Upcoming City Council Meeting 3.19.19

Other than the consent calendar, (approving prior minutes, the regular financial demands of the city, awarding a low bid contract, and a resolution extolling the 2020 census) there is only one substantive thing on the agenda for the upcoming 3.19.19 City Council meeting:

• Draft proposal for a preferential parking program near Regency Gate.  This issue was first discussed at the 2.5.19 meeting.  At that time the Council directed staff to draft a preferential parking permit to bring back to the Council consistent with the guidelines presented by the ad hoc committee.  This agenda item is the result of that direction.

If you have any thoughts or questions on any of these items, please comment or contact me and I'll do my best to respond or find out more and report back.

3.5.19 Meeting Summary

As mentioned previously, there were three substantive matters on the agenda last night.  Due to the length of time discussion took, we only got to the first two items and continued the last item for a future meeting.  Those were:

1. A presentation regarding the Contra Costa County Reentry Network by the Office of Reentry and Justice. This is related to the County's actions with regard to parolees.  Representatives from the ORJ gave a informative presentation on the program from the County perspective.  There were statistics around the target population, the amount of funding available and where some of that funding has been spent.  There was a discussion of the vendors that the ORJ engages with to assist in providing various services.  There was also discussion about recidivism, mass incarceration and prison populations, and the types of criminal activity that fall under the auspices of AB109.  The ORJ representatives also graciously took and addressed a number of questions from the Council.
2. Revisiting the parolee housing ordinance that was passed last year.  The Council decided to take no action on this matter.  By a 3-2 vote, the Council rejected Councilmember Diaz's request to examine in greater detail some of the existing parameters of the ordinance.  By a 4-1 margin (not a vote because my motion did not receive a second), the Council rejected my request to make a determination on whether the Oakhurst Country Club would be considered a business licensed for on or off sale of alcohol as described in the parolee housing ordinance and therefor trigger the sensitive use buffer distance requirement.
3. A discussion about the content and parameters of Accessory Dwelling Units (ADUs) in response to recent changes in state law. - This was continued (pushed out to future meeting).

I requested as a future agenda item, a discussion of the CASA compact that was recently endorsed by both MTC, and more recently ABAG. After which the city should take a position on whether it supports or opposes the CASA compact in its current form.

More detailed thoughts below:

OFFICE OF REENTRY AND JUSTICE (ORJ) PRESENTATION

My key takeaways from the presentation were as follows:

• AB109 does not impose any requirements on cities.  AB109 is focused on counties.
• Counties are not able to impose any requirements on cities as they attempt to handle the influx of prisoners redirected from state prisons under AB109.
• Contra Costa County ORJ has not allocated any funds in their budget specific to Clayton.
• There is no set reimbursement rate per person receiving assistance from the County.
• If the city refused to allow the ORJ to operate or fund parolee housing in Clatyon, the ORJ would not feel it necessary to litigate (other groups may).
• The ORJ targets areas that can provide a continuum of services, and they consider any area that has access to public transportation a viable area.  The only public transportation available in Clayton with any regularity is the bus.  It may be worth considering if it's worth having the bus line as existence of this line also forces the city to cede control of a number of other housing related items.

The target population of AB109 were "non, non, non" folks.  Those convicted of non serious, non violent, non sexual crimes.  When we explored this matter in more depth however, that is very misleading in two ways.  First, this categorization only looks at the most recent conviction.  A person that had been previously convicted of a violent, sexual, serious crime but whose most recent criminal conviction was burglary, would be considered a non, non non person under AB109.  

But that doesn't tell the whole story either.  Even if we only look at the offenses that are considered non-violent that fall under AB109, these are essentially only non-violent because of how the state has defined the term.  Lots of things that colloquially would be considered violent have been defined in the law as non-violent.  For example:

• Brandishing firearm at person in vehicle 
• Second degree burglary 
• Bring/possess weapon on grade school grounds 
• Battery of a peace officer with injury 
• Threatening to injure a public or school employee 
• Threats against witnesses 
• Removal of officer's firearm while resisting arrest

These are all considered "non-violent" under AB109.  There's a much longer list.  Here I discussed it previously.  The ORJ representatives agreed that there are items on the AB109 eligibility list that many people would consider violent or serious but they are using the definitions created in the law.  In my view, unlawful transfer of a firearm to a minor is a serious offense, but AB109 doesn't consider it to be.  There's several hundred other offenses like this too.

PAROLEE HOUSING ORDINANCE

Councilmember Diaz had previously requested this item be placed on the agenda for consideration to direct staff action.  In his request, he focused on three things:

1. Consider expanding the 1000' buffer zone.  He suggested staff take another look at what distance would be most appropriate.
2. Consider including private parks in the sensitive uses described by the ordinance.
3. Consider a formal outreach program to assist residents in targeted areas.

In addition to these items, I requested that the Council direct staff to determine whether the Oakhurst Country Club would be considered a business licensed for on or off sale of alcohol as described in the parolee housing ordinance and therefor trigger the sensitive use buffer distance requirement.

Ultimately Councilmember Diaz's motion did not pass and was voted down 3-2.  I was in favor while Wolfe, Catalano, and Pierce were opposed.  My motion also did not pass.  It did not receive a second so there was no official vote.  I was able to raise a number of points during discussion which I will try to summarize below:

Regarding Oakhurst:  The current ordinance reads "A parolee home shall be located a minimum distance of at least one thousand (1,000) feet from any public or private school (preschool through 12 th grade), licensed daycare, library, public park, hospital, group home, business licensed for on- or off-sale of alcoholic beverages, youth center, emergency shelter, supportive or transitional housing when measured from the exterior building walls of the parolee home to the property line of the sensitive use."

The definition of "business" per the municipal code is: "Business" means any sole proprietorship, partnership, joint venture, corporation, association, or other entity formed for profit-making purposes. For purposes of this chapter, the term "business" also includes a nonprofit entity."  

Given that Oakhurst is a business licensed for the sale of alcohol, and can do so at their structure at the end of the 9th hole, and from their mobile cart, I believe this qualifies under the provision in the code as a business licensed for on-or-off-sale of alcoholic beverages.  I sought a determination on this matter but Pierce, Catalano expressed reservations about finding out more information if that would lead to an actual ban.  I am generally of the mindset that more information is better.

Regarding more detailed information on sensitive uses: There are also a number of items that would trigger a sensitive use that we did not fully explore, things like licensed daycares, utilizing our database of business licenses on file, group homes licensed by the state, etc.  Because of this, I thought it would be useful if we could accumulate this more detailed information and do a more robust analysis of where the buffer distances would actually exist so we could get a better understanding of the ordinance as written.  

Pierce responded that this would take effort and would be hard.  My response to that was that just because something was difficult, doesn't mean we shouldn't do it.  Doing the right thing can be difficult, but if it's the right thing to do then we should expend the time and effort to do so.  Continuing with the theme of the evening, the rest of the Council led by Catalano and Pierce did not want to take any action on this.

Regarding additional requirements to Parolee Homes:  I also inquired about additional requirements that we may be able to impose on parolee homes.  Currently on site supervision is required but there is no qualifications for that supervision other than it shall not be a parolee.  I believe we could impose greater requirements on who is performing the supervision, or the number of people performing supervision.  I also raised the idea of a requiring a bond, of say, $10M for each parolee home in the event of some form of non-compliance.  Again, continuing with the theme of the evening, there was no appetite from the rest of the Council to take any action in these areas.

Regarding the level of diligence engaged when the original ordinance was passed: I've read through the record in great detail. When this issue came to the Planning Commission in May of 2018, they were advised by counsel that the ordinance before them was the most restrictive that was legally defensible. That ordinance had 300 feet as the buffer distance. The Planning commission didn’t feel they had enough information and voted to not recommend approval by the Council.

Then when the Council first acted on this issue last July the Council was then advised that 500 feet was the greatest buffer distance that was legally defensible. And then a month later in August, the Council was advised that nay, 1000 feet was now the largest buffer distance legally defensible.

The difference between 300 feet and 1000 feet may seem like a small difference. It’s important to note that the buffer distance describes a radius, not something linear. A 300 ft buffer over a single sensitive use yields 283K square feet in area. At 1000 ft however, a single sensitive use yields 3.1M square feet in area, over 1000% more, or greater than an order of magnitude. Given the magnitude of change over such a short time period, I’m not clear that the level of resources used to investigate this matter was commensurate with the importance of this issue to the residents of Clayton.  This is consistent with the theme of the evening that there was no desire to take further action or perform more diligence.  

Regarding prognosticating on what the State would do in response to a ban:  We heard the refrain when this ordinance was originally adopted of, “if every city in California banned parolee housing then what would the state do?” This idea was also raised by Mayor Catalano last night.  I don’t know what the state would do. But I do know we should act in the best interests of the residents of Clayton now, and if the laws change at a later date then we should continue to act in the best interests of the residents of Clayton then. But that doesn’t mean that we should hamstring ourselves now in anticipation of a change in the law in the future.

Both Pierce and Catalano intimated that the only course of action they would entertain would be to make the ordinance more permissive - allowing parolee housing in more areas of the city.

Regarding regulating or prohibiting businesses:  To be clear, what the city is talking about are businesses.  If an individual parolee chooses to live in Clayton there is no restriction on that nor should there be.  People can choose to live where ever they want - they can buy, or rent, or live with friends or family and no one has a problem with that.  This is an important point and it's worth repeating and keeping in mind when considering this issue.  Cities have wide latitude in regulating businesses that operate within the city.  During last night's meeting I read the following:

Also important to consider is that there is no state law that mandates that cities accept this type of business within their borders. As a result, cities have latitude to make and enforce, within its borders, “all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” This inherent local police power includes broad authority to determine, for purposes of the public health, safety, and welfare, the appropriate uses of land within a local jurisdiction's borders, and preemption by state law is not lightly presumed.

For example, some communities are predominantly residential and do not have sufficient services or space to accommodate” parolee homes. Moreover, these facilities deal with a population that presents a heightened risk to the health, safety, and welfare of the community. Thus, parolee homes may pose a danger of increased crime, congestion, blight, and drug abuse, and the extent of this danger may vary widely from city to city.

Thus, while some cities might consider themselves well suited to accommodating parolee homes, conditions in other cities might lead to the reasonable decision that such facilities within their borders, even if carefully sited, well managed, and closely monitored, would present unacceptable local risks and burdens.

This language was lifted from the CA Supreme Court case, City of Riverside v. Inland Empire Patients Health and Wellness Center.  This case wasn't about parolee housing specifically, but it did deal with a city regulating or prohibiting a business within the city.  I replaced some key words for applicability, but the idea expressed in the above could apply to our situation as well.

Regarding the political nature of this issue:  Mr. Napper did mention, and I agree, that ultimately this is a political issue.  The Council has the ability to take a number of different actions, but they do so only on a majority vote.  If the residents of Clayton desire a different outcome, then they can either persuade their elected officials to act differently, or change their elected officials.

Upcoming City Council Meeting 3.5.19

There are a few substantive issues that will be discussed at the upcoming 3.5.19 City Council meeting.  They are as follows:

• A presentation regarding the Contra Costa County Reentry Network by the Office of Reentry and Justice.  This is related to the County's actions with regard to parolees.
• Revisiting the parolee housing ordinance that was passed last year.
• A discussion about the content and parameters of Accessory Dwelling Units (ADUs) in response to recent changes in state law.

If you have any thoughts or questions on any of these items, please comment or contact me and I'll do my best to respond or find out more and report back.

2.19.19 Meeting Summary

As mentioned previously, there was one substantive matter discussed at the meeting last night.  A quick summary:

• The Council adopted the mid year budget report and voted to approve additional appropriations for certain unforeseen items that have occurred during the first six months of the fiscal year.  The sum total of these additional appropriations was less than the budgeted surplus for the fiscal year and as a result even with the minor additional appropriations the city is still in a balanced budget position.
• The Budget sub committee (Councilmember Diaz and myself) recommended that of the $181K surplus from the prior fiscal year, $100K be assigned to the Pension Rate Stabalization Fund as a buffer to major fluctuations in the CalPERS employer pension rates.  The full Council agreed with this recommendation and this recommendation was adopted unanimously.
• For the remainder $81K, the Council also gave direction to purchase an Automated External Defibrillator (AED) machine for Hoyer Hall, with the remaining balance be kept in general fund reserves.

It was also confirmed that at our next meeting, 3.5.19, a representative from Contra Costa County will make a presentation relating to AB 109 realignment and parolee housing.  In addition, the city ordinance regarding parolee housing will also be on the agenda.

Upcoming City Council Meeting 2.19.19

Other than the consent calendar, (approving prior minutes, the regular financial demands of the city, and surplusing obsolete equipment) there is only one substantive thing on the agenda for the upcoming 2.19.19 City Council meeting:

A discussion of the city's mid year budget report

• There are a few items that require additional appropriations during FY19
• As part of the budget and finance sub-committee, we recommended designating $100,000 of the $181,500 surplus from FY18 to the Pension Rate Stabilization Fund as a buffer to major fluctuations in the CalPERS employer pension rates

If you have any thoughts or questions on any of these items, please comment or contact me and I'll do my best to respond or find out more and report back.

2.5.19 Meeting Summary

As mentioned previously, there were a few key matters discussed at the meeting last night.  A quick summary:

• The previous ordinance regarding temporary non-commercial signs on private property was unconstitutionally restrictive.  The Council directed staff to prepare a change to that ordinance to reflect a maximum individual sign of no greater than 16 sqft.
• The Ad Hoc Committee (Councilmember Wolfe and myself) that was formed last meeting reported back to the full council our recommendations.  The Council then directed staff to prepare a resolution consistent with those recommendations for a pilot preferential parking program in certain affected areas near Regency Gate on a pilot basis.
• There was a report regarding the City's use of Glyphosate (Round Up) and associated safety measures taken when that is done.  We heard information about how areas being sprayed are indicated and the Mayor agreed to include a note in her next column to help publicize the practice.
• We discussed the ongoing goals of the city and the potential for creating a report out on the status and associated metrics related to these goals.  The Council declined to direct staff to take action on this item.

A few more detailed thoughts:

Temporary Non-Commercial Signs:

Staff discussed several cases where the issue of sign size was limited and provided overall guidance on what had previously been struck down and what had been upheld in the courts.  There was a sentiment to avoid sign blight, the city should adopt an ordinance as restrictive as possible as to size that is consistent with the law.  I took a different approach here.  I think the first amendment and speech are critically important.  The protections over speech are not necessary to express views that are popular.  Free speech protections are needed for expressing views that are unpopular.  It is in protecting unpopular speech that we demonstrate our principles.  Any time speech is being restricted I would challenge the basis on which such restrictions rest upon.  

And while I personally would not want to see the city littered with signs of all manner, the principle of free speech supersedes my desire for aesthetics.  Ultimately the Council directed staff to come back with a draft ordinance that limits individual signs to no greater than 16 sqft, without any aggregate limit and no time based limit.  The vote was 4-1, I was opposed because I would have not imposed such a restriction.

Regency Gate and Parking Permits:

The proposal that the the Ad Hoc Committee (see page 59 of the agenda packet) returned with was a compromise that attempted to alleviate some of the residents' concerns while maintaining public access to the park.  It would not create any restriction on large areas of Regency Dr., including space for approximately 20 vehicles immediately adjacent to the trail head access point, as well as an additional 20-30 spaces a short walk away (Google Maps says 4 mins).  The restriction focuses on areas in front of people's homes only on weekends and holidays during the daytime.

What the proposal does is attempt to provide continued parking on a limited basis for anyone who wants to enjoy the park. Many of the areas on the affected streets would be unchanged by this proposal. There would still remain room for 40-50 cars at designated locations, which is quite a lot for a residential street. We would have signage recommending the designated parking area at the Mitchell Canyon Staging lot, where the fees are nominal and are used for the benefit of the State Park. In my view, this attempts to balance the interests of the residents most impacted, and others who will continue to utilize and enjoy the park and its trails. 

To be clear, the city is under no obligation to take any action. Given the fact pattern – a public road with long standing access to the State Park, the path of least resistance is to do nothing. Knowing the area and what’s been going on there with regard to parking, I am sympathetic to the sentiment of the local residents. That’s why I volunteered to be on the ad-hoc committee to look at this matter and bring it back to the full Council. When we talk about quality of life, quiet enjoyment, I’m right there with the residents. 

There is also suggestion that it’s not that bad, or that the park was there first and the residents should just deal with it, or that somehow social media can be guided to not recommend this area to park.  Respectfully, I disagree. I’ve been there multiple times on weekends and the crowds are unwieldy. As I mentioned before, this is a matter of concentrated costs to the residents, and diffused benefits for everyone else. Suffice to say, with the publicity around the Regency Gate area, that cat is out of the bag and there isn’t a way to put it back.  Sure outreach can be done and that may have marginal benefits. But there is no policing the internet. People can say whatever they want, and as long as what they are recommending remains legal (public parking on the street), then that is what they say, and what they will do.

We also considered the potential of spillover, or that other areas in the city could be impacted in a similar way.  To address this we proposed a process whereby if certain criteria are met we could address those as well.

Ultimately the Council directed staff to prepare a resolution consistent with those recommendations for a pilot preferential parking program in certain affected areas near Regency Gate on a pilot basis.  The vote was 3-2 with myself, Councilmembers Wolfe and Diaz in favor.  Mayor Catalano and Vice Mayor Pierce were opposed.

Council Goals:

In borrowing from my work in the private sector, I asked the for a report out on the status of our goals and a rough outline of how the goals would be accomplished.  This would be for the purpose of informing the public, and a way to highlight the accomplishments of the city.  Ultimately the Council determined that this wasn't necessary as we already get a weekly report on these goals.  As a result, I will use the information provided to us and provide updates as to our goals in an effort to share some of the major efforts the city is undertaking.

Upcoming City Council Meeting 2.5.19

A few items that I previously requested and discussed will be coming back on the agenda at the upcoming 2.5.19 City Council Meeting.  The issues of:

• A discussion of the city's existing sign ordinance regarding restrictions on temporary non-commercial signs that came up during the campaign.
• Report out and recommendations of the Ad Hoc Committee (Councilmember Wolfe and myself) regarding parking issues near Regency Gate
• Discussion of Glyphosate (Round Up) usage
• Whether or not to establish a regular report out of the status of city objectives

If you have any thoughts or questions on any of these items, please comment or contact me and I'll do my best to respond or find out more and report back.