HomeMy WebLinkAboutResolution 2021-054 N.C.S. 4/19/2021 Resolution No. 2021-054 N.C.S. Page 1
Resolution No. 2021-054 N.C.S.
of the City of Petaluma, California
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PETALUMA AUTHORIZING IMPOSITION AND RECORDATION OF A LIEN AGAINST THE PROPERTY LOCATED AT 621 WESTERN AVENUE, PETALUMA, CA, A.P.N.s 008-024-029, 008-031-015, 008-032-009 and 008-033-001, FOR OUTSTANDING WASTEWATER DISCHARGE PERMIT VIOLATION FINES WHEREAS, the Petaluma Creamery (“Creamery”) is a manufacturer of cheese and other dairy products with offices and manufacturing facilities located at 621 Western Avenue, Petaluma, on multiple parcels: A.P.N.s
008-024-029, 008-031-015, 008-032-009 and 008-033-001; and WHEREAS, according to the Creamery website, a creamery has been in operation at the current location for over 100 years, and the current owner is Larry Peter; and WHEREAS, the Creamery operations are subject to City of Petaluma Wastewater Discharge Significant Industrial User Permit No. 1203 (“Permit”); and WHEREAS, on April 16, 2018, the City of Petaluma (“City”) served the Creamery (“”) with an administrative complaint (“Complaint”) relating to unpaid wastewater capacity fees, Municipal Code violations,
and violations of the Permit; and WHEREAS, On July 18, 2018, the City and the Creamery participated in a hearing before Hearing Officer Ira Lowenthal to consider whether violations of PMC Sections 15.76.030 and 15.72.010 (related to unpaid sewage
capacity charges) and Permit No. 1203 had occurred; and
WHEREAS, during the July 18, 2018 hearing, the Creamery stipulated that it owed $332,107.39 in unpaid permit violation fines, and after the conclusion of the hearing, Hearing Officer Lowenthal ruled in the City’s favor and found that the Creamery owed the City the unpaid wastewater capacity fees, which the Creamery has since
paid; and
WHEREAS, Petaluma Creamery has continued to violate the Permit and incur permit violation fines, resulting in the Creamery currently owing the City $512,248.30 in unpaid permit violation fines in accordance with the Cost Report attached to the staff report accompanying this resolution, and which is made a part of this
resolution by this reference; and
WHEREAS, on March 12, 2021, the City and Petaluma Creamery entered into a Consent Oder which states, “[t]he Creamery consents and agrees that the City may record a lien against the Creamery property for the full balance of outstanding permit violations fines;” and
WHEREAS, Petaluma Municipal Code section 1.14.060(B) provides that if the amount of any penalty imposed for a violation relating to an affected property has not been satisfied in full within sixty days of the date due and has not been successfully challenged by appeal or in court, the penalty amount may become a lien against the affected property, as provided in Petaluma Municipal Code Section 1.14.140; and
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WHEREAS, Petaluma Municipal Code section 1.14.060(B) provides that if the City elects to make any penalty a lien against the affected property, a statement of the amount due, and any additional costs or expenses that might be recoverable as part of the enforcement action, shall be prepared and submitted to the City Council
for confirmation in accordance with the procedures described in Section 1.14.130; and WHEREAS, Petaluma Municipal Code section 1.14.130(A) states in relevant part that if any order authorizes the City to abate a nuisance condition or other code violations, the City official responsible for such abatement shall keep an accounting of the cost of abatement along with any other recoverable costs, and shall render a written
report to the City Council showing the cost of removing and/or abating the nuisance condition and describing the work performed and the cost report shall be agendized as a public hearing item by the City Clerk at a subsequent City Council meeting following the required notice periods; and WHEREAS, in compliance with Petaluma Municipal Code section 1.14.130(B) the City Clerk’s office
mailed to the Creamery a notice of hearing which set forth the date, time and location of the City Council meeting at which a cost report concerning code violations at the Creamery would be submitted to the City Council; and WHEREAS, in accordance with Petaluma Municipal Code section 1.14.130, on April 19, 2021, City staff provided to the City Council an itemized report detailing the unpaid debts of the Creamery (“Cost Report”), with
offices and manufacturing facilities located at 621 Western Avenue in Petaluma, A.P.N.s 008-024-029, 008-031-015, 008-032-009 and 008-033-001, as a result of administrative enforcement dating back to 2018, as well as further permit violation fines incurred since the date of the Complaint, all as shown and set forth in the Cost Report; and WHEREAS, in accordance with Petaluma Municipal Code section 1.14.130(C) and at the time and place referred to in the notice provided to the Creamery, the City Council heard the Cost Report, together with any objections raised by the Creamery property owners, and the City Council made its recommendations and any modifications it deemed necessary to be included in the final Cost Report; and
WHEREAS, this action is exempt from the requirements of the California Environmental Quality Act (CEQA) in accordance with CEQA Guidelines Section 15378, in that directing staff to record a lien on real property does not meet CEQA's definition of a “project,” because the action does not have the potential for resulting either a direct physical change in the environment or a reasonably foreseeable indirect physical change
in the environment, and because recording a lien on real property constitutes organizational or administrative
activities of governments that will not result in direct or indirect physical changes in the environment; and even if the action is deemed a “project” under CEQA, the action is categorically exempt from environmental review per CEQA Guidelines section 15321, Class 21, which provides that enforcement actions by regulatory agencies, such as actions to regulate and enforce permits are exempt, and there are no cumulative impacts, unusual
circumstances, or other factors that would make the exemption inapplicable pursuant to CEQA Guidelines section
15300.2. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Petaluma as follows:
1. The above recitals are hereby declared to be true and correct and are incorporated into this resolution as
findings of the City Council. 2. This action is exempt from the requirements of the California Environmental Quality Act (CEQA) in accordance with CEQA Guidelines Section 15378, in that directing staff to record a lien on real property does
not meet CEQA's definition of a “project,” because the action does not have the potential for resulting either
a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment, and because recording a lien on real property constitutes organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment. Even
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if the action is deemed a “project” under CEQA, the action is categorically exempt from environmental review per CEQA Guidelines section 15321, Class 21, which provides that enforcement actions by regulatory agencies, such as actions to regulate and enforce permits, are exempt. There are no cumulative impacts,
unusual circumstances, or other factors that would make the exemption inapplicable pursuant to CEQA Guidelines section 15300.2. 3. City staff have issued notice of this action by providing mailed notice to the Creamery on April 7, 2021 that this action would be before the City Council for consideration at the April 19, 2021 City Council meeting.
On April 8, 2021, notice of the April 19, 2021 hearing before the City Council on this item was also sent to Creamery owner Larry David by electronic mail, posted on the Creamery property and mailed to the Creamery by certified mail. This agenda item was also noticed in accordance with the requirements of the Brown Act for the April 19, 2021 City Council. Staff have otherwise complied with the Lien procedures specified in Petaluma Municipal Code Chapter 1.14.
4. After considering the staff report accompanying this resolution, and any comments from staff and interested parties, the Cost Report, in the amount of $512,248.30, is hereby confirmed. 5. The City Manager is hereby authorized and directed to execute on behalf of the City the Notice of Lien
attached to and made a part of this resolution as Attachment 1 for imposition of a lien in the amount of $512,248.30 on the Petaluma Creamery property located at 621 Western Avenue, Petaluma, on multiple parcels: A.P.N.s 008-024-029, 008-031-015, 008-032-009 and 008-033-001. 6. The City Clerk is hereby authorized and directed to notarize a fully-executed copy of the Notice of Lien,
Exhibit A, and to submit the notarized original Notice of Lien, together with a property description, a copy of this resolution ordering the lien, the fully executed Consent Order dated March 12, 2021, and the Cost Report to the County Recorder’s Office for recordation of a lien in the amount of $512,248.30 on the property located at 621 Western Avenue, Petaluma, A.P.N.s 008-024-029, 008-031-015, 008-032-009 and 008-033-001.
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 Council of the City of Petaluma at a Regular meeting on the 19th day of April 2021, by the following vote:
Approved as to form: __________________________ City Attorney
AYES: Mayor Barrett; Fischer; Healy; King; McDonnell; Pocekay
NOES: None
ABSENT: None
ABSTAIN: None
RECUSED: Vice Mayor Barnacle
ATTEST: ______________________________________________ City Clerk ______________________________________________ Mayor
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ATTACHMENT 1
RECORDING REQUESTED BY:
CITY OF PETALUMA
When Recorded, Return to: Office of the City Clerk
City of Petaluma 11 English Street
Petaluma, CA 94952
Recording requested Pursuant to Government Code Sections 27383 & 6103 – NO FEE
621 Western Avenue, Petaluma, California APNs: 008-024-029, 008-031-015, 008-032-009 and 008-033-001
NOTICE OF LIEN (Petaluma Municipal Code §1.14.140)
Lien Amount: $512,248.30
Lienor: This lien is being imposed on behalf of the City of Petaluma in accordance with the requirements of Petaluma Municipal Code Section 1.14.140 and other applicable law.
Date(s) of notice of violation: The owner of the property subject to this lien received numerous notices of violations of City of Petaluma waste water discharge regulations between January 1, 2015 and December 1, 2020.
Property subject to lien: 621 Western Avenue, Petaluma, California, APNs: 008-024-029, 008-031-015, 008-032-009 and 008-033-001. See EXHIBIT A, attached, for a legal description of the property subjectto the lien.
Property owner of record: Mr. Larry Peter, 621 Western Avenue, Petaluma, California 94952
Basis for Lien: Outstanding wastewater discharge permit violation fines in accordance with Petaluma Municipal Code Sections 1.14.060(B) and 1.14.140 and other applicable provisions of law, City Council
Resolution No. 2021-054 N.C.S. adopted April 19, 2021, attached as EXHIBIT B, and the fully executed
Consent Order dated March 12, 2021 attached as EXHIBIT C.
Cost Report: The lien amount detail is specified in the Cost Report attached as EXHIBIT D.
Lien Priority: From the date of recordation this lien shall have the force, effect and priority of a judgment
lien in accordance with Petaluma Municipal Code Section 1.14.140(A).
Authorized Signature:
_____________________ Peggy Flynn City Manager [Attach notarial acknowledgement]
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EXHIBIT A
Property Description
The land situated in the State of California, County of Sonoma described as follows:
PARCEL ONE: LOT 281 as shown upon the Official Map of the City of Petaluma, made by Jas. T. Stratton, U.S. Surveyor,
and filed for record in the Office of the County Recorder, Sonoma County, California. EXCEPT therefrom all part described in the Deed to Gladys Webb, et vir, recorded August 15, 1972 in Book 2654, official Records, Page 613, Sonoma County Records.
PARCEL TWO:
COMMENCING at the Westerly corner of Lot 281 of said City of Petaluma, as laid down on the Official Map thereof; thence North 49˚ 9’ West along the Northeasterly line of Baker Street, about 160 feet, more or less, to the Southeasterly line of Western Avenue; thence North 67˚ 40’ East along the Southeasterly line of Western Avenue to its intersection with the Northwesterly side line of Lot 281; thence Southwesterly along said line of Lot 281, 245.3 feet to the place of beginning.
PARCEL THREE: BEGINNING at the Northeast corner of Lot number 186, as the same is laid down and numbered upon the Official Map of the said City as made by Jas. T. Stratton, Esq., Surveyor, and which is on the corner of Western Avenue and Baker Street; thence Southerly, along the Westerly side line of Baker Street,
211 feet to a point; thence at right angles from Baker Street Westerly, 168 feet to a point; thence Northerly to the Southerly side line of Western Avenue and the Northerly line of Lot Number 106; thence Easterly, and along the Southerly side line of Western Avenue, to the point of beginning. EXCEPTING therefrom a strip of land 12-1/2 feet in width, along the Southeasterly line of Western
Avenue, taken by the City of Petaluma for the purposes of widening said Western Avenue.
PARCEL FOUR: BEGINNING at a point on the southerly side of Western Avenue in the City of Petaluma, distant thereon and South 67 ˚ 40’ West, 217.1 feet from the intersection of said Southerly line of Western Avenue with
the Westerly boundary of Fair Street, from said point of beginning running thence South 45˚ 15’ East
157.30 feet to the intersection with the North line of Fair Ground Addition Block #1, thence North 44˚ 31’ East, 18.46 feet; thence North 45˚ 15’ West 149.75 feet to the intersection with the South line of Western Avenue, and thence along said South line South 67˚ 40’ West 20.04 feet to the point of beginning.
PARCEL FIVE:
BEGINNING at the Southwesterly corner of Lot 279, as the same is marked and designated on the map of the City of Petaluma, made by James t. Stratton, Esq., Deputy United States Surveyor General, on file and of record in the Office of the Recorder of Sonoma County, California; running thence in a Southerly direction along the Northeasterly line of Upham Street to a point distant 107.7 feet from English Street;
thence Northwesterly and parallel with English Street a distance of 100 feet; thence Northwesterly to the
Easterly line of Western avenue to a point distant from the point of beginning, 111.80 feet, a little more or less; thence Southwesterly along Western Avenue to the intersection of Upham Street and to the point of beginning.
A.P. Nos. 008-024-029, 008-031-015, 008-032-009 and 008-033-001
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EXHIBIT CDocuSign Envelope ID: 7B0563FF-3E79-4FC7-B955-8201B3E8C80A
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3/12/21DocuSign Envelope ID: 7B0563FF-3E79-4FC7-B955-8201B3E8C80A
PETALUMA CREAMERY BALANCE DUE SUMMARY 4/20/2021
CAPACITY FEE RENTAL - ACCOUNTS RECEIVABLE
Invoice Invoice Amount Amount Balance Desc
Date #Due Paid Due
1/0/1900 0 -$ -$ -$
Total Due -$ -$ -$
PERMIT VIOLATIONS - ACCOUNTS RECEIVABLE
Invoice Invoice Amount Amount Balance Desc
Date #Due Paid Due
2/17/2016 70123 104,602.30$ 52,354.00$ 52,248.30$ July 2015 -Dec 2015
3/14/2016 70000 5,000.00$ 5,000.00$ Dec 2015 - Jan 2016
4/11/2016 70610 5,000.00$ 5,000.00$ Jan 2016 - Feb 2016
5/11/2016 71021 5,000.00$ 5,000.00$ Feb 2016 - Mar 2016
6/10/2016 71580 5,000.00$ 5,000.00$ Mar 2016 - Apr 2016
12/13/2016 74897 5,000.00$ 5,000.00$ Sept 2016 -Oct 2016
1/9/2017 75655 10,000.00$ 10,000.00$ Oct 2016 - Nov 2016
2/1/2017 75684 15,000.00$ 15,000.00$ Nov 2016 - Dec 2016
3/13/2017 76475 5,000.00$ 5,000.00$ Dec 2016 - Jan 2017
5/8/2017 77657 10,000.00$ 10,000.00$ Feb 2017 - Mar 2017
7/10/2017 80190 10,000.00$ 10,000.00$ Apr 2017 - May 2017
9/11/2017 80171 5,000.00$ 5,000.00$ June 2017 - July 2017
12/7/2017 81615 5,000.00$ 5,000.00$ Sept 2017 - Oct 2017
1/4/2018 82079 10,000.00$ 10,000.00$ Oct 2017 - Nov 2017
3/15/2018 83216 20,000.00$ 20,000.00$ Dec 2017 - Jan 2018
4/5/2018 83779 10,000.00$ 10,000.00$ Jan 2018 - Feb 2018
6/7/2018 85072 5,000.00$ 5,000.00$ Mar 2018-Apr 2018
6/30/2018 86092 10,000.00$ 10,000.00$ May 2018-June 2018
9/13/2018 87186 10,000.00$ 10,000.00$ June 2018-July 2018
10/4/2018 87242 5,000.00$ 5,000.00$ July 2018-Aug 2018
11/13/2018 87907 10,000.00$ 10,000.00$ Aug 2018-Sept 2018
12/10/2018 88354 5,000.00$ 5,000.00$ Sept 2018-Oct 2018
1/14/2019 89180 10,000.00$ 10,000.00$ Oct 2018-Nov 2018
2/21/2019 89638 15,000.00$ 15,000.00$ Nov 2018-Dec 2018
4/8/2019 90311 5,000.00$ 5,000.00$ Jan 2019-Feb 2019
5/14/2019 91026 10,000.00$ 10,000.00$ Feb 2019-Mar 2019
6/19/2019 91430 5,000.00$ 5,000.00$ Mar 2019-Apr 2019
6/30/2019 92053 5,000.00$ 5,000.00$ Apr 2019-May 2019
10/21/2020 93708 5,000.00$ 5,000.00$ July 2019-Aug 2019
12/12/2019 94263 15,000.00$ 15,000.00$ Sept 2019-Oct 2019
1/8/2020 94655 15,000.00$ 15,000.00$ Oct 2019-Nov 2019
3/2/2020 95292 25,000.00$ 25,000.00$ Nov 2019-Dec 2019
6/30/2020 97431 30,000.00$ 30,000.00$ April 2020-May 2020
10/12/2020 98271 55,000.00$ 55,000.00$ July 2020-Aug 2020
2/4/2021 99460 60,000.00$ 60,000.00$ Oct 2020-Nov 2020
2/4/2021 99461 35,000.00$ 35,000.00$ Nov 2020-Dec 2020
Total Due 564,602.30$ 52,354.00$ 512,248.30$
INDUSTRIAL WASTE WATER DISCHARGE BILLING - ACCOUNTS RECEIVABLE
Invoice Invoice Amount Amount Balance Desc
Date #Due Paid Due
4/12/2021 100267 52,102.54$ -$ 52,102.54$ Current
Total Due 52,102.54$ - 52,102.54
Total AR Due 564,350.84$ Agrees with AR acct as of 4/20/21
UTILITY BILLING
Invoice Account Amount Amount Balance Desc
Date Number Due Paid Due
4/1/2021 032596-00 27.15$ - 27.15$ Sprinkler
4/1/2021 032595-00 20.33$ - 20.33$ Sprinkler
4/1/2021 032594-00 27.15$ - 27.15$ Sprinkler
4/1/2021 032593-00 61.88$ - 61.88$ Utility Bill
4/1/2021 032592-00 3,523.04$ - 3,523.04$ Utility Bill
4/1/2021 032557-00 603.65$ - 603.65$ Utility Bill
Current
Total UB Due 4,263.20$ -$ 4,263.20$ Agrees with UB acct as of 4/20/21
EXHIBIT DDocuSign Envelope ID: 7B0563FF-3E79-4FC7-B955-8201B3E8C80A