Ventura City Council Meeting
July 11, 2011
Ventura City Hall - 501 Poli Street
Rebecca Mendoza, Ass’t City Attorney, stated that issues have been discussed with respect to the so-called "NuGard" graffiti deterrent devices. The railroad may choose to remove the shields for reasons of maintenance or inspection, resulting in a $40,000 cost liability to the city. Another issue of concern would be indemnification of the railroad even at their negligence. The city would be required to concede to the power of federal law over local ordinances regarding graffiti, absolving the railroad of responsibility for cleaning or graffiti removal on a permanent basis. And lastly, any decision made under this agreement would bind future city councils as to any liability levied against the railroad.
The mayor asked whether or not we were somehow contracting away the police power. Mr. Cole replied that in correspondence with the railroad it has been determined that some amount of flexibility remains when it comes to the police power issue.
To View a listing of the agenda items for this council meeting, go to www.cityofventura.net/meeting/city-council-meeting-63.
Mayor Fulton brought the meeting to order with a call of the roll – all present. The mayor asked Council Member Monahan to lead in reciting the Pledge of Allegiance.
Closed Session Report – Council conducted a closed session on six items, the particulars of which will be disclosed when the city files that case, according to the city attorney.
Council Communications – Council Member Morehouse thanked all those who volunteered for the Street Fair. Thanks also went to the Rotarians for putting on the fireworks display. Another event at the E.T. Foster Library is happening where County Supervisor Steve Bennett is appearing to help in the children’s’ reading program – Paws for Reading.
Council Member Weir wanted to thank all those who are involved with the renovation of the Olivas Adobe. Tours are offered each weekend. The concerts on Saturday evenings are expected to be enjoyable.
Deputy Mayor Tracy requested that Michael Shanahan the remembered at the close of the meeting this evening. Mr. Shanahan passed away on June 23, was the Dean of Boys at Ventura High School and later the Principal at Buena High School.
The mayor said there were 40 to 50,000 people at Ventura's Street Fair this year. A fundraiser for food share was held on the lawn of City Hall.
The city attorney had an amendment to the closed session report, mentioning the council’s vote of 7 to 0 on the litigation of one of the items.
Regional Boards, Commissions and Committees – Council Member Morehouse stated that the meeting of the Southern California Association of Governments hosted a workshop and a retreat, along with a presentation by Pete Peterson with the Davenport Institute, part of Pepperdine University, talking about public engagement. As a result of Senate Bill 375, regional transportation issues are coming to the forefront. Sustainable community strategies was mentioned as a “gigantic thing” that we are all supposed to plug into, according to the councilman.
Mayor Fulton mentioned meetings of the Regional Transportation Board, which is seeking to reorganize and integrate transportation systems within the county. There are currently 7 separate transit entities in the county, and an effort is ongoing to assess consolidation. A bill is expected to the presented before the end of the year.
Agenda item No. 7 Second Unit Amnesty item is not on the agenda but will be continued until next Monday. Agenda iem No. 11 has been withdrawn, to be presented on August 1st.
"First Monday" Public Communications – The mayor reiterated the rules for public speaking, with about 15 speaker cards having been collected.
Carroll Dean Williams spoke, saying that the city attorney is fond of saying one thing in private and another in public. The speaker had concerns with the law as published by Ventura County Superior Court, regarding the point at which a vehicle enters an intersection, thereby triggering electronic mechanisms which are designed to catch red light runners. It was the speaker’s contention that the city has rigged the red light cameras, asking the deputy mayor, a former city police chief, whether a photograph placed into evidence had entered an intersection illegally.
Douglas Quick represented the Baha’i Faith community who wished to read an invitation letter regarding the Baha’i’s struggling over the human rights issues in Iran. On Thursday September 15th in the Thousand Oaks Civics Plaza, an awareness program will begin at 7:30 PM, on the occasion of the imprisonment of 7 leaders known as the Bah’an, where the broader struggle for human rights in Iran will be given an affirmation hearing. Iran remains accused of civil rights violations and religious persecution of the Baha’i in particular as a minority religious group. A special invitation went out to mayors, council members and civic leaders to help in commemorating this resolution.
Bill Feeman spoke concerning the Mount Palomar Street gate closure, asking the council how to stop a project that is ill-conceived. On several days recently the speaker has contacted the mayor. The project has already gone through completed at the cost of $86,000. It was said that a hearing could have saved those tax dollars. The street on which the speaker lives was claimed to have never been paved. The choice facing the public would be one of either having a street closed with gates or having one cleared of potholes. How does any citizen stopped a city project that is a waste of money, was the question posed by the speaker. The final question was, “when will we see the gate removed?”
Bonnie Kent said that on Palomar Avenue there were reasons for removing the gate. It’s grandiose design is an indication of the overspending of taxpayer funds. The gate may have cost $40,000. Road improvement should have been the focus, according to the speaker. City employees are required to stand a top their vehicles in order to operate the gate – an operation that is to be performed daily. Public safety was said to be an issue. Ambulance or police personnel may be forced to unlock the gate in an emergency. A commercially sized gate has been installed in a residential community. This symbol of bureaucracy and waste needs to be removed, according to the speaker.
Judy Hauer spoke as a resident of Highland Avenue, stating that the neighbors are against the gates erected across their streets. A chain had been used for years to control traffic. Money has not been disclosed as to expenditures, and could reach the level of $90,000, according to the speaker. A contractor said openly that he was “milking the job because work was slow.” The speaker said that in their neighborhood people do pay for the view, but that the gate situation detracts from the natural beauty of the landscape. The speaker asked Council to relocate or redesign the gate that affects over thirty residents, the signatures of whom the speaker was prepared to hand the city clerk.
Leticia Wilson and Clyde Reynolds spoke as a team hoping to promote the reelection of Carl E. Morehouse. Council Member Morehouse has been involved with Turning Point Foundation fund-raising events, one of which is on the Internet with another having been mentioned in connection with food and wine restaurant activities, also benefiting Turning Point Foundation. Mr. Reynolds offered buttons available to supporters as a token gift and reminder of the event.
Moses Moore, known for his association with the Tortilla Flats Mural and/or the Bell Arts factory, claimed that on a clear day last week he had been given a $125 ticket for riding his bicycle on the sidewalk. It was his claim that the officer on the downtown beat does not display a degree of courtesy and professionalism that should be required of his position. The speaker claimed to have been verbally abused, and I felt that rough treatment by a police officer within the city of Ventura would be bad for business and tourism.
Tom Stanley with time yielded said that with regard to the proposed second unit ordinance, specifically including home safety as a requirement for bringing second units into compliance, it was thought that the ordinance needed to be amended and brought into line with the same safety checklist used for HUD home safety inspections. Citing a letter to Barbara Chavez, Assistant Housing Director for the Ventura Housing Authority, the speaker referenced the city’s acknowledgment of 170 HUD safety inspections in the first quarter of 2010 at a cost of $37 each. Additional correspondences between city staff and Ms. Chavez documented 800 or more inspections, which the speaker offered for entry into the public record. This according to the speaker qualifies as acceptable the practice of using HUD inspections by the City of Ventura. A copy of said checklist was offered to Council as a matter of public record. It was stated that this standard of inspection should be applied to the second unit safety ordinance which has been in negotiation with the owners of such units. An amendment was called for by the speaker so that Staff may include the suggested revision in time for the July 18 resolution adoption.
The Contractor Life Safety Inspection Checklist was referenced as currently included in the ordinance for bringing second units into compliance, and elicited a quoted citation from the speaker – “The Contractor Life Safety Inspection Checklist is a city provided inspection checklist that will be completed by a licensed electrical contractor and a licensed general contractor that you hire; the same contractor will need to do the remedial corrective work as identified on the checklist.” The speaker characterized as illegal the second part of the statement (following the semicolon). From California Law Business and Professional Code, Section 71-97, the speaker noted, “It is an unfair business practice for a home inspector to do any of the following: (1) Perform or offer to perform for an additional fee any repairs to a structure on which the inspector or inspector’s company has prepared a home inspection report.” The speaker characterized Staff’s crafting of the ordinance with its current wording as “clearly illegal.” California Real Estate Inspectors Association (CREIA) inspectors were cited as adequate, stating that their training and current certification credentials for private inspector services are sufficient to perform the inspection process as required to remain in conformity with Ventura’s second unit life safety inspection code. It was also noted that CREIA certified inspectors do not offer to do corrective work. It was further stated that CREIA inspectors may serve as an ombudsman, giving the homeowner a confidential preview of that which will be needed to fulfill the requirements of grandfathering a second unit. The Ventura Safe Housing Collaborative made the same recommendation to the council, according to the speaker. It was recommended that Staff amend the ordinance to include CREIA inspectors in the home inspection process for the legalization of second units in Ventura.
Camille Harris with time yielded, congratulated the council on moving forward the cutoff date for grandfathering second units to 2004.
Success = Community Buy-In, showing: “The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community.” (Chief Justice Oliver Wendell Holmes Jr., U.S. Supreme Court)
The Affordability Hurdle, showing: (1) Unaffordable Fees [Adding impact fees to permit fees] – (2) Unaffordable Inspections [Tougher and more expensive inspections than required for safety] – (3) Unavailable Payment Plans [Knocks out seniors on fixed incomes]
Permit Fees Versus Impact Fees [Impact Fees are for New Construction] showing: “Grandfathering is a program for existing structures that have been upgraded for adaptive reuse” – (1) Similar to master suite for caretaker – (2) $millions in preventing homelessness – (3) Higher property taxes accrue to city – (4) Lowest impact approach to higher density – (5) Sustainable green/supports General Plan – (6) Studio units for one-to-two adults – (7) No impact on schools
Impacts Are Negligible, showing: “Upgraded structures are cited for missing permits so owners need to pay for those permits.” [The same as was done by our City Council Member]
VSHC Recommendations for Home Safety Inspectors, showing: (1) Allow association-certified home safety inspectors as alternative to contractors – (2) More affordable, more qualified – (3) State Code prevents Home Safety Inspectors from offering repairs – (4) Requirement for continuing education – (5) Serve as objective ombudsman
Low Income Owners and Seniors Need Time Payment Plans, showing: (1) County could assess 4 years of taxes [Who is coordinating with the county tax assessor?] – (2) Repairs or upgrades may be necessary – (3) Inspections fees [“Found money” will provide resources for payment services]
Maximize Safe Housing with Affordability, showing: (1) Affordable fees: Permits, not “new construction impact fees” – (2) Affordable Inspections: Home safety inspectors/HUD standards – (3) Affordable for seniors: Time payment plans
The speaker concluded by saying “let’s work this together to make it successful.”
Council Member Andrews asked of Camille the question referring to a particular council member who had knowledge of upgraded structures and had been cited for missing permits. The speaker responded saying that a council member had an illegal second unit, which had been been legalized in 2007. According to public records, no impact fees were paid. The speaker also said that equal treatment under the law should mean that the ordinary citizen would be allowed the same considerations as those in a position of privilege. The council member asked for specificity as to the council person, hoping to have a name revealed. It was not to be, however.Helen Yunker spoke, saying that the Ventura County Star newspaper ran an article on City Manager Rick Cole. “City leaders need to go out into the community,” as stated by Mayor Bill Fulton, “engage the public, and show a willingness to admit that they don’t have all the answers. We need to overcome the culture of fear if we’re going to create a more transparent government. I think Rick is capable of that.” Then from Councilman Neil Andrews, “We owe our citizens our best efforts at getting them involved in the political process.” And I finally, said the speaker, Rick Cole was quoted as having said, ”I want local government to be responsive to the citizens in evaluating these positive comments on communal participation and need. It is difficult to understand the ongoing hang-ups and delays in creating a fair and practical grandfathering program as set forth by the public and the Ventura Safe Housing Collaborative.” The speaker wondered if the foregoing quotes were simply political posturing and “mishmash.” The speaker also claimed herself as the “poster child” for abuse at the hands of the city.
Patti Thomas spoke, saying that the Library Strategic Plan will be coming up for scrutiny this week, with the committee meeting at 7:00 at City Hall on Wednesday the 13th. Outside the Museum there were to be refreshments and a panel discussion with library experts. Story Time Underneath the Stars in the courtyard was to be held. The College Area Community Council also was inviting the city to a workshop on the libraries. The speaker had fliers on hand in English and in Spanish. the speaker had specific questions for the city attorney, which would be forthcoming via e-mail, asking for clarification as to a library pullout without giving notice before the end of the year, whether this would cause Education Code 19105 to apply, or would we be under Education Code 19107? Then regarding municipal libraries, if we were to become a city-run library as has been traditional, would 18963 of the Education Code apply?
Steve Schlader spoke, saying that a well adjusted American citizen and family member – showing a photo of Mayor Fulton at his father’s headstone – has a way of connecting to his personal history and the American culture. The point was made, however, that there are within Ventura those who have no such luxury. Many of them have had their headstones pulled from the grave, leaving no marking whatsoever. The speaker quoted author George Orwell – 'The most effective way to destroy a people is to deny and obliterate their understanding of their history.' Mr. Schlader then proceeded to read from the list of persons known to be lying in desecrated graves within the former St. Mary’s Cemetery lot, now known as Cemetery Park.Brian Rencher spoke, saying that citizens have been expressing interest in the speaker’s decision on whether or not to run for City Council this November. Mr. Rencher announced his intention to abstain from running, saying that he might be inclined to walk instead. It was the speaker’s claim that he might be having difficulty in understanding the voters. It was further his claim that the public preferred intelligent council members. A former member of the military, the speaker also characterized himself as intelligent. Again the speaker claimed several master’s degrees and several bachelor’s degrees from accredited universities. A further list of accomplishments ensued. A rather menacing attack on the public appeared to be in progress as the speaker said that the public often will hear only what they wish to hear, notwithstanding a further laundry list of civic accomplishments being kept close to the public’s ear as the speaker droned on about his various and sundry civic titles. This year’s topic of civic interest to the speaker, as he announced his candidacy, would be centered on City Manager Rick Cole’s “veracity,” so-called, when it comes to running a city. The speaker mentioned the fact that “smart growth” had been delayed just long enough for the recession to kick in, citing other factors such as the investment team concept of “diversification.”
Bob Chinenesi spoke, saying that second unit code enforcement policy continues to hold his interest in seeing “how this thing will work out.” The speaker agreed with the city attorney in saying that nothing in the ordinance makes anyone’s second unit illegal, although some illegality could occur if in the process of applying for amnesty, the owner cannot qualify or cannot obtain the necessary financing. As an English professor, the speaker wanted to deal with the semantics surrounding “amnesty” which accordingly means “home free.” All were reminded that the word stems from “forgetting.” It was the speaker’s contention that this is hardly an amnesty based on the definition. The penalties, the permits and the cost were factors mentioned. The tax assessor’s office said that each would be reviewed on an individual basis. The county, according to the speaker, would see nearly all cases as “new construction.” An assessor would enter the property and levy additional fees and costs at that time. The city typically eschews mentioning some of these factors in that the city has no control over most of them. The speaker desired to see some recognition of the fact that the amnesty applicant will be far from “home free” when it comes to undiscovered costs, fees, penalties and assessments. The speaker wished to ask rather rhetorically whether we can expect the program to succeed. It was his feeling that some skepticism would be in order based on the current climate surrounding trust in government and other geopolitical factors.
City Attorney Ariel Calonne wished to respond to Tom Stanley, saying that home inspectors brought up an important point, with the state inspection law referred to applying only to transfers of property – the only case situation. The city attorney stated his intention to modify the ordinance slightly to reflect Mr. Stanley’s concerns.
City Manager Cole commented on the Palomar gate situation, saying that the issue has been divisive since the closure of Poli Street during school hours some three years ago. The chain barrier was replaced by a permanent gate because the chain has some potential liability hazards such as prohibiting bicycles from using the street. A gate was designed that was expected to blend harmoniously with the neighborhood, and Mr. Cole agreed that the city may have failed in that endeavor. The engineering may have been successful, it was said further, but that from aesthetics point of view it’s likely that there is room for improvement, or so it was said, and yet aesthetics are often in the eye of the beholder. A further issue that was raised concerned paving, with the city manager saying that their street is scheduled for paving, although with challenges in the area involving severely aged underground waterlines progress on the paving issue has been slow. The city manager then directed toward Council the issue further investigating the gate problem from the perspective of residents in the area.
CONSENT ITEMS – Minutes; Monthly Report Back Schedule; Contract for Police/County Fair; Surfers Point Managed Shoreline Retreat Project Monitoring of Coastal Erosion; Fiscal Year 2011-2012 Transportation Development Act Allocation Funds; Allocation of Fund Balance Under Governmental Accounting Standards Board Statement; Second Unit Amnesty and Legalization Ordinance, Disclosure of Building Records Required Upon Building Resale Ordinance, and User Fees for Amnesty Permit and Resale Report Program (Advance Agenda Item No.7); Revised Fiscal Year 2011-2012 Resolution Adopting the Operating, Capital Improvement, and Redevelopment Agency Budgets and Appropriation Limit (Consent Agenda Iitem No. 8). With public speakers available on Consent Agenda Item No. 8, the mayor asked council members to specify items for pulling – there were none.
Public Communications – Consent Agenda Item No. 8. Carroll Dean Williams began to challenge the rules for public speaking in response to the mayor’s momentary lapse in allocating time for redevelopment items. The speaker claimed to have been offended by the mayor’s point of order over the discrepancy. (It was said from the speaker’s podium that the mayor has not made plans to enter the next reelection cycle.) It was also said from the podium that Gov. Brown has reconsidered the decision to de-fund redevelopment agencies. The speaker then wished to have the city attorney clarify in his report the ledger balance under the redevelopment agency charter for the city of Ventura.
Brian Rencher went on record as being in favor of the proposed RDA budget. The budget formerly had contained considerably more detail, according to the speaker, with what has become a convolution of items intermingled with the city’s budget and causing difficulty in searching out and sorting out, basically, the appropriate items. The speaker characterized the process as one of “obfuscation,” requiring greater insider knowledge than the average citizen would possess. Continuing in this vein, the speaker noted that there were formerly summations in addition to the individual breakdowns as a way of traversing the material, suggesting that for capital improvement items, there are, in fact, project numbers associated with each. The speaker said that it was necessary to go into the actual CIP in order to access this kind of helpful information, noting further that a summation currently exists for $3,422,492.00 – an increase of $62,000 over and above what was proposed to the commissioners. Typical projects include those such as the Oak Street improvements, and with the proposal to shift the California off ramp over to Oak Street – originally $15 million and now $19 million – it was unclear whether the money would ever be available. And while closing fire stations, but with the redevelopment agency paying over $5 million as owed through its own line of credit received from the city’s general fund, the agency is sitting on these capital funds. The speaker wished to know why we are laying off police officers and find ourselves unable to fund libraries while sitting on this money. Looking at the low and moderate projects for affordable housing, including the Granny flat issue, it was wondered how much money the agency would have if trying to offset these costs, which yielded, to the speaker, a figure of around $180,000. With $3 million committed to Cabrillo where $466,000 was called an affordable unit, yet we continue to threaten poor people with homelessness over being unable to legalize a second unit. It was the speaker’s contention that this money could be used for that. With $788,000 for administration, this was also cited as being misused in the face of other needs within the city. Mr. Rencher began to conclude by tensioning the debt service, noting that the city’s line of credit which the agency has inherited, comes down to money going to Wall Street rather than into our schools. It was asked, finally, “Which is more important – Wall Street bankers or our kids in schools?”
Mr. Rencher then continued with his time in speaking to the council, saying that he would not support the city’s budget. According to the speaker, the budget cuts down funding for public safety and closes libraries. Close to $1 million was spent on planning, which has robbed tens of thousands of dollars from the Westside pool fund. The mayor wished to clarify saying that council had already switched funding from the pool fund to the council contingency fund.
Council Communications – Council Member Brennan moved to accept the Consent Calendar. With a second obtained the mayor called for a roll call vote. All council agency members voted yes.
Agenda Item No. 9 – The appointments committee hearing. Council Member Monahan said that the appointments committee met having conducted a few interviews – the Port District Commissioner appointment recommended Robert Bravo for reappointment to the position. A motion was called for – with a second the mayor asked for a roll call vote. All members voted yes.
Union Pacific/Highway 101 Railroad Trestle, showing: A photo of the railroad Trestle overpass spanning the 101 Freeway at California Street was shown. The effort is being conducted with the cooperation of Caltrans in the ongoing attempt to have the trestle painted and kept free of graffiti in the future. The franchise agreement that has been ongoing has resulted in several “all hands” meetings, according to the speaker. A point has been reached with full cooperation of all of the parties, or so it was said.Union Pacific/Highway 101 Railroad Trestle (cont’d) showing: (1) Three Pronged Approach – (1.1) Add deterrents – (1.2) Repaint bridge – (1.3) Enhanced enforcement
Union Pacific/Highway 101 Railroad Trestle (cont’d) showing: [Agreement on the part of all three parties] – (1) City responsibility – (1.1) Security – (1.2) Graffiti abatement – (1.3) Paint material – (1.4) “Nu-Gard” deterrent [Technology to help abate graffiti attempts]
Union Pacific/Highway 101 Railroad Trestle (con’td) showing: (1) UPRR Responsibility – (1.1) $90,000 to paint – (1.2) $20,000 for deterrents – (1.3) Safety “flaggers” four times a year – (1.4) 50 percent fee increase to franchise [city currently paying $8000 per year – agreeing to a potential $4000 additional]
Union Pacific/Highway 101 Railroad Trestle (cont’d) showing: (1) Caltrans responsibility – (1.1) Labor to paint – (1.2) Traffic control – (1.3) Security [U. P. R. R. has agreed to install the Nu-Gard deterrent devices – 40 required]
Union Pacific/Highway 101 Railroad Trestle (cont’d) showing: (1) Issues [to be resolved] – (1.1) Liability – (1.2) Costs – (1.3) Legal
Union Pacific/Highway 101 Railroad Trestle (cont’d) showing (1) Liability and risk – (1.1) “NuGard” deterrents [photo at left] (1.2) Indemnify U.P.R.R – (1.2.1) Graffiti abatement – (1.2.2) “NuGard” shields [1 guard shield for each angled member of the bridge]
The indemnity language being used, according to the speaker, would indemnify the railroad for all claims related to the graffiti abatement process or the NuGard devices, even if the liability is caused by railroad staff’s negligence. Staff remarked that this would be something difficult for the city. U.P.R.R. has stated that they may require removal of the devices at any time, making it clear that they have no interest in maintaining the added equipment, insisting that the city assume the full liability risk for the fifty year lifecycle. Removal of the devices would also remain the city’s responsibility, along with any or all liability resulting from a loosening and falling away from the structure onto the freeway below.
Union Pacific/Highway 101 Railroad Trestle (cont’d) showing: (1) Costs – (1.1) Paint, Cameras, Street light, Fencing – (1.2) $50,000 – (2) Ongoing – (2.1) Graffiti abatement [est. $15,000/$30,000 per year], Flaggers [if required more than four times/year, U.P.R.R. – $1200/day], Cameras [nominal], NuGard [rehandling or removal, $40,000]
Union Pacific/Highway 101 Railroad Trestle (cont’d) showing: (1) Legal – (1.1) City’s police powers
Rebecca Mendoza, Ass’t City Attorney, stated that issues have been discussed with respect to the devices, but should they need removal the city would be taking on full liability. A shorter period such as a five-year timeframe could be negotiated with the railroad. Another clause was added by the railroad in a recent meeting, wherein the railroad may choose to remove the shields for reasons of maintenance or inspection, and again the city would have no control over the decision or the process, resulting in the $40,000 costs described earlier. Another issue of concern would be indemnification of the railroad even at their negligence, according to the speaker. A third concern involved the city’s abrogation of police powers. The city would be required to concede in writing to the power of federal law over local ordinances regarding graffiti, absolving the railroad of responsibility for cleaning or graffiti removal on a permanent basis. There are, however, disagreements within the courts as to the application of federal law in these instances. Because of this, a definitive answer for the council’s consideration may be difficult to conjure up, according to the speaker. From the city’s point of view, there would not be reason to submit in writing, yet this could be left for the courts to decide. And lastly, any decision made under this agreement would bind future city councils as to any liability levied against the railroad. The speaker also noted that this is an issue that Council has typically avoided in the past.
Council Communications – The mayor asked whether or not we were somehow contracting away the police power. Mr. Cole replied that in correspondence with the railroad it has been determined that some amount of flexibility remains when it comes to the police power issue.
Council Member Monahan asked whether or not the city would be charged an additional amount for cost overruns, citing materials and paint in particular. Staff replied that the initial costs for paint would begin at $5000, with the city retaining an amount that would cover future graffiti removal. It was then wondered whether the bridge would be cleaned before painting. Staff said that cleaning produces a hazardous material residue. Caltrans however has experience in prepping steel structures for painting. The councilman mentioned Clark Engineering as a fourth party in this mix of organizations, saying that Clark had stepped up with an agreement to repaint graffiti sections at their own cost for the first year.
Council Member Morehouse said that [unintelligible] had been running without a franchise fee for eight years. Their requirement is that they pay only 50 percent more. Then the councilman wished to know what had been planned as a “riser,” in addition to the duration, i.e., the full 50 years.
Staff replied that the existing franchise fee is tied to an index, without specifying which. This would continue, noting that with the index, costs are currently around $8000 per year. Upon entering the agreement the indexed costs would begin at around $12,000 per year. The fee negotiations process has yielded an overall value of the franchise itself as around $50,000/yr. Staff said that during negotiations the railroad had agreed to $17,000, but because they are offering more in the way of onetime costs they felt justified in reducing their fee amount. It was thought that the term agreement for the franchise would extend through the full 50 years. Mr. Morehouse summarized: they haven’t seen a raise in the franchise fee for eight years; they would only agree to $12,000/year up from $8000; they should be paying 20,000/30,000 per year; and they want the city to lock in while making minimal payments for 50 years.
Council Member Andrews asked what was the franchise fee in 1953. Staff replied that numbers were not available that far back. Negotiations in the ‘80s resulted in a reset of the number from one much lower in the ‘50s. The councilman continued his line of questioning by speculating that in today’s dollars a fee would likely stand at near $100,000, adjusted for inflation. Saying that the city owns the right-of-way, Mr. Andrews asked Rebecca whether there is anything in the law which says that the city cannot simply close the right-of-way. Staff replied that according the way federal statutes are constructed based on national needs and economic factors, there are laws which would prevent the city from closing down the right-of-way entirely. Staff also interjected with information indicating that in 2002, the franchise fees have been indexed to the PPI, which has at times worked reduce fees, which is another reason why the numbers have fluctuated and not increased as they otherwise might have.
Mr. Andrews quoted Shakespeare, saying “First, we kill all the lawyers.” It was the councilman’s claim that the way to negotiate is to make things as difficult for the opposition to function normally as is possible, suggesting that the city use the idea as a cudgel.
[Comment] This famous quote from Shakespeare is used by politicians seeking to divert attention from any issue of controversy. Of course, what they fail to quote is the balance of that sentence, “... if we want to control the society.” Even if you don't like lawyer jokes – or lawyers – ya gotta love this. [Ed.]
Council Member Weir wanted to know the most recent date of the painting that has occurred. Staff said that the trestle hadn’t been painted to their knowledge since 1959 when it was first constructed. The Councilwoman continued by asking how is it different that it has never been painted in the past but that if the city desires to have it painted, all sorts of legal issues arise. Federal law stipulates only that railroad operations adhere only to safety regulations – there are no requirements holding railroads to any aesthetic standards, according to Staff. The issue has been brought before Council through special dispensation as perceived by the railroad at the request of a willing partner, in this case the city, and it was felt that Council would want to weigh in on the details of what amounts to a negotiated settlement.
Council Member Monahan asked the city attorney whether or not consideration has been given to selling the city property to the railroad – there having been none to the city attorney’s knowledge. The councilman continued by noting that the city might fare better in the long run by divesting itself of the property and the liability. Ariel said that such a plan could result in a costly and probably lengthy enforcement action for the city to undertake, with the city asserting that Union Pacific is subject to code enforcement just as is anyone else. Union Pacific has been “waving about” a South Carolina Supreme Court decision – opposite that of a California court case – which says that graffiti abatement is preempted by federal law. The California case deals with fumes and noise emanating from switching yards which goes opposite, saying that city ordinances and other state law could be preempted only if they interfere with railroad operations. The city attorney opined that our city ordinances would interfere with Union Pacific’s day-to-day functioning. The only way to find out is to litigate, according to Mr. Calonne, but that the amount of money spent in South Carolina to obtain a favorable ruling might well be equaled in order to obtain a similar ruling in California. The code enforcement path would not address the franchise fee issue but it would address the graffiti problem. The city attorney stated that he is not recommending this course of action without further consideration and discussion.
Mr. Monahan continued by asking Rick about the color, with Mr. Raives replying that for the specified paint product the only color available is silver.
Deputy Mayor Tracy stated that the issue goes beyond whether the City Council has concerns over the trestle issue, but that our entire community has sensitive feelings for the appearance to visitors and others of what has become an essential eyesore. Mr. Tracy’s main concern was over the devices that would be placed on the structure along with the attached liability issues, wishing to know whether any risk assessment has been done. City Manager Cole replied that Caltrans does the installation and has been asked whether or not their work has resulted in any litigation – ANS: apparently not. Mr. Calonne interjected saying that the situation for the city would be much different if we owned the bridge. It would be a mistake to trivialize the liability faced by the city by essentially “insuring” Union Pacific, according to the city attorney. Vandals who might find themselves on a structure with these deterrent devices in place but unaware of their existence before hand could, in theory, be awarded damages in the event of bodily injury.
Public Communications – Carroll Dean Williams said that there was a simple solution, but that the City Council hasn’t the will to solve it.
Marie Laiken urged the council to work with Union Pacific, saying that she attended each and every meeting with the railroad and city staff while praising the effort shown on all sides and also precipitating her statement of disagreement with the preceding speaker. Assembly Member Nava also attended negotiations with the speaker being present along with knowledgeable individuals from all over the country, prompting the comment that as a member of the Ventura Visitors Board, the speaker endured meetings of five or more hours with Union Pacific sending in speakers at their expense in an effort to be open, complete and helpful in a good neighbor fashion, or so it was said. “This is as good as it is going to get,” according to the speaker. It was admitted that they drive a hard bargain, but the speaker encouraged support of the proposed measure. The speaker claimed experience in forming public/private partnerships, and offered services to continue in that vein if necessary in order to complete this project.
Brian Rencher took the podium to say that Union Pacific’s offer in these negotiations makes the ugly trestle look good even as it stands today. The speaker also claimed to be “adamantly opposed” to this proposal, saying also that a code enforcement action should be considered seriously.
Jim Luetijon, speaking on behalf of the Board of Directors of the Ventura Visitors and Convention Bureau, began by addressing the importance of the issue to visitors and others who use the freeway as the city attempts to attract and hold business and tourism as part of its core makeup. It was said that over 200 hotel rooms within the city are within viewing distance of this structure, and it was felt that the time spent in meetings in negotiations to this point have been well worth the effort. It was also thought that the city would not benefit materially from alternative actions that might precipitate legal action.
Council Communications – Council Member Weir wished to have Staff weigh in on what would be a development or scenario to be considered as potentially the city’s greatest liability in approving this action, within reasonable limits. The assistant city attorney volunteered Ariel’s commentary on the potential for an unsuspecting trespasser being “trapped” above and in harm’s way on the bridge structure as a result of the deterrent devices without having been forewarned of the danger. Ms Weir then asked for a reading on the city’s liability in cases of neglect on the part of others. She was then so read: [U.P.R.R. shall be held blameless for death or injury conditions] “… that arise in whole or in part in relation to the city’s future abatement activities under Section 3, whether the claims are caused by the negligence of Union Pacific Railroad, or otherwise.” In response to a question from the councilwoman over Union Pacific’s concern for inspection problems caused by the NuGard, Staff replied that a wraparound design has replaced the bolted-on version.
Ms. Weir also expressed concern over the possibility of losing the support of Caltrans this late in the process. Staff replied that we have already lost a year of funding, with the current difficulty in predicting the availability of state funds. The councilwoman also reduced the argument to one of “how we spend our money.” It was suggested that we may choose to spend our money either on paint or on litigation, then asking for Staff’s advice on negotiating still further with U.P.R.R on the various liability factors.
City Manager Cole weighed in on the issue, saying that the attorney for the railroad has expressed flexibility on the language that protects the city’s police power, saying further that the way in which the language is phrased is negotiable – their insistence upon the fact is not. Union Pacific will continue to maintain that they have no legal responsibility for the removal of graffiti or the maintenance of any aesthetic aspects of their infrastructure.
Council Member Morehouse asked if there was room for negotiation on the 50 year contract. Mr. Cole responded, first by mentioning that the Edison contract negotiations over the lighting district had been similar. Union Pacific had asked initially for a 100-year contract – not surprising for a company that has been in existence for over 100 years. Mr. Cole insisted that the city has pushed assiduously to obtain the best position in negotiations that were possible.
The councilman offered his “temperature” reading on the measure, which remained ice cold on the issue of binding future councils into long-term contracts. “The personal injury side of things” was also expressed by Mr. Morehouse as a major concern. Along with the “freeway capping” plan which has been in the works, proposals have surfaced for routing the railway underground, thus freeing up the city’s land use options to be expanded clear to the ocean. The councilman said that, “I’m tired of Corporate America running little towns.”
[Comment] The councilman’s final statement doesn’t appear to be strictly true, now does it, sir? Your stand on the homelessness situation certainly wouldn’t seem to reflect sentiments of “Corporate America” not getting involved in “little town” public policy issues, now would it? Need you be reminded of the failures. . .the SHORE component of the WAV “affordable” housing unit or the “faith-based” community’s handling of the Kingdom Center? These and other NGOs are not in the business of ending homelessness. They’re in the business of providing lucrative employment for a very few lucky individuals [Ed.]
Council Member Andrews agreed with Council Member Morehouse in his general assessment of the issue, saying that what we have is a big deep pockets “corporate bully” telling us that “we have more money than you and we can make it very expensive for you to have your way.” It was thought that the code enforcement approach might be the way to go, but also that by collaborating with other communities through the League of California Cities, some greater leveraging might be obtained. The unrealistically low franchise fee was also mentioned as a concern.
Deputy Mayor Tracy said he was most concerned about the liability issue over personal injury. As a former policeman, the police power issue did not seem to be a major concern to him, which might seem eyebrow-raising to some as an expressed opinion. It would take the possibility of renegotiating some of the liability issues in order for the deputy mayor to support, as he stated it.
The city manager said that as a “take it or leave it offer,” Council could, with a majority vote, take that back to the table. If however the council should decide to reopen negotiations, Mr. Cole stated that he would recommend the formation of a city council subcommittee and bring that body into the negotiation process.
The mayor summarized by saying that we could continue in the direction already having been taken by presenting a counter offer within the present negotiation process, or take the city manager’s advice and begin a new round of negotiations to include the presence of a new city council subcommittee.
Council Member Weir moved that the city further negotiate with Union Pacific on the city’s liability issue along with the specific wording as applied to the police powers, and that the city accept all the other “nitty-gritty” items in the MOU as stated.
With a second obtained, Council Member Morehouse expressed continuing concerns over the long-term binding contract issue, saying further that he would not able to support the motion.
The mayor asked for a roll call vote of the measure – Brennan, yes; Weir, yes; Morehouse, no; Andrews, no; Monahan, yes; Deputy Mayor Tracy, yes; Mayor Fulton, yes. The measure passed 5-to-2.
Parking Initiative Impact Report, showing: (1) Council directed the preparation of a report on the Parking Meter Initiative pursuant to California Elections Code 9212 – (2) Content was guided by Elections Code and questions raised by the public/council members
Parking Meter Report, showing: (1) The initiative would – (1.1) Require the removal of parking stations governing 318 downtown premium spaces – (1.2) Impose a permanent ban on the city charging for parking without the approval of a two-thirds majority of voters – (1.3) Exempt charges in place prior to January 1st 2006
Impacts of Removal of Parking Stations, showing: (1) $275,000 Shortfall in funding for Police Services and free public Wi-Fi in downtown – (1.1) Either maintain level of service and replace funding source with General Funds or reduce service – (1.2) Impact to recent decrease in calls for service, 13 percent, and serious crime, 44 percent – (1.3) Impact to recent Wi-Fi access in downtown, 340 public users daily
Impacts of Removal of Parking Stations (cont’d), showing: (2) Traffic mitigation funds used to start up program [$1,148,530] would not be repaid and funding would not be available for other capital projects unless subsidized by the General Fund
Summary of Impacts, showing: (1) Adding more public parking infeasible with all paid parking revenue from on-or-off-street sources [Pending parking structures would be eliminated] (2) Downtown Specific Plan and EIR – (2.1) Would have to be amended to reflect different parking management strategies – (2.2) Built around a comprehensive parking management plan, further development closely tied to the ability to manage parking
Summary of Impacts (cont’d), showing: (3) 60 California [Street] lease agreements for use of parking structure may be invalidated and alternative parking would need to be acquired by the property owner (4) Resale of a station equipment could recoup approximately 25 percent of the purchase cost – (5) Exempt parking fees may be frozen at January 2006 levels
Summary of Impacts (cont’d), showing: (6) Residential permit programs for the downtown and medical district areas would be eliminated or subsidized by the General Fund – (7) The cost of placing future parking fees on the municipal ballot [once every two years] could cost $10,000; other elections would cost $35,000 or $55,000 – (8) No other cities in California have ordinances which forbid charging for parking
City Attorney Ariel Calonne introduced a slide presentation which began with an explanation of the “hard” advice and the difficult concepts laid out in the admin report.
City Attorney’s Role, showing: (1) Analyze objectively in order to help inform the council and the public – (2) Liberally construe to uphold unless defects are “clear beyond a doubt” [Courts tend to liberally construe initiatives going back to the early 20th Century and the beginning of the progressive movement. Reserve power, it was explained, is a power held from government in reserve for the public. It was also explained that the only time and initiative can be removed from a ballot is when it is shown that defects are clear]
The city attorney explained further that the timing of the current situation is difficult. A memo prepared in March summarized Mr. Calonne’s ministerial position in the matter – being obligated to prepare a ballot title and summary – which was not to be construed as containing opinion on either the legality or illegality of the issue. City attorneys typically do not offer advice for help in crafting ballot measures either for or against, as this would be working against City Council efforts. It was the city council in our case that proposed the parking meter issue in 2009.
Legal Setting, showing: (1) State law controls traffic regulation, including parking meters – (2) City has only delegated powers – (3) Legislature delegated powers to the city council, not the voters
It was further stated that two instances of case law from the 1960s support the delegated powers rule just cited – one from San Diego (1961) and the other from Auburn (1967). The remedy for the voters is to file a referendum within 30 days of the passage of the ordinance. The rationale behind the ruling was that dynamic traffic control is required.
Legal Rationale ~ Dynamic Traffic Control Required, showing: (1) “The constantly shifting sands of traffic flow requires some degree of fluidity in the amendment of regulations. If the initiative were applied … each petition for a new change would involve cumbersome delay and heavy expense.”
Remove Existing Meters, showing: (1) Seeks to compel an administrative action delegated to the city council – (2) Clearly unlawful use of initiative power [Initiative asks for immediate removal of parking meters, attempting to force administrative action delegated to City Council]
Repeal Existing Meter Zones, showing: [Repeat of preceding slide]
Prohibit Parking Charges Without a two-thirds Election, showing: (1) Clearly unlawful as to on-street parking, including residential preferential parking – (2) May be valid as to off-street parking, but conclusions subject to further research – (2.1) Severability concerns
It was stated by the city attorney that the first 2½ parts of this ballot measure are clearly illegal, with the final part being held in reserve due to the severability issue.
Council Options, showing: (1) Initiative can be placed on the ballot – (1.1) Defects could be addressed by future council [some risk] – (2) Pre-election challenge may be available – (2.1) This is an unusual case with “clear beyond a doubt” invalidity – (3) Refuse to place on ballot and wait to be sued – (3.1) [not recommended]
The mayor wished to clarify that if it’s the council’s decision to place an initiative on the ballot and a council decision to pursue a pre-election challenge, that these could be handled as separate decisions by the city council, in other words they are not exclusive of each other. The city attorney agreed to this language.
Council Member Monahan directed a question toward the parking structure agreement with downtown businesses. Mr. Lambert responded saying that the issue is related to 60 California Street. Ariel than said that there are arguments both ways on how those leases would be affected, saying that ballot arguments as printed up in the ballot pamphlet summary play a major role in the initiative process, and those summaries have not yet been written, saying also that the issue is really more about parking meters than about structures or even parking elsewhere in the city.
City Manager Cole said that any parking fee assessment leases taken out after January 1, 2006 would be automatically invalidated, according to the specific wording taken. This may not have been the intent of the originators, but there is no language that specifically excludes parking structures. Mr. Monahan in asking for the value of that lease was informed of an $86,000 value.
The mayor stated that the 60 California lease was created as an alternative to the $1.1 million downtown parking ordinance that otherwise would have been in effect, with Mr. Lambert expressing agreement.
Council member Andrews thought that there are other ways pursue advice and direction as disseminated to the public other than through the city attorney’s transmittal of legal opinion concerning various ways for the public to contravene city council decisions. The councilman’s point seemed to revolve around the idea that the city attorney has long been aware of the opinions stated just this evening, but at the same time thinking it curious of his having felt no necessity to share that information with the initiative’s proponents and originators beforehand. It was Mr. Andrews' desire to have the city attorney disclose the identity of those persons with whom he had discussed the legal issues being brought before Council. Mr. Calonne then informed the councilman of the city attorney’s legal obligation to confidentiality. The city attorney acknowledged that he had not informed all council members of a possible pre-petition legal challenge to the ordinance, while accepting the councilman’s stated “chagrin” over the situation.
Mr. Andrews continued in the questioning by asking whether or not any council member had been consulted over the possible direction that might have been under consideration at any time earlier, and if so would that council person have been bound by similar confidentiality considerations. The city attorney stated that as between other council members, the answer was no – as between anyone else, the answer was yes as per the Brown Act. At the same time, as stated by the attorney, one council member would be restricted to confidentiality disclosures between him-or-her self and no more than 2 other council members.
Council member Andrews continued further by saying that council members may not then have disclosed to any member of the public, with the attorney responding negatively, saying that this would run counter to the interests of the council and those of the public, and that the “privilege” does not rest with the council member to waive the public’s right to know.
Deputy Mayor Tracy thought that what he had heard from Mr. Andrews that there was “some problem” with the city attorney not advising people as to the legality of this initiative from the beginning.
Public Communications – LaDonna Martinez cited Agenda 21 as the source of further resistance against the limiting of personal freedoms, and that parking meters play into this limitation.
Tony Doltz stated his belief that the city attorney withheld private knowledge of the parking meter initiatives legal position, without stating to whom he had shared such confidential knowledge, stating further that the attorney saw the general public as adversaries in the process. The speaker said that “This really bothers me as a resident and a citizen.” As it turns out, according to the speaker, expenses incurred during the full initiative process must come from the city’s General Fund.
Carla Bonney said that she was speaking on behalf of “the people” of the City of Ventura. She said that “we” want this passed – “we” want the parking meters removed. It was her contention that the city attorney is using a pair of 50-year-old laws, including the “traffic management” issue regarding right-of-way parking. The speaker then created a “timeline” – a long list of negative issues since the parking pay stations had been installed. It was claimed the city did not install parking meters downtown as a traffic management issue, but as a special parking district for raising revenue.
[Comment] Ms. Bonney needs to be reminded she has not been elected to speak on behalf of "the people" of the City of Ventura. [Ed.]
Council member Monahan asked the speaker to cite a similar ordinance situation with another city that may have been challenged on the issue of parking assessments, if possible. It was said that a situation ongoing in Arkansas has revealed that the city clerk refused to accept counted ballots for certification with a judge saying that this is an administrative act reserved for a legislative body. The speaker was allowed to go wildly off the question without being interrupted, continuing with her case, a new point being brought up which according to her says that Ventura citizens are at the referendum level currently, and not at the initiative level which according to her, leaves the public in control and not the city council.
The mayor asked the speaker for the vehicle code (Vehicle Transportation code to 22508).
Council Member Weir suggested that if the speaker’s comments are to be interpreted correctly, the speaker would be in favor of asking the court for a legal opinion on this issue. The speaker felt that if a judge were to rule on the issue, he or she would not be in favor of a 50-year-old law governing the outcome as stated by City Attorney Calonne.
Harry Copeland said that he represents those who “want to get rid of” the parking meters. The speaker expressed typical Tea Party sentiments saying that we don’t need to raise revenue – we need to lower costs.
[Comment] As usual with the Tea Party, this speaker personifies the current wave of low information voter that we’re currently dealing with. It was stated that he sees “all kinds of people” leaving Ventura for the “fancy jobs” in places like Bell (California), and that as told by a (Ventura) City Council member, we find ourselves “on the hook” for “not what he earned here, but for what he earned there.” The speaker also questioned, “How many more people like this we have wandering around the state of California, sort of living off the fat cow here in Ventura?” Ironically enough, the speaker mentioned the “10 or 15 percent of people who vote” here in Ventura, leaving the city council “kind of distant” from the people. It wasn’t stated whether or not he counts himself among that 10 or 15 percent – which would be unlikely – due to the fact that nothing he’d stated bore any resemblance to the truth of the matter. But this is what appeals to the low information voter, being led generally by the long-on-information but short-on-fact “Queen Bee” citizen like Carla Bonney, who, if elected to Ventura’s City Council in November, will have no difficulty in attracting a swarm of nescient drones as personified by this public speaker. [Ed.]
John McCala, speaking as a former Santa Barbara resident, said that upon moving to Ventura he immediately signed up with Hollywood Gym, stating further that immediately upon seeing parking meters he broke with his fitness agreement. According to the speaker, his option was to park farther away and then walk back to the gym, letting it be known that he’s not against exercise but that it was the principle of the matter that bothered him.
[Comment] This isn’t really all that believable, now is it? It’s really about both the extra ”exercise” and the principle, isn’t it? This would in fact personify almost everyone else’s opposition to the parking stations. A little extra exercise isn’t part of most people’s routine these days. Look at the people getting out of some of those cars downtown – the Mercedes, the Cadillacs. They’re fat. They’re not only fat, they’re ugly – just as ugly as their politics and thinking, which insists that their wants and desires are the only things on earth that really matter. “It’s all about me,” as goes the saying among recovering addicts, who learn early in recovery that the “me, me, me” attitude they’ve been harboring for most of their lives is the real driving force behind their addictive behavior, with this speaker playing directly into that argument.
It’s surprising what happens to folks when they finally put the “all about me” attitude behind them. It becomes clear to them, their families, and all with whom they come in contact that they’ve finally “sobered up,” and rejoined society. This is what needs to happen to a tremendous number of people since the country entered the “drug age,” the “Internet age” and particularly the “millennial age.” With all of this in our midst we’ve become a nation of whiners, where for the most part it’s “all about me” not getting what “I, as such a special person” (a millennial) am not getting as was promised to me by my doting parents. So of course we’re seeing things like, “How dare you charge me for parking directly in front of the store in which it is my desire to shop.” They’re even disappointed, no doubt, that they’re not the only customer in the store. . .like downtown Ventura is somehow the equivalent of Rodeo Drive. This is totally reflective of how Americans are raising their children these days, and it must come to a halt if America is to end it’s current slide onto the scrap heap of Empire. [Ed.]
The mayor wished to bring to the city attorney’s attention issues mentioned by Ms. Bonney, saying that Mr. Calonne’s analysis under the court cases makes parking meters the subject of a referendum but not an initiative, with Ms. Bonney stating that the ballot measure is at referendum status currently, going to initiative status when placed on the ballot. The city attorney replied that there is a difference between a referendum and an initiative, saying further that a referendum needs to gather the signatures within 30 days of the ordinance being given a second reading by the city council. This process is used to prevent a law from going into effect, which is to say that if a referendum qualifies in those first 30 days after a law goes into effect, City Council can either repeal the law or put it on the ballot.
An initiative is a way of creating new law – not a way of repealing existing law according to the city attorney. What transpired in this case, the parking meter initiative tried to use an initiative to repeal the parking meter ordinance that the City Council passed in 2009, so it appeared to be acting as a referendum except for the fact that it was far outside the thirty-day limits – supported by the Court of Appeals in the 1961 and 1967 court cases cited by the attorney. Mr. Calonne acknowledged the age of the cases but said also that age by itself is not a factor. The attempt had been made, however, to determine whether or not there were cases after 1967 challenging those appealed cases, and none were found. It was stated further that the attorney had his doubts as to whether local courts would “look at Arkansas” or not, but there certainly are no California cases that say that the 1967 or earlier cases have become “bad law.”
The mayor said that a referendum is something that takes place immediately after ”we take action,” and that an initiative is something that the voters may seek as a new piece of legislation. The other point (on Code 22508) “…would this give the power to Council?” The city attorney said that this code gives Council authority over parking meters, which derives from the 1961 law in San Diego, where the state said that only the city council is given the power to regulate parking meters. After 1961, the legislature recanted its position, saying they didn’t like that law. It was decided to change the law, adopting the language read by the erstwhile Ms. Bonney, regarding the referendum as a measure of local control. In 1967 a new legislature looked at the language created, which gave rise to the Bragg vs. City of Auburn case cited in the city attorney’s paper. This was the point at which the courts said, ”No – referendum means referendum” – no right has been given to repeal parking meter ordinances within the initiative process.
[Comment] This is the very same long-on-information but short-on-fact personage we pointed to earlier. Is this the kind of person, Mr. & Ms. Ventura, that you want sitting on your City Council? If you’ve seen the signs, “Bonney for City Council,” then yes, this is the same Bonney. We urge you to crusade against Low Information Voter Syndrome (birthers, truthers and all the rest), and do everything in your power to eradicate the disease it has become by considering only those who refuse to play fast and loose with the facts as your esteemed City Council representatives. [Ed.]
The mayor asked to clarify whether state law may or may not trump the power of local voters to pass an initiative. Mr. Calonne replied, saying that this is exactly how the argument went in the Bragg case. The question was, “How can the legislature take away initiative rights?” The court said, “Well, they haven’t.” They said you can have an initiative directed toward Code 22508 but it must be a statewide initiative.
The mayor continued by mentioning a case from San Luis Obispo County two or more decades ago on whether or not the Coastal Commission could override an initiative, with the mayor believing that the answer was yes. Mr. Calonne said he didn’t recall the case, but with the mayor of the belief that state law had trumped local ordinance.
Council Communications – Council Member Andrews said that the appropriate course of action was simply to remove the meters. It was the councilman’s belief that the next best course of action would be to place the issue on the ballot and let the voters decide. As for the report prepared by Staff at Council’s direction, it was characterized by the councilman as a case of government “placing its hand on the political scale” in favor of one side over another. One side said it was money ill spent, but “don’t hold us accountable,” i.e., if we take the meters out, we’ll have wasted that money. The other side said it would earn a lot of money, so we went ahead and spent on WiFi and a patrol officer. With the meters not producing the revenue expected, and with the city not having the funding capability originally, it was a premature investment. It was the councilman’s position that arguments have not been made that would warrant the continuation of bad public policy. The question of legality persisted – owing to the public to productively assert its rights under our form of government. Citizens should be advised at the earliest opportunity as to the possibility of illegality within the scope of their advocacy position, according to the councilman. “It’s fundamentally wrong,” to spend thousands of dollars and hundreds of hours without warning proponents of an initiative to the potential for their failure. “It's simply disgraceful,” said the councilman for authorities to “lie back in ambush” simply to be able to say, “gotcha.” This, according to Mr.Andrews, deteriorates public confidence in our form of government.
Deputy Mayor Tracy stated that the report contained good information, including the impact, the possible fallout and the ultimate result if going to a vote and passing. It was not his belief that any sort of cover-up was intended or implied. The city attorney may not have consulted with the initiators, but this does not suggest that a failing of the processes involved, according to Mr. Tracy. As with any case dealing with law, the citizen activist simply needs to be informed before rushing headlong into a potential dead end, with the deputy mayor also believing that some of the remarks made by Mr. Andrews were technically off the mark. The deputy mayor went on to say that he voted with the council majority on installing the meters, and that a better downtown managed traffic control system has been produced as a result. California’s long history of citizen activism in government is well established, said Mr. Tracy, and even through its flaws it is what we in self-directed government have decided produces more pluses than minuses. The city attorney, however, would seem to have made a pretty clear case for some serious problems with the initiative, and that it would be “foolish” to move forward blindly – for Council to put this on the ballot – without further review. This would be still more money spent on yet as uncertain an outcome, according to the council person. It was also said that this City Council has an obligation to future city councils to take the time to evaluate fully the legal issues. The Deputy Mayor moved that Council accept Staff’s Recommendation No. 2, adding the Parking Meter Initiative to the ballot for November 8, 2011, pursuant to Election Code Item No. 9310, with provision made for rebuttal arguments – proceed by directing the city attorney to use the court process to determine at the earliest possible date whether or not this initiative ordinance is valid under law. The second having been obtained, the mayor asked to decide whether to designate a member of the city council to write an argument against the measure, with it being requested for Council approval that Deputy Mayor Tracy be designated as that Council Member.
Council Member Morehouse addressed the motion with a restatement, saying that Council should place the issue on the ballot while going forward with a pre-election challenge, receiving affirmation from the maker of the motion. The councilman continued further, however, by expounded in the direction of supporting Staff Recommendation No. 3 – placing the initiative on the November ballot and allowing the “chips to fall where they may,” which could include taking the city to court by individuals or groups who would seek to overturn the ordinance. [Not recommended by the city attorney.]
Council member Weir expressed agreement with Mr. Morehouse, claiming – in contradictory fashion – support for placing the measure on the ballot, but also seeking further rationale for disallowing the initiative – essentially the motion, but at the same time claiming that she would be voting no. [Huh?]
The mayor asked for a roll call vote on the measure: Brennan, yes; Weir, no; Morehouse, no; Andrews, no; Monahan, yes; Tracy, yes; Mayor Fulton, yes. The measure passed 4 to 3.
The mayor adjourned in the memory of Michael Shanahan.