MINUTES OF THE CITY COUNCIL

 

 

SAN JOSÉ, CALIFORNIA                                                   TUESDAY, SEPTEMBER 16, 2003

 

 

The Council of the City of San José convened in Regular Session at 9:30 a.m. in Council Chambers at City Hall.

 

Present: Council Members     -        Campos, Chavez, Chirco, Cortese, Dando, Gregory, LeZotte, Reed, Williams, Yeager; Gonzales.

 

Absent: Council Members     -        None.

 

Upon motion unanimously adopted, the City Council recessed to Closed Session at 9:37 a.m. in Room 600 to (A) confer with Legal Counsel with respect to existing litigation pursuant to Government Code Section 54956.9 subsection (a) to consider the cases of (1) Evans v. All Persons Interested, et al. (2) Alejandro v. City of San José, et al. (3) Paulides v. City of San José, et al. (4) Armstead v. City of San José; (B) to confer with Legal Counsel with respect to anticipated litigation in (2) matters where there is initiation of litigation pursuant to subsection (c) of Section 54956.9 of the Government Code; (C) to confer with Legal Counsel for consultation involving the San José Police Department Police Chief with respect to the threat to Public Services or Facilities.

 

By unanimous consent, Council reconvened from Closed Session and recessed at 11:25 a.m. and reconvened at 1:37 p.m. in Council Chambers, City Hall.

 

Present: Council Members     -        Campos, Chavez, Chirco, Cortese, Dando, Gregory, LeZotte, Reed, Williams, Yeager; Gonzales.

 

Absent: Council Members     -        None.

 

 

Invocation

 

            Reverend Eduardo Samaniego, Pastor, Most Holy Trinity Parish recited an inspirational prayer of light, life, peace and forgiveness for everyone. (District 8)

 

 

Pledge of Allegiance

 

Mayor Gonzales led the Pledge of Allegiance.

 

 

Orders of the Day

 

Upon motion by Vice Mayor Dando, and seconded by Council Member Chavez, and carried unanimously, the Orders of the Day, and the Amended Agenda were approved. Vote: 11-0-0-0.

 

 

CEREMONIAL ITEMS

 

1.1       Presentation of a commendation to the MACSA Youth Center Eagle Warrior Athletics 19 and Under, 16 and Under, 14 and Under, 12 and Under, 12 and Under Girls, and 10 and Under Futsal Teams. Each of these teams placed at least third, including some National Championships at the 2003 National Futsal Championships in Anaheim, CA. (Campos)

 

Documents Filed: None.

           

Discussion/Action: Item 1.1 was deferred to October 7, 2003.

 

1.5       Presentation of a commendation to Las Madres Neighborhood Playgroups, Inc. for providing fifty years of support to thousands of San Jose families by offering all caregivers an opportunity to come together and share the common joys and concerns of parenting children. (Chavez)

            (Orders of the Day)

           

Documents Filed: None.

           

Discussion/Action: Mayor Gonzales was joined at the podium by Council Member Chavez to recognize the Las Madres Neighborhood Playgroups, Inc., which was established in 1953. Mayor Gonzales presented a commendation to the President, Stacy Schilperoort, and the Board Members, Astrid Tromp, Edwina Disylvestre, Jaqueline Price, and Carolyn Bauer, recognizing their efforts to provide an educational and supportive organization in order to achieve the original goal of helping parents raise their children to become people who can conduct their lives with strength, dignity and humanity.

 

 

CONSENT CALENDAR

 

Upon motion by Vice Mayor Dando, seconded by Council Member Chavez and carried unanimously, the Consent Calendar was approved and the below listed actions were taken as indicated. Vote: 11-0-0-0.

 

2.1       Approval of City Council Minutes for:

 

            (a)        Regular meeting of April 1, 2003

                        [Deferred from 9/9/03 – Item 2.1(c)]

                       

Documents Filed: Minutes of the regular meeting of April 1, 2003.

 

Discussion/Action: The Minutes of April 1, 2003 were approved. Vote: 11-0-0-0.

 

2.2       Final adoption of ordinances:

 

            (a)        ORD. NO. 26968 – Rezones certain real property situated at the south side of Trade Zone Boulevard approximately 840 feet westerly of North Capitol Avenue (2440 Trade Zone Boulevard) to A(PD) Planned Development Zoning District. PDC 03-025

                       

Documents Filed: Proof of Publication of the title of Ordinance No. 26968 executed on September 9, 2003, submitted by the City Clerk.

           

Discussion/Action: Ordinance No. 26968 was adopted. Vote: 11-0-0-0.

 

            (b)        ORD. NO. 26969 – Rezones certain real property situated on the east side of Flickinger Avenue, approximately 600 feet southerly of Hostetter Road, to A(PD) Planned Development Zoning District. PDC 03-038

                       

Documents Filed: Proof of Publication of the title of Ordinance No. 26969 executed on September 9, 2003, submitted by the City Clerk.

           

Discussion/Action: Ordinance No. 26969 was adopted. Vote: 11-0-0-0.

 

            (c)        ORD. NO. 26970 - Rezones certain real property situated on the west side of South 1st Street, approximately 60 feet southeasterly of Union Street, to CP Commercial Pedestrian Zoning District. C 03-041

                       

Documents Filed: Proof of Publication of the title of Ordinance No. 26970 executed on September 9, 2003, submitted by the City Clerk.

           

Discussion/Action: Ordinance No. 26970 was adopted. Vote: 11-0-0-0.

 

            (d)        ORD. NO. 26971 - Rezones certain real property situated on the southwest corner of Gold Street and Guadalupe River in Alviso to A(PD) Planned Development Zoning District. PDC 03-007

                       

Documents Filed: Proof of Publication of the title of Ordinance No. 26971 executed on September 9, 2003, submitted by the City Clerk.

           

Discussion/Action: Ordinance No. 26971 was adopted. Vote: 11-0-0-0.

 

2.2       (Cont’d.)

 

            (e)        ORD. NO. 26972 - Rezones certain real property situated on the east side of South 1st Street, approximately 150 feet northerly of Virginia Street (780 S. First Street), to CP Commercial Pedestrian Zoning District. C 03-039

                       

Documents Filed: Proof of Publication of the title of Ordinance No. 26972 executed on September 9, 2003, submitted by the City Clerk.

           

Discussion/Action: Ordinance No. 26972 was adopted. Vote: 11-0-0-0.

 

            (f)        ORD. NO. 26973 - Rezones certain real property situated on the west side of South 24th Street, approximately 210 feet northerly of San Antonio Street (175 S. 27th Street), to R-2 Two Family Residence Zoning District. C 03-049

                       

Documents Filed: Proof of Publication of the title of Ordinance No. 26973 executed on September 9, 2003, submitted by the City Clerk.

           

Discussion/Action: Ordinance No. 26973 was adopted. Vote: 11-0-0-0.

 

            (g)        ORD. NO. 26974 - Rezones certain real property situated on the northeast corner of Winfield Boulevard and Blossom Hill Road. C 03-062

                       

Documents Filed: Proof of Publication of the title of Ordinance No. 26974 executed on September 9, 2003, submitted by the City Clerk.

           

Discussion/Action: Ordinance No. 26974 was adopted. Vote: 11-0-0-0.

 

2.3       Adoption of resolutions to:

            (a)        Establish parking rates, charges, and fees at Norman Y. Mineta San José International Airport and repealing Resolution No. 71000.

            (b)        Establish Airport Identification Media rates, charges, and fees at Norman Y. Mineta San José International Airport.

            CEQA: Resolutions Nos. 76380 and 71451, PP03-08-255. (Airport)

           

Documents Filed: Memorandum from Direction of Aviation Ralph Tonseth, dated August 21, 2003, recommending adoption of said resolutions.

           

Discussion/Action: Resolution No. 71745, entitled: “A Resolution of the Council of the City of San José Establishing Parking Rates, Charges and Fees at the Norman Y. Mineta San José International Airport and Repealing Resolution No. 71000”; and Resolution No. 71746, entitled: “A Resolution of the Council of the City of San José Establishing Access Control Badge Fees, Rates and Charges at the Norman Y. Mineta San José International Airport”, were adopted. Vote: 11-0-0-0.

 

2.4       Adoption of a resolution amending the 2003-2004 Schedule of Fees and Charges to make the Fire Department fee schedule consistent with the Building permit fee schedule. CEQA: Not a Project. (City Manager’s Office)

 

Documents Filed: Memorandum from Budget Director Larry Lisenbee, dated August 12, 2003, recommending adoption of said resolution.

           

Discussion/Action: Resolution No. 71747, entitled: “A Resolution of the Council of the City of San José Amending Resolution No. 71603 to Establish Fees in the Fire Department for Expedited Inspection Services, Certain Plan Reviews, and Special Tenant Improvements”, was adopted. Vote: 11-0-0-0.

 

2.5       (a)        Approval of Contract Change Order No. 5 with Rushford Construction, Incorporated for the construction project entitled “San José/Santa Clara Water Pollution Control Plant, FY 1997/1998 Capital Improvement Program, Railcar Platforms and Cover Project,” in an amount of $70,017, for a total contract amount of $379,089, and retroactively extending the term of the contract from December 15, 2001 through February 21, 2004.

            (b)        Approval of an increase in the construction contingency in the amount of $45,000, increasing the total contingency from $132,000 to $177,000.

            CEQA: Negative Declaration, PP01-03-054. (Environmental Services)

 

Documents Filed: (1) Memorandum from Director of Environmental Services Carl Mosher, dated August 25, 2003, recommending approval of Contract Change Order No. 5 with Rushford Construction, for the San José/Santa Clara Water Pollution Control Plant, FY 1997/1998 Capital Improvement Program, Railcar Platforms and Cover Project; and approval of an increase in total construction contingency in the amount of $45,000. (2) Letter from the Treatment Plant Advisory Committee, dated September 11, 2003, stating concurrence with the Staff recommendation.

           

Discussion/Action: The Contract Change Order No. 5 with Rushford Construction, with related contingency increase, for the San José/Santa Clara Water Pollution Control Plant, FY 1997/1998 Capital Improvement Program, Railcar Platforms and Cover Project was approved and its execution authorized. Vote: 11-0-0-0.

 

2.6       Adoption of a resolution authorizing the reorganization of territory designated as Sunol No. 66, which involves the annexation to the City of San José of 0.34 acre of land, located on the east side of Meridian Way approximately 300 feet northerly of Pedro Street and generally bounded by the City of San José Annexations Sunol No. 49 and Sunol No. 21, and the detachment of the same from Sunol Sanitary, County Lighting Service, Central Fire Protection, and the County Library Service Area. CEQA: San José 2020 General Plan Environmental Impact Report, Resolution No. 65459. Council District 6. (Planning, Building and Code Enforcement)

 

Documents Filed: Memorandum from Director of Planning, Building and Code Enforcement Stephen Haase, dated August 25, 2003, recommending adoption of said resolution.

 

Discussion/Action: Resolution No. 71748, entitled: “A Resolution of the Council of the City of San José Ordering the Reorganization of Certain Uninhabited Territory Designated as Sunol No. 66 Subject to Liability for General Indebtedness of the City”, was adopted. Vote: 11-0-0-0.

 

2.7       Approval of appointments to the City of San José Housing Trust Fund Board.  (Mayor)

            (Deferred from 9/2/03 – Item 2.7 and 9/9/03 – Item 2.9)

 

Documents Filed: None.

 

Discussion/Action: Item 2.7 was deferred to September 30, 2003.

 

2.8       Acceptance of the Office of the City Auditor’s monthly Report of Activities and Findings through August 15, 2003. (City Auditor)

            (Rules Committee referral 9/10/03)

 

Documents Filed: Report of Activities and Findings through August 15, 2003, from the Office of the City Auditor.

           

Discussion/Action: The Report of Activities and Findings from the Office of the City Auditor was accepted. Vote: 11-0-0-0.

 

2.9       Approval of the grant of an easement over Reach 2 of Penitencia Creek Park Property (APN595-24-055 and/or 595-31-001) in favor of the Santa Clara Valley Water District for no compensation. CEQA: Exempt, PP-03-09-290. Council District 4. (Parks, Recreation and Neighborhood Services)

            (Rules Committee referral 9/10/03)

 

Documents Filed: Replacement memorandum from Director of Parks, Recreation and Neighborhood Services Sara Hensley, dated September 15, 2003, acknowledging the previously submitted memorandum did not contain the legal description associated with the proposed easement.

           

Discussion/Action: The grant of an easement over Reach 2 of Penitencia Creek Park Property in favor of the Santa Clara Valley Water District for no compensation was approved and its execution authorized. Vote: 11-0-0-0.

 

2.10     Approval of Mayor Gonzales' travel to Washington, D.C., September 20-25, 2003. (Mayor)

            (Orders of the Day)

 

Documents Filed: Memorandum from Mayor Gonzales, dated September 12, 2003, requesting travel approval to Washington D.C. on September 20-26, 2003.

           

 

2.10     (Cont’d.)

 

Discussion/Action: Mayor Gonzales’ travel to Washington D.C. on September 20-26, 2003, was approved.

 

END OF CONSENT CALENDAR

 

 

JOINT COUNCIL/REDEVELOPMENT AGENCY

 

The Redevelopment Agency Board convened at 1:45 p.m. to consider Item 10.1 in Joint Session.

 

10.1     Approval of recommendations related to policy changes and initiatives related to economic development and outcomes from the Getting Families Back to Work study sessions. (Mayor)

            (Rules Committee referral 9/10/03)

 

Documents Filed: (1) Memorandum from Mayor Gonzales, dated September 11, 2003, recommending approval of approval of the direction to the City Manager and the Redevelopment Director as outlined in this memorandum for taking concrete steps to transform the City’s role to help job creation and economic recovery in the timetable indicated. (2) Memorandum from Council Members Cortese, Chavez, Yeager, and Gregory, dated September 16, 2003, recommending approval of Item (2) listed below in discussion, and approval of the Item (1) listed below in the discussion, from the memorandum from Mayor Gonzales, dated September 11, 2003.

           

Discussion/Action: Mayor Gonzales remarked it was clear from the study sessions that the City needs to change the direction in order to continue to be the Capitol of Silicon Valley, to be in a position where the City of San José can claim to be the innovation capitol of the world, to improve unemployment, and to get the families back to work. He remarked that the message in his proposal is clear, stating business as usual is no longer the way business will be run at City Hall. He pointed out that the City should attract new and emerging industries, support small businesses and create a climate in San José where businesses want to operate, and where employees want to live and work. He stated bold actions must be taken that go beyond those that might be expected, and perhaps lead the State in responding to the economic crisis. He declared the City has some issues to work through, and the public input process will continue to be important and essential. He stated the City of San José has strong Council policies that require broad outreach, and those should continue, and public input should happen at the General Plan level. He stated in terms of Planned Development Zoning, it is clear the City Council must be part of the solution, and because too many applicants are forced into doing a Planned Development Zoning even though they comply with the current zoning and General Plan, the time for the City to micromanage these projects have come to an end.

 

            Mayor Gonzales called for public testimony. Speaking on the issues from the Getting Families Back to Work Study Sessions were Jaime Alvarado, Mayfair Improvement Initiative, Gurmukh Sohal, Melissa Hippard, Sierra Club-Loma Prieta Chapter, Phaedra Ellis-Lamkins, South Bay AFL-CIO Labor Council, Reverend Lindi Ramsden, Delores Lundie, ACORN, Fred Hirsch, Bob Brownstein, Craig Brown, Christopher Lge, SEIU 250 Health Care Workers, Darlene Wallach, Justice for Palestinians, Mike Fox, Jr., Jim Cunneen, Bob Kieub, San José Silicon Valley Chamber of Commerce, Ross Signorino, Pat Sausedo, NAIOP, Dennis Chiu, Henry Cord, Janis Schneider, San José Downtown Association, William Garbett, Neil Struthers, Building Trades Council, Ed Rast, Joan Doss, League of Women Voters, Kathy Thibodeaux, Tri-County Apartment Association, and Rick DiNapoli.

 

Vice Mayor Dando stated there are 46,000 people out of work, and businesses are choosing not to expand in San José or they are leaving for another state. She remarked that the public has been very bold in some of their comments and recommendations, and there are some issues that have come before Council in regard to Planned Development Zoning issues that should not have come before Council. Vice Mayor Dando stated support of Mayor Gonzales’ recommendations, and also requested Council to consider at a future time, issues that deal with additional housing being built in San José, and suggested the City study just the downtown core area, and perhaps for a period of time set aside certain fees. She stated in addition, the Small Business Commission has been working on presenting very specific recommendations to Council in two weeks, which they feel would benefit small businesses, and many are included in the Mayor’s recommendations. Vice Mayor Dando moved to accept Mayor Gonzales’ recommendations on Getting Families Back to Work, stating it is important for the City to move forward expeditiously, to be bold, and to realize along the way there will be adjustments and refinements. Council Member Reed seconded the motion.

 

Council Member Chavez declared she would not be supporting the motion, and moved the memorandum cosigned by Council Members Cortese, Yeager, Gregory and herself as a substitute motion. Council Member Cortese seconded the motion. Council Member Chavez remarked the proposal that she and her colleagues are recommending includes ideas that were not incorporated in the Mayor’s recommendations, and may in fact meet the needs of many of the specific issues that were heard at the study sessions. She stated a series of the recommendations Mayor Gonzales put forward in his memorandum would be approved, and requested Staff to return in one week on the analysis of the other items mentioned in the Mayor’s memorandum. She also requested an opportunity for everyone concerned to be able to bring before the Rules Committee tomorrow any additional ideas for analysis in order to return to the City Council in two weeks with details of the impacts. She remarked the public stated they wanted speed and predictability, and pointed out that the direction in the memorandum cosigned by her colleagues’ will meet the needs of the business community and the public.

 

Council Member Cortese moved approval for the Council to hear the substitute motion. Council Member Chavez seconded the motion. Mayor Gonzales asked for clarification of the substitute motion, and understands that this is an evolving process. He stated the recommendations in his memorandum consist of his best ideas. He stated one part of his and cosigner’s memorandum requests Staff to move forward with seven different items listed but on the remainder requesting those be held until Staff analysis is used to measure each one of those against the performance indicators, then Staff is to come back to Council on September 30, 2003. Council Member Chavez replied that is correct, and the reason for not requesting further action to be taken without analysis today and to return to Rules Committee tomorrow, is for Staff and the community to have an opportunity to review the recommendations before the item returns to Council.

 

Council Member Reed stated within eight weeks this memorandum recommends that the City simplify the approval of any permits or zoning applications that conform to the City’s General Plan, Staff will analyze that, and return to Council with recommendations. He stated the Mayor’s recommendation says the Council is out of the land use business, and perhaps the Mayor is not being bold enough, but what is important thing today is to move ahead, with the details to follow. He remarked what his colleagues have proposed causes a two-week delay, however Staff should be directed to begin this process, and that is why he is supportive of the Mayor’s memorandum.

 

Council Member Cortese clarified the seven items taken from the Mayor’s memorandum require no further policy analysis by Council and require action only of the City Manager and Staff, and there is nothing to preclude the City Manager from moving forward in the next two weeks. He remarked there are several issues that probably require clarification to obtain what the impact will be and how it fits the criteria, and in those cases there may not be changes requested by Council. He stated this memorandum is calling for a relatively short time period that allows for thoughtful dialogue to continue through the Rules Committee process with a subsequent Council Meeting on September 30, 2003.

 

Council Member Yeager remarked the intention of the memorandum is to speed the process along, and respond to what was heard from the community. He mentioned there is concern about the unemployment rate as well as how many office buildings are empty, and the City of San José should endeavor to fill those offices with people, recruit jobs in San José, and encourage the companies that are here to grow, and to keep them here after they have grown. He stated he understood the public’s concern about whether some of the hearings held on land use might be usurped and shares that concern. He stated this memorandum immediately approves several items, and in a very short period of time with the input from the community and the Council, final decisions can be made in two weeks.

 

Council Member Williams remarked that jobs are crucial to each family, and the Mayor and Council have made it a priority to protect the jobs of the employees in the City of San José. He stated the City of San José taking the initiative is a positive step, and the Mayor’s presentation of recommendations for Getting the Families Back to Work is broad, and raises some issues about land use. He remarked that land use is crucial and the basis for job creation. He stated support of the memorandum cosigned by Council Members Cortese, Chavez, Yeager, and Gregory.

 

Council Member Chirco remarked that the language in Mayor Gonzales’ memorandum has created more than one interpretation, and she would appreciate a better understanding of the implications of those recommendations. She stated she supports the memorandum cosigned by Council Members Cortese, Chavez, Yeager, and Gregory that Council, and that Staff should move quickly and positively.

 

Council Member Gregory stated this process would require changes and refinement. He clarified that the Mayor’s memorandum and the memorandum cosigned by him and colleagues are similar in terms of what should be accomplished, helping the residents of San José return to work, making a positive influence on the economy, and supporting the desire for businesses wanting to locate or relocate into San José, and in businesses that are here already having a desire to stay. He remarked it is clear based on what was heard today that there is further clarity which is necessary to articulate what changes the City of San José is recommending, however there are items that Staff can move forward on now.

 

Council Member LeZotte remarked as a small business attorney she understands the problems affecting small businesses, and is confident the City will be able to take the steps to achieve a goal of helping to make the local economy strong. She stated the solution set forth in memorandum cosigned by Council Members Cortese, Chavez, Yeager, and Gregory, approves measures that Staff can move forward with immediately. She expressed concern about the environmental, neighborhood, and the historic preservation communities, and suggested time is needed to address those issues adequately, but supports bringing this item back to Council in two weeks.

 

Council Member Campos remarked that the City of San José must make changes at City Hall in order to create an accessible environment for small, and large businesses. She stated it would be helpful to have clarification, and have time to review some of the items that Mayor Gonzales has addressed in his memorandum. She stated support for the memorandum cosigned by Council Members Cortese, Chavez, Yeager, and Gregory.

 

Council Member Chavez clarified the motion is to move forward with the items that are identified in Section 1 on the memorandum, which is also part of Mayor Gonzales’ memorandum, and Staff is requested to have a one week turnaround of a quick analysis on all of the other items. She stated issues that need clarification should be submitted to the Rules Committee tomorrow in order for Staff to analyze. She remarked a week long analysis is to ensure input from the community is received and examined prior to returning to Council in two weeks.

 

Council Member Cortese mentioned a typographic error in the memorandum on Page 2, Paragraph 3 that should state “the Rules Committee by 2:00 pm.”

 

Mayor Gonzales stated he characterizes these recommendations as a 90-degree turn, and will send a signal to the community that the City of San José is serious about changing, and are taking the next two weeks to very carefully analyze all the other issues. He requested that the Council Members ask the questions the public needs of his proposal, and the public should send questions directly to him and the City Clerk, and both will respond to those questions, which will be included in a report in two weeks. He stated it is important for the City of San José to respond in a united way, and urged his colleagues to vote for the substitute motion. On a call for the question, the motion carried unanimously, and the final action on Item 10.1 was deferred to the September 30, 2003 City Council Meeting, the memorandum from Council Members Cortese, Chavez, Yeager, and Gregory, dated September 16, 2003 was approved, with the correction on Page 2, Item 3, “Request that any additional comments, questions, inquiries or recommendations from either the City Council and/or City Staff be submitted to “the Rules Committee by 2:00 p.m.” on September 17, 2003. (1) The following items listed in the Mayor’s Getting Families Back to Work memorandum, dated September 11, 2003, were approved: (a) I-6. (A&B): Improve the convenience and accessibility of doing business with the City; (b) I-8: Create a local preference policy to support our local businesses; (c) I-9 (1): Promote San José aggressively as a great place to do business; (d) I-9 (2): Make San José a wired and wireless City (encourage Wi-Fi); (e) I-10: Strengthen our relationship with SJSU’s academic programs that produces employees for our driving industries; (f) I-12: Streamline the festival permit process; (g) III-2: Strengthen our relationships with regional universities. (2) This item to be placed on the September 30, 2003 City Council agenda for reconsideration and final action on all remaining items. Staff is directed to study the remaining items as recommended by the Mayor, using the criteria in his memorandum for analysis and provide them to the Rules Committee by September 24, 2003, including one additional criteria and definition in order to provide a complete assessment: (a) Impact: What will the result be for helping business create or located jobs in our City? Will this help get families back to work? (b) Practicability: Can we get it done? Is it something we can actually achieve within our authority and means in a timely way? (c) Cost: Do we have the funding and staff resources to accomplish it? Can we afford not to do this for the sake of our families, businesses, and economy now? (d) Urgency: Can we do it now, without slowing the proposal down with lengthy studies, task forces, or unwieldy process? As we heard during the study session, we must think of action in terms of weeks, not months. (e) Public process: What will the impact be on public comment and input? (3) Request that any additional comments, questions or inquiries from either the City Council and/or City Staff be submitted to the Mayor via email, with both the initial email and response copied to the City Clerk. Vote: 11-0-0-0.

 

            The Redevelopment Agency Board portion of the meeting adjourned at 3:30 p.m.

 

 

ENVIRONMENTAL & UTILITY SERVICES

 

7.3       Acceptance of the Second 2003 Status Report for the cooperative efforts between the City of San José and the Santa Clara Valley Water District. CEQA: Not a Project. (Environmental Services/Parks, Recreation and Neighborhood Services/Planning, Building and Code Enforcement/Public Works/Transportation)

 

Documents Filed: Memorandum from Director of Environmental Services Carl Mosher, Director of Parks, Recreation and Neighborhood Services Sara Hensley, Director of Planning, Building and Code Enforcement Stephen Haase, Director of Public Works Katy Allen, and Director of Transportation James Helmer, dated August 25, 2003, recommending acceptance of the Second 2003 Status Report for the cooperative efforts between the City of San José and the Santa Clara Valley Water District.

           

Discussion/Action: Director of Environmental Services Carl Mosher gave a short slide presentation overview of the South Bay Water Recycling Collaborative Effort. Council Member Williams referred to the listing of items for the recycled water quality studies, and asked if there had been any health studies. Director of Environmental Services Carl Mosher replied that would be addressed as part of the continued process in conjunction with the Santa Clara Valley Water District. Deputy Director Water Shed Protection of Environmental Services Randy Shipes pointed out that Staff has been collaborating with the University of Wisconsin, and will obtain access to the health issue information as it is being developed.

 

Council Member Reed expressed concern that the City of San José has spent so much money for this system, it has a great capacity to recycle, but the City is only selling about 10 million gallons of water a day. He asked if the collaborative has taken a look at the white paper that the Silicon Valley Pollution Prevention Center did on obstacles to the use of recycled water. Director Mosher replied that is a very important element of what Staff is studying, and presently the City is selling approximately 11 million gallons of recycled water from the system. He reported that shortly with the commissioning of the Metcalf Energy Center within a year, and the Santa Clara Treatment Plant, the City will be providing another 6 to 9 million gallons of water a day. He stated, in addition, the Santa Clara Valley Water District (SCVWD) is presently looking at applications of recycled water in other parts of the valley, with the next step gathering additional customers in collaboration with the SCVWD. Council Member Reed asked about the Pollution Prevention Center’s white paper on obstacles to use recycled water, and Deputy Director Shipes replied Staff has reviewed the white paper, which was written by the Pollution Prevention Center, and stated Staff agrees with many of the issues, and is currently working through those issues with SCVWD.

 

Council Member LeZotte stated on Page 7 of the Status Report, it mentions that the San Tomas Aquino Creek Trail project had some of its funding in jeopardy and spoke of identifying an alternate alignment because of creek erosion, and asked if this particular section is in District 1. She stated she is interested in the realignment and what it entails, and is thankful Staff was able to obtain an extension on the funding, and Deputy Director Reese replied Staff would research that issue and return with the information.

 

Council Member Yeager asked, in regard to the Status of the Joint Trails Agreement, how the two entities are collaborating. Rosemary Kamei, Director, Santa Clara Valley Water District replied that the Council and the Water District Board want to be able to open up the trails to the community for their usage, and are working well together. She remarked in regard to the recycled water quality, the Santa Clara Valley Water District plans to study the advance treatment of recycled water, is looking how to market this water, not just for irrigation purposes, but at other levels. She pointed out in regard to the Parks Trails and Open Space Partnership, Staff had $2 million of grants this year, and $800,000 went to the City of San José. She stated the Water Resource Protection Collaborative is an effort that would be beneficial in creating efficiencies, help to protect resources, and improve the quality of life. Upon motion by Vice Mayor Dando, seconded by Council Member Williams, and carried unanimously, the Second 2003 Status Report for the cooperative efforts between the City of San José and the Santa Clara Valley Water District was accepted. Vote: 11-0-0-0.

 

7.4       Adoption of a resolution of support for the Santa Clara Valley Water Resources Protection Collaborative. CEQA: Exempt, PP03-08-270. (Planning, Building and Code Enforcement/Environmental Services)

 

Documents Filed: Memorandum from Director of Environmental Services Carl Mosher, and Director of Planning, Building and Code Enforcement Stephen Haase, dated August 28, 2003, recommending adoption of said resolution.

           

Discussion/Action: See Item 7.3 for discussion. Upon motion by Vice Mayor Dando, seconded by Council Member Williams, and carried unanimously, Resolution No. 71749, entitled: “A Resolution of the Council of the City of San José in Support of the Santa Clara Valley Water Resources Protection Collaborative Memorandum of Consensus for Mutual Cooperation to Jointly Develop and Implement Water and Watershed Resources Protection Measures, Guidelines and Standards in Santa Clara County”, was adopted. Vote: 11-0-0-0.

 

 

STRATEGIC SUPPORT SERVICES

 

3.2       Report of the Rules Committee – September 3, 2003

            Vice Mayor Dando, Chair

 

Documents Filed: The Rules Committee Report dated September 3, 2003.

 

            (a)        Redevelopment Agency items reported out at Redevelopment Agency meeting

 

            (b)        City Council

                        (1)        Review September 16, 2003 Draft Agenda

 

                                    The Committee recommended approval of the September 16, 2003 City Council agenda with three additions.

3.2       Report of the Rules Committee – September 3, 2003 (Cont’d.)

            Vice Mayor Dando, Chair

 

            (b)        City Council (Cont’d.)

                        (2)        Add New Items to September 9, 2003 Amended Agenda

 

                                    The Committee recommended one addition to the September 9, 2003 City Council agenda.

·        Mayor and Council Member Requests

·        City Manager Requests

·        City Attorney Requests

·        City Clerk Requests

 

                        (3)        List of Reports Outstanding. Attachment: Report from the City Manager, dated September 2, 2003, transmitting reports for September 9, 2003.

 

                                    The Committee noted and filed the City Manager’s report listing four staff reports outstanding for the September 9, 2003 Council agenda.

 

            (c)        Legislative Update

 

                        (1)        State. Attachment: (1) Memorandum from Director Intergovernmental Relations Betsy Shotwell, dated August 29, 2003, recommending approval of the City positions on the October 2003 State Ballot Propositions. (2) Letter from Chair Robert Bailey, Human Rights Commission, dated August 27, 2003, recommending opposition to Proposition 54.

 

                                    (a)        Approve City positions on October 2003 State Ballot Propositions

 

                                    The Committee approved the recommended City positions for the two Statewide ballot propositions set for the October 7, 2003 Statewide Special Election Ballot:

 

                                    Proposition                                                       Recommended Position

 

                                                53        Funds dedicated for State                                 Support

                                                            and Local Infrastructure.

                                                            Legislative Constitutional

                                                            Amendment

 

                                                54        Classification by Race,                          Oppose

                                                            Ethnicity, Color or National

                                                            Origin. Initiative Constitutional

                                                            Amendment.

 

                        (2)        Federal

 

                                    There was no report.

3.2       Report of the Rules Committee – September 3, 2003 (Cont’d.)

            Vice Mayor Dando, Chair

 

            (d)        Meeting Schedules

 

                        There were none.

 

            (e)        The Public Record. Attachment: Memorandum from City Clerk Patricia L. O’Hearn, dated August 28, 2003, transmitting items filed on the Public Record for the period of August 20-26, 2003.

 

                        The Committee noted and filed the Public Record.

 

            (f)         Appointment to Boards, Commissions and Committees

 

                        There were none.

 

            (g)        Rules Committee Reviews, Recommendations and Approvals. Attachment: (1) Memorandum from Council Member LeZotte requesting use of General Funds to attend League of California Cities 2003 Annual Conference, September 2-7, 2003. (2) Memorandum from City Clerk Patricia L. O’Hearn, dated August 29, 2001, submitting Council General Travel Budget.

                        (1)        Request from Council Member LeZotte to use Council General funds to attend League of California Cities 2003 Annual Conference, September 7-10, 2003, in Sacramento, CA

 

                                    The Committee recommended approval for Council Member LeZotte to use Council General Funds to attend the League of California Cities 2003 Annual Conference in Sacramento, California, September 7-10, 2003.

 

                        (2)        Approve Building Strong Neighborhoods Committee Workplan. Attachment: Memorandum from Mayor Gonzales, and Council Member Chavez, dated August 27, 2003, recommending approval of Building Strong Neighborhoods Committee Workplan for the period September 1, through December 31, 2003.

 

                        The Committee recommended approval of the Building Strong Neighborhoods Committee Workplan for the period of September 1, through December 31, 2003 and setting its meeting schedule on the third Monday of the month at 1:30 p.m. in Room 204.

 

            (h)        Oral communications

 

                        None were presented.

 

            (i)         Adjournment

 

                        The meeting was adjourned at 2:15 p.m.

 

Discussion/Action: Mayor Gonzales called for public testimony. Mayor Gonzales remarked that the recommendation to Council by Rules Committee is to oppose Proposition 54. Wendy Greenfield, Cheryl Platon, Cany Sanders, and Dennis Chiu deferred to speak on the issue of Proposition 54. Upon motion by Vice Mayor Dando, seconded by Council Member Chavez, and carried unanimously, the Report of the Rules Committee and the actions of September 3, 2003 were approved.

 

3.4       Vote and appointment of members to the San José Elections Commission (formerly Campaign Finance Review and Ethics Board). (City Clerk)

            (Continued from 5/27/03 – Item 3.4 et al., 9/9/03 – Item 3.4)

 

Documents Filed: None.

           

Discussion/Action: Applicants for the San José Elections Commission were interviewed by the City Council on September 2, and September 9, 2003. On the first ballot, Council appointed Thomas Mertens, incumbent, and Jesus Valencia, each to four-year terms ending March 1, 2007.

 

3.5       (a)        Approval of the second amendment to the Line of Credit Agreement with Hayes Renaissance, L.P. (HRLP), increasing the amount of advances available under the Line of Credit Agreement by $600,000, to a not to exceed amount of $3,600,000, with no extension of the term of the Line of Credit. 

            (b)        Adoption of the following appropriation ordinance amendments in the General Fund:

                        (1)        Decrease the General Fund Contingency Reserve by $600,000;

                        (2)        Establish a Transfer to the Community Facilities Revenue Fund in the amount of $600,000.

            (c)        Adoption of the following appropriation ordinance and funding sources resolution amendments in the Community Facilities Revenue Fund:

                        (1)        Establish a Transfer from Other Funds in the amount of $600,000.

                        (2)        Increase the Hayes Mansion Line of Credit appropriation by $600,000.

            CEQA: Not a Project. (Finance/City Manager’s Office)

            (Rules Committee referral 9/10/03)

 

Documents Filed: Memorandum from Director of Finance Scott Johnson, and Budget Director Larry Lisenbee, dated September 10, 2003, recommending adoption of second amendment to the Line of Credit Agreement with Hayes Renaissance L.P, and adoption of said ordinance amendments, and said appropriation ordinance and funding sources resolution amendments.

 

Discussion/Action: Mayor Gonzales called for public testimony. William Garbett spoke in opposition of the issue. Upon motion by Council Member Williams, seconded by Vice Mayor Dando, and carried unanimously, the second amendment to the Line of Credit Agreement with Hayes Renaissance, L.P. (HRLP), increasing the amount of advances available under the Line of Credit Agreement by $600,000, to a not to exceed amount of $3,600,000, with no extension of the term of the Line of Credit was approved; and Ordinance No. 26980, entitled: “An Ordinance of the City of San José Amending Ordinance No. 26916 to Appropriate Monies in the General Fund for the Community Facilities Revenue Fund; and Providing that this Ordinance Shall Become Effective Immediately Upon Adoption”; and Ordinance No. 26981, entitled: “An Ordinance of the City of San José Amending Ordinance No. 26916 to Appropriate Monies in the Community Facilities Revenue Fund for the Hayes Mansion Line of Credit; and Providing that this Ordinance Shall Become Effective Immediately Upon Adoption”; and Resolution No. 71750, entitled: “A Resolution of the Council of the City of San José Amending Resolution No. 71608 Setting Forth the Estimated Sources of Funds for the Fiscal Year 2003-2004 to Adjust Revenues in the Community Facilities Revenue Fund”, were adopted. Vote: 11-0-0-0.

 

3.6       Approval of various actions regarding the Silicon Valley Football Classic:

            (a)        Adoption of a resolution authorizing the City Manager to take the actions necessary to provide or guarantee a letter of credit on behalf of the Silicon Valley Football Classic in an amount not to exceed $1.5 million dollars.

            (b)        Adoption of related appropriation ordinance amendments.

            (City Manager’s Office)

            (Orders of the Day)

 

Documents Filed: Memorandum from City Manager Del Borgsdorf, dated September 16, 2003, recommending adoption of said resolution and related appropriation of said ordinance amendments.

           

Discussion/Action: Upon motion by Council Member Williams, seconded by Council Member Cortese, and carried unanimously, Ordinance No. 26982, entitled: “An Ordinance of the City of San José Amending Ordinance No. 26916 to Appropriate Monies in the General Fund for the Citywide Silicon Valley Bowl Classic Letter of Credit Guarantee; and Providing that this Ordinance Shall Become Effective Immediately Upon Adoption; and Resolution No. 71751, entitled: “A Resolution of the Council of the City of San José Authorizing the City Manager to Provide or Guarantee a Letter of Credit on Behalf of the Silicon Valley Football Classic in an Amount Not To Exceed $1,500,000”, were adopted. Vote: 10-0-1-0. Absent: Yeager.

 

 

ECONOMIC & NEIGHBORHOOD DEVELOPMENT

 

4.3       Discussion and direction to the Administration and the City Attorney’s Office regarding possible revision to the City’s current prohibition of the combined uses of gasoline service stations and the retail sale of food, grocery items, and alcoholic beverages contained at Section 20.80.550 of Title 20 of the San José Municipal Code.  (City Attorney’s Office)

            (Deferred from 6/17/03 – Item 4.9 et al., and 9/2/03 – Item 4.3)

 

Documents Filed: (1) Memorandum from Vice Mayor Dando, Council Members LeZotte and Williams, dated September 16, 2003, recommending the following action based on the information provided in the City Attorney’s memorandum dated June 12, 2003, direct the City Attorney and the Administration bring back to City Council within 90 days: (a) A draft ordinance amending Title 20.80.550 removing the prohibition on the concurrent sale of food and grocery items at gasoline service stations. (b) Recommendations for the appropriate zoning, land use designations and/or development standards for the concurrent retail sale of gasoline and grocery items. (c) Research of crime statistics and other public safety resources to identify nuisance activities related to the sale of alcohol at mini-marts and convenience stores. (d) A draft ordinance with minimum operational and development standards to address any nuisance activities that have been identified. (e) Establish a review schedule for the ordinance to ensure it is achieving its intended purpose. (2) Memoranda from City Attorney Richard Doyle, dated June 12, and August 14, 2003, transmitting the analysis regarding alcohol sales, generally and at gasoline station mini-marts. (3) Three letters from the public regarding the sale of alcohol at gasoline station mini-marts.

 

Discussion/Action: Council Member LeZotte moved approval of the memorandum that Vice Mayor Dando, Council Member Williams, and she cosigned. Council Member Williams seconded the motion. Council Member Chavez stated as to the City’s current situation relating to alcohol sales, what changes would a gas station have to make to their physical infrastructure for the sale of alcohol beverages and food. Director of Planning, Building and Code Enforcement Stephen Haase replied currently because there is no allowance for that type of use, Staff would fall back on existing commercial requirements or would craft new ones for certain types of uses. Council Member Chavez asked using existing criteria, what would gas station owners have to do if they wanted to be able to sell food and beverages. Director Haase replied Staff would review how to regulate a convenience store, look at parking and landscaping, and if a retail component was to be added to a gas station. Council Member Chavez asked what is the City’s current process as it relates to our Conditional Use Permit (CUP) activity if someone wanted to be able to sell alcohol, for example, at a convenience store. Director Haase replied for a straight grocery store wanting to sell alcohol, during the CUP process Staff would look at items such as over-concentration from the standpoint of crime or other permits that had been issued, and proximity to other uses in reference to issues by the City Attorney. Director Haase stated it is a public hearing process, there would be notice to the surrounding neighborhood based upon the City noticing rules of 300, 500, and 1,000 feet, and Staff would perform the review, schedule it for a public hearing, and also there may be community meeting on that depending on the Neighborhood Association or other interest prior to a public hearing.

 

Council Member Chavez asked if there is a problem with the CUP or alcohol sales is that handled through the Appeals Hearing Board. Deputy Director Planning, Building and Code Enforcement Joe Horwedel replied the City has several different means to enforce the CUP. He stated that the City uses the Appeals Hearing Board through code enforcement and a compliance order process, and also has the ability to revoke the permit through the Planning Commission process of the Notice of Noncompliance. He stated if an operator is not complying with the conditions of a CUP, Staff would issue a Notice of Noncompliance to the property owner stating what the violations are, and if the violations are not updated, Staff can go through the process through Order to Show Cause Process to actually take over the CUP. He stated there are several different tools depending upon the kinds of problem, whether operational or more systemic problems with the business itself to which tool is the one that best solves that problem in the most timely manner possible. Council Member Chavez stated from the time a serious complaint is received asked what is the average time Staff addresses and resolves that problem, and Deputy Director Horwedel replied through the Notice of Noncompliance process that is typically about 30 days, where Staff will look at what the issues are, pull the old permits, and validate and confirm what is being presented. He stated if Staff goes through the Code Enforcement process, a letter goes out to the property stating a complaint had been received and is being investigated.

 

Deputy Director Horwedel remarked it is a several month process to the Appeals Hearing Board, as Staff must go through the complaints order process where the operator has a certain length of time to reach compliance. He stated if compliance is not reached, Staff proceeds with a Notice of Noncompliance through the Planning Commission, which moves to the public hearing process within 60 to 90 days. Council Member Chavez asked if in general that involves the Planning Department, the City Attorney’s office and the Police Department. Deputy Director Horwedel replied that is correct, and Staff will coordinate between those departments to ensure comments are received from all of the different parts of the City that would be dealing with the community and that particular operator. Council Member Chavez asked if all CUPs are cited with the land, not the operator, and Deputy Director Horwedel replied that is correct, and it is recorded with the property, so if the operator changes or the property sells, it still runs with the land. Council Member Chavez asked if there is anything in the City’s current process that formally notices Neighborhood Associations and Council Offices, and Deputy Director Horwedel replied in regard to the public outreach policy, Staff does notify community associations about development, and is currently in the midst of reworking that policy with the Neighborhood Action Committee (NAC).

 

Based on the State law Council Member Chavez asked if the City has to use census track data to determine over-concentration and 20% crime issues, and Deputy Director Horwedel Joe replied the City does use census track data for over-concentration but for crime issues he would have to investigate the actual process and report back, and Council Member Chavez stated she would like that information before the ordinance comes back to Council for review.

 

Council Member Campos stated the City of San José passed a law in 1985 which was “grandfathered in” to allow the City the power to determine where a liquor license can be located, and asked what would this new ordinance do to this particular power. City Attorney Richard Doyle replied a memorandum was issued that outlines the whole history, and the effect in detail, is the “grandfather” status would go away, and the City would lose the ability to regulate the concurrent sales of food and alcohol because State law would preempt. He stated the only area the City can regulate is through the weigh and use context or through over-concentration issues, and the City’s ability would be more restricted than as currently exists. Council Member Campos stated if the City were to go forward with this, is there a possibility that a community could be created that could be over-concentrated without the City having any power, and Director of Planning, Building and Code Enforcement Stephen Haase replied if Council were to lift the prohibition on the mini-marts it does not change the CUP process for alcohol licenses, it just allows another use to apply for that license, as the regulatory framework for studying a CUP would be the same from the alcohol perspective of a grocery store or a gas station that sells groceries and alcohol offsale. He pointed out what it may do is enable additional locations to apply for that license, and Staff reviews the concentration and crime issues with each subsequent application. He stated in theory at the point there is saturation at the 20% threshold, Staff requires the exception permit which entails the finding of convenience and necessity, and that typically is the point at which it is denied. Director Haase stated Staff has initiated several notification processes to Council where a notice and an application is sent to the Council Office involving all the land use decisions that are going on when Staff receives an application, including CUPs for alcohol. He commented that Staff has been working with the Neighborhood Action Committee and others, to establish a better public outreach process that notifies the public when the City receives an application as opposed to when the public hearing is occurring.

 

Council Member Cortese remarked for the record that he would not be engaging in the discussion, debate or the vote on advice of General Counsel in order to avoid potential legal conflict. Vice Mayor Dando asked what is the average length of time of a CUP for a mini mart, and Director of Planning, Building and Code Enforcement Stephen M. Haase replied between five and ten years. Vice Mayor Dando requested that Staff consider shorter time frames for Conditional Use Permits, and how to prevent unintended consequences from occurring. Council Member LeZotte referring to the issues raised about public notice, asked how the neighborhoods will be notified of any changes in the currently existing gas stations with regard to the selling of groceries and the potential for selling alcohol; and also the recommendations for appropriate zoning, land use designations and/or development standards, she requested Staff to consider using a broader requirement for notice of appropriate zoning, land use designations and/or development standards if there is a change of use. Also, referring to the point about the Conditional Use Permit running with the land, she asked if the State Department of Alcohol Beverage Control (ABC) license would have to be changed, and would there be a change in ownership on the front of the building. Director Haase replied the ABC License is issued to the operator, but stated he did not know the process as to the sale of an ABC license. He recalled that an owner is required to post notice on the location for a transfer of ownership but would have to research further on the topic.

 

Council Member LeZotte stated if this ordinance is passed, Staff should ensure that the people’s concerns are addressed and that is the purpose of asking for recommendations. City Attorney Richard Doyle advised the challenge is reconciling a State preemption with local land use policy and law. Council Member LeZotte stated this is not about alcohol, this is about allowing food and beverages to be sold at a gas station, and zoning districts which can be created where the City will allow the sale or not. Director Haase stated Staff could set minimum requirements for the size of the lot to actually exclude uses based upon items other than a land use type of parameter, and would be consulting with the City Attorney on this issue.

 

Council Member Yeager asked how much local control will the City lose, for instance, Long’s Drug Store may decide they want to sell alcohol and could apply, be denied at Planning or at City Council level, but Long’s still has the ability to appeal to the State, and if the State does not find a valid reason to deny the license, such as close to a school or over-concentration, the State could issue the license. He stated this issue is actually coming up in his District, the Long’s Drug Store on the Alameda is interested in selling alcohol, and the store across the street from Long’s already sells alcohol, and that store has been an ongoing problem in the community, plus the community does not want Long’s to be able to sell alcohol. City Attorney Richard Doyle replied it is not a land use issue, it has to do with the preemption of alcohol sales, and if an operator otherwise qualifies under the State laws to be issued an Alcohol Beverage License, it will be issued. He stated the City of San José’s limitation is when there is over-concentration, and make express findings of public convenience, and necessity to allow the license to be issued, or in the areas where there are other valid zoning reasons not to allow those types of uses.

 

Council Member Yeager expressed concern that whether the City changes the ordinance with the sale of food and alcohol at gas stations, and take away the “grandfather” clause, even if the City asks an operator not to sell alcohol but it is not part of the requirement, as far as 500 feet from a school or over-concentration, the City’s control is lost. Director Haase replied Staff can consider City regulations, and minimum requirements for area, lot size, parking, and landscaping, and if the operator cannot meet those, the CUP can be denied. Council Member Yeager stated if a gas station wanted to convert, complied with all requirements, this ordinance is passed, the neighbors did not want it, Council denies it, the operator can still appeal it, the State could grant it, and the City does not have any control of the final action. City Attorney Richard Doyle replied if it otherwise complies, the concern is that unfortunately the City is placed in a predicament with a State law that preempts and limits the City’s ability of how it can regulate. He stated the City is faced with absolute prohibition trying to find something in between, and the in between is not entirely clear, and that is what the problem is. He stated right now the City is not in the best position, but is still in the position to say no, prohibit the license, but then the City ignores the reality of the dilemma of the modern gas station and mini mart. Council Member Yeager stated that is one of his concerns, and knows there are locations throughout the City where this would not be a problem to have the sale of food and alcohol at gas stations, but expressed concern of the gas stations that may be able to convert to a mini mart and the City would lose the control to regulate them.

 

 

Mayor Gonzales called for public testimony. Speaking on the issue were Luz Avalos, ACORN, Hank Rullhausen, Matt Rezvani, BP Gas Station, Barbara Jacobson, Mothers Against Drunk Driving, William Garbett, Geoffrey Paulsen, Santa Clara County Public Health Department Violence Prevention Program, Gabrielle Antolovich, National Council on Alcoholism and Drug Dependence, Felix Alvarez, Association for Responsible Alcohol Control, Jim Cunneen, San José Silicon Valley Chamber of Commerce, Rogelio Balderas, Alcohol Policy Group, Nick Goyal, and Dave Joines. Vice Mayor Dando declared Staff has heard there are a number of concerns with this ordinance, and much has changed since the 1980’s when this ordinance was first enacted. She reiterated what Council would be approving today is request for Staff to review the issues, concerns and comments that have been made, and come back for further action.

 

Council Member Chavez declared she would not be supporting the motion, and expressed concern Staff may not be aware of what the City’s process entails. She stated having the ABC post a notice on a building for a specified length of time is not meaningful community outreach, and the City should have triggers in place in order to loosen the restrictions before making changes to the ordinance. She stated, one example is 33rd Street and McKee has a gas station, it is across from a school, and it took three neighborhood associations, the school, San José Unified School District, the San José Police Vice Department, the City Attorney’s office, Code Enforcement, other members of the Planning Department, plus herself to resolve the issue. She pointed out the City should have a plan for the reduction of poorly operated offsale liquor stores, especially in over-concentrated census tracts, through increased enforcement, improved and timely notification of alcohol license applications to Council offices and the community, and better collaboration between the ABC, the City of San José Planning Department, and the community. She stated perhaps Staff could expand the sensitive use standards in the Conditional Use Permit to include parks, community centers, childcare facilities, and substance abuse centers.

 

Council Member LeZotte explained the memorandum cosigned by Vice Mayor Dando Council Member Williams, and herself proposes looking at the ordinance issue from a business perspective to make it a more competitive atmosphere for businesses, considering the inconsistencies and the lack of attention that has been given to the problems that many communities have with convenience stores, liquor stores, bars, restaurants. She stated the memorandum asks Staff to bring back a draft ordinance, and recommendations for ways that can address the concerns people have in regard to over-concentration, appropriate zonings, crime statistics, and minimum standards.

 

Council Member Yeager remarked he would not be supporting the motion. He stated San José is an urban city in many ways, some of the gas stations have been around a long time, the neighborhoods have grown up around them, and alcohol is an attraction for youth, and people who create a nuisance in the neighborhoods. He stated there is not always a direct association between driving and buying alcohol, but other problems come along with the selling of alcohol in residential areas.

 

Council Member Gregory stated many concerns have been expressed and he supports those concerns because his District has a significant challenge in this area with over-saturated areas. He stated gas stations should have an opportunity to be competitive, and sell food and groceries, but expressed concern on the issue of selling alcohol, and not knowing exactly what the process is to level it. He stated he would not be supporting the motion.

 

Council Member Williams stated in the memorandum he co-signed with Vice Mayor Dando, and Council Member LeZotte, Staff is requested to review all the issues and concerns that have been raised, and develop a plan to evaluate how the City will review the neighborhood, the gas stations, and are they in fact living up to the standards. He stated Staff is requested to obtain the best options and cleanup some of the situations in the City of San José, and then perhaps move ahead with a policy that will address present concerns.

 

Council Member Campos expressed concern that there is not a process within the City of San José to alert the community, as well as the Council Offices when an area is becoming over-concentrated. She declared her District is very over-concentrated in just about every census, is dependent upon public transportation, and uses the small supermarkets. She stated she could not support a gas station that wanted to sell offsite liquor, and will not be supporting this issue until a process is developed that will protect the neighborhoods and the community.

 

Council Member Chirco expressed concern that there are so many inconsistencies in a policy, for example when separate parcels exist in close proximity, one can sell gas and one can sell offsite liquor. She stated gas stations are “grandfathered in” but are not allowed to do any upgrades or improvements, and that does not add to the quality of the community. She stated this issue is not to encourage the sale of offsite liquor, but as an attempt to create consistency within the business community, as well as with the residents in our community that live around these areas. She pointed out Staff should, along with the CUP and other limitations available to the City, research the best way to address the business and the community concerns, and include the review of CUP census tracts, community notification, all of the tools that are at the City’s disposal to encourage business, hold businesses accountable, keep the community informed, and create a level playing field. She stated support for the memorandum cosigned by Vice Mayor Dando, Council Members LeZotte and Williams.

 

Council Member Reed stated his support for the memorandum cosigned by Vice Mayor Dando, Council Members LeZotte and Williams. Mayor Gonzales stated support for the motion, and remarked that Staff should be given an opportunity to investigate these legitimate concerns and how the City of San José’s neighboring cities have addressed this issue.

 

On a call for the question, the motion carried, and the City Attorney and the Administration were directed to return to Council within 90 days with: (1) A draft ordinance amending Title 20.80.550 removing the prohibition on the concurrent sale of food and grocery items at gasoline service stations. (2) Recommendations for the appropriate zoning, land-use designations and/or development standards for the concurrent sale of gasoline and grocery items. (3) Research of crime statistics and other public safety resources to identify nuisance activities related to the sale of alcohol at mini-marts and convenience stores. (4) A draft ordinance with minimum operational and development standards to address any nuisance activities that have been identified. (5) Establish a review schedule for the ordinance to ensure it is achieving its intended purpose. (6) Staff to consider shorter time frames for Conditional Use Permits, and how to prevent unintended consequences from occurring. (7) Staff to consider using a broader requirement for notice of appropriate zoning, land use designations and/or development standards if there is a change of use.    Vote: 6-4-0-1. Noes: Campos, Chavez, Gregory, Yeager. Disqualified: Cortese.

 

4.4       Approval of the Analysis of Impediments to Fair Housing report, and direction to City staff to proceed with recommended action to address impediments. CEQA: Not a Project. (Housing)

 

Documents Filed: (1) Memorandum from Council Members Cortese, Gregory, Chavez, and Yeager, dated September 12, 2003, recommending: (a) Approval of the Analysis of Impediments to Fair Housing Report. (b) Direct the Housing Department to organize a group of stakeholders for a discussion of the predatory lending issue and staff the meetings as appropriate. (c) Direct City Staff to place “Predatory Lending Discussion” on the November 18, 2003 City Council agenda, and instruct the group to report out their findings for Mayor and City Council consideration. (d) Request the San José Advisory Commission to provide comments and/or input on predatory lending for the November 18, 2003 City Council Meeting. (2) Replacement memorandum from Director of Housing Leslye Corsiglia, dated September 8, 2003, transmitting draft Analysis of Impediments to Fair Housing.

           

Discussion/Action: Director of Housing Leslye Corsiglia gave a slide presentation of the analysis of the impediments to the Fair Housing report. Mayor Gonzales asked what has Staff been involved with in terms of meeting the various community groups on the issue of predatory lending. Director Corsiglia replied that Staff has met with the Housing Advisory Commission several times, and a number of public speakers have been at each of the meetings to discuss the report itself and the issue of predatory lending. She remarked in addition, Staff had a meeting with the Advisory Commission on rents to discuss the report, and will be meeting with the lenders and the Fair Housing providers to obtain their input as well.

 

Mayor Gonzales stated a number of communities have looked at the issue of predatory lending, and recalled the City of Oakland had adopted a type of policy or ordinance, asked for a brief status, and how much money the City of Oakland has expended on their efforts. City Attorney Richard Doyle replied the City of Oakland’s ordinance has been challenged, and has used a combination of outside/in-house Counsel. He remarked that the City of Oakland has spent about $100,000 to date, and currently the case is in the Court of Appeals in California, with the likelihood it will go to Supreme Court. He stated there should be a decision from the Court of Appeals in about three to five months. Mayor Gonzales called for public testimony. Speaking on the issue were Mike Donohoe, Paul Stewart, Santa Clara County Association of Realtors, Mark Harris, American Financial Services Association, Steve Kelly, Leticia Perez, Jim Cunneen, San José Silicon Valley Chamber of Commerce, James Zahradka, Public Interest Law Firm, Heidi Li, FHLP, Delores Lundie, ACORN, Steve Preminger, and Union Community Resources.

 

Council Member Cortese moved approval of the memorandum cosigned by Council Members Gregory, Chavez, Yeager and himself. He stated the Housing Advisory Commission will be having another discussion on predatory lending, and the stakeholders group will report to the Housing Advisory Committee, and similarly that same report would come to City Council. Council Member Chavez seconded the motion.

 

Council Member Reed requested the Staff Task Force to consider several questions, where do you draw the line between Subprime lending and predatory lending; are there existing problems in San José due to illegal activity, and if so, what is the District Attorney doing about it; what parts of predatory lending in San José are not currently illegal; what problems cannot be dealt with under the FNMA program that was just launched in East Palo Alto, which even includes a fund to rescue victims of predatory funding, and what can we do that won’t kill Subprime lending.

 

Vice Mayor Dando remarked it is important that the Task Force includes everyone that has spoken today or at least a representative of those groups. She expressed concern about the City of San José getting into regulations of banking business and the industry of loans, and it should stay consistent with either the State or the Federal Government. She requested Staff to investigate how other states are addressing the regulation issues of the banking business and the industry of loans, as it relates to the city level, and requested Staff to collect statistical data to point out if there is a real problem with predatory lending and if so, what is the severity of it.

 

On a call for the question, the motion carried, and the analysis of Impediments to Fair Housing Report was approved with direction: (1) The Housing Department to organize a group of stakeholders for a discussion on the predatory lending issue an