: Councilmember Petrovich
ABSENT: None
ABSTAIN: None

CITIZEN COMMENTS - none

INFORMATIONAL REPORTS FROM COUNCIL MEMBERS - none

REQUESTS FOR FUTURE AGENDA ITEMS - none

ADJOURNMENT

There being no further business the meeting was adjourned at 11:00 p.m.

 

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