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File #: 2021-1236   
Type: Regular Agenda Item
Body: City Council
On agenda: 9/7/2021
Title: Public Hearing to Consider a Call for Review of the Planning Board's Final Decisions at the July 26, 2021 Meeting to Approve (1) Design Review Application No. PLN21-0077 for an Approximately 29,810-square-foot Medical Respite Facility at 1245 McKay Avenue and (2) Draft Meeting Minutes from the June 14, 2021 Planning Board Meeting; and Adoption of Resolution Approving Design Review Application No. PLN21-0077 to Allow the Construction of an Approximately 29,810-Square-Foot Medical Respite Facility at 1245 McKay Avenue. (Planning, Building and Transportation 20962710)
Attachments: 1. Exhibit 1 - Planning Board Resolution No. PB-21-09, 2. Exhibit 2 - July 26, 2021 Planning Board Meeting Agenda, 3. Exhibit 3 - Call for Review, 4. Exhibit 4 - Correspondence Narrowing Call for Review, 5. Exhibit 5 - Correspondence from Applicant, 6. Resolution, 7. Correspondence - Updated 9/8

Title

 

Public Hearing to Consider a Call for Review of the Planning Board’s Final Decisions at the July 26, 2021 Meeting to Approve (1) Design Review Application No. PLN21-0077 for an Approximately 29,810-square-foot Medical Respite Facility at 1245 McKay Avenue and (2) Draft Meeting Minutes from the June 14, 2021 Planning Board Meeting; and

Adoption of Resolution Approving Design Review Application No. PLN21-0077 to Allow the Construction of an Approximately 29,810-Square-Foot Medical Respite Facility at 1245 McKay Avenue. (Planning, Building and Transportation 20962710)

 

Body

 

To: Honorable Mayor and Members of the City Council

 

EXECUTIVE SUMMARY

 

On July 26, 2021, the Planning Board took four final actions: approval of a Final Development Plan Amendment (1310 Harbor Bay Parkway), Temporary Use Permit (1435 Webster Street), Design Review (1245 McKay Avenue, approved by Resolution No. PB-21-09 attached as Exhibit 1), and Draft Meeting Minutes from the June 14, 2021 meeting.

 

On August 5, 2021, Councilmembers Trish Herrera Spencer and Tony Daysog submitted a call for review of “all of the votes” made by the Planning Board during its July 26, 2021 meeting.  The call for review is based on a concern that the Planning Board Meeting Agenda included two Zoom Meeting IDs, one that was valid and one that was outdated and inoperable, Because the inoperable ID was listed directly below the Zoom telephone number, the concern is that members of the public wishing to dial into the meeting by telephone could be denied access.  The agenda is attached as Exhibit 2 and the call for review is attached as Exhibit 3. 

 

Chief Planning Counsel from the City Attorney’s Office who was present at the meeting determined that the clerical error did not require the meeting to be adjourned and re-noticed.  Based upon that advice, the Planning Board completed the meeting and approved a Planned Development Amendment for a project at the Harbor Bay Business Park, a Use Permit for the Webster Street merchants, Design Review for the Wellness Center on McKay Avenue, and the draft meeting minutes from the June 14, 2021 meeting.

 

Since submitting the original Call for Review, Councilmembers Spencer and Daysog modified their call for review to exempt the Harbor Bay Planned Development Amendment and the Webster Street Use Permit from further consideration by the City Council (Exhibit 4).  Therefore the City Council’s review is limited to the Planning Board’s decisions to approve the Design Review for the Medical Respite Center at 1245 McKay Avenue and the Meeting Minutes for the June 14, 2021 Planning Board meeting.

 

Given that the clerical error likely would not cause a court to find a Brown Act/Sunshine Ordinance violation and given the significant public participation at the Planning Board meeting, including participation by phone, staff recommends that the City Council conduct a de novo public hearing and approve the Design Review application for the Wellness Center and the meeting minutes, thereby upholding the Planning Board’s decisions.   

 

BACKGROUND

 

On July 26, 2021, the Planning Board conducted a duly noticed regular meeting via Zoom.  The Planning Board Meeting Agenda (Exhibit 2) included instructions to participate in the meeting via Zoom, which consists of a valid Zoom registration link followed by a valid Meeting ID, and a Zoom Phone Number followed by an outdated and inoperable Meeting ID.  The agenda should have included two identical Meeting IDs.  However, due to a clerical error, the agenda included one valid Meeting ID and one outdated and inoperable Meeting ID.  The portion of the agenda that included both Meeting IDs is included below.  

 

“The City will allow public participation via Zoom. Register in advance for this webinar:

 

“https://alamedaca-gov.zoom.us/webinar/register/WN_HmNPnLDhRKS4ygkybMkWjA

Meeting ID: 818 4232 4832

For Telephone Participants:

Zoom Phone Number: 669-900-9128

Zoom Meeting ID: 862 6195 1731”

 

There were no technical problems with Zoom video access or the registration link, which automatically populated the valid Meeting ID.  However, the inoperable Meeting ID could have affected access for individuals wishing to participate by telephone.  For example, if an individual dialed the telephone number and entered the inoperable Meeting ID, he/she would not be able to access the meeting; however, if the participant entered the valid Meeting ID, he/she would have been able to participate by telephone.  Over 40 people participated in the meeting via Zoom, both by video access and by telephone.

 

After the error was brought to the attention of the Board and staff at the meeting, the Planning Board President stopped the meeting to determine if the error required that the entire meeting be cancelled.  Chief Planning Counsel determined that despite the clerical error, the agenda included all required information to allow the public to participate in the meeting, and the meeting agenda did not violate any applicable open meeting laws.  Based upon that advice, the Planning Board completed its meeting. 

 

On August 5, 2021, Councilmembers Trish Herrera Spencer and Tony Daysog submitted a call for review of “all of the votes” made by the Planning Board on July 26, 2021 due to concerns about the possibility that the invalid Meeting ID prevented public access to the meeting (Exhibit 3).  Subsequently, Councilmember Herrera Spencer withdrew her call for review for Items 6-A (1310 Harbor Bay Parkway) and 6-B (1435 Webster Street) upon the request of the applicants (Exhibit 4).  The applicant for the McKay Design Review application also submitted a similar request (Exhibit 5), but as of the writing of this staff report, has not received a response. 

 

DISCUSSION

 

Call for Review Process (Alameda Municipal Code Section 30-25)

 

Alameda Municipal Code (AMC) Section 30-25.2.b provides that any decision of the Planning Board may be called for review by two members of the City Council.  Calls for review must be scheduled for a public hearing and decision by the City Council no later than the third regularly scheduled and held meeting following submittal of the call for review.  AMC Section 30-25.5.a.  The September 7, 2021 public hearing date meets this timing requirement. 

 

The City Council reviews the Planning Board’s decisions de novo.  That means that the “City Council may consider the introduction of all pertinent material, including all documents constituting the administrative record.”  AMC Section 30-25.5.c.  “At the hearing, any party or person may appear in person or by agent or attorney to provide testimony.”  Id.  The City Council may reverse or affirm, in whole or in part, or may modify the decision of the Planning Board.  AMC Section 30-25.5.d. 

 

Call for Review Arguments

 

Call for Review Argument #1.  The call for review claims that since there were two different Meeting IDs listed on the Planning Board Meeting Agenda (one valid Meeting ID and one inoperable Meeting ID), members of the public were unable to access the meeting via telephone using the inoperable Meeting ID.

 

Staff Response.  As a result of the COVID-19 pandemic, public meetings have occurred over the past year via Zoom.  Under the Governor’s Executive Order N-08-21, “a local legislative body … is authorized to . . . make public meetings accessible telephonically or otherwise electronically to all members of the public seeking to observe and to address the local legislative body….”  The July 26, 2021 Planning Board Meeting Agenda satisfies this requirement by providing information on the agenda (i.e., a valid Zoom registration link and a valid Meeting ID) making the public meeting accessible electronically to members of the public.   

 

Instructions for accessing the Zoom meeting were printed on the July 26, 2021 Planning Board Meeting Agenda.  In this case, a clerical error resulted in two different Meeting IDs being included in the instructions, one that was valid and one that was outdated and inoperable.  The valid Meeting ID was listed directly below the Zoom registration link, and the inoperable Meeting ID was listed under the telephone dial-in instructions.  The Planning Board and staff acknowledged the clerical error at the meeting. 

 

There were no technical problems with Zoom video access or the registration link, which automatically populated the valid Meeting ID.  However, the inoperable Meeting ID could have affected access for individuals wishing to participate by telephone.  If an individual dialed the telephone number and entered the inoperable Meeting ID, he/she would not be able to access the meeting; however, if the participant entered the valid Meeting ID, he/she would have been able to participate. 

 

Despite the clerical error, the public was able to participate and address the Planning Board by logging in to Zoom, calling in via telephone, viewing the meeting on Facebook Live and TV via Comcast Channel 15 and AT&T Channel 99, and submitting written comments.  Over 40 people participated in the meeting via Zoom, both by video and by telephone.   

 

Based on the foregoing, Chief Planning Counsel confirmed during the meeting that the published agenda would not result in judicial invalidation of the meeting and the actions taken.  Further review by the City Attorney’s office and the Planning, Building, and Transportation Department affirms this determination.  More specifically, California Executive Order N-08-21 provides that “a local legislative body … is authorized to . . . make public meetings accessible telephonically or otherwise electronically to all members of the public seeking to observe and to address the local legislative body. . . .”  This suggests that a valid Zoom registration link alone may satisfy state law requirements. 

 

Call for Review Argument #2.  The call for review claims that staff revised the agenda to delete the inoperable Meeting ID after the Planning Board meeting concluded, but failed to inform the public that the correction was made, thereby concealing the clerical error.

 

Staff Response.  Staff attempted to delete the inoperable Meeting ID from the agenda during the meeting; however, the agenda correction did not publish until after the meeting adjourned.  Staff did not take any actions to conceal the clerical error.  In fact, staff acknowledged the error during the Planning Board meeting and attempted to correct it.  Despite there being no legal error, staff has made revisions to the agenda process to avoid similar clerical mistakes in the future.

 

Conclusion

 

Staff recommends the City Council conduct a de novo public hearing and approve the following two items: 

 

1)                      Staff recommends approval of Design Review Application No. PLN21-0077 for a Medical Respite Facility at 1245 McKay Avenue based on the required findings and subject to conditions of approval imposed by the Planning Board.  The Planning Board staff report, Design Review plans, and exhibits are available on the City of Alameda’s (City) website at:

<https://alameda.legistar.com/LegislationDetail.aspx?ID=5031891&GUID=164A0DE7-A13A-41FF-9A71-993AE1305D2A>, and are incorporated by reference as though fully set forth herein.

 

2)                     Staff recommends approval of the Planning Board’s Draft Meeting Minutes of the June 14, 2021 Planning Board meeting.  The meeting minutes are available on the City’s website at:

<https://alameda.legistar.com/LegislationDetail.aspx?ID=5031884&GUID=691DFA52-B66B-4504-B1EA-39452645957E>, and are incorporated by reference as though fully set forth herein.  A video of the Planning Board’s June 14, 2021 meeting can be viewed on the City’s website at:  <http://alameda.granicus.com/MediaPlayer.php?view_id=6&clip_id=2783>

 

ALTERNATIVES

 

Alternatives available to the City Council include reversing or affirming, in whole or in part, or otherwise modifying the decisions of the Planning Board.

 

FINANCIAL IMPACT

 

AMC Section 30-25.4.c stipulates that all costs associated with the call for review, including staff time, technical assistance, and noticing the public hearing shall be funded by the General Fund and shall not be charged to project applicants. 

 

Staff estimates the costs for preparing this call for review, including staff time, technical assistance, attorney review, and public noticing/correspondence and attendance at the public hearing to be approximately $5,204.85, which shall be charged to the General Fund. 

 

MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE

 

The City Council’s de novo public hearing provides another opportunity for members of the public to participate in the City’s decision making process, consistent with the goal of maximizing transparency under the Brown Act, AMC, and the City’s Sunshine Ordinance. 

 

ENVIRONMENTAL REVIEW

 

The City Council’s approval of Design Review for the Medical Respite Center at 1245 McKay Avenue, which is a permitted use within the A-P, Administrative Professional Zoning District, is not subject to the California Environmental Quality Act (CEQA) pursuant to McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 31 Cal.App.5th 80 and Public Resources Code Section 21080.  As a separate and independent basis, on December 4, 2018, the City Council by Resolution No. 15461 adopted a Mitigated Negative Declaration (MND) and Mitigation Monitoring and Reporting Program (MMRP) for the McKay Wellness Center in compliance with CEQA.  In accordance with CEQA Guidelines section 15164, an Addendum to the MND has been prepared in the manner required and as authorized under CEQA, and the City Council has considered the MND, MMRP, and Addendum, all of which can be found at <https://www.alamedaca.gov/Departments/Planning-Building-and-Transportation/Planning-Division/Major-Planning-Projects> and  are incorporated by reference as though fully set forth herein, prior to making a decision on the Call for Review.  The City Council finds that approval of the Design Review application will not produce new significant environmental effects or any substantial increase in the severity of previously identified significant effects, and no further environmental review is required.

 

The City Council’s approval of Draft Meeting Minutes from June 14, 2021 is not a project under Public Resources Code section 21065 and CEQA Guidelines section 15378.

 

CLIMATE IMPACT

 

The City Council’s approval of Design Review for the Medical Respite Center is conditioned upon incorporating sustainability features in the construction, and current California Green Building Code standards will ensure the new building meets building standards that are LEED equivalent.  Moreover, the City requires that 65% of all construction and demolition debris from a project be recycled by a certified construction and demolition processor.  The goal is to divert as much debris as possible from the landfill through concrete crushing, sorting and salvaging materials to be recycled and reused.  The MND and MMRP for the project include mitigation measures that will further minimize air quality, hazardous materials, and related environmental impacts.

 

There are no climate impacts that arise from approval of the June 14, 2021 Planning Board meeting minutes. 

 

RECOMMENDATION

 

Hold a public hearing to consider a call for review of the Planning Board’s decisions to approve (1) Design Review Application No. PLN21-0077 to allow the construction of an approximately 29,810-square-foot Medical Respite Facility at 1245 McKay Avenue and Adopt a Resolution approving design review application no. PLN21-0077 to Allow the construction of an approximately 29,810-square-foot medical respite facility at 1245 McKay Avenue., and (2) Draft Meeting Minutes from the June 14, 2021 Planning Board meeting by Motion.

 

CITY MANAGER RECOMMENDATION

 

The City Manager defers to City Council on a public hearing to consider the call for review of the Planning Board’s decisions as outlined.

 

Respectfully submitted,

Andrew Thomas, Planning, Building & Transportation Director

 

By,

Allen Tai, City Planner

 

Financial Impact section reviewed,

Annie To, Finance Director

 

Exhibits:

1.                     Planning Board Resolution No. PB-21-09 (1245 McKay Avenue)

2.                     July 26, 2021 Planning Board Meeting Agenda

3.                     Call for Review

4.                     Correspondence Narrowing Call for Review

5.                     Correspondence from 1245 McKay Avenue Applicant

 

cc:                     Eric Levitt, City Manager

                     Gerry Beaudin, Assistant City Manager