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M 03-23-87TOWN OF LOS GATOS CALIFORNIA TOWN COUNCIL/PARKING AUTHORITY AGENDA MARCH 23, 1987 TOWN COUNCIL The Town Council/Parking Authority met in the Council Chambers of the Town Hall at 7:35 p.m., in an adjourned regular session. ROLL CALL PRESENT:Eric D. Carlson, Thomas J. Ferrito,Robert L. Hamilton and Mayor Brent N. Ventura. ABSENT:Joanne Benjamin. Mrs. Benjamin arrived during recess at 7:45 p.m. PLEDGE OF ALLEGIANCE Given by all in attendance. VERBAL COMMUNICATION Mrs. Elliott, 152 Clover Way, addressed the Council and read her written protest of the action of having 2 Councilmembers stepping down from voting on certain important issues due to conflict of interest. Probably no issue comes up for vote that one or more Councilmembers have a conflict of interest of some type. Realizing there has been a ruling by the Sacramento group on this as of Friday March 21st and I would like to hear the presentation by the Council for this ruling and the ruling itself. Mayor Ventura stated the ruling from the Fair Political Practice Commission would be reported on later in the meeting. Mayor Ventura read an opening statement outlining the procedures for this hearing re Parking Assessment District. He stated there are two public hearings to be considered and they will be heard at the same time as they deal with the same project. The legal purpose of the hearing is to receive all written protests and to hear all oral testimony presentations. Property owners in the district will have the opportunity to file formal protests with the Town Clerk until 7:50 p.m. whereby the Town Clerk will submit all protests to the Engineer for computation. Mayor Ventura then declared a 15 minute recess to allow all written protests to be filed with the Deputy Town Clerk in the lobby of the Council Chambers. Anyone wishing to withdraw a protest, already filed, may do so at any time. Any persons interested, including property owners, may file additional written protests and may make any oral protest or may make any comment or objection. Such protests and objections may be made to any aspect of the project and the Engineer's report. Meeting reconvened at 7:55 p.m. OPINION FROM FPPC Town Attorney Levinger, reported on the opinion from the Fair Political Practices Commission, dated March 19, 1987. This was a request for an opinion on behalf of Councilmember Ferrito and Councilmember Hamilton. The FPPC has indicated that both Councilmembers are disqualified from voting on the formation of the Parking District and on the Urgency Interim Zoning Ordinance that are on the Council agenda tonight because, their businesses are located within the proposed assessment district. With regard to the Urgency Interim Zoning Ordinance, that requires a four fifths vote, the FPPC has indicated that a legal required participation will occur by lot. One member will be chosen by lot as has been done before, in order to cast the four votes or at least have a ballot with four Councilmembers voting. Mayor Ventura stated then by this ruling, he would request Councilman Ferrito and Councilman Hamilton to step down from the podium at this time. Mr. Hamilton stated that he really believes that the FPPC opinion is improper and that Mr. Ferrito and himself should both be allowed to, not only vote, but to participate in the process. He referred to legal required participation being done by lot between the two Councilmembers and he feels this is government by chance and doesn't feel this is good government. "I feel the decision is improper and have submitted, to Mary Jo Levinger, a case of Jeffrey v Salinas and I hope this would be reviewed by Ms Levinger and she will then give us her opinion, as I feel that case would apply here. However, I will follow the rule of the other Councilmember at this point." Mr. Hamilton then stepped down from the podium. Mr. Ferrito then referred to letter read by Mrs. Elliott and made the following statement. "I respectfully disagree that no issue comes up for a vote whereby one or more Council persons have a conflict of interest of some type. It is the duty of each Council person to make sure that he or she does not have a conflict of interest and if one should arise, then that person should follow the law and disqualify himself or herself from voting. I have abstained from voting on the issue of parking district ever since Council increased the boundaries to include Church Street where I have my business, because I felt, under State Law, I would have a conflict of interest. The conflict being that there might be a direct economic impact on me. My lease provides that any assessments can be passed through to me as well as other tenants in said building. That's the conflict of interest and I feel it is certainly improper and illegal for a Council person to vote on an issue involving an economic interest that he or she might have. So I have no choice but not to vote or participate in discussion on the parking issue. I am against the drawing of lots to be able to vote when there is a need for four- fifths vote but must abide by the Attorney and FPPC opinion and therefore I will step down from the podium." PARKING ASSESSMENT PROCEDURES Town Clerk acknowledge receipt of written protest and transmitted them to the Engineer for calculations. Mr. Ken Jones from law firm of Jones, Hall, Hill & White, stated his office has been retained as Bond Counsel for this proceeding. Mr. Jones explained the procedure for tonight meeting stating the process is receiving all written protests against the project. The time was extended to 7:50 p.m. to receive said written protests and the Town Engineer is in the process of computing that percentage and if those protests total up to over 50% of the area of the property subject to assessment then the Council is barred from further proceedings unless there is a withdrawal of a protest during the course of the hearing, before it is closed, which would bring that computation down to less thana majority. Then explained the need for public hearing is to hear any oral testimony which could be considered by the Council. Town Engineer then referred to his report pursuant to the Division 4 report and summary of the 1913 Act report and gave general explanation of the project and the benefits. Mr. Frank Howell, Chairman of the Parking Commission spoke on the need for parking in the Downtown area. Spoke on the various meetings that had been held in getting this project this far. This is a three phase project and feels program as presented is a fair and equitable project. Mayor Ventura thanked Mr. Howell and all the Commissioners for the many hours spent in their efforts to improve the downtown shopping area with this proposed parking assessment district. PUBLIC HEARING ASSESSMENT DISTRICT Mayor Ventura stated this was the time and place duly noted for public hearing re the formation of a Downtown Parking Assessment District. Persons giving oral testimony were: Robert Tack, President of the First Church of Christ Science, spoke in protest to the Church property located at 236 E. Main Street being included in the district and asked that it be withdrawn. The Church furnishes ample parking and maintains their own parking lot. Mr. Wade Hover, owner of property at 101 Church Street and property at the corner of E. Main and Church Street, stated he furnished extra parking for the tenants at 101 Church street and has had no recognition or credit for this extra parking he wishes to protest being included in the district. Jim Farwell, 121 Laurel Drive, spoke on number of protests that have been received and requested that names of protesters be read into the record. Mr. Jones, Bond Counselor, stated he felt this could be done as soon as the computation is completed. Mr. Farwell stated that he had understood from other people within the district, that they did not give written protest as they were afraid of reprisal from the Town. Mayor Ventura stated, for the record, that he wanted to make it perfectly clear, on behalf of the Council, that there will be no reprisal against any property owner within the parking district. Council is here to try and solve, what Council perceive to be a problem and will continue to work towards this goal. Marilyn Waiton, 221 Almendra, spoke on her filing of a written protest. She stated this property is zoned Historical and there is no way to expand, so feel if this property is included in the District, it should be at the minimum assessment charge. Mayor Ventura asked staff to explain the procedure. Mr. Zapf stated letters had been sent to all persons within the district requested information re square footage and if this information was not returned to Engineers then assessment was figured on 60% and not on the existing floor area. Ms. Waiton stated she had returned the letter and had noted the lower square footage and asked that Engineers please review that letter. Joel Gambord, 300 E. Main Street - protested to being included in should not be assessed in this district. Allen Geggatt, 61 E. Main Street, stated he had returned the questionnaire that had been mailed earlier and designated corrections that should be made and now find corrections were not included in the computation for the assessment. Feels it is grossly unfair. Michael Kaufman, owner of property located on Park Avenue protested the development of lot 9 and presented a petition, to that effect, that had been signed by 0 of the approximate 13 residents of the area. Joe Sweeney, one of the partners of two different projects, one is 25 through 35 E. Main and another at 39 through 41 E. Main, filed written protests regarding specific's in relation to his projects. The major problem with the district, as it has been submitted, is that it is different substantially than what was presented when he was asked to sign a petition to start this process. He was told that one of the first efforts, before spending 4 million dollars, would be to install parking meters as a means to providing income to help develop future parking lots and I don't see that in this proposed assessment. Ron Gates, President of Chamber of Commerce, stated he was representing the Chamber and here to reiterate that the Chamber is in support of the district. Aaron Martin, owner of the Village Inn Motel, 235 W. Main Street, spoke on his signing of original petition, with the stipulation that since he has ample parking, there would be no additional cost to me. Now he finds he is being assessed and requests his name taken off said petition. Frank DeMoss, 228 Bachman Avenue, in support and happy to pay his portion. Josephine Urbe, 303 University Avenue, stated she is also protesting as she had been promised that once she paid for 5 parking spaces when she purchased the property there would be no further cost to her and now is being included in the district. John Scott, spoke in favor of paying assessments, even though he has enough spaces for his building on N. Santa Cruz. He feels it will improve business in Town and improve the overall environment. Tom Castro, 308 E. Main Street, stated he signed a petitio of protest only for certain reasons. Feels come people are being over charged. The district, as a whole, is a positive step in the right direction and he supports the additional parking for the Town. Feels parking meters are essential as they will generated funds to support the district. Ed Burke, owner of the Los Gatos Athletic Club at 285 E. Main Street,spoke on his protest. Stating the district is important for the Town but the problem is that the district is based on square footage and of the economic hardship that this would cause him and others that own older buildings, if they are included in said district. Joan Franck, owner of the Peasant Chef, favors the district with reservations. Mrs. Frank suggested that Town charge a parking fee like Monterey does and have parking meters reinstated. Mr. Carlson stated that parking meters are part of the plan. Jane Summers stated parking meters were installed at one time but then were removed and questioned as to where they went. Ellen Graff - 350 University Avenue spoke in favor of the parking district formation. Mark DiMita, spoke on need for parking for customers. Helen Mendel, 50 University Avenue, stating merchants need to compete and parking is essential, and urges Council to work out the problems and go ahead with a viable parking district. Andrea Holding, 300 Bachman Avenue, urges Council to support the District. Jay Schulman, owner of Old Town, stating he had filed a protest, but being a new owner has not had a chance to analyze the situation. They do have a parking problem and feel if all work together it can be worked out. Jerry Lynch, representing Bacigalupi, Brady and VanDalsem, owners of the LaCanada Building at the corner of N. Santa Cruz Avenue and W. Main Street. He is objecting to the proceedings and requests that protests be read into the record. He feels the cost of this property assessment is exorbitant. Reported on few spaces that the Town would gain in developing lot 4. During this protest Mr. Zapf and Mr. Jones answered questions of Mr. Lynch. Mr. Lynch spoke on nonconforming use in Zoning Ordinance which is impossible to meet. Mr. Lynch submitted to the Clerk the following documents: 1. Final report from Parking Committee, dated August 17, 1982. 2. Report from Town Manager to Council Dated 2-6-84. 3. Press release from Los Gatos Council meeting dated 2-3-86. 4. Article 21, Parking Requirements from Ord. 867, effective 1966. 5. Initial Study of Downtown Parking Improvement Program 1987. 6. Planning Commission report re Zoning Ord. amendment A-87-1. 7. Minutes of Parking Commission dated June 27, 1985 and minutes of March 13, 1986. 8. Report from J. F. Van Houten to Parking Commission dated August 28, 1985. Mr. Lynch referred to final draft of the Downtown Specific Plan and Traffic study prepared by Barton Aschman dated 1979. Mr. Zapf answered question of Mr. Lynch. Mr. Jones concurred with Mr. Zapf's answers. Mr. Brady, spoke to the issue, stating this is not a sound project and feels it needs reconsideration. He feels procedure has not been followed properly, there are many errors in concept and distribution not fair. James Van Houten, representing Mr. & Mrs. Gork, who favor the district but feels there are concerns as to the calculations and feels there are a lot of things Council has been asked to consider and requests that Council continue this public hearing. Also speaking on the issue was Ken Phiko and Dennis Murray. Mr. Chuck Bergthold, who asked if a determination of protests has been made. Mayor Ventura stated not at this time but report will be made after the recess. Rex Morton, Parking Commission member spoke on formula used in calculation of assessment charges and referred to letter from W. Bacci which states that the Los Gatos Eureka Building hereby endorses the Parking Plan. RECESS Mayor Ventura declared a recess. Meeting reconvened at 10:15 p.m. Mayor Ventura asked for a preliminary tabulation of protests. Mr. Zapf, Town Engineer, reported that staff has not had an opportunity to detail the protests and reported the sum total of percentage of land area received for protest is in excess of 47%. He recommended the protests be turned over to staff for further analysis. He also noted no more written protests may be filed but, those that have been filed may be withdrawn. Mr. Jones stated the computation is before the Town Engineer and additional written protests or written material may be filed as long as the hearing is open but they are not to be counted in the percentage computation. Mr. Carlson stated, "for a variety of reasons including the need to verify and need to check the protests we have received and because of some of the people who protested tonight may feel their concerns could be addressed, have copies of protests prepared for all Councilmembers (including the two that cannot vote as one of them may be called upon to vote) and continue this hearing." Mrs. Benjamin concurred. Mayor Ventura stated they would continue to take testimony tonight from persons who wish to speak on the issue. Randy Reedy, managing partner of 19 N. Santa Cruz Avenue, feels there is a lot of support in what Mr. Brady stated in that there are a lot of errors made with respect to individual properties. He suggested paving of lots 3 and 4 immediately; install parking meters by Christmas; monies generated by meters then could be used by the Town for further development of the Parking program. No one is saying there isn't a problem and he thinks people are objecting to the methodology. Dr. LaVeque, spoke against being included in the assessment project as he would not benefit by it. Mr. Farwell spoke on his concerns regarding promises made when the Town was developing Parking District #1. After further discussion, Mr. Carlson moved to continue this public hearing to April 13, 1987. Mrs. Benjamin seconded. Carried by a vote of three ayes. Mr. Ferrito and Mr. Hamilton abstaining. Clerk directed to prepare copies of protests for each Councilmember. ZONE CHANGE - LOS GATOS BLVD. EL MONTE HILL Mayor Ventura stated this was the time and place duly noted for public hearing to consider a change of zone from R-1:8000 and R-1D to C-1 for that area of land within the public right-of-way of Los Gatos Boulevard extending from the existing C-1 Zone boundary northerly to a line parallel to the centerline of Johnson Avenue extended. Mr. Carlson moved to continue this public hearing to April 13, 1987. Mrs. Benjamin seconded. Carried by a vote of three ayes. Mr. Ferrito and Mr. Hamilton abstaining. PLANS RE CONSTRUCTION OF SURFACE PARKING Mayor Ventura stated this was the time and place duly noted for public hearing to consider approval of plans for the construction of surface parking lots and parking structure to be constructed on lot 3 at Grays Lane and Royce Street along the S.P. right-of-way; lot 4 (2 level) parking structure between Elm Street and Grays Lane along S.P. right-of-way; lot 9 parking lot on the east side of Park Avenue, south of W. Main Street, and lot 15, surface parking lot on the south side of East Main Street at Alpine Avenue. Mr. Carlson moved to continue this public hearing to April 13, 1987. Mrs. Benjamin seconded. Carried by a vote of three ayes. Mr. Ferrito and Mr. Hamilton abstaining. ORDINANCE AMEND MENT RELATING TO DOWNTOWN PARKING PROGRAM Mr. Carlson moved to continued the adoption of Ordinance amending Town Zoning Ordinance, A-87-1, concerning rules for properties within a Parking Assessment District and regulations regarding public parking facilities. Mrs. Benjamin seconded. Carried by vote of three ayes. Mr. Ferrito and Mr. Hamilton abstaining. URGENCY INTERIM ZONING ORDINANCE EXTENDING ORD. NO. 1682 Mayor Ventura stated this was the time and place duly noted for public hearing to consider amending an Urgency Interim Zoning Ordinance to extend the duration of nonconforming status as listed in section 3.50.050 of the Los Gatos Zoning Ordinance; considering the uses of properties located in the Central Business District which are nonconforming as to parking. Mayor Ventura stated Council would have to apply the rule of necessity here for 4/5th vote and directed Clerk to prepare lots to be drawn by Mr. Ferrito and Mr. Hamilton to decide which member would be voting on the issue. After some discussion it was agreed that the Clerk would flip a coin to decide the voting member. Mr. Ferrito won the right to vote. Mayor Ventura declared hearing open. Speaking on the issue was Bert Millen requesting that the Council rescind the Ordinance and this would unite the Town. Mayor Ventura explained that he is not sure this can be done. The new Brown Act Law allows Council to take action only on matters on the agenda. There being no one else from the audience wishing to speak to this issue, Mr. Carlson moved public hearing be closed. Mrs. Benjamin seconded. Carried y vote of four ayes. Mr. Hamilton abstained. Mr. Carlson moved to make the finding that there is a current and immediate threat to the public health, safety and welfare, and that the cessation of uses nonconforming as to parking pursuant to Section 3.50.050 of the Los Gatos Zoning Ordinance would result in a threat to the public health, safety and welfare. Mrs. Benjamin seconded. Carried by vote of three ayes. Mr. Hamilton abstained and Mr. Ferrito stated he could not support motion, not with 47% protests and after all the years and the hundreds of thousands of dollars the Town has spent. He can't see any real movement in this area. Mr. Carlson moved to waive the reading for AN URGENCY INTERIM ZONING ORDINANCE AMENDING ORDINANCE NO. 1682 EXTENDING THE DURATION OF NONCONFORMING STATUS AS LISTED IN SECTION 3.50.050 OF THE LOS GATOS ZONING ORDINANCE FOR USES THAT ARE NONCONFORMING AS TO PARKING. Mr. Benjamin seconded. Carried by vote of four ayes. Mr. Hamilton abstained. Town Clerk red title of Ordinance. Mr. Carlson moved to introduce the Ordinance. Mrs. Benjamin seconded. Motion fails with vote of three ayes. Mr. Hamilton abstained and Mr. Ferrito voting No. Mr. Ferrito stated for the record that he abstained April 7, 1986 when Ordinance No. 1682 was voted on by Council and believed, at that time, he had a conflict of interest. He didn't believe in the extension because he didn't believe that the good faith being requested was really necessary and a year later Council hasn't gotten very far. He can't support this motion. Mayor Ventura stated the process for selecting the fourth voting member would be repeated if there is a motion for reconsideration. Mr. Carlson moved for reconsideration of action on the adoption of the Urgency Ordinance and this would also reconsider the findings for said action. Mrs. Benjamin seconded. Carried by vote of three ayes. Mr. Hamilton abstained and Mr. Ferrito voting no. Clerk directed to flip a coin to see whether Mr. Ferrito or Mr. Hamilton would be selected to vote on the reconsideration of this issue. Mr. Ferrito won the toss. Mayor Ventura asked Attorney as to whether Council can move for another reconsideration. Attorney read Council policy on reconsideration of motions, stating this policy was readopted in February 1987. Which stated "No item acted upon by the Town Council will be reconsidered by the Council within 90 days of the Council action, unless the item is requested for reconsideration by a member of the Town Council. A motion for reconsideration can only be made at the meeting of the original Council action, or the meeting immediately following the original action. It does not deal with limitations on the number of times the matter can be reconsidered. There is a matter of reconsideration before you now and you will have to take a vote. There is nothing in the Government Code on this and we do not follow the Roberts Rules of Order." Mr. Carlson moved to make finding that there is a current and immediate threat to the public health, safety and welfare, and that the cessation of uses nonconforming as to parking pursuant to Section 3.50.050 of the Los Gatos Zoning Ordinance. Mrs. Benjamin seconded. Mayor Ventura seconded. Motion carried by vote of three ayes. Mr. Hamilton abstained and Mr. Ferrito voting no. Mr.Carlson moved to waive the reading for AN URGENCY INTERIM ZONING ORDINANCE AMENDING ORDINANCE NO. 1682 EXTENDING THE DURATION OF NONCONFORMING STATUS AS LISTED IN SECTION 3.50.050 OF THE LOS GATOS ZONING ORDINANCE FOR USES THAT ARE NONCONFORMING AS TO PARKING. Mrs. Benjamin seconded. Carried by vote of three ayes. Mr. Hamilton abstained and Mr. Ferrito voting no. Town Clerk read title of Ordinance. Mr. Carlson moved for introduction of Ordinance. Mayor Ventura seconded. Motion fails on vote of three ayes. Mr. Ferrito voting no and Mr. Hamilton abstained. Mr. Carlson moved for reconsideration. Mayor Ventura seconded. Carried by vote of three ayes. Mr. Ferrito voting no and Mr. Hamilton abstained. Mayor Ventura directed the Town clerk to flip the coin again. Mr. Ferrito won the toss once again and the right to vote on this issue. Mr. Carlson moved the findings. Mrs. Benjamin seconded. Carried by a vote of three ayes. Mr. Ferrito voted no and Mr. Hamilton abstained. Mr. Carlson moved to waive the reading for AN URGENCY INTERIM ZONING ORDINANCE AMENDING ORDINANCE NO. 1682 EXTENDING THE DURATION OF NONCONFORMING STATUS AS LISTED IN SECTION 3.50.050 OF THE LOS GATOS ZONING ORDINANCE FOR USES THAT ARE NONCONFORMING AS TO PARKING. Mrs. Benjamin seconded. Carried by a vote of three ayes. Mr. Ferrito voted no and Mr. Hamilton abstained. Mayor Ventura directed Town Clerk to flip the coin once again. Mr. Hamilton won the toss and the right to vote on this issue. Mr. Carlson moved to make the findings as stated before. Mrs. Benjamin seconded. Carried by vote of four ayes. Mr. Ferrito abstained. Mr. Carlson moved to waive the reading of title of the Ordinance as stated before. Mrs. Benjamin seconded. Carried by vote of four ayes. Mr. Ferrito abstained. Clerk read title. Mr. Carlson moved for introduction of the Ordinance. Mrs. Benjamin seconded. Mr. Hamilton stated he could not support motion as he feels "the Town has used this long enough as a club and extended it for a year and I'd like to put us on the equal footing of the property owners and that is not to have the Ordinance over their head." Mr. Carlson and Mayor Ventura spoke on Mr. Hamilton's comments and urged his reconsideration. Mrs. Benjamin stated she agreed that there is a reason for supporting this and that is to continue to let people continue their business in a legal nonconforming manner. Mayor Ventura called for a vote and motion failed on a vote of three ayes. Mr. Ferrito abstained and Mr. Hamilton voted no. ADJOURNMENT Mr. Hamilton moved meeting be adjourned at 11:10 p.m.. Mrs. Benjamin seconded. Carried unanimously. ATTEST: Rose E. Aldag Town Clerk