The City Council of the City of Sunnyvale adjourned from a 5:30 p.m. Closed Session pertaining to: Conference with Legal Counsel, Existing Litigation. Government Code Section 54865.9(a), Thompson-Pacific Construction Inc. v. City of Sunnyvale, Appellate Case No. H029818 and Conference With Legal Counsel - Anticipated Litigation.  Government Code Section 54956.9, Significant Exposure to Litigation, 1 potential case and a 6:00 p.m. Special Study Session pertaining to: Update of Fiscal Sub-Element and met in Regular Session in the City Council Chambers, 456 West Olive Avenue, Sunnyvale, California at 7:00 p.m., with Mayor Swegles presiding.

PRESENT:

Mayor Ron Swegles

Vice Mayor Otto Lee

Councilmember John Howe

Councilmember Dean J. Chu

Councilmember Melinda Hamilton

Councilmember Anthony Spitaleri

Councilmember Christopher Moylan

ABSENT:

None

STAFF PRESENT:

Amy Chan, City Manager

David Kahn, City Attorney

Robert Paternoster, Director of Community Development

Elaine Wesely, Finance Manage – Purchasing

Curtis Black, Superintendent of Parks

Connie Verceles, Senior Management Analyst

Tim Kirby, Revenue Systems Supervisor

Marvin Rose, Director of Public Works

Christy Gunvalsen, Neighborhood Preservation Manager

Trudi Ryan, Planning Officer

Mark Bowers, Solid Waste Program Manager

Katherine Bradshaw Chappelear, City Clerk

Vice Mayor Lee reported that the City Council met this evening in Closed Session related to: Conference with Legal Counsel, Existing litigation. Government Code Section 54865.9(a), Thompson-Pacific Construction Inc. v. City of Sunnyvale, Appellate Case No. H029818 and Conference With Legal Counsel - Anticipated Litigation.  Government Code Section 54956.9, Significant Exposure to Litigation, 1 potential case

Vice Mayor Lee reported that direction was given, but no action was taken on both items.

1.A.

Approval of Draft Minutes of Regular Meeting of June 13, 2006

Councilmember Howe pulled this item in order to abstain from voting since he was not in attendance at the meeting.

MOTION:  Councilmember Moylan moved and Councilmember Hamilton seconded to approve Item 1.A.

VOTE: 6-0 (Councilmember Howe abstained)

1.B.

Approval of Draft Minutes of Special Meeting of June 20, 2006

1.C.

Approval of Draft Minutes of Special Meeting of June 27, 2006

1.D.

Approval of Information/Action Items – Council Directions to Staff

1.E

RTC 06-235

List of Claims and Bills Approved for Payment by the City Manager (List Nos. 304, 305, 306 and 307)

Staff Recommendation:  Council reviews list of bills.

1.F

Transmittal of Golf Course Maintenance Operations and Golf Shop Services (Program 645) Performance Results Audit for FY 2004/2005TITLE)

Staff Recommendation: Alternative No.1 – Council receives the audit report and concurs with management’s acceptance of recommendations.

1.G.

RESOLUTION

Implementation of Salary Survey: Amendment to the Salary Resolution to reflect the new pay ranges for the Senior Programmer Analyst and related job classifications

Staff Recommendation: Alternative No. 1: Council adopts a resolution to amend the Salary Resolution to reflect the new pay rates for Senior Programmer Analyst and related job classifications and approves Budget Modification No. 2.

1.H.

RESOLUTION

RTC 06-238

Development of Job Classifications for Finance and Human Resources Departments: Principal Buyer, Budget Analyst I/II, Senior Human Resources Analyst, and assignment of the Senior Accounting Technician to Pay Plan G (Confidential Employees)

Vice Mayor Lee pulled this item because he wished to inform the public that a revised Exhibit A to Attachment B (last page of the staff report) was submitted to Council. The listed pay grade 17 for Budget Analyst 1 and pay grade 18 for Budget Analyst 11 were revised to pay grade 16 and 17 respectively.

Mayor Swegles opened the Public Hearing.  No one wished to speak and Mayor Swegles closed the Public Hearing.

MOTION:  Vice Mayor Lee moved and Councilmember Howe seconded to approve Alternative No.1: Council approves all recommendations contained in the report related to proposed classification as amended.

VOTE: 7-0.

1.I.

RESOLUTION

Adoption of Resolution to Authorize the Director of Human Resources to Receive Criminal History Information for New Employees/Volunteers

Staff Recommendation:  Alternative No. 1: Council adopts Resolution authorizing the Director of Human Resources, or designee, to access summary criminal history information for employment/placement purposes for all prospective employees, volunteers and independent contractors.

1.J.

RTC 06-221

Award of Bid No. F0504-74 to Replace the Waterproofing and Carpet on an Elevated Deck at the Sunnyvale Golf Course

Elaine Wesely, Finance Manager – Purchasing, and Curtis Black, Superintendent of Parks, stated they were available to answer questions.

Councilmember Hamilton asked about condition of the carpet.  Superintendent Black stated the carpet is acceptable, but will be destroyed in repairing the roof deck and membrane.  He stated the City is obligated to replace the carpet since staff damaged the carpet in assessing location of water leaks.

MOTION:  Councilmember Hamilton moved and Councilmember Howe seconded to:

1. Award a contract, in substantially the same form as the attached draft and in the amount of $60,000, to Louis and Riparetti, Inc., to replace the waterproofing and carpet on an elevated deck at the Sunnyvale Golf Course;
2. Approve a project contingency in the amount of $12,000.

VOTE:  7-0

1.K.

RTC 06-236

Agreement between the City of Sunnyvale and Silicon Valley Leadership (formerly Leadership Sunnyvale) to provide Leadership Sunnyvale Training Program

Staff Recommendation: Alternative No. 1: Council approves the two-year SVL Agreement, depicted by Attachment A, to provide leadership training, via the Leadership Sunnyvale Program, to the Sunnyvale community and authorizes the City Manager to enter into said Agreement dated retroactively to July 1, 2006.

Mayor Swegles opened Public Announcements.  No one wished to speak and Mayor Swegles closed Public Announcements.

2.

RESOLUTION

RTC 06-229
(htm)

Approval to Levy and Collect Assessment for Downtown Parking Maintenance District for Fiscal Year 2006/2007 and 2007/2008 and Approval of the Final Engineer’s Report

Connie Verceles, Senior Management Analyst, presented the staff report.  She stated ballots were mailed to property owners and ballots are to be tallied at tonight’s meeting with final Council action to occur.  She stated Council shall first open the Public Hearing in order to receive any ballots that were not mailed, and the City Clerk will notify Council if any protests were filed.  The public portion of the hearing will then close and staff will report the results of the ballot tally.

Mayor Swegles opened the Public Hearing at 7:37 p.m.  Mayor Swegles called for submittal of any ballots that were not mailed - none were submitted.  City Clerk Chappelear noted that there were no protests received or filed by the Office of the City Clerk.  Mayor Swegles closed the Public Hearing at 7:38 p.m.

Analyst Verceles announced the Assessment passed with a vote of 64.46% in favor and 35.54 against.

MOTION: Councilmember Howe moved and Vice Mayor Lee seconded to approve Alternative No. 1: Council adopts Resolution to levy and collect assessment for the Downtown Parking Maintenance District for FY 2006/2007 and 2007/2008; approves Final Engineer’s Report; and directs staff to instruct the engineer to forward assessment to the County for inclusion on the property tax rolls.

VOTE:  7-0.

3.

RESOLUTION

RTC 06-225

Collection of Wastewater Charges for Property Outside the City on the Fiscal Year 2006/2007 Property Tax Roll

Tim Kirby, Revenue Systems Supervisor, presented the staff report.

Councilmember Moylan asked if it is in the City’s interest to provide service for this area as opposed to having a private connection.  Director Rose stated the service provided is a source of revenue; however, there are long-term obligations for maintenance of aging infrastructure, which makes providing this service more of a liability than an asset.  He stated staff continues to monitor the market and meets on occasion with the surrounding cities related to a possible sale of the property.  Currently there is not a demand for the area.

Mayor Swegles opened the Public Hearing at 7:42 p.m.  No one wished to speak and Mayor Swegles closed the Public Hearing at 7:43 p.m.

MOTION: Councilmember Howe moved and Councilmember Spitaleri seconded to approve Alternative No. 1: Council adopts the resolution approving the proposed assessments:

with the understanding that this area pays the same rates as the City of Sunnyvale.

VOTE: 7-0.

4.

Public Hearing to Cause Charges for Non-Payment of Utility Services and Non-Payment for the Cost of Abatement of Public Nuisances to be Placed on the FY 2006/2007 Tax Roll

Tim Kirby, Revenue Systems Supervisor, presented the staff report.

Councilmember Hamilton asked what action staff takes to collect payment prior to   assessing fees.  Staff stated for utilities, customers receive a bill, reminder notice, repeated direct notices (including a final demand letter from the City Attorney’s office), and hand-delivered notices as a final collection attempt. 

Christy Gunvalsen, Neighborhood Preservation Manager, stated staff notifies property owners numerous times and issues citations before proceeding with the abatement process.  Abatement is the last resort to clean up a property.  Supervisor Kirby stated once the property is abated, the noticing process is the same as for utilities; therefore, notices and demand letters are sent as first steps.

Vice Mayor Lee verified that one property listed on the Delinquent Utility Account attachment in the staff report (580 Madrone) had been paid and should be removed from the list.

Councilmember Moylan inquired about the procedure for nuisance abatements appeals and Manager Gunvalsen stated there is an Abatement Officer who hears the testimony of the property owner and reviews the staff report.  Robert Paternoster, Director of Community Development, added that there is not an appeal for the cost of the abatement once it is done, but there is an opportunity for explanation and additional time may be granted as an effort to remedy the situation.

Mayor Swegles opened the Public Hearing at 7:52 p.m. 

Milena Malikova and Eman Malikova spoke against the City’s process for abatement and spoke in favor of owner’s rights regarding their property.

Jill Lopez spoke in favor of the City’s abatement process and stated her concerns with the Malikova’s yard overgrowth since she is the back neighbor.  Councilmember Moylan asked Ms. Lopez if the work the City had done helped the situation and she stated that the City addressed the front yard, but not the back yard.

Tina Cardinali and Betty Cardinali stated their concerns with issues being created by the overgrown yard and associated problems. She stated her parents (who live next door to the Malikova’s) are not able to trim their bushes with out harassment from the Malikova’s.  Councilmember Howe verified that her parents are attempting to trim bushes and trees in their own yard.

No one else wished to speak and Mayor Swegles closed the Public Hearing at
8:07 p.m.

MOTION: Councilmember Howe moved and Councilmember Chu seconded to approve Alternative No. 1: Council adopts the attached resolution causing charges for non-payment of utility services and non-payment for the cost of abatement of public nuisances to be placed on the FY 2006/2007 tax roll:

with the exception of 204-27- 018 (580 Madrone Avenue), since full payment was received after the report was prepared.

Councilmember Moylan asked who owned the property at 1063 Hudson Way since  the speakers were not listed on the report as the owners.  Manager Gunvalsen verified that Ms. Malikovich owns the property with her husband James Critz. 

Councilmember Spitaleri asked what type of records are kept on abatements.  Manager Gunvalsen stated within the notice to abate, it specifically states what is needed to comply and what will be done if they do not comply (specifically by the contractor) in addtion to photographs after the property is abated.  Councilmember Spitaeri verified that the contractor is given speific instructions for the abatement, a staff person is present on the property at the time of the abatement, and staff insures that that only the work identified in the abatement notice is completed.

VOTE: 7-0.

5.

2006-0357 BARK Kennel & Boarding (Applicant) August M. Hagemann, Jr. and Linda J. Hagemann Trustee [Owners]:  Appeal of a decision by the Planning Commission approving a Use Permit on a 32,300 square-foot site to allow long-term boarding and daycare services for up to 335 dogs and 50 cats and including ancillary retail services. Property located at 170 North Wolfe Road (near Central Expressway) in M-S (Industrial & Service) Zoning District.  (Negative Declaration)

Trudi Ryan, Planning Officer, presented the staff report.

Mayor Swegles opened the Public Hearing at 8:16 p.m. 

The appellant, Thomas Haverstock, (property and business owner next to the applicant), stated his concerns over the approval of this use.  He stated this service is a non-conforming use as the business structure surrounding this area is professional services.  Councilmember Moylan asked what Mr. Haverstock meant by non-conforming use.  He stated it is zoned for light industrial and services and he does not believe that a boarding kennel meets the definition of a service.  Councilmember Moylan asked staff to verify the zoning regulations. 

Mr. Haverstock stated that the noise survey included with the staff report stated that it measured the ambient noise and the noise level and then subtracts the ambient noise level.  He stated the ambient noise level needs to be added back into the numbers in order to get the real noise level.

Walter Wilson and Jonathan Owens, business owners near the proposed animal boarding facility, stated concerns about noise, kennel waste/odor, and how these issues would be handled. 

Councilmember Moylan stated there are not many dog kennels in the City and asked Mr. Owens where the facility should locate.  Mr. Owens stated a heavy industrial area would be the best area for this type of facility.  He stated that the Planning Commission approved this project prior to PetsMart announcing the addition of two pet hotels in this area.

Joel Leineke, applicant for the permit, spoke in favor of this use.  He stated the facility is an upscale boarding facility.  Councilmember Howe asked if there were a way to eliminate the outside waste odors, and Mr. Leineke stated this was an inside facility. 

Councilmember Howe verified with staff that the reduced noise level only applies when adjacent to residentially zoned property and does not affect this property.

Councilmember Moylan verified that dog waste would be placed in dumpsters at the back of the property. 

Councilmember Moylan asked Mr. Leineke why he selected this location and he stated they looked for size of facility, close proximity to an airport, and convenience for large residential areas. 

Councilmember Hamilton asked what other services will be offered.  Mr. Leineke stated they will offer dog day care, grooming, and a retail space.  Councilmember Hamilton verified that the dog day care usage is less than 10% of their total business, and that requests for dog walking in the evening is 10 to 15%.

Vice Mayor Lee asked how Mr. Leineke would correct the odor and/or noise issue if the businesses surrounding his facility were to complain.  Mr. Leineke explained the facility is equipped with sound proofing and additional sound panels could be hung from the ceiling to provide additional sound absorption if needed.  Mr. Leineke stated in response to possible odor complaints there are filters available which can extract odors or they could increase their garbage service pickups if needed.

Vice Mayor Lee verified that there will be staff present at this facility, seven days a week, twenty-four hours a day, who will be available to respond to customer and/or neighbor concerns.

Jeff Duke, real estate broker for the owner of the building, spoke in favor of the Use Permit and stated the building has been vacant for nine months. He stated the neighbors on either side of the proposed location are a metal furniture store and an auto body shop.  Both of these uses create odor and noise. 

Mary Wimmer, real estate broker for Mr. Lieneke, stated they started the permit process a year ago, addressed the issues, and are in favor of the approval of the Use Permit.

Officer Ryan stated that two sound measures cannot be added together and further explained the report.  She stated the 30 decibels sound difference was caused by the opening and closing of the roll-up doors, and that the decibels listed in the report would have been lower if the doors had been closed.

No one else wished to speak and Mayor Swegles closed the Public Hearing at
8:55 p.m.

Councilmember Hamilton stated a previous speaker mentioned that the ideal place for a boarding facility would be in a heavy industrial area along train tracks and she asked if the City had heavy industrial areas.  Officer Ryan stated the City does have some general industrial areas along the railroad tracks, but they are also near residential areas.

Councilmember Howe asked if staff would recommend adding to the conditions of approval that should odors emanate from this site, the Director of Community Development can require additional trash pick ups, and/or policing of the outside yard.  Officer Ryan stated she agreed and would add it under Condition A as:  plan subject to periodic review and update if there is demonstrated nuisance associated with odor.

Councilmember Chu asked how the proposed area (and surrounding area) for this facility compares to the Mountain View and San Jose Airport PetSmart Hotel locations and their surrounding areas.  Staff did not have information regarding the other locations.

MOTION: Councilmember Howe moved and Councilmember Spitaleri seconded to approve Alternative No.1: Uphold the decision of the Planning Commission by Adopting the Negative Declaration and approving the Use Permit with attached conditions

with additional conditions including:

amendment to the Recycling and Solid Waste Disposal Plan to state that the plan is subject to periodic review and update if it is demonstrated that there is a nuisance associated with odor; and a requirement of the applicant to provide a 24/7 contact for adjacent businesses to resolve problems.

VOTE: 6-1 (Vice Mayor Lee dissented).

6.

Sunnyvale Bicycle Plan Update – Study Issue

As noted at the beginning of the meeting, Council took action to defer this item to the Council meeting of August 8, 2006

7.

Appeal of a decision of the Planning Commission for an application for a Variance on a 6,211 square-foot site from Sunnyvale Municipal Code Section 19.34.040 to allow a six-foot setback where nine feet is required.  Property located at 734 Ashbourne Drive (near E. Fremont Avenue) in R-O (Low-Density Residential) Zoning District

Trudi Ryan, Planning Officer, presented the staff report.

Mayor Swegles opened the Public Hearing at 9:10 p.m.

Lorraine Guerrera Maciejowsk, appellant, presented the reasons for her appeal and the need to have American Disabilities Act (ADA) compliance in her home due to an elderly parent living in the home.  Ms. Maciejowsk stated they need to add a bedroom and bathroom large enough for wheelchair turn-around.

Jerome Galli, attorney for the appellant, presented support for the appeal.  He stated that ADA requirements apply to the zoning code.

Councilmember Hamilton asked the appellant if alternative plans were considered.  Ms. Maciejowsk stated they did consider other plans, but for one reason or another they would not work.

Mayor Swegles stated the Planning Commission supported adding on to the back of the house and asked why this would not be an option.  Ms. Maciejowsk stated it would be a more expensive project and the addition would be 87-square feet smaller than the proposed project, which would not allow for the wheel chair turn-around.

No one else wished to speak and Mayor Swegles closed the Public Hearing at 9:28 p.m.

Vice Mayor Lee asked how the ADA requirement affects City code.  David Kahn, City Attorney, noted that the ADA compliance issue was not raised by the appellant at the first Planning Commission meeting for this application, but it was raised at subsequent meetings.  City Attorney Kahn explained that ADA is a federal law and one of the requirements of the ADA is reasonable accommodation.  He stated that ADA reasonable accommodation can require adjustments to a zoning code (if the zoning code does not allow for reasonable use of the property for someone who qualifies under the ADA).  ADA reasonable accommodation does not require a Variance if there are other reasonable alternatives available that would not cause an undue hardship.  Vice Mayor Lee verified that a Variance is permanent for that property.

Councilmember Howe stated he is aware of a Variance that was granted for the addition of a second kitchen to a property, and at the time of sale, removal of the kitchen would be required.  City Attorney Kahn stated that a second kitchen does not require a foundation and structure to be built; rather it was added within an existing structure.  He stated that granting a Variance would be permanent in this case. 

Councilmember Spitaleri confirmed that staff’s recommendation is based on the belief that there are other ADA design alternatives available that do not require a Variance and in staff’s opinion these alternatives would not create a hardship any different than when other property owners add a bathroom. 

Amy Chan, City Manager, stated the Planning Commission understood the flexibility of their decision as they were told by the Assistant City Attorney that they can take ADA into consideration if they found that reasonable accommodation was needed.  Staff findings were that there are other plan alternatives and they have not been able to make the finding that reasonable accommodation is needed.  Council would need to identify if the alternatives would cause undue hardship and if so, they may want to support the ADA law and grant the Variance.

City Attorney Kahn stated when this was brought before the Planning Commission for a Variance, the emphasis was not on the ADA compliance or reasonable accommodation; it was based on property issues.  Therefore, the issue before Council is whether there are other alternative configurations that would effectively accomplish the same result.  He stated it would be important for Council to clarify the cost of any alternatives before making their decision.  When considering if alternatives would create undue hardships, Council should look at the overall value of the project, the cost of the project, and what percentage of that project the addition would cost.

Councilmember Chu confirmed that an alternative design incorporating the size of the room and bathroom as listed on the original plan could be designed without affecting the set back.

Vice Mayor Lee asked that the Public Hearing be reopened so that he may ask the applicant what the difference in cost would be for the alternative.

Mayor Swegles reopened the Public Hearing.

Mr. Maciejowsk stated they do not have bids from contractors because they do not have definite construction plans.  The costs submitted were for plumbing work only.   Mayor Swegles confirmed that the cost for plumbing work to enlarge the house at the back (as an alternative that would comply with current zoning) would be an additional $1,500. 

Mayor Swegles confirmed that the appellant is requesting a bedroom and a bathroom and that without a Variance; they believe a bathroom is all that they would be able to add to the house.

Officer Ryan requested a recess in order to confer with the appellant.

MOTION: Councilmember Chu moved and Councilmember Howe seconded to reconsider this item immediately after Item No. 8 to allow time for the applicant to confer with staff to clarify cost estimates.

VOTE: 7-0

8.