The following letter was provided to PCA:

Mayor Chiang:

Please allow me to raise a couple of points regarding your letter last week (January 24th) published in the Montclarion regarding the Pension Bond proposal.

Whether or not bonds will actually save the City money remains an open question. Of the several municipalities (public entities) who have taken this venture, most, for a variety of reasons, have not done well.

What you suggest regarding the vote count (requiring a two thirds voter approval) is problematic. Although it (2/3) complies with the Constitutional debt limit, altering the measure at this late time (long after the Election Code statutory time limit provisions) is prohibited.  The Code clearly does not allow for any type of alteration or modification to the measure, especially a substantive and material change as you suggest. Clearly, the bond measure is fatally flawed. 

Neither is judicial “validation”  (CCP secs. 860 et seq.) an option.  The City was correct in the first instance (Ordinance No. 711 N.S.) that the City’s charter provision (Section 4.14) requiring an affirmative vote of the electorate precludes an action under the validation statutes. Further, even without the prohibitive charter language, considering the recent court rulings, it cannot be shown that the obligation is one, “required by law” thereby eliminating the validation process.    

D. E. Mix

Editors’ Note: The opinions expressed are those of the author and not necessarily those of the Piedmont Civic Association.

RISK ASSESSMENT POLICY: What comes first fundraising or City agreement on accepting project funding? – 

A key element running through the new policy is the “determination of balance”- checkpoints where project cost estimates developed by city staff are compared with available funding for the project. The first determination is done by staff and if balance is found, staff must seek authorization from City Council to hire a consultant for implementation of the next phases. As complexity and detail are added to the project, multiple determinations of balance between staff and consultant cost estimates are made and if balance is found, Council authorization is requested to move onto the next phase. Council authorization will occur at a public meeting so the public will be aware of project progression. And it is at these checkpoints that the formal risk management analysis of the project and how each risk is proposed to be mitigated or managed is presented to the public. Cost and risk are to be estimated at each checkpoint.

For public/private partnerships, it is not clear how these determinations of balance are to be conducted. For public/private projects, the procedure stipulates: “If donations are anticipated for the project, [the city will] enter into an agreement with the private party proponents that specifies how the donations for the project are to be collected, held, and disbursed for the project development.” That makes senses but do all private donations have to be in hand at the time of the determinations of balance? That has not been the practice – project approval usually preceeds fundraising – so this area of the procedure needs further clarification.

Garrett Keating, Piedmont City Council Member

Editors’ Note:  The opinions expressed are those of the author and not necessarily those of the Piedmont Civic Association.

Non-profit organizations’ use of City Hall, public schools and other public facilities for ballot measure advocacy and partisan campaigns are no longer allowed.

On January 1, 2014 SB 594 came into effect in California and may create hurdles for non-profit organizations across the state and in Piedmont.  Sections 54964.5 and 54964.6 of the California Code were approved by the Governor on October 12, 2013. The new law prohibits non-profit organizations from using the property of local governments in their advocacy of candidates or ballot measures.

According municipal law consultant BB&K:

“SB 594, which takes effect on January 1, 2014, prohibits nonprofit organizations from using “public resources” in any communications that expressly advocate for or against a state or local ballot measure, or for the election or defeat of a candidate, or that constitutes a campaign contribution.”

The law defines “public resources” as:

“Any property or asset owned by a local agency, including, but not limited to, cash, land, buildings, facilities, funds, equipment, supplies, telephones, computers, vehicles, travel, and local government compensated time that is provided to a nonprofit organization.”

Piedmont is in the practice of allowing organizations advocating for ballot measures to use public facilities for promoting ballot measures, including partisan forums and programs.  The City has videoed these forums, programs and meetings and allowed use of the City website as a communication vehicle. 

Editors’ Note:  The Piedmont Civic Association (PCA) does not support or oppose candidates for public office or ballot measures.  

Cost overruns, unidentified risks, legal and engineering oversight are addressed in the finally adopted Risk Assessment Policy.

Following Piedmont’s unplanned expenditure of well over 3 million tax payer dollars, a result of the  failed Blair Park/Moraga Canyon sports complex project and faulty private underground utility project, residents and groups such as the Piedmont League of Voters (LWV) were concerned and offered suggestions on how to protect Piedmont from future unplanned financial impacts.  The City Council finally unanimously approved a Risk Assessment Policy.

Risk problems centered on the lack of step-by-step monitoring and reporting of risks and costs.  The new policy lays out actions to alert the Council, the public and the staff when capital projects costing over $300,000 are considered, approved and implemented. Public knowledge early in project development was specifically requested by the LWV and others.

The policy is intended to provide a thorough review of projects prior to expending large amounts of City time and money on projects without public knowledge and involvement.

Rob Hendrickson, a construction law attorney and civil engineer who served on the LWV’s Task Force on Civic Governance, repeated the monthly accounting recommendation presented in April, 2013 by then LWV President Julie McDonald.  He urged that as a project was being implemented a monthly accounting should be presented to the Council to assure staff was monitoring the project and the public was aware of problems.  This request was echoed by High School student Julie Adams, who felt this was common in business and should be a part of the policy.

Tim Rood, candidate for City Council, agreed with the accountability measures noted in the LWV communication.

Acting City Attorney Michelle Kenyon cautioned against including specific timelines for the City Administrator, such as monthly reporting, as this could result in further risk if the timeline was not met. Council member  Jeff Wieler stated the responsibility for compliance rested with the City Administrator as part of the job description and non-compliance would be dealt with through personnel evaluations and ultimately through the  Council election process.

Public Works Director Chester Nakahara who was responsible for drafting and redrafting the much belabored policy responded to concerns. Numerous “and/or” clauses in the policy language were at issue as to when and what would be presented to the public and Council during the conceptual and implementation phase of a project.  Nakahara pointed out that the requirement that the City Attorney and City Engineers review projects would be an expense for the City.

Excerpts from the City Charter:

The City Administrator, “Shall keep the Council fully advised as to the financial condition and future needs of the City…”

The City Attorney is to “Represent and advise the Council and all City officers in all matters of law pertaining to their offices;” “Approve the form of all contracts made by and all bonds given to the City, endorsing approval thereon in writing;” “All contracts shall be drawn under the supervision of the city attorney.”

The City Engineer description states, “There shall be a city engineer who shall have supervision over all matters of an engineering character as required by State law, or as assigned by the City Council.”

Council member Garrett Keating supported contract review by the City Attorney to protect the City from risks on public and private projects.

Review by the City Engineer is intended to make certain all projects are properly engineered and contracts are appropriately specified.

Consultants employed to oversee or advise on projects would be an additional cost of any project.

City Administrator Geoff Grote, who is retiring within weeks, stated that the policy would not prevent all future problems, while acknowledging the policy would be helpful and could be modified as needed in the future.

Mayor John Chiang was repeatedly thanked for bringing the policy to the Council for approval prior to his February retirement from the Council.

Click for the staff report and communications.

Click for draft minutes to view changes approved by the Council.

– Piedmont appears headed for significant zoning changes without voter approval. – 

Consent Calendar approval of zoning changes –

After little public involvement, zoning changes have been placed on the Monday, December 2, Council Consent Agenda to approve zoning changes to take effect within weeks on January 1, 2014.  When items are placed on the Consent Agenda, public input is considered complete.

At its November 18, 2013 meeting, the City Council voted 4-0 (Councilmember Margaret Fujioka absent) to allow multifamily housing to be located in Piedmont’s commercial areas without voter approval as recommended by the Planning Department and Planning Commission through a Conditional Use Permit (CUP) rather than seeking approval by Piedmont voters, as specified in the City Charter.

City Charter requirements – 

The City Charter states that voters decide zoning changes under SECTION 9.02 ZONING SYSTEM:

“The City of Piedmont is primarily a residential city, and the City Council shall have power to establish a zoning system within the City as may in its judgement be most beneficial. The Council may classify and reclassify the zones established, but no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified without submitting the question to a vote at a general or special election. No zone shall be reduced or enlarged and no zones reclassified unless a majority of the voters voting upon the same shall vote in favor thereof; provided that any property owner which is zoned for uses other than or in addition to a single family dwelling may be voluntarily rezoned by the owners thereof filing a written document executed by all of the owners thereof under penalty of perjury stating that the only use on such property shall be a single-family dwelling, and such rezoning shall not require a vote of the electors as set forth above. ” City Charter .  Emphasis added.

The Charter defines zoning classifications by their uses.  A change of use by Conditional Use Permit or otherwise has been considered a reclassification based on the City Charter language. 

Piedmont’s 5 zones are described and classified as follows:

Zone A – Single family residential

Zone B – Public facilities (including parks)

Zone C – Multifamily density housing

Zone D – Commercial

Zone E – Single family residential estate

All Piedmont zones allow single family residential use,  including the public facilities and commercial zones.

Ballot Measure –

 An option for voter approval was not proposed by staff, yet to satisfy the Charter and the State, the City Council could place the matter on a ballot to change Zone D Commercial to mixed use/ apartment and businesses.  This option would adhere to the traditional interpretation of the Charter language.  Council members Wieler and Keating wanted the voters to decide the matter of zoning.

If the Council approves the zoning change, an interpretation and method of changing zones by CUP in all zones by the  City Council rather than voters will have been set.

At the Council meeting, two new, temporary consultants, Acting City Attorney Michelle Kenyon and Deputy City Attorney Judith Robbins, voiced their opinion that changing from single family residential (allowed in all zones) to multiple housing residential was not a zoning /reclassification change because “residential is residential,” nor was going from commercial to mixed use a reclassification, as each property would be considered individually.  CUP’s are considered permanent and run with the property.

The all “residential is residential” interpretation is a strong departure from historic interpretation and use characteristics of zones,  Charter language, and intent of language in the City Code and Charter.

Based on staff comments, all Piedmont zones (single family, public facilities – parks, and commercial) could be changed by the Council to multifamily residential or other uses without voter approval by using the Conditional Use Permit process.  

Staff report for December 2, 2013 City Council meeting.

Editors’ Note: The Piedmont Civic Association does not support or oppose specific ballot measures.  The Association does advocate for adherence to the Piedmont City Charter.  

– Proposed changes in zoning to be considered by the City Council –

To increase low-income and affordable housing in Piedmont, apartments above businesses and smaller lot sizes have been proposed by the Planning Department.  The Planning Commission has made a recommendation to the City Council to approve changes in  Zone D Commercial and Zone A Single Family Residential.  

Uses in Zone D, the commercial zone, would change from business and single family residential to business, single family residential and multi-family apartments (Mixed Use).

The illustration provided by the planning staff in Zone D places multi-family apartment development above the Shell station at the corner of Wildwood and Grand Avenues. The ACE hardware store and nearby homes on Grand Avenue would fall into the newly reclassified zone permitting multi-family apartments above stores with a minimum density of 12 units per net acre.  The commercial properties in the Civic Center (the service station, two banks, and Mulberry’s Market) could likewise be developed with apartments above them.

– Voters or City Council authorized to make decisions on zone uses as proposed for the commercial Zone D ? –

Piedmont’s voter enacted City Charter states:

“The Council may classify and reclassify the zones established, but no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified without submitting the question to a vote at a general or special election. No zone shall be reduced or enlarged and no zones reclassified unless a majority of the voters voting upon the same shall vote in favor thereof;”

Former Piedmont Deputy City Attorney Linda C. Roodhouse noted:

June 7th, 2012

“I was the deputy City Attorney for Piedmont for many years and advised the planning department. I was also the City Attorney in Orinda for 11 years, until 2006. In both cities, I had a major role in the creation of new zoning codes. In Piedmont, the boundaries of a zone and the general land use within the zone are subject to voter approval. The City Council decides the specific rules and regulations within any zone, but the rules and regulations must be consistent with the charter description of authorized uses in a zone.”  Emphasis added

Barry Miller, Piedmont’s Zoning Consultant advised the City:

– Required lot size to be reduced in single family residential Zone A –

Properties in Zone A Single Family Residential could be entitled to lot size and street frontage reductions.  The proposal for the single family residential Zone A would allow lots to be reduced in size to 8,000 square feet and 60 foot street frontage from the current 10,000 square feet and 90 foot street frontage requirement.  Reductions would be determined by a lot averaging system based on lot dimensions within 500 feet of the subject property.  Historically, when appropriate, variances for lot sizes have been granted by the Planning Commission.

“Purposes: 1) to eliminate a perceived need to obtain a variance to build a single-family residence on a lot with fewer than 10,000 square feet; and 2) to remove unnecessary and archaic language” [referencing the notation of Charter requirements.] Planning staff explanation.

City Council member Keating recently wrote to PCA:

“First, changing the minimum lot size in a zone does not constitute rezoning, which would require a vote of the community. For example, Zone A is still residential although lots size requirements are being eliminated. And lot sizes are “archaic” as staff suggest – median lot size in Zone A is 6500 sq ft so most lots are below the 10,000 ft standard.”

– Environmental impacts not examined –

To implement the zoning change, the planning staff recommended and the Planning Commission approved a Negative Declaration as compliance with the California Environmental Quality Act (CEQA). The Negative Declaration relieves the City from further evaluation of any potential traffic, financial requirements, safety or other impacts of the proposed zoning changes. Although impacts can be examined, the Planning Commission did not undertake a detailed examination of potential impacts such as funding for services, infrastructure, traffic, safety, noise, etc.

 

“the proposed action to approve the amendments is exempt from CEQA because it can be seen with certainty that there is no possibility that the ordinance may have a significant effect on the environment, under CEQA Guidelines”  Kate Black, City Planner – October 14, 2013

Additional housing units such as apartments would not add to the School Support Tax base as parcels are taxed $2,406 per year regardless of the number of housing units.

The major principle of Piedmont zoning has been preservation of the single-family residential character of the City.

The Piedmont City Code states:

SEC. 17.3 ESTABLISHMENT OF ZONES
17.3.1: Purpose. It is the purpose of this Chapter to provide for specified zones and uses therein and to prescribe the character of construction within the City, in accordance with the City Charter. The zoning system of the City consists of two parts:
(a) The City Charter, which contains the zoning policy and requirements for voter approval of zone classification changes.
(b) Chapter 17 of the City Code. (Ord. No. 488 N.S., 10/87) 17.3.2: Intent, Establishment of Zones. In order to (1) maintain the City of Piedmont as primarily a single-family residential city, (2) to designate, regulate, and restrict the location and use of all buildings and land, (3) to promote the public interest, health, comfort, economy and convenience, and (4) to preserve the public peace, safety, morals, order, and the public welfare, the City of Piedmont is divided into five zones as follows…:

The matter is tentatively scheduled to be considered by the City Council in November.

Planning Staff report October 14, 2013

Planning Staff report of September 30, 2013 with ordinance language. 

– What qualities would you want in a new City Administrator ? –

At 7:30 p.m. on Monday, October 7, 2013, the Piedmont City Council will take public testimony on the experience, education, and qualities desired in the new City Administrator. This meeting will provide an opportunity to give input to the City Council on the traits you would like to see in a new City Administrator. This meeting will be held in the City Council Chambers, 120 Vista Avenue, Piedmont.

City Administrator Geoffrey L. Grote announced in August that he will retire in February 2014 after 25 years in his position. The City issued a Request For Proposals for executive search firms in August and received proposals from five firms. After reviewing the proposals, at its meeting of September 16th, the City Council engaged the services of the firm of Peckham and McKenney to recruit a new City Administrator. The process of recruiting a new City Administrator, expected to take several months, begins with this upcoming meeting.

You are invited to attend this meeting to express your thoughts on the experience, education, and qualities desired in the new City Administrator. The Council also encourages those who cannot attend the meeting to submit comments via email or in writing.

You may send email to jtulloch@ci.piedmont.ca.us or via U.S. Mail to the Piedmont City Council, c/o City Clerk, 120 Vista Avenue, Piedmont, CA 94611.

The staff report for this matter will be available on the City web site Friday, October 4, 2013.

This meeting will be televised live on KCOM-TV, Channel 27, the City’s government TV station and will be available through streaming video on the City’s web site www.ci.piedmont.ca.us.

For further information, please contact City Clerk John O. Tulloch at 420-3040.

John O. Tulloch, City Clerk
Posted on October 2, 2013

– Negotiations proceed with new proposals as time winds down for an agreement. –

New union proposals and charges against BART’s negotiation costs have headlined the ongoing struggle in reaching new contracts.  BART has recently released plans to partially accommodate the public, if the unions call for a strike on October 11.

In an effort to head off future BART strikes, Orinda City Councilmember Stephen Glazer began a “Keep Our Economy Moving” petition campaign. Glazer, a Democrat seeking election to the State Assemby, is focusing attention on the impacts of the possible strike in an effort to motivate the State to pass legislation prohibiting another BART strike.   Glazer states, “The Bay Area can’t afford a BART strike.” Despite Governor Jerry Brown previous opposition, Republican lawmakers have asked the Governor to call a legislative special session. They want to outlaw a BART strike and force the unions to continue negotiating.

In her letter Assembly Member Connie Conway, R-Tulare, said, “We call upon the governor to take swift action to ensure this labor dispute does not create a transportation nightmare.”

BART management continues to meet primarily with –Amalgamated Transit Union (ATU) and Service Employees International Union (SEIU).  Reportedly, the sides remain more than $100 million apart as the October 10 end of the 60-day cooling-off period is fast approaching. Friday, October 11 is the earliest day a BART strike could occur.

The Free Law Project, announced on September 24, will enable citizens and community groups to do legal research. It can be very difficult for the public to get access to the text of legal decisions, and, even statutes. Just knowing the statute may not be enough. It is also important to have access to the interpretations and applications of a statute over years or even decades. The new Free Law Project may fill the gap.

Free Law Project was created by Michael Lissner and UC Berkeley School of Information assistant professor Brian Carver, who researches and teaches about intellectual property law and cyberlaw. The pair previously created CourtListener, a repository of a million legal opinions from 331 jurisdictions, along with advanced tools for searching and analyzing the documents.

The goals of the co-founders for the new project are:

• To provide free, public, and permanent access to primary legal materials on the Internet for educational, charitable, and scientific purposes;
• To develop, implement, and provide public access to technologies useful for legal research;
• To create an open ecosystem for legal research and materials; and
• To support academic research on related technologies, corpora, and legal systems.

Case law is technically in the public domain. However, legal decisions may be  in proprietary systems accessible only at exorbitant fees. Even those in open source Internet sites are often under unknown names or too scattered for ease of location by interested citizens. Free Law Project intends to overcome these barriers and make all legal materials easily and freely available to all.

– Ambassador Christopher Stevens’ service to the United States embodies the PHS motto, “Achieve the Honorable.” –

On September 11, 2013, at 7:00pm in the Piedmont City Hall Chambers, the Piedmont Unified School District Board of Education remembered and celebrated the life of J. Christopher Stevens, former U.S. Ambassador to Libya and Piedmont High School graduate, Class of 1978.

In honor of Ambassador Stevens’ service to the United States of America, the Board of Education named the Piedmont High School Library, the Ambassador Christopher Stevens Memorial Library.

The Piedmont Unified School District scheduled the following activities to commemorate Ambassador Stevens’ life and contribution to our country. The Board was honored to have members of his family in attendance at their meeting.

September 11, 2013 – “A Moment of Silence” was held during Piedmont High School’s morning announcements in remembrance of Chris Stevens, US Ambassador to Libya and PHS graduate, Class of 1978, and for the September 11th National Day of Service and Remembrance, the naming of the Piedmont High School library the Ambassador Christopher Stevens Memorial Library by the Piedmont Unified School District Board of Education.

September 13, 2013 – During the Piedmont High School Varsity Football Game, a special half-time commemoration of Ambassador Stevens’ service will be held, announcing the Ambassador Christopher Stevens Memorial Library and holding a moment of silence in his honor.

September 17, 2013 – “Constitution Day” – In celebration of the signing of the U.S. Constitution students at Piedmont High School and Millennium High School will participate in activities that commemorate Ambassador Stevens, including writing commitments to the statement “What will you do to improve the community?” The Social Science teachers will share with students the biography of Ambassador Stevens’ service and discuss its relevance to current world events. Purple bracelets will be available for students that read “Remembering Chris Stevens Class of 1978.”

Ambassador Stevens is remembered at Piedmont High School as a former editor of the award-winning Piedmont High School newspaper, The Highlander. He was an outstanding student, active in the PHS Model United Nations Club, as well as active in the AFS Intercultural Programs Club. In the 1978 Piedmont High School Yearbook his quote was, “What a bore it is, waking up in the morning always the same person. I wish I were unflinching and empathetic and had big eyebrows and a Message for the Age.”

Piedmont Unified School District