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HomeMy WebLinkAboutMinutes 2013-08-28 (2)WEDNESDAY, AUGUST 28, 2013 7:00 P.M. CALL TO ORDER TIME: 7:01 p.m. ROLL CALL PRESENT: Councilmen Addiego, Garbarino and Gupta, Mayor Pro Tern Matsumoto and Mayor Gonzalez. ABSENT: None. PLEDGE OF ALLEGIANCE Led by Mayor Gonzalez. AGENDA REVIEW No changes. PUBLIC COMMENTS None. ITEMS FROM COUNCIL • Announcements. • Committee Reports. Councilmembers reported on attendance of community meetings and events, including: the open house of the new physical therapy room at Aiges Living, the Cultural Arts Commission Barbecue, the "Healthy Me" performance at Los Cerritos Elementary School, the 17th Annual Senior Picnic at Orange Park, the welcoming of foreign exchange students from sister city Kishiwada, Japan, and a Caltrain Modification meeting regarding positive train control and electrification. Announcements were made regarding the following items and upcoming events: Mayor Gonzalez noted the upcoming Las Fiestas Patrias on September 16, please prepare for street closure in front of City Hall; Mayor Pro Tem Matsumoto announced the upcoming Community Meeting regarding the Downtown Station Plan being would be held on September 17 at 6:30 pm in the Municipal Services Building, public input and feedback was requested. MINUTES CITY COUNCIL CITY OF SOUTH SAN FRANCISCO °R�rraRN�� REGULAR MEETING MUNICIPAL SERVICES BUILDING COUNCIL CHAMBERS 33 ARROYO DRIVE SOUTH SAN FRANCISCO, CA WEDNESDAY, AUGUST 28, 2013 7:00 P.M. CALL TO ORDER TIME: 7:01 p.m. ROLL CALL PRESENT: Councilmen Addiego, Garbarino and Gupta, Mayor Pro Tern Matsumoto and Mayor Gonzalez. ABSENT: None. PLEDGE OF ALLEGIANCE Led by Mayor Gonzalez. AGENDA REVIEW No changes. PUBLIC COMMENTS None. ITEMS FROM COUNCIL • Announcements. • Committee Reports. Councilmembers reported on attendance of community meetings and events, including: the open house of the new physical therapy room at Aiges Living, the Cultural Arts Commission Barbecue, the "Healthy Me" performance at Los Cerritos Elementary School, the 17th Annual Senior Picnic at Orange Park, the welcoming of foreign exchange students from sister city Kishiwada, Japan, and a Caltrain Modification meeting regarding positive train control and electrification. Announcements were made regarding the following items and upcoming events: Mayor Gonzalez noted the upcoming Las Fiestas Patrias on September 16, please prepare for street closure in front of City Hall; Mayor Pro Tem Matsumoto announced the upcoming Community Meeting regarding the Downtown Station Plan being would be held on September 17 at 6:30 pm in the Municipal Services Building, public input and feedback was requested. She also requested feedback on the new redistricting map options discussed during a previous Council Study Session held on August 21. Councilmember Garbarino noted the recent announcement that Amgen was to purchase Onyx Pharmaceuticals, adding their stated intention to remain is South San Francisco and hopefully to expand. Specific items for further action and/or consideration were set forth as follows: Councilmember Garbarino requested the meeting be adjourned in memory of Kathleen McCaffrey, sister -in -law of Library Boardmember Francisca Hansen. CONSENT CALENDAR 1. Motion to approve the Minutes of the Regular Meeting of August 14, 2013. 2. Motion confirming payment registers for August 28, 2013, 3. Waive reading and adopt an ordinance amending the South San Francisco Municipal Code Title 8, adding Chapter 8.63 related to Shopping Cart Removal, Impoundment, and Disposal. 4. Waive reading and adopt an ordinance amending Chapter 2.56.050 ( "MEETINGS ") of the South San Francisco Municipal Code to change the regular meeting time for the Planning Commission from 7:30 p.m. to 7:00 p.m. 5. Resolution awarding the construction contract to Gamma Builders of Irvine, California, for the City Hall Fountain Path and Grand Avenue Library Handicap Parking Project (Project No. pfl 404) in an amount not to exceed $115,203. Mayor Pro Tem Matsumoto pulled items 2 and 3. Motion - Councilmember Addiego /Second - Councilmember Gupta: to approve consent calendar items 1,4 and 5. Unanimously approved by voice vote. Item 2 - Referring to the payment made to Chandler and Associates, Mayor Pro Tem Matsumoto requested the timeframe of such payments be noted on future reports. Item 3 - Mayor Pro Tem Matsumoto wanted to know if due diligence was with proper notice given to impacted businesses. Public Works Management Analyst, Justin Lovell stated all effected businesses had been provided proper notice and as of this evening, there had been no response. Motion - Councilmember Addiego /Second - Councilmember Garbarino" to approve consent calendar items 2 and 3. Unanimously approved by voice vote. REGULAR CITY COUNCIL MEETING AUGUST 28, 2013 MINUTES PAGE 2 PUBLIC HEARING 6. Medical Clinic PENNA JOHN R TR/Owner PLANNED PARENTHOOD /Applicant 435 GRAND AVE P13 -0020: UP 13 -0004 Appeal of the Planning Commission's decision to approve a Use Permit allowing a 7,846 sq. ft. Medical Office /Clinic at 435 Grand Avenue in the Downtown Core (DC) Zoning District in accordance with SSFMC Chapters 20.100, 20.490, & 20.570. Senior Planner Catherine Barber presented the staff report detailing the project's plan and history. The staff report also provided response to each of the 14 Appeal issues presented by the appellant. Reasons for denial were presented as followed: project exempt under three distinct categorical exemptions under CEQA; proposed usage is consistent with the Zoning and General Plan; proposed use was not a noxious use and would not have an adverse impact on environment; history of applicant was not relevant as the use permit runs with land and cannot be specific to one user; parking issue was properly dealt with by the relevant decision making body; discussion regarding relevant evidence had taken place during the Planning Commission meeting and the Commission had properly complied with CEQA; with regards to protesting, the analysis cannot consider the reaction to proposed use and they are not under the scope of review for considering land use decisions for Use Permit or CEQA exemption; the proposed use as a clinic was not restricted based on proximity to schools, churches or libraries; regulation of this applicant is done at the state level; the City does not have the authority to regulate the specific legal services provided at a medical clinic; adequate noticing was completed for all proceedings; correspondence was collected and provided to all decision making bodies as well as made available for the public; public comment was taken at all meetings. Staff recommendation was that the City Council adopt a resolution determining that the Planning Application P13- 0020, including UPI 3 -0004, is categorically exempt from CEQA, denying the Appeal and upholding the Planning Commission Approval of application P13 -0020, including UP 13-0004, based on the attached Draft City Council Findings and subject to the attached Conditions of Approval as adopted by the Planning Commission. Prior to hearing from the appellant and applicant, Mayor Gonzalez allotted each five minutes to make their presentation. Public Hearing Opened at 7:34 p.m. Attorney for the Appellant, Gregory Weiler presented argument as to why Council should approve the appeal and reject the application of Planned Parenthood. Basis for the argument was stated as followed: it was the appellant's belief that the staff report was misleading; the intended use of the site would cause First Amendment activity that would present physical environment impacts in terms of traffic congestion, parking congestion, public safety hazards and detrimental effects upon adjacent property owners. It was also their belief that the use was not exempt under the California Environmental Quality Act ( "CEQA "), that the project was inconsistent with the Zoning and General Plan, that the parking variance granted by the Parking Place Commission was unlawful and that the Planning Commission's approval was based upon an unlawful admonition by the Planning Commission Chairperson and therefore unlawfully approved. Guadalupe Rodriguez and Julie Smith Reed, representatives for Planned Parenthood Mar Monte, presented slides providing a brief overview of the proposed clinic, the services to be offered and the reasoning behind choosing the location at 435 Grand Avenue, Ms. Rodriguez stated Mar REGULAR CITY COUNCIL MEETING AUGUST 28, 2013 MINUTES PAGE 3 Monte was the largest Planned Parenthood in the country and they existed peacefully in all their locations. In determining the location, the need of the community was examined through data from the San Mateo County Health survey that showed South San Francisco had the highest rate of uninsured in the county and the North County registered the second highest rate of "fair /poor" health care services. Data also showed that residents travel to San Francisco, San Mateo, and even as far as Mt. View in search of services. After looking at several locations, the Grand Avenue site was determined to be only one that met criteria for a successful site. Services provided at the site will include primary care, annual exams, contraception and family planning services, cancer screenings including pap smears and pelvic examinations, as well as clinical breast exams, sexually transmitted infection screening and treatment, HIV screening, male services, adolescent services and midlife services, pregnancy testing, options counseling and education. Once established, there would be the opportunity to provide pediatric care, prenatal care, medication abortion and colonoscopy services at the site. Based on staff findings, it was clear that there was no legal or factual reason to deny the application. It was their hope that Council would allow the Planned Parenthood Mar Monte to serve their residents. Mayor Gonzalez opened the public comment portion of the hearing. The following individuals spoke in favor of the appeal of the Planning Commission's decision and against the [use permit] for Planned Parenthood's operation at 435 Grand Avenue: Maria B. Long, Mary Braudley, Michael State, Argentina Sinclair, Luke Mulhall, Herbert Merida, Phyllis Larsen, Mike Dillon, Sandra Dillon, Tess Valido, Lita Songco, Leticia Noches (speaking on behalf of business owner Jose Ayar), Olga Romo (speaking on behalf of business owner Jose Acevedo), Alan Brooks, Patricia Sanchez, Rosa Gomez, John Valente, Jeanette Cook, Jaime Gonzalez, Steven Sanchez, Steven Arms, Joseph Richard, Prudencia Nelson, Jessica Munn, Collin Post, Fr. Agnel, Vera Priego, Laura Collins- Ibanez, Ross Foti, Lawrence Casey, Elena Alejandre, Dave Arms, Jeremy Perlas, Vivian Abellana, and Ms. Jehl. The following individuals spoke against the appeal of the Planning Commission's decision and in favor of the [use permit] for Planned Parenthood's operation at 435 Grand Avenue: Eva Grove, Karen Grove, Jane Beckman, Emily Thomas, Nadia Conrad, Brigid O'Farrell, Joan Gallo, Louise Loh, Terrie McDonald, France McGovern Penna, Rev. Frances Hall Kieshnick, Shaunn Cartwright, Kate MacKay, Rabbi Jonathan Prosnit, Linda Mattson, Ruth Weiller, Ellen Davis, Diane Gates, Nancy Fulton, Leslie Webster, Kalila Kirk, and Sandra Overton. In addition to stating positions for and against the appeal, the following individuals added specific commentary as follows: Angini Kumar, San Bruno resident and commercial real estate broker and investor, spoke from the perspective of her stated profession. Having dealt with customers all over the country as well as locally, she cautioned Council that allowing Planned Parenthood to become established in the downtown was not a way to attract further growth and development, as most businesses do not want to open next to a site that generates protest and elicits such strong reaction. If the presence of Planned Parenthood affects the bottom Iine because it steers customers and business owners away, then it becomes a material fact and must be disclosed when leasing in the area. The REGULAR CITY COUNCIL MEETING AUGUST 28, 2013 MINUTES PAGE 4 presence of Planned Parenthood would also create an additional burden for real estate professionals and may open them up for lawsuits. Furthermore, if the City approved of this business, it opened itself up to approve other businesses that are considered controversial. It was her professional opinion that approving Planned Parenthood did not make business sense and she personally would not purchase property in a city that approved of such a business. Supervisor Dave Pine spoke with some reservation due to the fact that this was indeed a local land use issue, but being such, it was clear there were no grounds for opposing a medical clinic that meets the City's codes and regulations. In addition, he wanted to come in support of Planned Parenthood and the critical services they provided. He respected the views of those who objected to abortion based on moral grounds, but it was important to remember that it is the law of the land and a constitutional right for women in this country to access reproductive health care including abortion. He was disheartened by the attacks on those rights across the country and hoped they would not become eroded in our community. As a land use issue, it was a simple question. As a moral issue, he hoped Council would stand with women and their legal right to access reproductive health services. Meeting Recessed: 9:42 p.m. Meeting Resumed: 9:48 p.m. Two final comments were taken in support of the appeal. Public Hearing closed at 9:52 pm Councilmember Garbarino requested City Attorney Mattas to explain the land use issues, what Council could and could not consider and all the consequences thereof. City Attorney Mattas briefly went over what the Council could consider as well as the standards that should apply during the discussion and deliberation. The appeal pertained solely to the Planning Commissions land use determination, so the standard of review must be the same standard that was used by the Planning Commission. Standards and considerations were presented as followed: Planned Parenthood's intended use is classified as a clinic use, which was permitted in the downtown core district upon approval of a conditional use permit. The City's determination is a quasi- adjudicative, not legislative act; meaning you apply the laws that exist now to the particular action, not write new laws. Therefore, the Council must determine if the facts according to this application support either the issuance or the denial of the use permit based on the standards. The Municipal Code lists seven findings that must be made in the affirmative to gain approval. The Planning Commission ultimately found they could be made and made those. The resolution contains all the required findings that would be necessary should the project be approved. If the appeal were upheld, Attorney Mattas recommended Council direct staff to prepare findings in support of denial. Council's decision should be restricted to these seven findings. The Council must weigh all of the relative evidence and base decision on the substantial evidence on the record related solely to the land use consideration of the use itself; is it consistent with zoning, are there impacts related to the use, such as impacts on parking, traffic, noise, dust, odors, etc. The seven use permit considerations are as followed: (1) the proposed use complies with the applicable ordinance and other titles of the South San Francisco Municipal Code; (2) the proposed use is consistent with the Downtown General plan; (3) the proposed use would not be adverse to the REGULAR CITY COUNCIL MEETING AUGUST 28, 2013 MINUTES PAGE 5 general health, safety and welfare of the community or detrimental to the surrounding properties or improvements. Here you are looking at the effect of the project, not the protests caused by the project. Comments on the impacts to adjoining businesses was something that could be considered; (4) the proposed use complies with the design or development standards applicable to the zoning district or (5) to the use in question as may be adopted by the City Council; (6) the site is physically suitable for the type density and intensity of the proposed use; and (7) determine that the environmental determination is compliant with CEQA. City Attorney Mattas stated it was his legal opinion that the application was consistent with the General Plan policies for the downtown commercial area and the use is consistent with the City's Zoning Code. Regarding CEQA, the project falls under three different exemptions. Staffs belief was the process under CEQA would be to determine if a project is exempt and if it was, was there an exception to the exemption. Proponents of the appeal argue the proposed use creates unusual circumstances that would take it out of a CEQA exemption. If it were to come out of CEQA exemption, it would go to an initial study, followed by an Environmental Impact Review ( "EIR "), and presumably a Negative Declaration. Attorney Mattas stated he saw no basis for an EIR. It was staffs position the project was exempt from CEQA. There is case law that makes it clear that exemptions are there for a purpose; to exempt projects where it is clear they will not have an effect on the environment. City Attorney Mattas went on to explain improper basis for a decision. The decision could not be denied based upon the permit applicant and conditional use permits run with the land. This issue was a land use issue, not a user issue and case law out of Burlingame holds this. The decision could not be based on reaction to the proposed use. Ultimately, consideration could be given in regards to the input of adjacent businesses, but the decision should be based on whether or not Council believed this type of use at this location was appropriate and consistent with the General Plan. and Zoning determinations. Mayor Gonzalez allowed the appellant and applicant a chance to address Council for an additional five minutes before moving on to discussion. Public Hearing Opened - 10;07 p.m. Attorney Greg Weiler restated the appellant's belief that the reasonably anticipated physical impact of the project must be considered and the First Amendment activity was a reasonably anticipated physical impact. He urged them to gather further information and argued that was the purpose of CEQA. The second thing was the General Plan finding with regards to the general health, safety and welfare was a discretionary finding strictly for Council's determination. In closing, Attorney Weiler argued this was a conditional use, not a permitted use and urged Council to send Planned Parenthood back to conduct further analysis allowing for a fully informed decision. Mary LaVigne Butler, General Counsel for Planned Parenthood Mar Monte, thanked the Mayor and Council for their time. She restated the applicant's position, arguing that they provide needed services to the community. She also noted Planned Parenthood belief in the First Amendment as well as the appellant's right to protest. But that opposition was not a valid consideration in terms of Planned Parenthood's use permit application. She further noted that Planned Parenthood was a good, contributing member of the community and asked Council to support their staff s careful findings and recommendations and deny the appeal. REGULAR CITY COUNCIL MEETING AUGUST 28, 2013 MINUTES PAGE 6 Public Hearing Closed - 10:10 p.m. Councilmember Addiego began by stating it was not possible to sit and listen to the passionate, brave and personal testimony that was given this evening and not be moved. He explained his conflict was that a vote to uphold the appeal would not end abortion in our community and noted another major provider located on El Camino Real who provided the same services but only for women who have health care. While his Catholic upbringing told him the taking of a life in any form was wrong, he wanted to gravitate towards the Judeo tradition where everyone follows their own moral compass. He could not stand in judgment of others. He respected those who came here based on religious convictions and those who have presented a measured response. If we uphold the appeal we remove any additional health services from people who need them, whatever they are. It would be wrong of him to let that go. His lengthy time here has given provided him with the understanding of the government process, the rights of free speech and property rights; no matter how conflicted, his vote would have to be based on the land use issue. Councilmember Gupta thanked all who came. He found it heartening and encouraging that he saw this level of community involvement. He hoped future involvement would be there and bring forth more dialogue on other issues. In terms of this issue, his personal feelings and the requirements need to be separated. He believed that many things in life give us our own convictions and we live as a harmonious society mostly because of laws that exist at every level, though not all are equally viewed by all. Tonight his vote would be based on law. With what had been provided to him, he had reached these conclusions and believed that: the use permit should not be based on identity of applicant because it runs with the land; his personal support of or opposition to Planned Parenthood was irrelevant, and political or philosophical disagreements should not enter into the discussion; in terms of CEQA exemption, the project was exempt and CEQA required us to look at the impact of the project, not the reactions of a third party to the project; the parking determination was decided by the Parking Place Commission and not in front of Council; the criteria of the conditional use permit had been met. While he was touched by the testimony on both sides, he understood there was a need in this community and it was his belief that this particular project responded to those needs. His vote would be to support the project and deny the appeal. City Attorney Mattas stated for the record the Parking Place Commission did not grant the variances as it had been determined that the amount of parking spaces available was adequate. That decision was not appealed. The issue of traffic was also looked at and in considering the approximate number of employees (12) and the estimated number of patients (40 to 100 per day) it was determined there would be no significant impact. Councilman Garbarino noted this decision as being a very difficult one for him to make personally to the extent that he visited his confessor, who had in turn advised him to adhere to the oath he had taken to uphold the law of the land. Some of the laws were good and some were not, but the option to pick and choose those to uphold and follow was not afforded to him. Although he had strong personal views he could not stand in judgment of people who make choices. They did not have to answer to him or others, and need only to answer to their creator. It was not his job to judge those who seek the services of Planned Parenthood and he would not. While he appreciated all of the input and views expressed, he had to do what he was sworn to do. REGULAR CITY COUNCIL MEETING AUGUST 28, 2013 MINUTES PAGE 7 Mayor Pro Tem Matsumoto also felt the decision was an extremely difficult one. While she supported Planned Parenthood and welcomed them to South San Francisco, she did not support the location of the clinic on Grand Avenue. Her vision for Grand Avenue has never supported medical clinics of any type and her votes have consistently reflected that vision. With nine clinics already in the area, her fear was setting precedence. For that reason alone, she would uphold the appeal. Mayor Gonzalez agreed with Councilmembers Addiego's sentiment regarding the amount of time and consideration that went into this item. He thanked those who had attended and spoken from their hearts. While he understood the importance of the services that Planned Parenthood offered, he could not look past the incidents that have occurred and would occur due to their presence, noting they would not be occurring had this been a clinic intended for any other use. He also noted his vision for Grand Avenue was similar to that of the Mayor Pro Tem's and did not include clinics as one of the main businesses established for the renovation of the downtown. Under CEQA a categorical exemption is not subject to environmental review and the existence of a public controversy does not call for an EIR but this type of clinic has a record causing disruption and division. Furthermore, he believed there should be some respect paid to the distance between the clinic and schools, libraries and churches. It was his opinion that more information was needed regarding the environmental impact, and for that reason he would uphold the appeal. Motion - Mayor Gonzalez/Second - Mayor Pro Tem Matsumoto: to uphold appeal and direct staff to come back with findings supporting the appeal. AYES: Mayor Pro Tem Matsumoto and Mayor Gonzalez. NOES: Councilmembers Addiego, Garbarino and Gupta. ABSENT: None. ABSTAIN: None. Motion failed. Motion - Councilmember Addiego /Second - Councilmember Gupta: to approve Resolution No. 87 -2013. Approved by the following vote: AYES: Councilmembers Addiego, Garbarino and Gupta. NOES: Mayor Pro Tem Matsumoto and Mayor Gonzalez. ABSENT: None. ABSTAIN: None. COMMUNITY FORUM None. ADJOURNMENT Being no further business, Mayor Gonzalez adjourned the meeting at 10:38 p.m. in honor of Kathleen McCaffrey. Submitted: Anna M. Brown Deputy City Clerk, City of South San Francisco REGULAR CITY COUNCIL MEETING MINUTES Approved: Pedro Gonzalez Mayor, City of South San Francisco AUGUST 28, 2413 PAGE 8