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Past Agendas

MINUTES
CITY OF BRENTWOOD
REGULAR CITY COUNCIL MEETING
December 9, 2003

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 Swisher presiding.

Present: Councilmembers Beckstrand, Gutierrez, Hill, Petrovich, Mayor Swisher
Absent: None

PRESENTATIONS

A. Presentation of Red Ribbon Week Resolution from Assembly Member Guy Huston.

B. Presentation of League of California Cities Award to Mayor Swisher for completion of the first level of the Mayors & Council Members Academy.

C. Presentation of a donation to the PAL Program from Steve Kraut of Brentwood Auto Plaza.

D. Presentation of Government Finance Officers Association Award for Excellence in Financial Reporting for the 2001/02 Comprehensive Annual Financial Report (CAFR) for second year in a row.

E. New Employee Introductions and Oath of Allegiance

• Wayne Barnett Police Department
• Christie Pollock Community Development Department
• Jeff Cowling Engineering Department
• Tom Cross Engineering Department

AGENDA REVIEW

Item 5 Removed from the agenda per staff request.

Motion to waive the 72-hour posting requirement of the Brown Act and to add the following item as Consent Item 17A to the agenda on the basis that the item came to the attention of staff after the agenda was posted (Government Code 54956.5):

Item 17A Approve temporary use of City-owned property and a Temporary Use Permit for the City of Brentwood parks and Recreation Department Snow Park from December 29, 2003 through December 28, 2003, subject to conditions of approval.

Item 20 Revised Resolution deleting all references to individuals subject to prosecution pursuant to the Brentwood Municipal Code.

Item 21 Memorandum regarding Shaping Our Future.

Item 22 Correspondence from the neighbors of Campanello.

Council Member Petrovich requested that Agenda Review Item 20 be pulled and that the Resolution remain as presented in Consent Calendar Item 20. He said he believed that the individuals listed had committed a violation and the resolution should be left intact.

Mayor Swisher supported Council Member Petrovich in pulling Agenda Review Item 20 for discussion at the time that Council addressed Consent Calendar Item 20.
It was moved/seconded by Swisher/Gutierrez to approve the changes per Agenda Review, excluding Agenda Review Item 20. Motion carried unanimously.

CITIZEN COMMENTS – None.

CONSENT CALENDAR

1. Approved Minutes of October 28, 2003.

2. Approve Minutes of November 25, 2003.

3. Accepted the recommendation and appointed Sandra Myers to Parks and Recreation Commission for a three year term expiring December 31, 2006.

4. Reject claim presented by John Tran and Ngue My Vuong filed on December 2, 2003.

5. Pulled from agenda per agenda review approval payment to Liberty Union High School District for Heritage High School joint projects.

6. Authorized the City Manager to enter into a Generating Facility Interconnection Agreement (GFIA) and Special Agreement with Pacific Gas & Electric for electrical standby service.

7. Approved Resolution No. 3040 approving Annexation #1 Boundary Map to Community Facilities District No. 3 (CFD No. 3) and approved Resolution No. 3041 approving the intent to annex territory to Community Facilities District No. 3, levy a special tax in such territory and set a date of January 13, 2004 for the Public Hearing.

8. Approve a Resolution accepting the work performed by Redgwick Construction Company for the 2002/2003 Pavement Management Program, CIP Project No. 336-3083, and direct the City Clerk to file a Notice of Completion.

9. Approved Resolution No. 3042 certifying the Environmental Impact Report for the Lone Tree Way – Union Pacific Railroad Undercrossing, CIP Project No. 336-3134 and authorize staff to move forward with the project.

10. Approved Resolution No. 3043 supporting the efforts led by the County of San Mateo to increase the level of funds available through the Metropolitan Transportation Commission (MTC) for roadway maintenance and rehabilitation.

11. Approved Resolution No. 3044 for temporary use of city right-of-way and a Temporary Use Permit for the Immaculate Heart of Mary Processional on December 14, 2003 from 2:30 pm and 4:45 pm.

12. Waived Second Reading and adopted Ordinance No. 767 amending Section 17.456.002 and 17.456.003 of the Planned Development 6 Zone applying to Planning Area 7. (M. Oshinsky/W. Rhodes)

13. Waived second reading and adopted Ordinance No. 768 approving a Rezone (RZ 03-09) from R-1-E to R-1-8, located south of Lone Tree Way and west of the realigned Fairview Avenue. Swisher abstained

14. Approved Resolution No. 3045 authorizing the City Manager to execute Contract Term Amendments for time extensions of Professional Design/Service Agreements as needed for various project completions.

15. Approved Resolution No. 3048 accepting the offers of dedication for all right-of-way, easements, abutter’s rights, sub-surface mineral and water rights for public use as shown on the Final Map and accepting all on-site public improvements for maintenance; accepting the Subdivision Maintenance Bonds and releasing the Subdivision Improvement Securities for Subdivision No. 8383, Grupe Properties, Inc., located south of Balfour Road and east of Walnut Boulevard. Gutierrez abstained

16. Approved Resolution No. 3049 Approve a Resolution accepting the offers of dedication in fee for the right-of-way of Mills Drive, Hudson Drive, Rockwell Street, Wexford Street, Lexington Street, Lexington Court, Knightsbridge Court, Cavendish Court, Remington Street, Wright Court and Wright Street for public use as shown on the Final Map; accepting the offers of dedication of Lexington Alley, Knightsbridge Alley, Remington Alley, Hudson Alley, Mills Alley and Carnegie Alley for public access purposes; accepting Parcels “J” and “K” for roadway purposes; accepting the offers of dedication for all the easements, abutter’s rights, sub-surface mineral and water rights and accepting all on-site public improvements (waterlines, sanitary sewer, storm drain, fiber optics, and streets with all related improvements) for maintenance; accepting the Subdivision Maintenance Bonds and releasing the Subdivision Improvement Securities for Subdivision No. 8411, Grupe Properties. Inc., located south of Balfour Road and east of Walnut Boulevard. Gutierrez abstained

16. Approved Resolution No. 3046 authorizing the City Manager to execute contracts in amounts not to exceed $100,000 plus 10% contingencies, for the 120 Oak Street Project (Interim City Hall), CIP Project No. 337-3140.

17A. Approved temporary use of City-owned property and a Temporary Use Permit for the City of Brentwood parks and Recreation Department Snow Park from December 29, 2003 through December 28, 2003, subject to conditions of approval.

It was moved/seconded by Petrovich/Beckstrand to approve Consent Calendar Items 1, 3, 6 - 7, 9 – 12, 14, 17 and 17A as recommended by staff. Motion carried unanimously.

Item 2 Approve Minutes of November 25, 2003.

It was moved/seconded by Hill/Petrovich to approve Item 2 as presented. Council Member Beckstrand abstained. Motion carried

Item 4 Reject claim presented by John Tran and Ngue My Vuong filed on December 2, 2003.

It was moved/seconded by Hill/Beckstrand to approve Item 4 as recommended by staff. Council Member Gutierrez abstained. Motion carried.

Item 8 Approve a Resolution accepting the work performed by Redgwick Construction Company for the 2002/2003 Pavement Management Program, CIP Project No. 336-3083, and direct the City Clerk to file a Notice of Completion.

Council Member Beckstrand asked what the City’s recourse was and how to be sure that the change orders were not because of negligence.

City Engineer Grewal stated that changes had been made at the request of staff and there were change orders that included additional work in the intersection of Dainty and Central Boulevard and Dainty and Griffith Lane. There were the additional costs which Engineering understood and had agreed to and there were other costs that the contractor had asked for and there were some delays. Engineering had worked with contractors on certain issues and did not pay or agree on those items. The developer was requesting additional money for delays, which the developer said was the City.

Council Member Beckstrand asked if there was a penalty clause or incentive if the project was finished on time and if it was executed. City Engineer Grewal responded that the City had a penalty clause in the contract and it was not executed.
Council Member Beckstrand asked if the contract change orders were related to negligence and poor management on the part of the developer and Engineer Grewal explained that there were unforeseen materials that neither the contractor or Engineering knew going into the construction and found out that the material was not good or there were other conditions. If the City wanted to execute, there were methods to expedite and would cost more money. It was not within the control of Engineering Department or the contractor and the delays were due to that.

Council Member Hill asked if there was additional work or cost incurred while the subbase sat unattended and unprotected and he believed that the City was incurring expenses for it.

Engineer Grewal said that the main problem was possibly due to moisture from the creek or the underground flow in the area and the project was not delayed due to the contractor leaving it exposed.

RESOLUTION NO. 3047

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD ACCEPTING THE WORK PERFORMED BY REDGWICK CONSTRUCTION COMPANY FOR THE 2002/2003 PAVEMENT MANAGEMENT PROGRAM, CIP PROJECT NO. 336-3083, AND DIRECT THE CITY CLERK TO FILE A NOTICE OF COMPLETION WITH THE COUNTY RECORDER.

It was moved/seconded by Beckstrand/Petrovich to waive full reading and approve Resolution No. 3047 as recommended by staff. Motion passed by the following vote:

AYES: Councilmembers Beckstrand, Gutierrez, Hill, Petrovich, Mayor Swisher
NOES: None
ABSENT: None
ABSTAIN: None

Item 13 Waive second reading and adopted Ordinance No. 768 approving a Rezone (RZ 03-09) from R-1-E to R-1-8, located south of Lone Tree Way and west of the realigned Fairview Avenue.
ORDINANCE NO. 768

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING A REZONE (RZ 03-09) OF APPROXIMATELY 3.35 ACRES FROM R-1-E TO R-1-8, INCLUDING THE ADOPTION OF A MITIGATED NEGATIVE DECLARATION, LOCATED SOUTH OF LONE TREE WAY AND WEST OF THE REALIGNED FAIRVIEW AVENUE (APN'S 019-060-048 THROUGH 051).

It was moved/seconded by Petrovich/Beckstrand to waive second reading and adopt Ordinance No. 768 as recommended by staff. Motion passed by the following vote:

AYES: Councilmembers Beckstrand, Gutierrez, Hill, Petrovich
NOES: None
ABSENT: None
ABSTAIN: Mayor Swisher

Item 15 Approve a Resolution accepting the offers of dedication for all right-of-way, easements, abutter’s rights, sub-surface mineral and water rights for public use as shown on the Final Map and accepting all on-site public improvements for maintenance; accepting the Subdivision Maintenance Bonds and releasing the Subdivision Improvement Securities for Subdivision No. 8383, Grupe Properties, Inc., located south of Balfour Road and east of Walnut Boulevard.


RESOLUTION NO. 3048

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD ACCEPTING THE OFFERS OF DEDICATION FOR STREET RIGHT OF WAY, FOR ALL PARCELS AND EASEMENTS FOR PUBLIC USE AS SHOWN ON THE FINAL MAP, ACCEPTING THE PUBLIC IMPROVEMENTS (WATER, SANITARY SEWER, STORM DRAIN, FIBER OPTICS AND STREETS WITH ALL RELATED IMPROVEMENTS) FOR MAINTENANCE, ACCEPTING THE SUBDIVISION MAINTENANCE BONDS, AND RELEASING THE SUBDIVISION PERFORMANCE AND PAYMENT BONDS FOR SUBDIVISION NO. 8383, GRUPE PROPERTIES INC., LOCATED SOUTH OF BALFOUR ROAD AND EAST OF WALNUT BOULEVARD.

It was moved/seconded by Petrovich/Hill to waive full reading and approve Resolution No. 3048 as recommended by staff. Motion passed by the following vote:

AYES: Councilmembers Beckstrand, Hill, Petrovich, Mayor Swisher
NOES: None
ABSENT: None
ABSTAIN: Councilmember Gutierrez


Item 16 Approve a Resolution accepting the offers of dedication in fee for the right-of-way of Mills Drive, Hudson Drive, Rockwell Street, Wexford Street, Lexington Street, Lexington Court, Knightsbridge Court, Cavendish Court, Remington Street, Wright Court and Wright Street for public use as shown on the Final Map; accepting the offers of dedication of Lexington Alley, Knightsbridge Alley, Remington Alley, Hudson Alley, Mills Alley and Carnegie Alley for public access purposes; accepting Parcels “J” and “K” for roadway purposes; accepting the offers of dedication for all the easements, abutter’s rights, sub-surface mineral and water rights and accepting all on-site public improvements (waterlines, sanitary sewer, storm drain, fiber optics, and streets with all related improvements) for maintenance; accepting the Subdivision Maintenance Bonds and releasing the Subdivision Improvement Securities for Subdivision No. 8411, Grupe Properties. Inc., located south of Balfour Road and east of Walnut Boulevard.

RESOLUTION NO. 3049

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD ACCEPTING THE OFFERS OF DEDICATION FOR STREET RIGHT OF WAY, FOR ALL PARCELS AND EASEMENTS FOR PUBLIC USE AS SHOWN ON THE FINAL MAP, ACCEPTING THE PUBLIC IMPROVEMENTS (WATER, SANITARY SEWER, STORM DRAIN, FIBER OPTICS AND STREETS WITH ALL RELATED IMPROVEMENTS) FOR MAINTENANCE, ACCEPTING THE SUBDIVISION MAINTENANCE BONDS, AND RELEASING THE SUBDIVISION PERFORMANCE AND PAYMENT BONDS FOR SUBDIVISION NO. 8411, GRUPE PROPERTIES INC., LOCATED SOUTH OF BALFOUR ROAD AND EAST OF WALNUT BOULEVARD.

It was moved/seconded by Petrovich/Hill to waive full reading and approve Resolution No. 3049 as recommended by staff. Motion passed by the following vote:

AYES: Councilmembers Beckstrand, Hill, Petrovich, Mayor Swisher
NOES: None
ABSENT: None
ABSTAIN: Councilmember Gutierrez

PUBLIC HEARINGS

18. Consideration of a zoning amendment to amend Municipal Code Section 17.100.005 the Secondary Housing Unit ordinance to establish criteria in compliance with recent State legislation.

Chief of Planning, Mike Leana, explained that the ordinance was a replacement ordinance for second units. The State had passed a new ordinance mandating that all cities and counties have a second unit ordinance allowing them as a unit by right instead of going through the conditional use permit process. Community Development came up with standards that they felt were more appropriate to maintain the integrity of the single family neighborhood allowing those types of units while having some control over them. There would not be notification to adjacent or surrounding property owners and if the applicant met the standards it would be treated as a ministerial project and would be handled administratively. If the developer did not meet the minimum standards, they would have the opportunity to apply for a conditional use permit. The Planning Commission had reviewed the proposal and unanimously recommended adoption of the ordinance.

Debbie Hill, Assistant Planner, said that State legislation dictated a set of criteria, that if met, would require the City to allow a second unit ministerially and allowed the City to adopt specific criteria such as parking standards, setbacks and lot coverage for the creation of second units. She presented a power point presentation and explained the general requirements of all secondary housing units.

Council Member Hill noted that there were two sets of criteria, one being the State requirements and the other being discretionary interjections by the City. He asked how the City ensured that the one of the units was occupied by the owner.

Planner Hill explained that there were deed restriction provisions placed in the ordinance on the secondary unit and that one of the occupants should be the owner.

Council Member Hill said that if the initial intent to harmonize the units with the rest of the area was disrupted by architectural design, the second unit was not in harmony with the architecture of the first unit the offense would occur with the neighbors.

Planner Hill responded that under Section B of the ordinance, it said that the housing units would be carefully designed to ensure that the secondary housing unit must be subordinate to the primary unit and would be constructed with the same exterior.

Council Member Hill said there would be problems obtaining deed restrictions and enforcement would not be practical. He noted that the State did say that one unit had to be occupied by owner.

Council Member Petrovich asked if there was a procedure in place to obtain information to see if the units would still house the original buyer.

City Attorney Beougher said verification forms could be given to Code Enforcement who would go to each of the homes and he could investigate and take action on any homes that were in violation of resale restriction.

Council Member Hill asked if there were homes in the in the community that would be able to have a second unit without having to give up rights of deed restriction or if potential sites were being lumped together in the ordinance.

Mr. Leana said that it was specifically for single family design subdivisions.

Council Member Beckstrand noted that the detached, secondary housing unit must have separate utility hook ups and she asked if each of the dwelling units could be checked.

Mayor Swisher noted that the secondary unit did not have to be under the owner and there was no traceability and it did not have to be occupied by the owner.

Mayor Swisher opened the public hearing.

It was moved/seconded by Hill/Petrovich to close the public hearing. Motion carried unanimously.

Council Member Hill said that guidelines regarding harmony of architecture fell within the design guidelines and needed to be in the forefront of project approval. He said he believed that the majority of complaints would come from neighbors offended by the architecture. The City had to comply with the State law and the architecture should be harmonized and be primary criteria or the City would have enforcement problems.

Council Member Beckstrand asked to check the placement of the property.

Council Member Gutierrez said enforcement issues would come up as it approached build-out since the City was growing. Once single family developments were set in place, complaints could happen. She added that the City had to comply with State law.

Council Member Hill said that the second unit had to be placed at the rear of the primary residence, which could be placed in front depending on location of the primary residence on larger lots. It might need to be placed on the front of the primary residence, based on the appearance of the primary residence and there should be some flexibility.

Mayor Swisher stated that if the developer did not meet requirements, they needed a conditional use permit.

Director of Community Development, Mitch Oshinsky, said there was flexibility in the way the provision was worded and that the detached secondary housing unit should be carefully designed and sited to the rear of the primary dwelling unit and that the appearance shall match.

ORDINANCE NO. 769

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AMENDING CHAPTER 17.100.005 OF THE BRENTWOOD MUNICIPAL CODE TO AMEND THE SECONDARY HOUSING UNIT ORDINANCE TO ESTABLISH CRITERIA IN COMPLIANCE WITH STATE LAW.

It was moved/seconded by Hill/Beckstrand to waive full reading and approve first reading of Ordinance No. 769 as recommended by staff. Motion passed by the following vote:

AYES: Councilmembers Beckstrand, Gutierrez, Hill, Petrovich, Mayor Swisher
NOES: None
ABSENT: None
ABSTAIN: None

19. Consideration of Zoning Ordinance amendment (RZ 03-15) to modify the permitted uses section of Subarea “C” within the PD-12 Zone (Section 17.462.002.C), located generally south of Balfour Road and east of Brentwood Boulevard.

Council Members Hill and Petrovich declared conflicts and left the Council Chamber.

Associate Planner, Erik Nolthenius, presented a staff report noting that the ordinance was a City-initiated amendment that would modify the language related to permitted uses within Subarea C of the PD-12 zone, Harvest Business Park. The existing language should be modified to accommodate and facilitate the project and had been reviewed by the Economic Development Subcommittee and Planning Commission and approval was recommended. The proposed wording change related to office uses and would make business and professional office uses a permitted use. A category was added for R & D space including office support, light industrial and flex tech. Staff recommended approval of the modifications.

Mayor Swisher opened the public hearing.

It was moved/seconded by Beckstrand/Gutierrez to close the public hearing. Council Members Hill and Petrovich abstained. Motion carried.

ORDINANCE NO. 770

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING REZONE NO. 03-15, AMENDING CHAPTER 17.462 OF THE BRENTWOOD MUNICIPAL CODE BY MODIFYING THE TYPES OF PERMITTED USES WITHIN SUBAREA “C” OF THE PD-12 ZONE.

It was moved/seconded by Beckstrand/Gutierrez to waive full reading and approve first reading of Ordinance No. 770 as recommended by staff. Motion passed by the following vote:

AYES: Councilmembers Beckstrand, Gutierrez, Mayor Swisher
NOES: None
ABSENT: None
ABSTAIN: Councilmembers Hill and Petrovich

Council Members Hill and Petrovich returned to the Council Chamber.

20. Consideration of Resolution amending Resolution No. 2953 making a preliminary assessment not to renew the cable television franchise held by Comcast of California IV, Inc. (“Comcast”) and setting a date for an administrative proceeding by adding to the City’s basis for denying renewal due to Comcast’s violation of the material terms of its franchise. (D. Beougher)

City Attorney Dennis Beougher stated that this was a request to set a hearing date to determine whether a material breach of the City’s franchise agreement had occurred. On or about November 19, 2003, as part of the formal renewal process, the City found that Comcast of California IV was a Wyoming Corporation and all of the documents of the City granting the current cable franchise operator were with a Nevada Corporation. The City did not know when, how, why or who transferred the franchise and the City had preliminary information to show that the franchise was a Nevada Corporation and their representation was that it was a Wyoming corporation. Any assignment or transfer of the franchise without the approval of Council terminated the franchise either under the ordinance in existence from 1968 or when it was amended pursuant to Ordinance No. 700 and Ordinance No. 705. This was a preliminary hearing and was separate from the renewal process and could be incorporated if a finding was made the on recommended hearing date of January 13, 2004, to amend the resolution at the time.

Mayor Swisher clarified that that the hearing was to set the date for January 13, 2004.

City Attorney Beougher said that Council Member Petrovich had concerns about removing individuals and he responded that it had been requested by Council for Comcast IV of California to remove the names of the individuals. He said he agreed with that based upon the reasons that there was no need to notice individuals for a criminal action. Like a prosecutor, he could bring an action based upon the information available. He had no evidence at this time as to who, what when and why it was transferred. Sometime in between the City granting the franchise to a Nevada Corporation it was transferred to a Wyoming Corporation and it could have happened at any time. The City did not know who did that and why it was done. He had an obligation to only present evidence he knew existed. He recommended removal of the individual names and to retain the possibility for criminal sanctions.

Council Member Beckstrand said that dating back to Ordinance No. 181, 1968, she believed that it showed a long trend of the City not being dealt with on the same plane as other communities with regard to the cable system, services and programming provided. The Subcommittee had been trying to get Comcast to come to the table regarding issues upgrades, programming services and customer service for the last seven years. She said she believed that there had been a material breach and she did not believe that it was a breach of conduct on the City Attorney’s part to have the names on the record at this time. She said she wanted to be certain that the City’s statement was clear and it was not about intimidation or coercion and that the City was not trying to play games with Comcast and was playing straight forward. She said she was willing to remove the names and go with the revised Resolution since she believed that it did not preclude the City’s right to bring it back at a public hearing on January 13, 2004.

Mayor Swisher opened public hearing.

Jeff Smith, Vice President with Comcast, said he believed that there would be time to address the concerns expressed by the City Attorney and to make it clear that Comcast had no role in what happened and what had happened twenty years ago, before Comcast was involved in the City. He said he appreciated that there was consideration to remove the names of individuals from the list. It had been taken as an attempt to intimidate Comcast.

Council Member Petrovich asked Mr. Smith what his position with Comcast was and Mr. Smith responded that he was Vice President and Associate General Counsel based in Philadelphia.

It was moved/seconded by Swisher/Hill to close the public hearing. Motion carried unanimously.

Council Member Petrovich said he was opposed to the removal of the personal names and he noted that the City had the option to refer to the District Attorney the following persons for adoption and it did not say that the City would. He said he believed that Comcast had intimidated and threatened the City with the First Amendment. The resolution gave the City the option if evidence was found and that the City may, not shall. He said he believed that the City should not take names out and he felt City was being intimidated by Comcast.

Council Member Gutierrez noted that this was setting date for hearing and that the Municipal Code regarding the cable franchise was breached with the transfer from Nevada to Wyoming. She said she agreed with the City Attorney to take the names out and there had been some note of intimidation. Comcast had violated the Municipal Code and the City would pursue and prosecute. This was a serious violation and would bring up issues of intimidation and the City had acted with lenience and respect and upheld every law and regulation and should continue to set an example of doing right. The City still had the option to prosecute and all that was being suggested was to take the names away.

It was moved by Council Member Gutierrez to waive full reading and approve the Resolution as amended in Agenda Review with deletion of the specific individuals named. Motion failed to pass due to lack of second.

Council Member Hill said that removing the names would require changing the text in the Resolution as it related to identifying the individuals as listed. He believed there were individuals that were a party to this that were listed and had been involved in the activities. The City could either strike any reference to anyone or add or change language that said that the City would appropriately be forwarding individuals to the City Attorney for prosecution. He said he felt torn about leaving the names in or at the same time, he did not know if they were involved. He asked for more clarity to the resolution as it related to referring any individual found violating any City ordinances to the District Attorney versus the following persons. He said he was not sure if the City had a relationship with Comcast IV California or Comcast Pennsylvania and another individual had shown up on behalf of the company.

City Attorney Beougher said that he would be prosecuting and it would not be referred to the District Attorney and that the District Attorney would not enforce the Municipal Codes. It may have been that way in 1968 and now the City Attorney was responsible for prosecution.

Council Member Beckstrand said the City may refer to the proper authority any entities or persons and the City Attorney said the resolution could be redrafted.

It was moved/seconded by Beckstrand/Petrovich to continue Item 20 to the end of the agenda. Motion carried unanimously.

OLD BUSINESS

21. Consideration of Shaping Our Future Principles of Agreement.

Director of Community Development, Mitch Oshinsky, presented a staff report noting that the 15 principals of agreement were in connection with the Urban Limit Line, open space, general plans, transportation, economic development and housing. The first concern was the Urban Limit Line and staff recommended that Council approve of the principals subject to Urban Limit Line proposal of the City being accepted by the County Board of Supervisors. The second concern was whether the principals forced the City into anything that was not agreed upon. With concerns addressed, staff recommended that Council approve the resolution with the minor amendment listed on the agenda review.

Mayor Swisher said that the principals were vague and not enforceable and he had a problem with the Urban Limit Line issue and trust fund. The trust fund was very vague and he was concerned about how it would be distributed later. He did not trust the wording or the enforceability and it needed to come back later and be approved with the principals. He was willing to support the Shaping Our Future principals with the recommendations of staff on the Urban Limit Line and he added that he was not comfortable with the trust fund.

Council Member Gutierrez said she felt that this did not threaten local control. The City had the right to decide what they did not like about Shaping Our Future and not adopting the principals would take the City out of the loop. The City could expose views on the Urban Limit Line, economic development, transportation and could regionally plan in the best way possible.

Council Member Hill said he believed that the City had articulated a vision for over a decade and there had been no acknowledgement by the individuals in regional government. He said the City had been asked to do unreasonable levels of commitment. Central County was not interested in East County and was now in the form of the 15 principals called a vision.

Council Member Beckstrand said she agreed with Council Member Hill and when it came to the Shaping Our Future document, others did not care what the City had to say and they wanted the City to blindly act on it. She did not know what they thought they could do on a county basis when the City could already do it. She wanted to know what the vision of CCTA was for regional transportation when local roads in the City were not solidified for Measure C and CCTA asked the City to continue the sales tax initiative and support it. The City was taking over contracts the County could not meet. She did not see how buying into Shaping Our Future would make the City a better community. She asked if the Shaping Our Future document was all there was or if there were surprises to come forth.

Don Blumbaugh, Project Manager of Shaping Our Future, said he did not know of any surprises to come and it was an effort to bring 19 city councils and a board of supervisors together. It was an attempt to find something where everyone could accommodate a plan for the future. The goal was to see if the group could collectively find a way to orient patterns of growth for the future in a different manner. He said his understanding was that what happened in East County was that it had been tremendously increased as a result of the effort. There was data that was in the best interest of Central County that employment in East County was a benefit of people in Central County. Most of the infrastructure called for in the development of the future of the County rested in east County such as the E-Bart System, extension of Byron Highway as an expressway, Vasco Road and the creation of more employment opportunities. The major point was around the Urban Limit Line and with out agreement on the ULL, the Transportation Authority ½ cent sales tax would not pass. The document provided hope for the future to work together and live up to the values within our own community. The Urban Limit Line needed to be addressed in another form and he said he believed that there was a much better understanding of what was happening in East County as a result of Shaping Our Future and the County was not the only entity at the table. There were no surprises and he asked for voluntary cooperation and support and adopting the principals would not be a hallow action and was up to local agencies to decide to what degree and how far to go. He commented that he did not have answers regarding the housing trust fund and he did not know what the governing board was and whether there was a source of money and the affordable housing issue would be tackled next. Cities could not buy their way out of housing obligations and the housing trust fund continued to need more work and was the next phase of the project and the project would not get very far if he waited.

Mayor Swisher said he would agree to a trust fund when there was more to it and he asked how the trust fund would gain money and all the cities in the County would be putting money into the fund and he saw only West County benefiting from the trust fund more than Central and East County.

Council Member Hill said that there was no threat and that it was not hollow and he had become more aware of what was going on in east County through the process. Supervisors and Mayors sitting in roles on transportation authorities and taking action on LAFCO did not know where East County was. He said he would be happy to take action on a principal of cooperation after he was shown that others were interested. There had been no acknowledgement of east County up until the Shaping Our Future document and no action to support it and the action would demonstrate the commitment to finding solutions to problems in East County.

RESOLUTION NO. 3050

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD ADOPTING THE SHAPING OUR FUTURE PRINCIPLES OF AGREEMENT DATED OCTOBER 1, 2003.

It was moved seconded by Swisher/Gutierrez to waive full reading and approve Resolution No. 3050 as recommended by staff, subject to the Urban Limit Line proposal being accepted by the County Board of Supervisors and that the vagueness of the trust fund in Principal No. 8 be clarified. Motion passed by the following vote:

AYES: Councilmembers Gutierrez, Hill, Mayor Swisher
NOES: Councilmembers Beckstrand, Petrovich
ABSENT: None
ABSTAIN: None

22. Accept report on landscape projects and direct staff to plan construction and maintenance.

Director of Parks and Recreation, Craig Bronzan, presented a staff report noting that there were 24 parcels identified as either remnant pieces or projects and he had identified projected construction costs and early maintenance costs. He requested direction from the Council regarding the action plan to move forward. He noted that parks had worked with the Finance Department and he explained projects and identified how construction and maintenance costs could be paid for and presented the recommended plans of action.

In response to Council Member Petrovich regarding a particular area to landscape, Parks Services Manager, Ken DeSilva, said he had quantified all of the areas, an if there was a water connection with no electricity there, there would need to be specialized irrigation clocks.

Director Bronzan continued to explain projects and noted that Projects 7 – 24 did not fit in any category and would fit in CIP project costs. Staff recommended starting development of CIP projects over the period of 2004/05, 05/06 and 06/07. To assist with the cash flow, Finance recommended that parks could borrow from the Park Development Fund to upfront the projects and the general fund over a seven year period would pay back the Park Development fund. He requested Council direction and noted that all of the projects would return as part of the 04/05 CIP.

Council Member Hill asked when the 2004/05 CIP would be seen.

Director of Finance and Information Services, Pam Ehler, said the budget process started in January and a workshop would be presented to Council in April and projects would be identified.

Council Member Hill said that all of the projects needed to be dealt with and if the general fund could support this, he asked to move forward and complete the items that needed to be dealt with.

Finance Director Ehler asked for Council direction so that the projects could be incorporated into the general fund.

Director Bronzan added that if projects were bid collectively instead of individually, it would make them much more competitive.

Mayor Swisher asked if this would be a recurring CIP item that a certain amount of funds would be set aside for it. Director Bronzan responded that the projects could be prepared for 04/05 and Finance would run the numbers and that staff would move forward with the process upon direction from Council.

Director Bronzan provided Council a tree inventory, showing expected hardscape damage and the projected repair and replacement for trees and the dollar amount. He noted that the expectation was for Parks to go back and the take trees out before streets and curbs were disrupted and this would be included as an additional CIP project. At the west end of Central, near Fairview, trees were planted close to sound walls and they could disrupt the sidewalk and sound wall and the roots could go into backyards.

Director Bronzan said that for new developments, it was a requirement of the developer to place a tree in the front yard in the City’s right of way and the responsibility of the tree was on the homeowner. If a resident wanted to do major pruning, a permit from the City would need to be obtained. He added that the Municipal Code would be looked at and recommendations would be brought back to Council.

23. Second reading and adoption of Ordinance No. 765 adding Chapter 17.522 to the Brentwood Municipal Code, (RZ 02-11) rezoning approximately 133.4 acres from a mix of R-1-E, R-1, and R-2 to PD-65, creating six subareas and establishing specific development standards for each of the subareas.

Mayor Swisher declared a conflict and left the Council Chamber.

Senior Planner, Winston Rhodes, stated that the ordinance change would add a section to the Municipal Code providing the development standards for the Rose Garden project. The Planning Commission had recommended approval.
ORDINANCE NO. 765

A ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING A REZONE (RZ 02-11) OF APPROXIMATELY 133.4 ACRES FROM A MIX OF SINGLE FAMILY RESIDENTIAL ESTATE (R-1-E), SINGLE FAMILY RESIDENTIAL (R-1), AND MODERATE DENSITY MULTI-FAMILY RESIDENTIAL (R-2) TO PLANNED DEVELOPMENT (PD) 65, ADDING CHAPTER 17.522 TO THE BRENTWOOD MUNICIPAL CODE WHICH ESTABLISHES DEVELOPMENT STANDARDS FOR SIX SUBAREAS WITHIN PD-65 KNOWN AS ROSE GARDEN, LOCATED NORTH OF LONE TREE WAY, SOUTH OF NEROLY ROAD, AND EAST OF THE UNION PACIFIC RAILROAD TRACKS (APN 018-010-006, 018-010-007, 018-010-008, 018-010-010, 018-010-011, 018-010-012, 018-020-001, AND 018-070-001).

It was moved/seconded by Hill/Petrovich to waive full reading and approve Ordinance No. 765 as recommended by staff. Motion passed by the following vote:

AYES: Councilmembers Beckstrand, Hill, Petrovich,
NOES: Councilmember Gutierrez
ABSENT: None
ABSTAIN: Mayor Swisher

Mayor Swisher returned to the Council Chamber.

20. Consideration of a Resolution amending Resolution No. 2953 making a preliminary assessment not to renew the cable television franchise held by Comcast of California IV, Inc. (“Comcast”) and setting a date for an administrative proceeding by adding to the City’s basis for denying renewal due to Comcast’s violation of the material terms of its franchise.

City Attorney, Dennis Beougher, stated that the City may refer to the proper authority for prosecution under Municipal Code Chapter 5.24.340 (the 1968 Ordinance) any persons or entities who may have violated or caused or permitted another person to violate Municipal Code Chapter 5.24.330 D (the 1968 Ordinance)

Council Member Beckstrand asked who would be listed and City Attorney Beougher said no one would be listed and as a criminal matter, notice did not have to be given and the evidence would come out in the January 13, 2004 meeting.

Council Member Petrovich asked if it was determined at the January 13, 2004 hearing that the Code was violated, would the City have to go through the 30-day process and City Attorney Beougher said no. The City would have to make findings and have evidence that someone violated the transfer and assignment. The Council could direct Council or someone to investigate further and right now, he did not know who the individuals were.

Council Member Beckstrand asked if on January 13, 2004, it was disclosed and the City knew, would the City have to start a notification process or could the City move forward.

City Attorney said the City could move forward at that time since the criminal actions were not known and the notice provision was when there was a transfer and assignment without the City’s approval.

It was moved/seconded by Beckstrand/Gutierrez to waive full reading and accept Resolution No. 3051 as outlined with revisions. Council Member Gutierrez voted aye. Motion failed to carry.

Council Member Hill said that the original intent was to remove names out of the resolution and preserve whomever the City felt was necessary at the time the City could move forward. He asked that by not naming Comcast or any legal entities that were known, if the City was leaving anything exposed.

City Attorney Beougher said he did not believe so and if someone had done a criminal action, then notice of the violation did not have to be given.

Council Member Beckstrand asked if that was separate from material breach, which the City would need to give notice of.

City Attorney Beougher said if the City was going to amend the formal renewal process there would need to be a separate hearing.

Council Member Beckstrand that this was not amending the formal renewal process and was separate from the renewal process and the item should not be discussed in conjunction with the formal renewal process. This was a material breach and had nothing to do with the renewal process.

City Attorney Beougher said if Council made that finding it could be used at that time.

Council Member Beckstrand said whether or not a finding was made, the possibility that there was a material breach had nothing to do with the renewal process.

City Attorney Beougher stated that the renewal process was not part of the resolution.

Council Member Beckstrand asked if the City came forward with findings of material breach, could the City move forward or does Council need to reserve the right by mentioning the entities that had contracts and ordinance in effect with, such as Comcast and Televents. City Attorney Beougher responded that the property authority for prosecution, any persons or entities that may have violated or may have caused.

Mayor Swisher said he thought the City had evidence and that was why it was being brought forward for a vote.

Council Member Beckstrand said there was an indication of a breach and as far as criminal charges, the City drew the line.

Council Member Hill said that Council needed to have the hearing.

In response to the question by Council Member Beckstrand to have a resolution with or without corporation names included, Consultant, David Kinley, stated that he had no evidence to present other than what was outlined in the staff report. Based on that, it could be reasonably concluded that the 1968 ordinance provision on its face, had appeared to be violated by the entities because of the chain of title that had been documented by granting to Televents of East County consistently, to Televents of East County a Nevada Corporation and the statements presented on November 19, 2003, under oath, that the franchise was now held by Comcast of California IV, Inc, a Wyoming Corporation, wholly-owned subsidiary of Comcast Corporation. He said if Council was asking him if it reasonable or appropriate to mention the corporate entities, it seemed to him that the documents spoke for themselves with respect to those corporate entities that there had been a corporate transfer. Evidence was presented under oath that it was a Wyoming Corporation.

City Attorney Beougher said he did not have any problems including the three corporations in the resolution and did not want the individuals names since he did not have evidence as to the individuals.

RESOLUTION NO. 3051

A RESOLUTION OF THE CITY COUNCIL NOTIFYING CABLE TELEVISION FRANCHISEE OF CITY’S INTENT TO TERMINATE FRANCHISE AND SEEK OTHER PENALTIES.
It was moved/seconded by Beckstrand/Gutierrez to amend the motion and re-instate Televents of East County, Inc., Comcast of California IV, Inc., and Comcast Corporation in the resolution and to waive full reading and approve Resolution No. 3051 as recommended by staff, including the previous motion to include the revisions that the City may refer to the proper authority for prosecution under Municipal Code Chapter 5.24.340 (the 1968 Ordinance) any persons or entities who may have violated or caused or permitted another person to violate Municipal Code Chapter 5.24.330 D (the 1968 Ordinance) as previously discussed. Motion carried passed by the following vote:

AYES: Councilmembers Beckstrand, Gutierrez, Hill, Mayor Swisher
NOES: None
ABSENT: None
ABSTAIN: Councilmember Petrovich

24. Informational report on Subdivision 8281, Visions at Brentwood, Final Map approval.

25. Informational report on Subdivision 8633, Garin Ranch Commercial, Final Map approval.

26. Informational report on “Champions of Small City Management” award competition sponsored by Pat Summerall Productions.


INFORMATIONAL REPORTS FROM COUNCIL MEMBERS

Council Member Hill announced that the Regional Community Chest food/basket program would occur on December 19, 2003 at 6:00 p.m. for packing and December 20, 2003 in the morning for distribution at Brentwood School. He encouraged everyone to participate.

REQUESTS FOR FUTURE AGENDA ITEMS – none

CITIZEN COMMENTS

Buzz Walker stated that this was his first major project and he said he spoke about identifying corporations. He asked if there was a specific criminal violation and if there was, there would be sentencing involved. The federal government was going after corporate officers and he said he believed that certain individuals should be named and that it may have had an impact on the votes. He commented that with regard to bids, he asked how the Parks & Recreation Department assessed the value for those bids. He said he was shocked and he wondered how the services rendered that much value and he would share information.

It was moved/seconded by Swisher/Petrovich to adjourn the Council meeting. Motion carried unanimously.

There being no further business the meeting was adjourned at 9:16 p.m.

Respectfully Submitted,

Cynthia Garcia
Assistant City Clerk

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov