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HomeMy WebLinkAboutAgenda Bill 4DLate1 09/14/20094.~ .From: Christopher Arras [cearras@gmail.com] Sent: Monday, September 14, 2009 10:31 AM To: cearras@gmail.com Cc: -City Clerk Subject: September 14, 2009 Council Meeting -Agenda Item 4D and Closed Session Item re Litigation (Case No. CV 245604) Dear Mayor and City Council: This email is being sent simultaneously to you at your email addresses as listed on the City's website, with a cc to the City Clerk. Regarding the manner in which the Planning Commission has assumed the duties of SPARC, there has been a tremendous amount of confusion and. needless strife during. the past four months. No doubt, unless the situation is turned into something positive, the potential positive aspects of this consolidation maybe irretrievably lost amid increasingly visible negatives-- whether-real or perceived-- as the next. few months unfold. Even as we move into 2010 and beyond, the lasting impression of the.new duties and composition of the Planning Commission will in all likelihood remain a jaundiced one in the views of many Petalumans-- unless something bold is done. So to reach a guaranteed positive outcome with a minimum amount of "pain", I suggest the following to you: Consider a Planning Commission of nine members. There are numerous reasons to do so. First, because the Commission is being proposed to be "reconstituted", this is the ideal time to consider a different number of commissioners. Reconstitution is a major action and opens up the door for a discussion about all mariner of changes to the Commission. Second, under the previous system; most projects were reviewed in some manner or another by ten different appointed, volunteer citizens (four specifically appointed to SPARC and six appointed to the Planning Commission) plus the Council's liaison to the Commission. Under the proposed new system, only six appointed volunteers, plus the Council's liaison, would review all such projects and related issues. This represents a 40 percent reduction in the number ofvolunteer citizens taking a critical look at important proposed projects and other land use and design review issues. 40 percent is a dramatic decrease in volunteer contributions to the time-consuming task of reviewing projects which can be of the utmost importance to the future of Petaluma. With a Planning Commission of nine, the reduction in volunteer citizen oversight would be lessened to a much less impactful 20 percent. Slightly more time maybe needed at some meetings for Commissioners to ask questions and comment; however, the decrease in overall time for hearings because of the proposed consolidation from two, separate~bodies to one, consolidated body will far outweigh any such concern, not to mention the positive contributions that two more Commissioners could make to helping craft development which is good for all of Petaluma. Also, having nine Commissioners comment on a project will be no different than what is currently proposed for the Historical and Cultural Preservation Committee-- a Committee of nine members. If the H.C.P. Committee can make nine members work, then the Planning Commission can make nine members work. 'T'hird, as the past few months. have demonstrated, conflicts of interest, vacations and other .absences often reduce the number of Commissioners available to hear an item, sometimes below the currently necessary quorum of four. Having nine Commissioners will clearly help -avoid these types of quorum issues. A nine member Commission with a quorum of five will better avoid such quorum issues, especially quorum issues caused byconflicts-of-interest. Fourth, as alluded to above, having nine persons present on the dais is no different from what is currently proposed for the Historical and Cultural Preservation .Committee. Whatever arrangements have already been designed to accommodate this proposal as to the H.C.P. Committee will work equally for an identical member of Planning Commissioners-- nine. (Wi#h the City Manager, Council meetings currently accommodate eight persons present on the dais and with the new-- and more comfortable, I might add-- chairs, there is no question that there is enough space to make nine work.) Fifth, as to the Historical and Cultural. Preservation Committee, the consolidation as currently drafted would significantly dilute the importance of the historical associations* representatives' votes. Under the SPARC + Planning Commission system, the H.C.P. Committee was comprised of five SPARC members and the two . historical association representatives. Two of seven votes (roughly 2$.S percent) of the H.C.P. Committee were held by persons whose specific interests and aptitudes lent themselves to historical preservation review. Under the currently proposed system, that 28.5 percent portion of'the historical review votes will be diminished to only 22.2 percent (two of nine votes).- If one of the historical association representatives is unable to attend a meeting (as occurred recently); the vote of one such representative would. be only 1 l . l percent of the total -vote assuming all other members of the Committee attend. I submit that matters of historical. preservation in Petaluma are important enough that the voting percentage of historical associations' representatives on any newly constituted Historical and Cultural Committee should not fall below 28.5 percent. To fix this problem, only five of nine Planning Commissioners could sit on on the Historical and Cultural Preservation Committee, in order to make up an H.C.P. Committee of seven and to preserve the 28.5 minimum percentage. The five representatives from the Planning Commission could be chosen by vote and/or by seniority from among those Planning Commissioners who want to also serve on the Committee. I also would recommend that, like the officers and liaisons of the Planning Commission. under the former system, such representatives be selected by the Commission for one year at a time and that. there be a "rotation" based on giving priority to Commissioners who did not serve on the Committee during the prior year. Specifics could be addressed by ordinance and/or by the Commission's bylaws (which. currently address election of officers and selection of liaisons). Sixth, a Commission comprised of nine members instead of the currently proposed seven members will definitely demonstrate to the public that this consolidation is a genuine attempt at making the development approval process-more inclusive and more efficient, as opposed to more exclusive-- i.e., by excluding four of the ten persons who volunteered under the previous system-- .and merely a preservation of the status quo of seven Commissioners but with.. different names and faces. The consolidation should. not lie perceived as an attempt to concentrate decision making.. authority away from the many (ten persons) into :the hands of the few (six persons); having eight- appointed volunteers plus the City Council representative will go a long way toward dismissing such a perception. Seventh, in a time of budget constraints, staff layoffs in the Community Development Department and the transition to new contract planning staff who are clearly highly skilled and committed, but who do not. yet have the local institutional knowledge that was acquired over time by the former staff, it is more important than ever to maximize volunteer citizen contributions. With eight appointed volunteer citizens on a nine member Planning Commission, you will have the benefit of many more years of accumulated.experience with Petaluma issues that affect development. Two additional volunteers will contribute an additional 33.3 percent (2/6) above the six appointees currently proposed, both in the skills and in the..knowledge base that is so important for decisions regarding land use and, with the elimination of SPARC, design review. Eighth, having two more spots on the Planning Commission will give you. more flexibility in the future regarding the different backgrounds of appointees-- for example; not only could you have an architect, a CEQA consultant, a builder, an engineer, etc., but you would have two -more seats for an attorney and a .community volunteer or any other specificbackground you can think o£ This dovetails into my tenth point, below. Ninth, what I am proposing in terms of a larger commission upon consolidation of planning commission with a design review board, is exactly what has been done in similar situations in other California communities, including recently in the City of Livermore. Also, a number of cities in California have planning. commissions with nine members. Tenth, but not least in importance, the litigation concerning the Planning Commission could be resolved expeditiously and any further significant expense associated. with it thereby avoided, while at the same time allowing all the newly appointed Commissioners to also serve. With eight appointed Commissioners, there will be enough room for both the "new" Commissioners who were appointed in July 2009, as well as the "current" Commissioners who are prosecuting the referenced litigation and who were previously appointed to terms expiring in 2010, 2011 and 2012. As you know, there are five "new" Commissioners appointed in July 2009, and I was re-appointed to a term ending June 30, 2010. In order for the math to work-- five "new" commissioners plus three "current" Commissioners-- there will be only one "odd" man or woman out. I am volunteering to be that odd man out. In order to help resolve these outstanding issues and bring the community together, by facilitating the seating of such a nine member Planning Commission, I will resign. from (or forgo re-appointment to) the "reconstituted" Planning Commission. This will allow all five who have been recently appointed plus all those who have unexpired terms, exceptirig me, to continue on and, to complete their appointed terms. I have enjoyed my time on the Planning Commission but, without regret, I would give up what effectively amounts to eight months remaining on my term, if by doing so a nine member Planning Commission can be made to work. (In fact, if I could think of a reason. a ten member Commission would be better than a nine member Commission, I would not hesitate to propose it; however, all things considered, I think ten would be one too many and would raise the undesirable, although likely infrequent, possibility of a 5-5 tie vote. I also think having an "alternate" Commissioner, who would sit only in the event of a conflict-of- interest or a quorum problem arises, should not be necessary.) With this solution, the three previously appointed Commissioners with unexpired terms could serve their terms until the dates on which those terms were set to expire (June 30, 2010, June 30, 2011 and June 30, 2012), and all five of the newly appointed Commissioners could likewise serve the terms to which they were appointed in July. I would like to say that; Having worked on issues with the three current. Commissioners and having met and briefly had the opportunity to ;get to know the five newly appointed Commissioners to varying degrees, I believe that all eight would perform their function on the Planning Commission very well acid in a highly professional manner and that all eight would work well together. I also think all eight have a variety of backgrounds and skills which complement each other extremely well. In fact, the variety of the baclcgrourids and skills of all eight persons highlights the need for anine-member Planning Commission. There is a wealth of talents and perspectives in Petaluma when it comes to land use- planningissues, and having eight volunteer appointees instead of six takes significantly better advantage of all the talents and perspectives that are present in the community. Three more notes regarding attorneys fees, timing and a "sunset" provision: The variations which I am suggesting on the currently proposed reconstitution of the Planning Commission should not be a time consuming task for the City Attorney, especially in the context of the total amount of time already spent in drafting the proposed legislation and otherwise advising the Council regarding this matter, including the pending litigation. There is no question in my mind, as an attorney familiar with civil litigation in general and petitions for writs of mandate specifically, that the attorney time necessary to defend and oppose the pending litigation will far exceed the amount of attorney time necessary to make the revisions which I am sug eg sting be made to the proposed legislation. If you then factor in the possibility of an even more time-consuming appeal or further petition of mandate to the Court of Appeal, whether the City is prosecuting or defending such an appeal, the attorney fees necessary to make these relatively minor changes to the proposed legislation will be dwarfed by the attorneys' fees necessary to handle the subject litigation throu an appeal not to mention the prospect of reimbursing the other side's attorneys' fees if the City were not the prevailing party. My proposed solution would effectively render the pending litigation moot, thereby prospectively cutting off any potential liability to reimburse the other side for attorneys' fees and costs. As to fees and costs already incurred, there has already been a public indication that the parties should be able to negotiate a mutual waiver. Also, if it makes a difference to those. who maybe uncertain about the. benefits of a larger Planning Commission, a change to nine Planning Commissioners could be enacted on a temporary basis. A "sunset" provision would allow the Commission to revert to seven members on a date certain, for example July 1, 2011, by which time two of the three current Commissioners, plus one of the view Commissioners, will have had their terms expire. If, at that time, a nine member Commission is working well and in the Council's judgment even better than a seven member Commission, re-enactment of this aspect of the legislation would be a facile task. If the Council decides otherwise, the natural expiration of Commissioners' terms will result in a seven member Commission as of July 1, 2011 (under the scenario I have given) without any further action needed by the Mayor and Council.. Such a "sunset" provision would also be consistent with comments by a number of you that the consolidation of Planning Commission and SPARC may turn out to be a temporary or transitional measure. Finally, if these additions to the proposed. legislation were pursued, I would hope they would receive unanimous support; which would result in the legislation going into effect earlier (allowing posting before the second reading). The legislation. thus would take effect sooner, the matter would be resolved in its entirety much sooner and the Commissioners appointed in July 2009 would be able to take their seats sooner than they would without a unanimous council, not to mention the potential for the unresolved litigation to delay their being seated for a much longer period of time should any temporary relief or remedy be granted to the petitioners. Thank you for taking the time to read my rather lengthy email. As you maybe able to tell, I have thought a great deal about these issues and I hope you will give my thoughts some consideration. I offer them, not only because I think they are good .ideas which make a lot of sense, but also in the spirit. of compromise which is so often necessary in order to make significant progress on important issues. If you have any questions regarding what I have written above, please feel free to contact me by email or telephone. Sincerely yours, .Christopher Arras *For simplicity, I am referring to both Heritage Homes and the Museum Association as "historical associations."