Mayor Fowler led the salute to the flag.

Mayor Fowler, assisted by Chief Ernie Bakin, presented a Certificate of Appreciation to Public Safety Officer Fabian Monge for his achievement as one of the top arresting officers of drunk drivers with 33 DUI arrests during 2001.

*Pending Council Approval

Lieutenant Dick Bloom, assisted by Chief Ernie Bakin, Department of Public Safety, announced October is Domestic Violence Awareness Month. Lieutenant Bloom reviewed the October Press Conferences and Walk to End Domestic Violence. He noted the various committees and partnering agencies the City works with. He further reviewed the domestic violence statistics for Sunnyvale highlighting there were no domestic violence related deaths this year. He outlined the City training programs, which include DPS in Service, Support Network for Battered Women, and Middle School training.

Yolanda Risch, Public Safety Volunteer, thanked the Council, the City Manager, the Assistant City Manager, and the Department of Public Safety staff, for participating in the annual DPS pancake breakfast on Saturday.

Vice Mayor Miller made the following announcements on behalf of the Council:

The Council met in closed session regarding salary negotiations for the City Manager and City Attorney. No action was taken but direction was given.

Next Monday, October 21, at 7:00 p.m. in the Council Chambers, there will be a Public Hearing on the San Francisco expansion of the Ferry Service for the Bay including the Water Transit Authority Environmental Impact Report.

Councilmember Walker announced that the Draft Environmental Impact Report (EIR) comment period began today for the Moffett Park Area.

In response to Councilmember Walker’s inquiry about the availability of the Draft EIR, Robert Paternoster, Director of Community Development, stated the draft EIR is available today for Public comment. He further stated there are copies at the Library and at the One Stop Center, with copies available for purchase. Director Paternoster stated the Draft EIR would be available on the City website within two weeks.

In response to Vice Mayor Miller’s inquiry, regarding when the Water Transit Authority EIR will be available, Marvin Rose, Director of Public Works, stated the documents are available on-line. He stated the Operations Plan is available at the Library and the One Stop Center.

SCHEDULED PRESENATION: Santa Clara County Registrar of Voters Office –

Electronic Voting Systems

Alma Rosas, Santa Clara County Registrar of Voters Legislative/Media Coordinator, gave a brief overview of the Direct Record Electronic (DRE) Voting System and the "simulated" elections. Ms. Rosas stated there will be two DRE stations for the November 5^th election in Sunnyvale: Precinct 4023, located at Washington Park, 840 W. Washington Avenue, and Precinct 4010, located at Orchard Garden Park, Recreation Room, 328 Garner Drive. She further stated scheduled demonstrations of the DRE will take place at the Farmers Market on October 19^th, from 10:00 a.m. to 1:00 p.m., and the Sunnyvale Library on October 16^th from 3:00 p.m. to 8:00 p.m. and October 20th from 1:00 p.m. to 5:00 p.m. Ms. Rosa’s stated they expect to have full implementation by the March 2004 elections.

There were no announcements.

Motion by Vice Mayor Miller, and seconded by Councilmember Howe, for approval of the Consent Calendar. The motion carried unanimously

Valerie Armento, City Attorney, presented the staff report. She reported the Office of the City Attorney obtained information from the Department of Public Safety, local law enforcement agencies, the Town of Los Gatos, and the Cities of Mountain View, Palo Alto, Milpitas, San Jose and Santa Clara, as well as a wide array of sources listed in the Staff Report. Ms. Armento stated the report reviews current DPS practices in the area of citizen complaints including the four main types of citizen complaint review procedures. She focused on the 17 recommendations for improving the citizen complaint process.

Councilmember Vorreiter expressed concern with the Early Warning System approach of trying to identify Public Safety Officers as problematic rather than Public Safety Officers that are experiencing problems.

Ms. Armento responded there is an Employee Assistance Program (EAP) which an individual can voluntarily take advantage of, and employees are encouraged to participate in this program. Chief Bakin stated they have a process for critical incident stress management and training for peer officers and supervisors to recognize the signs of stress.

Ms. Armento clarified that the Early Warning System is not punitive, but a system to try and identify problems up front. She further stated the Review Board is not an appeal process, but rather an investigation with recommendations to the Chief, who makes the final decision.

Mayor Fowler opened the Public Hearing at 8:25 p.m. and, there being no public comments, closed the Public Hearing.

In response to Councilmember Risch’s inquiry about legal ramifications of filing a complaint, Ms. Armento stated some citizens are hesitant to come forward and suggested an outreach to facilitate accepting complaints. She further clarified the differences between filing a complaint and investigating a complaint.

Councilmember Vorreiter moved, and Councilmember Howe seconded, to approve alternatives one through seven with revision to 1.B. to read "Revise the process so that citizens may file complaints at other than DPS headquarters and possibly with non-sworn individuals, but only within the confines of City Government", and 1.E. to read "Set general timelines of every 30 days for notification to complainants and to officers about the progress of the investigation."

Councilmember Walker offered a friendly amendment to change the general timelines to notify the officer within 30 days of the initial interview about the progress of the investigation. The amendment was accepted.

1. Direct that the Department of Public Safety take the following steps no later than December 31, 2002 to improve the existing citizen complaint process:

Revise the Citizen Inquiry Report form to delete the citation to Penal Code Section 148.6(b) since it has been declared void by more than one court and make other modifications to the form to make it more user friendly.

Revise the process so that citizens may file complaints at other than DPS headquarters and possibly with non-sworn individuals, but only within the confines of City Government.

Revise the possible findings so there is a finding of "No Finding," as is used by other local agencies. Consideration may also be given to a policy/procedure finding such as is used in Palo Alto.

Establish/clarify/articulate a separate track for complaints that deal with overall procedure or policy rather than specific behaviors of an individual officer.

Set general timelines of every 30 days for notification to complainants and notify the officer within 30 days of the initial interview about the progress of the investigation.

Revise the final notification letters to complainants, consistent with legal limitations, so that complainants receive some sort of explanation for the reasons for the decision.

Revise the existing Citizen's Guide to Making Complaints, Inquiries and Commendation to reflect changes to the process, such as the new toll free contact number, and revisions noted in 1A though 1F.

Produce the Citizen's Guide brochure in appropriate languages and see that it is widely distributed throughout the community.

Keep more detailed records of the nature and type of complaints, the time it takes to investigate complaints, personnel involved and the conclusions reached so a more concerted effort can be made to correlate complaints with litigation.

2. Direct that the Department of Public Safety proceed with the community outreach activities outlined in the August 2, 2002 memo, Attachment 7, and report back to the Council on the measures taken no later than June 30, 2003.
3. Direct that the Department of Public Safety and the Public Safety Officers Association meet and confer no later than March 31, 2003 over the following matters in an effort to improve the citizen complaint process:

Revise the standard used for determining whether a citizen complaint should be sustained from the criminal standard of "beyond a reasonable doubt" to one of the civil standards, either "preponderance of the evidence" or "clear and convincing evidence."

Consider implementation of an early warning (EW) system for identifying Public Safety employees whose behavior is problematic.

Developing more detailed performance standards and specific unacceptable conduct descriptions rather than relying upon the phrase "conduct unbecoming" for problem behaviors.

Consider the use of feedback surveys to collect data from both officers and complainants.

4. Direct that the Department of Public Safety revise the Department General Orders Manual (DGOM) as appropriate in a timely manner to reflect the changes implemented pursuant to Council directives related to this Report.
5. Direct that the Department of Public Safety create any additional informational materials which may be warranted as a result of the directives related to this Report, especially recognizing that the DGOM is primarily an internal rather than citizen-oriented document.
6. Direct consideration of establishing an internal Board of Review (such as exists in Mountain View), for evaluation of citizen complaint investigations and discussion of the appropriate Department response.
7. Do not proceed with the establishment of a form of civilian oversight at this time.

The motion carried unanimously.

Gerri Caruso, Principal Planner, presented the staff report. She gave a brief report on the Heritage Preservation Commission activities and Study Issues highlighting the October 2, 2002 Heritage Preservation Commission Public Hearing. The Commission voted 6-0 to approve the designated sites. She stated that, based on the criteria used for evaluation for landmark designation, staff does not recommend local landmark designation status for 161 and 167 No. Sunnyvale Avenue.

Jane Shoemaker, Chair of the Heritage Preservation Commission, reported that the Commission approved the two sites as historical landmarks. She stated they both have architectural significance to Sunnyvale's history.

Mayor Fowler inquired why 161 No. Sunnyvale Avenue was not recommended, being the former residence of Mr. Arthur Bessey.

Ms. Shoemaker responded that alterations have been made to the house and the property no longer qualifies for landmark status. She noted that the property is on the Sunnyvale Historic Resources listing with recognition of the property’s importance.

Mayor Fowler opened the Public Hearing at 8:45 p.m.

Stan Hendricks, a member of the public, directed comments to the Council in support of the landmark status of the property located at 505 South Murphy Avenue.

Mayor Fowler closed the Public Hearing at 8: 47 p.m.

Vice Mayor Miller moved, and Councilmember Walker seconded, to adopt the two resolutions approving local landmark designations for 901 Sunnyvale-Saratoga Road (Stowell House) and 505 S. Murphy Avenue, and deny local landmark designation for 161 and167 No. Sunnyvale Avenue. The motion carried unanimously.

RESOLUTION NO. 185-02: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SUNNYVALE DESIGNATING THE STRUCTURE LOCATED AT 901 SUNNYVALE/SARATOGA ROAD (THE STOWELL HOUSE), SUNNYVALE, CALIFORNIA, AS A LOCAL LANDMARK PURSUANT TO SECTION 19.96.060 OF THE SUNNYVALE MUNICIPAL CODE

RESOLUTION NO. 186-02: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SUNNYVALE DESIGNATING THE STRUCTURE LOCATED AT 505 S. MURPHY AVENUE, SUNNYVALE, CALIFORNIA, AS A LOCAL LANDMARK PURSUANT TO SECTION 19.96.060 OF THE SUNNYVALE MUNICIPAL CODE

Gerri Caruso, Principal Planner, assisted by Ryan Kuchenig, Assistant Planner, presented the staff report. She reviewed the history of the property, the zoning ordinances for the area, and the motions for a use permit for medical office use. She further reviewed and the three variances to allow a one to two foot landscape buffer along the south property line, an 8.5 foot stall width for two parking spaces, and a second driveway. She stated the site is a Heritage Resource Property and has functioned for a long time as a live/work space. She further reviewed the previous alternations and use of the property stating this plan would retain the current structure and preserves the mature trees on the site. Staff is recommending one change to the plan by striking condition number 8.A., which would require an employee to live on the site. Ms. Caruso stated that the applicant has submitted a revised floor plan that indicates a reduction from 948 square feet to 798 square feet for floor area devoted to the proposed office. Therefore, there is no longer a need for an employee to live on site to manage the combined use.

Councilmember Walker made inquires regarding the traffic, parking, fence upgrade and hours of operation.

Ms. Caruso stated the number of people using the site would not have significant impact on traffic. She further stated the hours of operation are 9:00 a.m. to 6:00 p.m., Monday through Saturday.

Vice Mayor Miller raised several concerns relating to the shed in the back, zoning, tree removal from the driveway, and intrusion on the neighborhood.

Ms. Caruso responded there is a shed in the back and the addition to the house serves as a workshop. She stated the zoning allows for dual use, subject to a use permit, since this street is not part of the Heritage Housing District. She further stated she was not aware of the one tree that was removed, but would follow up and respond to Vice Mayor Miller.

Vice Mayor Miller asked if staff would consider changing the Saturday hours of operation and if there is a way to regulate how often people use the site.

Ms. Caruso responded that staff would be open to changing the hours but would have to consult with the property owner, and that regulating use of the site would be difficult. She stated that because of the limited parking she would not expect there to be more than two cars on the site at the same time.

Vice Mayor Miller inquired about the replacement of the wooden fence and would like to add a condition of approval for a masonry wall.

Ms. Caruso stated the adjacent property owner has not been consulted about replacing the fence.

Councilmember Walker inquired about the trash receptacle, and if there is a change in the use of the property, could the Use Permit be revoked.

Ms. Caruso responded the trash receptacle would be the standard toter, and if the property usage changed, there would be a review of the Use Permit.

In response to Councilmember Walker’s inquiry, regarding the parking on the north side of the property and driveway upgrade, Ms. Caruso stated it could be added as a condition of approval.

Mayor Fowler opened the Public Hearing at 9:15 p.m.

Tsai-feng Wu, applicant, accompanied by the project architect David Perng, stated the property has existed as a dual use property for the last 25 years in an area where most of the properties are commercial use. She stated she intends to make a change in use of this property, not the structure. She emphasized this is going to be a small business.

There was further discussion on the number of patients, length of appointments, exterior changes, fence repairs/driveway repairs, and potential growth of the business. Ms. Wu stated if the business grows, she will move to another location but currently foresees a maximum of 10 patients a day. She further stated there are no plans to change the exterior except replacing the windows.

Charles Wallin, a member of the public, stated his concerns of the potential loss of trees, hours of operation, traffic noise and pollution, and business legitimacy. He requested there be no office hours on Saturday and the Monday to Friday hours changed to 9:30 a.m. to 5:00 p.m.

Don Moulds, a member of the public, expressed his concern with the variances to allow a 1-2 foot buffer along the south property line, and allow for a second driveway adjacent to the public right-of-way. He expressed safety concerns about a 20 foot vertical pipe and a City streetlight immediately adjacent to the proposed second driveway. He stated he is especially concerned about the back parking lot that is adjacent to his back fence.

John Heine, a member of the public, clarified that the pole is probably a flagpole. The driveway on the north side is original, is all one slab and is in good shape. He is not aware of any trees being cut down. He further stated the street currently has residential businesses and does not see a large impact on the neighborhood from the proposed new business.

Stan Hendricks, a member of the public, stated he would prefer for the clients to park on the property and not on the street. He expressed concern that there may be hazardous garbage.

Ms. Wu, applicant, stated there are no hazardous materials and the garbage volume will be small.

Mayor Fowler closed the Public Hearing at 10:05 p.m.

Councilmember Walker moved, and Councilmember Vorreiter seconded, to approve the use permit and the variances subject to the recommended conditions of approval with the added condition that a firm barrier be placed in the north driveway to prevent driving through an existing glass wall.

Councilmember Vorreiter offered a friendly amendment that there be no requirement for an employee to live on the premises. The amendment was accepted.

Vice Mayor Miller offered a friendly amendment that Condition 3C specify the three existing trees be retained, that the applicant is responsible for having the metal pole in the front removed, change the hours of operation on Saturday from a 6:00 p.m. closure to a 5:00 p.m. closure, and that Condition 6 state "Repair or replace the existing fence along the north and south property line with a 6 foot high wooden fence." The amendment was accepted.

The motion carried unanimously.

Michael Chan, Senior Administrator/Property Manager, presented the staff report. Mr. Chan gave a brief overview of the property details and stated the purchase of this property is considered to be essential in providing additional space for Corporation Yard operations.

Councilmember Risch asked for clarification on contamination for Phase I and Phase II, if staff will report back to Council on findings, and what is the procedure if there are hazardous conditions.

Mr. Chan responded there is a clause in the agreement for a 30-day discovery period during which the City can determine if there are any hazardous conditions on site. If hazardous conditions exist, the City could back out and staff would inform Council.

Mayor Fowler opened the Public Hearing at 10:22 p.m. and, there being no public comments, closed the Public Hearing.

Councilmember Risch moved, and Councilmember Howe seconded, to approve the Resolution for the purchase of 239 Commercial Street, approved a loan from the General Fund to the Water Supply and Distribution Fund to be paid back at 6% over 25 years, and approved Budget Modification No. 8. The motion carried unanimously.

RESOLUTION NO. 187-02: A RESOLUTION OF THE COUNCIL OF THE CITY OF SUNNYVALE AUTHORIZING THE CITY MANAGER ON BEHALF OF THE CITY OF SUNNYVALE TO EXECUTE ALL DOCUMENTS AND ACCEPT DEEDS AND GRANTS WITH RESPECT TO THE PURCHASE OF CERTAIN REAL PROPERTY LOCATED AT 239 COMMERCIAL STREET IN THE CITY OF SUNNYVALE

Thomas Mayer, a member of the public, stated there needs to be bike lane clean up on Persian Drive, Waddell Drive, and the bicycle/pedestrian bridge over Hwy 101 adjacent to Fair Oaks.

Councilmember Risch reported he had met with the Friends of Sunnyvale and stated they had a question regarding the Downtown Urban Design Plan with respect to EIR and selection of alternatives that will be analyzed. He asked when these will be available and how they are being determined, and if they will be brought back to Council or included in a Study Session.

Robert Paternoster, Director of Community Development, responded they have set up a meeting with the Friends of Sunnyvale and an EIR consultant. Their intent is to respond to environmental concerns raised by the Council, and take into consideration the concerns of the Friends of Sunnyvale. He further stated they do not plan to come back to Council, but would if requested.

Councilmember Risch requested that the item come back as an Information Item once the review is complete.

Councilmember Risch stated the Bicycle and Pedestrian Committee and the Planning Commission have expressed interest in participating in the Valley Transportation Authority Best Practices Study. He would like both Commissions to be involved in the study.

Mayor Fowler stated that the job descriptions for the Director of Public Works and the Assistant Director of Public Works remain as they are.

Councilmember Risch thanked the staff for the report on the downtown smoking issues and the maintenance work that is being done, especially in the parking areas and sidewalks.

Vice Mayor Miller stated she would like to see the City tree lights turned on earlier and requested that Director Rose review the timing.

There were no comments.

Mayor Fred Fowler declared the meeting adjourned at 10:35 p.m.

Respectfully submitted:
Susan Kitchens, City Clerk