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Home My WebLink AboutStaff Report 4.A 02/25/2019DATE: February 25, 2019 TO: Honorable Mayor and Members of the City Council through the City Manager FROM: Eric W. Danly, City Attorney SUBJECT: Vote on Motion to Reconsider Adoption on January 28, 2019 of City Council Resolution No. 2019-015 N.C.S. Entitled "Resolution of the City of Petaluma City Council Rescinding and Replacing Resolution No. 2018-180 Adopted December 3, 2018 and Upholding the Appeal Filed by JoAnn McEachin as to the Mitigated Negative Declaration Approved by the Petaluma Planning Commission on June 26, 2018 by Resolution No. 2018-21A, Ordering the Preparation of an Environmental Impact Report in Accordance with Section 15064, Subdivisions (c) and (g) of the California Environmental Quality Act Guidelines and Staying the Planning Commission's Approval of the Site Plan and Architectural Review Pursuant to Resolution No. 2018-21B Adopted June 26, 2018 for the Safeway Fuel Center Project Located at 335 South McDowell Boulevard, Assessor's Parcel. No. 007-820-046, File No. PLSR 13-0012, Pending Certification of the EIR and City Council Review of the Project Site Plan and Architectural Review Approval" RECOMMENDATION It is recommended that the City Council vote on the motion to reconsider adoption of Resolution No. 2019-015 N.C.S. in accordance with Section I(F) of the City Council's Rules, Policies and Procedures adopted January 28, 2002 and last amended October 18, 2004. BACKGROUND At the January 28, 2019 City Council meeting, the City Council conducted a public hearing to cure and correct alleged Brown Act violations pursuant to the following agenda item listed on the January 28 meeting agenda as Item 5A: Public Hearing to Cure or Correct Alleged Violations of the Brown Act at the City Council Appeal Hearing on December 3, 2018 in Response to January 2, 2019 Demand of Safeway Regarding the Planning Commission's Approval of the Mitigated Negative Declaration ("MND") and Site Plan and Architectural Review ("SPAR") for the Safeway Fuel Center Project — City Council Consideration and Possible Adoption of One of Two Offered Resolutions: 1) A Resolution Rescinding and Replacing Resolution No. 2018-180 Adopted December 3, 2018 Upholding the Appeal Filed by JoAnn McEachin as to the MND Approved by the Planning Commission on June 26, 2018, Ordering the Preparation of an Environmental Impact Report ("EIR") and Staying the Planning Commission's Approval of SPAR Pending Certification of the EIR and City Council Review of the SPAR Concerning the Safeway Fuel Center Project at 335 South McDowell Boulevard; or 2) A Resolution Rescinding and Replacing Resolution No. 2018- 180 Adopted December 3, 2018 Denying the Appeal Filed by JoAnn McEachin of the Planning Commission's Approval of the MND and SPAR on June 26, 2018, and Affirming the Planning Commission's Approval of the MND and SPAR for the Safeway Fuel Center Project at 335 South McDowell Boulevard. After the January 28 public hearing had been closed and during Council deliberation on the item, some members expressed a desire for additional time to consider the impact of the recent decision in McCorkle Eastside Neighborhood Group v. City of St. Helena, filed December 18, 2018, on the City Council's options for acting on the appeal of the Mitigated Negative Declaration and Site Plan and Architectural Review approvals of the Planning Commission regarding the Safeway Fuel Center project pursuant to Resolution Nos. 2018-21A and 2018-21B. The McCorkle case was filed only 15 days after the City Council's initial action of December 3, 2018 on the appeal of the Safeway project approvals. The staff recommendation prior to the Council's action on December 3 had been to uphold the appeal, order preparation of an EIR and stay the Planning Commission's SPAR approval pending certification of the EIR and Council consideration of the SPAR. Safeway representatives raised the ruling in the McCorkle case for the first time in correspondence to the City dated January 24, 2019, four days before the January 28 cure and correct hearing. At the January 28 cure and correct hearing, and based on the ruling in the McCorkle case, staff revised its earlier advice regarding the appeal to recommend that the City Council adopt a resolution denying the appeal. In response to the desire expressed by some Council members for additional time to consider the McCorkle case, Safeway representatives indicated Safeway would not stipulate to additional time for Council consideration and that the City Council should take action at the January 28 City Council meeting in accordance with the cure and correct deadline that applies under the Brown Act to Safeway's cure or correct demand dated January 2, 2019. Accordingly, Council Member Healy asked for confirmation whether the Council's taking action to cure or correct subject to the Council's rules regarding motions for reconsideration would satisfy Brown Act requirements. Upon receiving an answer that such action would satisfy Brown Act requirements, Council Member Healy gave notice of his intent to later move reconsideration, in accordance with the Council's rules, and moved to adopt Resolution No. 2019-015 N.C.S. rescinding and replacing Resolution No. 2018-18 adopted December 3, 2018, upholding the Appeal of the Safeway project approvals, ordering preparation of an EIR and staying the Planning Commission's SPAR approval pending certification of the EIR and Council review of SPAR. Mayor Barrett seconded Council Member Healy's motion. The motion passed by a vote of four to one with Council Member Fischer opposed and Council Members Kearney and Miller recused. Following the Council action on January 28, 2019, an item on a motion to reconsider the adoption of Resolution 2019-015 was included in the February 4, 2019 City Council agenda, in accordance with the notice Council Member Healy gave following the January 28, 2019 hearing on the Safeway application, and in accordance with the requirements of City Council rule I(F). The agenda report for the reconsideration motion indicated that the Council could both move and second reconsideration of the adoption of Resolution 2019-015 at the January 28 meeting. After W considering the item, Council Member Healy moved reconsideration and Council Member King seconded the motion. Council Members Kearney and Miller recused themselves from consideration of the item. DISCUSSION Section I(F) entitled Motions for Reconsideration of the City Council's Rules, Policies and Procedures adopted January 28, 2002 and last amended October 18, 2004, provides as follows: After decision by the Council on any question, except the adoption of an ordinance, any member who voted with the majority may move a reconsideration of any action at the same or next succeeding meeting. The motion may be seconded at the same meeting that the motion was made or the next succeeding meeting. The vote on such motion shall be held thereon, at the next succeeding or regular meeting after the motion was made, not less than one week thereafter; provided, however, that a resolution authorizing or relating to any contract may be reconsidered at any time before the final execution thereof. If at the time of the original decision a Council member intends to later move for reconsideration, the Council member should so advise of his/her intent at the time of the vote on the original motion. A motion to reconsider will require the same number of votes as is required to adopt an ordinance or resolution. If the motion for reconsideration passes, the actual reconsideration of the question shall be heard at the next regularly scheduled meeting not less than one week after the vote on the motion for reconsideration. After the actual reconsideration of the question has once been acted upon, no other motion for or resolution of a reconsideration thereof will be made without unanimous consent of the members present. In the case of a tie vote, the prevailing side or majority of the Council will be deemed to be those Council members who voted in the negative. Under Section I(F) of the Council rules, once a motion for reconsideration has been made and seconded, as occurred at the February 4, 2019 City Council meeting, the vote on the motion must occur at the next succeeding or regular Council meeting at least one week later. Following passage of a reconsideration motion, reconsideration must occur at the next regularly scheduled Council meeting at least one week after the vote on the motion. In accordance with Section I(F), the City Council must vote on reconsideration of Resolution No. 2019-015 N.C.S. on February 25, 2019, which is the next succeeding or regular meeting following the motion and second on February 4. If the vote on reconsideration passes on February 25, under the Council's rules, actual reconsideration of adoption of Resolution No. 2019-015 N.C.S. must occur at the March 4, 2019 City Council meeting. Reconsideration on March 4, 2019 would take the form of a new, de novo hearing on appeal of the Planning Commission's adoption of Resolution no. 2018-21B on June 26, 2018 approving an MND and SPAR for the Safeway Fuel Center project. In reconsidering the item, the City Council may chose to leave in force Resolution 2019-015 N.C.S. upholding the appeal of the Planning Commission's approval of an MND and SPAR for the Safeway Fuel Center project, or to repeal and replace Resolution 2019-015 N.C.S. with a resolution denying the appeal. FINANCIAL IMPACTS The financial impacts to the City from potential reconsideration proceedings are primarily those resulting from related staff time. ATTACHMENTS There are no attachments for this item. The City Council's Rules, Policies and Procedures adopted January 28, 2002 and last amended October 18, 2004 may be viewed here: In