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HomeMy WebLinkAboutResolution 2019-155 N.C.S. 09/16/2019Resolution No. 2019-155 N.C.S. of the City of Petaluma, California RESOLUTION OF THE CITY OF PETALUMA CITY COUNCIL DENYING THE APPEAL FILED BY DALE AXELROD AND UPHOLDING THE PUBLIC ART COMMITTEE'S APPROVAL OF FINAL DESIGN FOR A FINE BALANCE PUBLIC ART INSTALLATION ON WATER STREET File No.: PLAP-19-0002 WHEREAS, on June 17, 2013, the City Council of the City of Petaluma adopted the Petaluma Public Art Master Plan (Resolution 2013-064 N.C.S.) created by the Petaluma Public Art Committee with consultant Chandra Cerrito/Art Advisors LLC; and WHEREAS, the Petaluma Public Art Master Plan includes detailed recommendations for enhancing Petaluma's public art program, including the identification of sites for future public art projects on public property; and WHEREAS, the Petaluma Public Master Plan identifies the Plaza near the Water Street Bridge as a site, among others, for future public art on public property, and the City of Petaluma may implement a public art project on public property using the Public Art Fund as outlined in the Public Art Master Plan; and WHEREAS, in 2014 the Petaluma Public Art Committee decided to develop a Request for Qualifications and Request for Proposals process for a public art project, using the Public Art Fund, at the Plaza near the Water Street Bridge site; and WHEREAS, the priorities of the art commission as stated in the initial RFQ included creating enlivened public spaces by adding focal interest, whimsy, humor and/or beauty, identifying the plaza and its vicinity in order to create a sense of place, strongly considering the range of the City's historical, physical attributes, and demographic and social characteristics, and encouraging enjoyment and celebration of the human spirit and artistic creativity; and WHEREAS, in December 2014, the Petaluma Public Art Committee issued the Water Street Public Art Request for Qualifications, and subsequently selected five finalists to receive the Water Street Public Art Request for Proposals for submission of site specific art concepts; and WHEREAS, the Petaluma Public Art Committee selected two of the five finalists from the Request for Proposals process to participate in a community open house event held on April 14, 2016, and subsequently, after garnering input from stakeholders and the community, found that neither proposal sufficiently met the intent of the Request for Qualifications/Proposals and elected to terminate the process without selection of a final artist; and WHEREAS, during the Spring and Summer of 2016, the Petaluma Public Art Committee revised the Water Street Request for Qualifications process to both address lessons learned during the previous artist solicitation effort and incorporate public art best practices found within other local jurisdictions; and WHEREAS, on October 13, 2016, the Petaluma Public Art Committee reissued the revised Water Street Public Art Request for Qualifications; and Resolution No. 2019-155 N.C.S. Page 1 WHEREAS, the Petaluma Public Art Committee appointed a selection panel of eleven stakeholders, including two PPAC members, a Planning Commissioner, a City Councilmember, local artists, and downtown property and business owners to review complete artist submissions and selecting a finalist based on a set of selection criteria for recommendation to the Petaluma Public Art Committee; and WHEREAS, on February 9, 2017 the Selection Panel reviewed all complete Request for Qualifications submissions and invited six finalists for subsequent interviews; and WHEREAS, on April 12, 2017 and April 18, 2017, the Selection Panel interviewed those six finalists and after continued deliberation based on a tie vote recommended two artists, David Best and Brian Goggin to the Petaluma Public Art Committee; and WHEREAS, at a special meeting on May 31, 2017 the Petaluma Public Art Committee interviewed David Best and Brian Goggin, and ultimately selected Brian Goggin as the project finalist for recommendation to the City Council for consideration of contract award through a Professional Services Agreement; and WHEREAS, on August 7, 2017 the City Council held a duly noticed public hearing to consider the contract award of a Professional Services Agreement with Brian Goggin for Public Art Services for the Water Street Public Art Project, at which time all interested parties had the opportunity to be heard; and WHEREAS, on August 7, 2017 the City Council approved Resolution No. 2017-123 N.C.S. authorizing the City Manager to execute a Professional Services Agreement with Brian Goggin for public art installation on Water Street and including approval of a Scope of Work for design, public outreach, fabrication, and installation; and WHEREAS, on August 17, 2017 the Professional Services Agreement between the City of Petaluma and Brian Goggin was fully executed; and WHEREAS, consistent with Deliverable 1C of the approved Scope of Work, the PPAC hosted two community input meetings at the Project location on October 14 and 28, 2017; and WHEREAS, on February 22, 2018 Brian Goggin presented a draft concept to the PPAC at their regular public meeting and the PPAC voted to accept the draft concept and to schedule community meetings to solicit input on the initial concept; and WHEREAS, on April 30 and May 1, 2018, the PPAC hosted a community meeting held at Aqus Cafe at which Brian Goggin presented the concept and received feedback from members of the public; and WHEREAS, at their meeting on May 24, 2018 the PPAC reviewed public comments from the community meetings regarding the concept design, compatibility on Water Street, and potential view obstruction, and the PPAC requested that the Mr. Goggin host a "story pole" event to visually represent the proposed Project on the site; and WHEREAS, in response to an increasing amount of public opposition and comments, the City Council requested that staff provide an update on the Project to date and review of the scope of work to allow the community to provide public comment to the City Council; and Resolution No. 2019-155 N.C.S. Page 2 WHEREAS, on July 16, 2018 the City Council reviewed the process, milestones, and status of the Project, received public comment, and provided consensus feedback to allow the process to continue as outlined in the approved scope of work and under the oversight authority delegated to the PPAC under the City's public art regulations; and WHEREAS, on October 25, 2018 Brian Goggin attended a Development Review Committee meeting with City staff to receive initial feedback from a variety of departments on issues and concerns associated with the artwork and placement of the five proposed installations; and WHEREAS, on November 29, 2018 Brian Goggin presented a status update to the PPAC at their regular meeting; and WHEREAS, a second DRC meeting was held on December 13, 2019 to review updated plans, including circular plinths to address accessibility concerns for the visually impaired, location modifications to address accessible access around each installation and to ensure adequate emergency vehicle access, and details to address initial structural and maintenance concerns; and WHEREAS, on January 12, 2019 the PPAC hosted a "story pole" event on the project site and Brian Goggin's team erected a life size mockup of one of the installations in each of the five proposed sites to provide scale and context to the proposed artwork at the specific location; and WHEREAS, a detailed maquette of the artwork was also presented at the story pole event to provide greater detail of the proposed project; and WHEREAS, on February 5, 2019 the artist, staff, and Committee member Plank met with representatives from the Petaluma Craft Beer Festival to discuss and strategize on location to minimize conflicts with space needs for the popular annual event; and WHEREAS, on February 28, 2019 the PPAC approved the final design, authorizing Brian Goggin to move to construction drawings and permitting; and WHEREAS, on March 12, 2019 an appeal of the PPAC's decision was filed by Dale Axelrod; and WHEREAS, on April 9, 2019 the Project was presented to the Historic and Cultural Preservation Committee (HCPC) as an informational item for feedback on the artwork given its proximity to the City's historic downtown core and in response to concern voiced through public comment that the input from the HCPC was important to the full consideration of the project; and WHEREAS, throughout the process there has been a significant amount of public comment provided in writing and presented verbally at public meetings before the PPAC, the Planning Commission, the HCPC, and the City Council; and WHEREAS, on September 5, 2019 a public notice for the appeal hearing before the City Council was published as an 1/8th page ad in the Argus Courier and transmitted electronically to an e-mail list of all interested parties; and WHEREAS, a staff report dated September 16, 2019 and incorporated herein by reference analyzed the appeal; and Resolution No. 2019-155 N.C.S. Page 3 WHEREAS, the City Council considered the appeal at a noticed public hearing on September 16, 2019, at which time all interested parties had the opportunity to be heard; NOW THEREFORE BE IT RESOLVED by the City Council of the City of Petaluma as follows: 1. On September 16, 2019 the City Council fully considered all evidence presented before and at the duly noticed public hearing regarding this matter, and on the basis of the staff report, testimony, and other evidence, and the record of proceedings herein, denies the appeal of Dale Axelrod filed with the City Clerk on March 12, 2019 and upholds the Public Art Committee's approval of final design for A Fine Balance a public art installation on Water Street based on the findings contained in this resolution. 2. The City Council, adopts the following findings for denial of the appeal, as supported by the record of proceedings: a. California Environmental Quality The requirements of the California Environmental Quality Act (CEQA) were satisfied with the finding that the Project was categorically exempt from the provisions of CEQA under CEQA Guidelines Section 15303 (New Construction or Conversion of Small Structures) and by the General Rule (CEQA Guidelines Section 15061(b)(3). The project will involve the construction and location of one or more small structures along Water Street within a city owned right of way and does not appear to have the potential for causing a significant effect on the environment. The project also does not trigger any of the exceptions to the exemption as outlined in CEQA Section 15300.2. This finding was discussed in the City Council staff report from August 7, 2017. Additionally, Resolution No. 2017-123 N.C.S. adopted by the City Council on August 7, 2017 also included a recital that provided: "WHEREAS, on August 7, 2017 and prior to acting on this request, the City Council considered the staff report analyzing the Professional Services Agreement request, including the California Environmental Quality Act (CEQA) determination included herein." Staff believes that the Project qualifies for the exemption for small structures in Section 15303 of the CEQA Guidelines and the general rule in Section 15061(b)(3) of the CEQA Guidelines that applies where it can be seen with certainty that a project will not have significant environmental impacts. b. Implementing Zoning Ordinance Implementing Zoning Ordinance Chapter 18 governing Public Art states the intent and goals of the City's public art program in the following terms: Public art helps make cities more livable and more visually stimulating. The experience of public art makes the public areas of buildings and their grounds more welcoming. It creates a deeper interaction with the places people visit, and in which people work and live. Public art illuminates the history of a community while it points to the city's aspirations for the future. A city rich in art encourages cultural tourism which brings in visitor revenues. Resolution No. 2019-155 N.C.S. Page 4 IZO Section 18.120 specifies the following requirements for the City's public art: A. The art must be designed and constructed by an artist; B. The art must relate in terms of scale, material, form and content to immediate and adjacent buildings and architecture, landscaping or other setting so as to complement the site and its surroundings, and must be consistent with any applicable action of the Planning Commission, or City Council as it may relate to any development entitlements for the private or public construction project; C. The art must demonstrate excellence in craftsmanship, originality in conception and integrity of materials; D. Permanent art must be a fixed asset of the public art site; E. Minimal maintenance must be adequate for preserving the long -terms integrity and enjoyment of the art, as evidenced by a maintenance plan submitted with the public art proposal; F. Art in private construction projects must be maintained by the property owner in a manner acceptable to the city in accordance with a maintenance plan submitted with the art proposal; G. The art must meet all applicable building code requirements. H. The art must be accompanied by an identifying plaque that features the artist's name, artwork title and date of completion. This plaque must be made of a durable material and be installed permanently near the art. The PPAC's approval of final design for the Project was in accordance with the requirements of Chapter 18 of the IZO, including Section 18.120, the PAMP, and the Project contract scope of work approved by the City Council, as the record of decision and the following findings in response to the Appellant's contentions on appeal reflect. c. Appellant's Contentions on Appeal 1. The City has failed to undertake environmental review of the Project. The staff report included with the materials considered by the City Council on August 7, 201 7for the contract approval item contained the following analysis: Public Resources Code Section 21084 requires the California Environmental Quality Act (CEQA) Guidelines to include a list of classes of projects which have been determined not to have a significant effect on the environment and which shall, therefore, be considered exempt from the provisions of CEQA. In response to that mandate, the Secretary for Resources has defined classes of projects, listed at Article 19 of the CEQA Guidelines, which do not have a significant effect on the environment and, therefore, are declared to be categorically exempt from the requirement for the preparation of environmental documents. Based on current information available, the proposed public art project appears to be categorically exempt from the provisions of CEQA under CEQA Guidelines Section 15303 (New Construction or Conversion of Small Structures) and by the General Rule (CEQA Guidelines Section 15061(b)(3). The project will involve the construction and location of one or more small structures along Water Street within a city owned right of way, and does not appear to have the potential for causing a significant Resolution No. 2019-155 N.C.S. Page 5 effect on the environment. The project also does not trigger any of the exceptions to the exemption as outlined in CEQA Section 15300.2. Resolution No. 2017-123 N.C.S. adopted by the City Council on August 7, 2017 also included a recital that provided: "WHEREAS, on August 7, 2017 and prior to acting on this request, the City Council considered the staff report analyzing the Professional Services Agreement request, including the California Environmental Quality Act (CEQA) determination included herein. " Staff believes that the Project qualifies for the exemption for small structures in Section 15303 of the CEQA Guidelines and the general rule in Section 15061(b)(3) of the CEQA Guidelines that applies where it can be seen with certainty that a project will not have significant environmental impacts. 2. Failure to meet any of the requirements for story poles set forth in Resolution No. 2005-200 N.C.S. of the City of Petaluma, California. Resolution No. 2005-200 N.C.S. was adopted by the City Council to require developers and property owners to place story poles at the site of future construction when deemed appropriate by the reviewing authority. Resolution 2005-200 paragraph II(A). The reviewing authorities for whom the story pole policy was intended were the Planning Commission, Site Plan and Architectural Review Committee, and the City Council. Resolution 2005-200 was not specifically directed at public art projects of the City or review conducted by the PPAC. The PPAC requested story poles for the Project consistent with the purposes of Resolution 2005- 200 "to allow reviewing bodies and the public the opportunity to evaluate the potential visual effects. " Story poles are not required of a public art installation either pursuant to Chapter 18 of the IZO or Resolution 2005-200. The story pole event hosted by the PPAC and the artist in January 2019 was intended to address concerns expressed by the community during outreach events. The artist developed a way to provide a physical illustration of the installation and moved it to all five of the proposed installation sites. Because the PPAC requested story poles to illustrate Project visual impacts in response to community concerns, and story poles for public art projects are not a public art requirement under either Section 18.120 of the IZO or Resolution 2005-200, whether the story poles satisfied all Resolution 2005-200 provisions is not a basis for overturning the PPAC approval of the Project unless the City Council as reviewing body concludes that as a result of inadequate story poles the Council is unable to conclude that the Project meets the Section 18.120 public art requirements. The Project record supports the conclusion that the story poles permitted the PPAC and the public to evaluate the potential visual effects of the Project in accordance with Resolution 2005-200's purposes. 3. Need for an analysis to identify any potential conflicts with the objectives of the Central Petaluma Specific Plan. If appellants believe that the Project is subject to disapproval or the PPAC's approval is subject challenge due to non-compliance with applicable provisions of the Central Petaluma Specific Plan (CPSP), appellants bear the burden of so demonstrating. Staff are aware of no such defects and appellants have established none. Analysis of a public art project's compatibility with an applicable specific plan is not among the public art requirements in IZO Section 18.120 and therefore, especially in the absence of any identified conflict between the Project and applicable Resolution No. 2019-155 N.C.S. Page 6 CPSP requirements, the appellants' insistence on an analysis of the Project under the CPSP is not a basis for overturning PPAC approval of the Project. 4. Failure to demonstrate how the proposed art structure meets the requirements of the Public Art Ordinance set forth in Chapter 18.120 of the Implementing Zoning Ordinance. Appellants bear the burden of demonstrating that the Project does not meet the public art requirements in IZO Section 18.120. Resolution 2017-123 adopted by the City Council on August 7, 2018 approving the Project contract contained findings relevant compliance with the public art requirements in IZO section 18.120, including findings that recognized the artist as such pursuant to the definition of "artist" in IZO Section 18.030 and paragraph A of Section 18.120. The development of the site specific design has addressed other criteria outlined in Chapter 18.120, including the artwork being permanently affixed to the site and maintenance provisions (in accordance with Paragraphs D and E). Additionally, the approved scope of work provides for preparation of construction drawings and permitting to ensure that the installation meets all applicable building code requirements (in accordance with Paragraph G). Regarding compliance with IZO Section 18.120, paragraph B, directing that public art relate "in terms of scale, material, form and content to immediate and adjacent buildings and architecture, landscaping or other setting so as to complement the site and its surroundings . . . " and IZO Section 18.120, paragraph C, directing that public art demonstrate excellence in craftsmanship, originality in conception and integrity of materials, the Project, makes visual reference to the historic importance of the Petaluma River as a shipping corridor and luxury goods (for the time) such as bathtubs that were delivered for residents at Petaluma river freight and passenger landings. The Project is expressly intended to help citizens and visitors establish connections with Petaluma's past. The Historic Guidelines discussion of streetscapes (Guidelines, p. 33) encourage maintaining a "commercial or cultural `heart' which makes a statement about activities, history, commerce or natural features which the community values. " (Guidelines, p. 34). The Guidelines also encourage maintaining "a sense of uniqueness. This quality can be derived from a single feature, an area - wide design theme, or an event, which is held in a special place each year. " (Guidelines, p. 34). The Project, although planned for a location outside the Historic District, is intentionally consistent with the purposes of the Guidelines and the District by helping provide connection to Petaluma's history and helping enhance outdoor gathering places and adding interest and uniqueness along the District boundaries. 5. Failure to provide required notice to property owners and business tenants in the buildings adjacent to and affected by the location of the proposed art structure. There are no specific public noticing requirements for a public art installation. The Project is a public art project of the City and not a private development application. The Project does not implicate substantive due process or statutory noticing considerations because there are no applicant property owners. All public meetings were appropriately noticed in accordance with the Brown Act requirements, and numerous public workshops and meetings were held in the course of development of the Project. Resolution No. 2019-155 N.C.S. Page 7 6. Need for an analysis of potential conflicts with existing easements, including performing a survey to determine the locations of any adjacent property lines, easements or setback requirements. The Project is proposed to be located within the City's right of way on Water Street. Historic maps show the Water Street right of way in essentially its current location as long ago as the 1850s. Therefore, there are no specific setback requirements. The Project satisfies required setbacks from the existing tracks. Additionally, the location has been reviewed with city staff at DRC meetings to ensure that the placement is adequate to address emergency vehicle access on Water Street, satisfies all applicable accessibility requirements, and does not conflict with the provision of any other city services or programs. 7. Need to file for a Certificate of Appropriateness under the City of Petaluma SMART Code Section 7.10.040 to comply with regulations associated with the historic district. The Project does not alter, demolish, or move/remove any structures. While the location of the Project is intended to be is within the right-of-way adjacent to the outer boundary of the Historic District, because the scope was not considered to alter any of the neighboring structures within the district, a Certificate of Appropriateness or review by the HCPC was not included in the scope of work or made a requirement of final design approval. Section 7.10.040.A of the SmartCode specifies the purpose of Certificate of Appropriateness review, namely: "to protect structures, improvements, natural features, objects, and areas of architectural, cultural, economic, historic, political, and social importance from unnecessary and/or inappropriate alteration, demolition, or removal. " Because the Project does not alter, demolish, or remove any structures within the District, the Certificate of Appropriateness was not considered applicable to the consideration of the Project. Section 7.10.040.B of the SmartCode states that a COA is required for "the alteration, demolition, moving, or removal of any landmark or structure designated on the City's Historic Register, any individual cultural resource or any contributing cultural resource within a historic district, and or any alteration, demolition, moving, or removal of any potential cultural resource identified through the City's review of a land use and/or development permit application or CEQA review. " None of these apply to the Project. The SmartCode defines "alteration" to include changes in the specified character defining a cultural resource. The SmartCode defines "changes in character" to include "the placement of any significant objects affecting the significant visual or historical qualities of the property. " While the Project is adjacent to structures within the Historic District, the addition of artwork within the adjacent public right- of-way was not considered to warrant additional permits or review as part of the scope of work as developed and approved by the City Council. The discretion for review and approval of a Certificate of Appropriateness is within the authority of the HCPC, which is a subordinate body to the City Council. In response to opposition and as discussed above, the HCPC provided feedback at their April 9, 2019 meeting. Resolution No. 2019-155 N.C.S. Page 8 8. It appears that the City Council, under staff recommendations, has improperly changed the boundaries of the Petaluma historic district without any public notice, public hearing, or coordination with the Federal register of historic places. The downtown Historic District was locally adopted in 1999. There has not been any modification to the district boundaries since that time, and the Appellants have provided no support for any such alleged change. 9. The Petaluma Public Art Ordinance appears to have created a committee of non- elected persons over which the City Council has only limited oversight. We feel this situation does not provide the citizens of Petaluma through their elected officials, with adequate oversight over decisions and actions that directly affect them. The PPAC enabling legislation in IZO Section 18.180 was adopted pursuant to the City's police power. The City Council's power to appoint subordinate bodies is expressly recognized in the City Charter (see, Article VIII, Section 55). The PPAC members are appointed, and subject removal, by the City Council. As a Brown Act body and standing committee of the City, all PPAC meetings are subject to the requirements of the Brown Act, and PPAC records are subject to the Public Records Act. As is evidenced by the appeals of the Project approval, actions of the PPAC are subject to appeal to the City Council in accordance with IZO Section 18.140. The City Council, in creating the PPAC to administer the City's Public Art program, has not delegated contracting powers to the PPAC, and, accordingly, the City Council has retained authority regarding issuance and modification of any contracts for public art services, including the Project Contract with Mr. Goggin. Under the power and authority conferred upon this Council by the Charter of said City. REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the Approved -Is to Council of the City of Petaluma at a Regular meeting on the 161h day of September fo 2019, by the following vote: City AOrney AYES: Mayor Barrett; Fischer; Kearney; King; Vice Mayor McDonnell; Miller NOES: Healy ABSENT: None ABSTAIN: None ATTEST:' Deputy City Clerk Mayor Resolution No. 2019-155 N.C.S. Page 9