August 2, 2007 Commission Meeting Minutes

Approved Minutes of August 2, 2007 Commission Meeting

  1. Call to Order. The meeting was called to order by Chair Randolph at the Ferry Building in San Francisco, California at 1:09 p.m.
  2. Roll Call. Present were Chair Randolph, Vice Chair Halsted, Commissioners Baird (represented by Alternate Potter), Bates (represented by Alternate Balico), Fernekes, Gibbs, Goldzband, Gordon, Jordan-Hallinan, Kondylis, Lai-Bitker, Lundstrom, McGlashan, Mossar, Moy, Nelson, Peskin, Thayer (represented by Alternate Kato), Wagenknecht, and Waldeck. Also in attendance Legislative member Charles Taylor.

    Not Present were: Business, Transportation and Housing Agency (Bourgart), Sonoma County (Brown), Department of Finance (Finn), Contra Costa County (Gioia), U.S. Army Corps. of Engineers (Hicks), Santa Clara County (Kniss), and U.S. Environmental Protection Agency (Schwinn).

  3. Public Comment Period. There were no public comments

  4. Approval of Minutes of July 19, 2007 Meeting. Chair Randolph entertained a motion to adopt the minutes.

    MOTION: Commissioner Kondylis moved, seconded by Commissioner Lai-Bitker to approve the July 19, 2007 minutes. The motion passed.

  5. Report of the Chair. Chair Randolph provided the following update:

    1. Next BCDC Meeting. The next meeting will be in two weeks on August 16, 2007 in Oakland at the MetroCenter. At that meeting the following matters will be taken up:
      1. A public hearing and vote on an application to place an electric power cable on the bottom of the Bay between Pittsburg and San Francisco.
      2. The consideration of two reports called for in BCDC’s strategic plan. The first deals with ferry system planning and operations, and the second describes the Coastal Commission’s public information program.
      3. There will be a briefing on the work of the Suisun Marsh Charter Group and the status of updating the management plans by the duck club in the Marsh.
    2. Ex-Parte Communications. If any commissioners have inadvertently forgotten to provide the staff with a report on any written or oral ex-parte communications they were invited to report them at this time. There were no ex-parte communications to report.

  6. Report of the Executive Director. Mr. Travis provided the following report:

    1. Mel Lane. BCDC’s first chairman, Mel Lane, passed away on Saturday. Mel was also the first chairman of the Coastal Commission. His honesty and integrity were an inspiration to all who knew him, and his capacity as a statesman brought arch enemies together in common agreement more often than not. Mr. Travis said that Mel made him proud to work for government because he made government operate at its very best.

      BCDC, the Coastal Commission, San Francisco Bay and the California coastline are Mel’s legacies. Mr. Travis respectfully requested that the Commission adjourn today’s meeting in memory of Melvin B. Lane.
      Commission Consideration of Administrative Matter. There were no administrative matters to be taken up.

  7. Commission Consideration of Administrative Matters. There were no administrative matters to be taken up.

  8. Commission Consideration of a Contract for a Two-Year Fellowship. Chair Randolph explained that Item #8 is the consideration of a contract with the National Oceanic and Atmospheric Administration to support a two-year fellowship in BCDC’s office.

    Brenda Goeden presented the staff’s report and recommendation as follows:

    The Commission has before it a contract with Earth Resources Technology, Inc. for a maximum of $15,000 over a two-year period to pay for a portion of the salary for an NOAA Coastal Fellow. The Fellow will assist the Commission in determining whether Ecosystem Based Management is an appropriate tool for San Francisco Bay.

    Ecosystem-Based Management is an innovative management approach to address the challenges of human activities on land and in the ocean that are changing coastal and marine ecosystems and threatening their ability to provide important benefits to society, such as healthy and abundant seafood, clean beaches, and protection from storms and flooding. It considers all ecosystem components, including humans and the environment, rather than managing one issue or resource in isolation.

    If the Commission approves this contract, Mr. Dan Robinson will begin work on August 20, 2007 and will complete his contract in August 2009.

    There were no public comments.

    MOTION: Commissioner Kondylis moved, seconded by Commissioner McGlashan to approve the contract with Earth Resourcers Technology, Inc., to support a two-year fellowship. Motion carried unanimously.

  9. Public Hearing and Vote on Permit Application No. 9-04 from 221 First Street, LLC to construct a four-unit residential building, establish street parking, and construct a public shoreline area at 221 First Street in the City of Benicia, Solano County. Chair Randolph explained that Item #9 involves a public hearing and possible vote on an application to construct a residential development along the shoreline in Benicia.

    Alternate Messina said he has a financial interest in 221 First Street, LLC and noted that he will recuse himself during these discussions.

    Jaime Michaels provided background information as follows:

    A summary of an application to construct a four unit residential building to establish public street parking and develop a dedicated public access area on the Benicia waterfront was provided to the Commissioners.

    The Commission should consider if, as proposed, the project would be consistent with BCDC’s laws and Pay Plan policies regarding public access, appearance, design, and views and water quality.

    The Commission should also consider if the project would be consistent with the Special Area Plan for the Benicia waterfront. Since BCDC’s law directs the Commission to look at whether the proposed public access would be the maximum feasible consistent with the project, this issue should be the primary one to consider in determining the project’s consistency with the Special Area Plan.

    She directed the Commission to the document in the staff summary that identifies the area and length of access, and also notes if view corridors and funding have been proposed. The table will help track access around the Bay and will also be used for when such data are needed for the permit tracking system.

    Dana Dean, Attorney, representing the project applicant, provided the following information:

    221 First Street has been in the Lopes family for decades and it has been a life-long dream to build a home on their father’s land.

    There are a few people in the community who are not pleased with the uses that are planned for this building, including that there is not commercial use on the first floor of the building that is within BCDC’s jurisdiction.

    She is before the Commission to discuss whether or not this project meets the body’s requirement, that is, to enhance the public access to the shoreline, and whether or not the project, as envisioned, is the best access that it can be for the project.

    The Project encourages public access to Benicia’s waterfront for today and in the future. Benicia’s shoreline currently includes points of formal access, limited informal access, and private access.

    The Project will provide an important link in the chain of formal, well-established public shoreline access to the entire Downtown waterfront.

    The Project’s inclusion of formal public access will help to encourage similar access at neighboring developments.

    Pictures of the site were shown and reviewed.

    The Project will enhance public access through C Street improvements. The Project includes upgrades and improvements to West C Street, creating an inviting entrance to waterfront access and a park-like setting for locals and tourists to enjoy sweeping vistas.

    The project will enhance the public’s viewing experience by providing inviting and comfortable access to waterfront views.

    By providing a paved shoreline path, seating, parking, signage, and lighting the project will create more formal, obviously public access to a clean, comfortable, park-like setting for locals and tourists to enjoy sweeping vistas of the Carquinez Strait and surrounding hillsides.

    It is the applicant’s hope that BCDC will allow the applicant to bring the project forward because it will further enhance an already vibrant community. It is a lovely way to bring the activity from First Street on to the public access.

    Commissioner Mossar asked the applicant why a wide boulevard is appropriate in the location of West C Street. Ms. Dean said it is for the furtherance of public access to the shoreline. This is, in part, to a response to the call for making the public access available and to allow for parking for the public access.

    Commissioner Moy asked how many times the BCDC Design Review Committee has seen this project. Mr. McAdam said they saw it two times, the last time was in January 2006. Ms. Dean said the Design Committee, at that time, asked the applicant to layout how the combination of 221 First Street and West C Street Park would look.

    Dennis Cullen said he resides at 232 First Street and he represents the Harbor Walk community that lives directly across the street from this Project. He does not oppose any development of this project; however he is concerned about the lack of proper permits and approval, along with the blatant disregard for a general plan of the downtown historical district.

    He has witnessed first-hand the grading of this property and the narrowing of the city sidewalk without securing the area from the dust and debris, and possible soil contamination that has been blown into the communities’ patios and open windows.

    He was involved in a development project in the City of Richmond. He was developing and expanding his private property. He needed some temporary additional parking, so he cut the weeds and grated the adjacent lot and BCDC stepped in and issued a stop work order because he did not seek their approval or a permit. The 221 First Street project presents the same scenario and his question is where is the enforcement. Why has it taken a court order to halt the project?

    The residents of Harbor Walk community have invested a great deal of money to secure waterfront views, and concerned citizens and local residents insist that BCDC honor the Court’s decision and stop the project, thus allowing the applicants to re-submit their proposal.

    Chair Randolph asked the public, when making their comments, to focus on the areas that are related directly to BCDC’s jurisdiction, which again is a 100 foot shoreline band, and in particular, the issue of public access.

    Jon VanLandschoot said he is a resident of Benicia and there are really just two issues: (1) BCDC can only give a permit, according to its Bylaws, if the City has given a permit. The City gave a permit but it expired 3 months ago, therefore BCDC would be violating its own Bylaws; (2) common sense says, if you give a person a two year permit, it is a contract. He asked the Commission if they would give to their staff, or the Design Review, the permission to extend their permit deadline. This is what happened in the City of Benicia.

    There are two reasons why limits are set: (1) so that the developer will do due diligence; get their project done and not bother the residents nearby too offensively for a long period of time; and (2) changes in the law.

    He has no desire to stop this project, however, it does need to be re-designed.

    BCDC’s Special Area Plan specifies that this project should be commercial.

    Sandra Shannonhouse said she spoke to this Commission in the mid-‘80’s when this property was owned by another family. This project is an improvement over what was presented in the ‘80’s. She asked the Commission to be sure that when it establishes public access that the access will be there, signed correctly, and people will feel welcome there.

    The whole waterfront building being proposed is residential and there are garages to the rear which is on the waterfront and this is not inviting to people.

    This project would not comply with the downtown mixed-use master plan, which Benicia will approve at the City Council meeting on August 22, 2007, and she does not believe it complies with the Special Area Plan.

    She also has a concern about Permit Special Condition 2b9 regarding development of public access improvements at West C Street Park. This seems to give the developer, and BCDC, an out so as to allow public access improvements to some other area. She asked the Commission to take a look at the projects from East E Street South down to A Street in conjunction with this Project. There is a golden opportunity to make something really wonderful for the public.

    Jerry Hayes, the former Mayor of the City of Benicia and a former commissioner of BCDC, said he is also a member of FOOT (Friends of Old Town Benicia) who are a group of involved and concerned citizens dedicated to the enhancement and preservation of Benicia’s historic downtown waterfront.

    He urged the Commission to postpone any decision on this project until the legal challenges brought against the City of Benicia’s issuance of building permits for this project are resolved.

    The staff report fails to inform the Commission that a lawsuit was filed by the Friends of Old Town, challenging the city’s approval of this project. The staff report also neglects to disclose that both a temporary restraining order and a preliminary injunction have been issued by the Honorable Judge William Beaman of the Solano County Superior Court prohibiting any ongoing on-site construction related activities. The preliminary injunction remains in effect today.

    The issuance of a building permit by the City of Benicia on June 6 was invalid because: (1) the project had not received approval from BCDC as required; and (2) the local approval for the project expired on May 3, 2007. BCDC staff was informed of unpermitted on-site activities within BCDC’s jurisdiction and regrettably took no action.

    The key question is, does this project provide the maximum public access. How can BCDC conclude this project, as presented, will actually deliver maximum public access when the project has been, and still is, a moving target? Does more parking on West C Street for cars provide maximum public access? Are garages on the waterfront providing maximum public access? He urged the Commission to postpone this until these issues are resolved.

    Pierri Bidou, a 45-year resident of the City of Benicia, retired police chief, a past city council member and Board member on the school district, said the necessary changes have been made to comply with the special plan for the City of Benicia. This is a very positive project for the City of Benicia.

    In regards to the commercial and the housing across the street, when those people bought there, they were informed by the realtor, that there could be a project across the street that could block their view.

    He is in support of the project and it is the legal correct thing to do, and it is also, at this time, the morally correct thing to do.

    Stephanie Bray said she is one of the principals of the 221 First Street, LLC. This property has been in her family for over 50 years and her family has always wanted to do something with this property. They have tried very hard to please everybody. The issue today is public access. Her family is more than willing to help allay whatever fears people have about providing the public access that they want.

    She asked BCDC to please consider allowing her family to proceed with their project.

    Cindy Messina said that her family has done everything they can to make this project legal, and beautiful, and right for the City of Benicia. She thinks that it is a travesty that a small group of people have prevented this from going forward. The family has changed this time and time again, have spent a lot of money, and she hopes that the project can go forward.

    Larry Fullington said he is a private citizen and has watched this project play out over the years. He has been very disappointed in what he sees occurring. This small number of people have time and time again tried to block this with petty, small things. Two years ago: not enough parking space, project not sufficient overall, garages not where they should be, walls and the rest of the project should have been packaged together not separately, and now these folks are suing the City questioning the integrity and the fairness of City staff.

    The City issued a building permit two years ago and one of the complainants’ comments was that “you should have gotten BCDC’s permission ahead of time”. Mr. McAdam, Deputy Director, said BCDC can act on a project before or after.

    This is a good project that will help the City and it is not in the best interest of Benicia to have these people continue with these petty little grievances.

    Manuel Lopes said he is the other member of the 221 First Street Project. His project is a good project. He is very proud of his city and he and his family are very committed to making sure that people will be proud of this project. He hopes that BCDC will really look at the project, the public access, and lights on the path, etc. He and his family are committed to this project and they will see it through.

    Al Bertellotti said the access to the public from First Street to C Street to the little park that will be developed further is good for the public. He has lived 70 years in Benicia and there has been improvement on this project over the previous owners. He hopes the project will pass.

    Pat Lopes said she grew up in Benicia. When she was a child she had a hard time finding a place to ride her bike. She left Benicia for awhile and when she came back it was so good to see how BCDC stepped in to get the thoroughfare, and the public access in Benicia.

    Her family has worked hard for more than 6 years working through petty issues. The plan for the project shows that there will be maximum use of the property for the access and public parking.

    Rod Sherry, a business owner in Benicia and a downtown resident said his company was hired by the property owners to perform a survey on the property in 2002. He did the design and the layout for the gabion wall, the initial layout for the path, and the First Street Spit. He believes that this project has undergone more scrutiny than any project he has ever worked on.

    City staff advised him that they had to be careful talking to him because they knew there was a group with an agenda that would appeal everything. This handcuffed him in dealing with them because staff was concerned that every single word would be questioned.

    The path will be a great addition to downtown and he looks forward to this project being constructed.

    Mark Hancock said he and his family have lived in Benicia for 24 years. They live downtown. When he moved to Benicia, access to one of the most beautiful parts of Benicia, its waterfront, was not there for the public. He applauded the Commission for the part that it has played in making Benicia address this issue over time.

    He urged the Commission to put this project into place as soon as possible so that the public can walk all around the beautiful waterfront of Benicia. He urged the Commission to please approve this very little piece of a very beautiful puzzle.

    Jim Erickson, City Manager of Benicia, said he came to this meeting as a representative of the City and to answer any questions BCDC may have about city processes, etc. The City does support this project. It was properly approved by multiple decision-making bodies. There is an appeal pending that will be heard on the 9th of August.

    To the best of the City’s belief, and to the belief of all the commissions that have looked at this and processed this application, they find the plan to be consistent with all city plans. The time for issuance of the building permit, which the City concludes has been properly issued, has not run out. It will run out September 22, 2007 and not in May.

    This project is consistent with plans, it is good for the downtown, the city is wishing to have a vital downtown, there is a mixed-use project, and it will contribute to a vital downtown.

    Commissioner Moy asked if the applicant does have a valid permit now. Mayor Erickson said the City believes the applicant has a valid permit to build. The last decision making body that approved this project approved it on September 22, 2005 so the two year period has not yet expired.

    Commissioner Mossar said she thought this was a housing project and not a mixed-use project. Mayor Erickson said the project is on First Street and borders the water on the back. All the ground floor on the First Street side is commercial.

    John Silva said he has lived in Benicia for 72 years and he is a member of the Solano County Board of Supervisors, and an alternate to this Board, served on the City Council for 8 years and prior to that he was City Manager so he is very familiar with the Special Area Plan that was put together in Benicia.

    He understands that BCDC is here today to make a decision on the adequacy of the waterfront pathway across this property. He is in support of the project. The public access is more than required and will be an enhancement to the area.

    Tom Campbell said he was on the City Council when this project was done and he voted for it and voted against the appeal from the Planning Commission. He believes the project is basically solid, but the problem he has had with it is the gabion wall. The gabion wall is in BCDC’s jurisdiction. There has been erosion around the edges of the gabion wall over the last two years, as well as corrosion of the actual gabion wall. This in turn is eroding the properties next to it. He urged the Commission to think about using rip rap in this area.

    MOTION: Commissioner Kondylis moved, seconded by Commissioner Lundstrom to close the public hearing. The motion passed unanimously.

    Commissioner Goldzband asked to look at the project map in order to determine what is in BCDC’s jurisdiction, and how the project itself does or does not satisfy, from staff’s point of view, the McAteer-Petris Act and the Special Area Plan.

    Commissioner Kondylis said there are three issues: the first one dealt with whether the project is an approved project or not. She said she would like to stress concurrence with the City Manager’s statement that this project is duly approved. The second issue is compliance with a Specific Area Plan, which was mentioned in the staff report and staff will need to address whether, in their opinion, it is in compliance with the SAP or not. The third issue is the maximum feasible public access. There is some discretion here and the Commission needs to review this in light of other maximum feasible public access projects that BCDC has approved over time.

    The final question she will be asking has to do with global warming and sea level rise and she would like to be assured that in 50 years this project is going to be high and dry.

    Jaime Michaels reviewed the map with the Commissioners. She clarified that the gabion wall is right against the Bay and it is the end of the project applicant’s property line. The walkway is about a 25 foot wide area and is in BCDC’s jurisdiction. The four unit building is about 35 feet high and is completely residential and within BCDC’s jurisdiction. The BCDC jurisdiction covers the residential building, the public access in front of the building, and the inner courtyard.

    The second building is outside of the BCDC jurisdiction. This second building will have the full bottom floor as commercial.

    Parking will be established on C Street next to the buildings and there will also be a public sidewalk along the side of the property.

    Commissioner Moy said the gabion wall creates a fictitious shoreline edge so what guides where this property ends and doesn’t end if an artificial edge has been created by a wall.

    Mr. McAdam said in the 1800’s some properties along the Benicia waterfront were sold to private individuals and there are actual parcels out in the water. This particular parcel ends at the water’s edge and a different property owns the waterward of this parcel.

    This parcel on the shoreline was actually fairly straight when the gabion wall went in. The gabion wall went in because that shoreline was eroding and the gabion wall was placed where the shoreline had eroded to at that point.

    The straight edge changes as it gets to adjacent property owners, partly because of historic conditions, partly as a result of erosion that has occurred since the gabion wall went in, and BCDC has no evidence to say that the gabion wall caused the erosion, or simply because the other shoreline properties were not protected.

    Commissioner Waldeck asked if the Commission approves this project, can it condition it to have the public access built first before the project is built, and secondly, is the public access adequate for the BCDC jurisdiction. Mr. Travis said this will be covered in staff’s recommendation.

    Ms. Michaels said staff does believe that the local approval is still valid. In terms of the Special Area Plan, the main issue that the Commission should be looking at is the question of maximum feasibility consistent with the project. In terms of the use, the Commission does not have authority over this at this site at this site.

    Mr. McAdam said the Special Area Plan that was adopted by the Commission and the City of Benicia had a variety of policies within it, some of which were intended for the Commission to carry out; some of which were intended for the city to carry out. In this case, the only thing the Commission has to assure is maximum feasible public access to the shoreline consistent to the project.

    Mr. Travis said regarding the sea level rise, there is nothing in the Mc-Ateer-Petris Act that speaks to climate change or sea level rise. In this case the Commission’s policy and authority is limited to maximum feasible public access consistent with the project.

    Mr. McAdam said within staff’s recommendation is a maintenance condition for the public access improvements which would assure that the pathway remains available to public use. The permitee would have to come in at some point, if sea level rises, and maintain the shoreline park.

    Commissioner Mossar said she believes it would be useful for the Commission to always have a copy of the map of the area so members can understand what long-term maintenance means for the public access it is approving.
    Staff Recommendation

    Ms. Michaels said the total area of dedicated public access that is in the Commission’s jurisdiction will be approximately 3,480 square feet. This means that the dedicated access, including areas that are outside the Commission’s jurisdiction, will be 3,823 square feet.

    Special Condition B-1 has been revised to take fishing out of the uses that the area would be used for because fishing would not be an appropriate use at this spot.

    Special Condition B-4 has been deleted entirely because that area is already referenced in the section above.

    Special Condition B-9 has been deleted entirely and replaced with the Special Condition that is on the errata sheet on the backside (page 2). It was changed to clarify how funding would be set aside for improving the public access area at the West C Street Park, which is adjacent to this project site, and is subject to a separate Commission approval.

    The staff recommends that the Commission authorize this project. Special Conditions include in the recommendation are: (1) required public access improvements, including dedicated parking, and funding for future improvements at the West C Street Park; (2) the provision of the Storm Water Pollution Prevention Plan when it is prepared to the staff.

    Staff believes the project is consistent with the Commission’s law and Bay Plan policies regarding public access, appearance, design, scenic views, water quality, and also--in relation to maximum feasible public access--in the Special Area Plan.

    Staff recommends that the Commission adopt the recommendation.

    MOTION: Commissioner Halsted moved, seconded by Commissioner Balico to approve staff’s recommendation.

    Commissioner Waldeck asked if this project has or has not been approved by the City or is or is not under litigation would it have no bearing on the Commission’s decision.

    Commissioner Goldzband said he would like to hear from BCDC’s staff counsel with regard to how that affects the Commission’s jurisdiction and decision-making process.

    Commissioner Gibbs said there have been a number of legal issues raised today and he would like to hear from staff counsel as to whether any of these would block or impede the Commission taking action today.

    Mr. Smith stated that BCDC’s law and regulations provide that the applicant must obtain all local discretionary approvals before BCDC can file the application. Mr. Smith also stated that it is only a filing requirement. Once BCDC files an application, whether or not a local discretionary approval may later become invalid is not material.

    Mr. Smith also pointed out that there is a dispute here. The City believes the permits are still valid, but the opponents of the project believe that the permits are no longer valid. The Commission is not in the position to resolve this dispute, and the Commission does not have to resolve this dispute because the application was filed properly is therefore properly before the Commission today.

    A second legal issue concerns CEQA. There is litigation challenging the adequacy of the CEQA review process at the local level. Essentially, the CEQA guidelines provide that until there is a final non-appealable judgment invalidating an environmental document, BCDC, as a responsible agency, is bound to treat the document as legally adequate.

    Mr. Smith stated that a third issue concerns whether or not circumstances here require BCDC as a responsible agency to assume the role of lead agency. Such circumstances arise where there has either been a substantial change in a project, a substantial change in the circumstances surrounding the project, or new evidence that could not have been known at the time the project was reviewed is later discovered. Beyond that, the changes or new evidence must involve substantial evidence that there is either a new substantial adverse environmental impact, or an impact whose degree of substantiality is significantly more and that the new or substantially greater input was not adequately addressed at the time the lead agency certified or adopted the environmental document.

    With regard to this issue, the letter in the Commission’s packet seems to raise two separate arguments. The first argument a minor change in one of the buildings where the amount of space that will be used for residential purposes has been increased moderately and the amount that will be used for commercial space has been reduced moderately. This is not the kind of change that would result in the Commission needing to assume the lead agency status.

    The second argument was more of an accumulative impact type argument. There were generalized references to a number of possible projects that may go forward in the future in the vicinity of this project. It was unclear from the letter whether any of possible projects have been approved by the City, or whether they are simply somewhere in the project planning pipeline. The argument is that the cumulative impacts of these projects plus the impact of this project would result in significant increases in traffic and parking, and that the environmental document did not adequately addressed these issues.

    Again, the evidence presented in the record is vague and unclear, and based on this fact Mr. Smith advised that the Commission would not have to assume the lead agency status and should continue to rely on the environmental document prepared by the City.

    Other than CEQA, unless the Commission is a party to the litigation, it is not bound by the litigation in any way.

    Mr. Smith said all of the legal issues that have been raised should not prevent the Commission from acting on the application at this meeting.

    Mr. Travis said during public testimony an issue was raised about violations, and he asked Mr. McAdam to address this issue. Ms. Michaels said a report was received from the public about illegal activity on the project site. Staff did do some preliminary investigation into this issue based on the evidence that was provided by the people who alleged that there was a violation occurring on the site. This was based on photographs which showed that there was a backhoe on the site. It was located on the First Street side of the property which is out of BCDC’s jurisdiction.

    The attorney who represents the project applicant said there was nothing happening in BCDC’s jurisdiction on the site that was in violation of BCDC’s law or policies.

    Mr. McAdam said that both he and Ms. Michaels have been to the site many times over many years. The site has been graded for many years, so even if staff did think there was a violation occurring they would have a hard time proving it.

    He did talk to the representative of the applicant who fully agreed that there would be no work occurring in BCDC’s jurisdiction even from this point forward.

    Commissioner Kondylis asked what “general” means on page 3 under special conditions (A-1). Ms. Michaels said this is language that is normally included. The term

    Commissioner Kondylis said on page 4 under Access, 1-A under Area it says “Shall be made available exclusively to the public for unrestricted public access for walking, bicycling, sitting, etc.” but then on page 6, under reasonable rules and restrictions it states that “The permitee can impose reasonable rules.”

    Ms. Michaels said the next sentence says: “Approved on behalf of the Commission.” Typically what happens is they notify staff and a decision is made at staff level with concurrence of the Executive Director. Mr. Travis said occasionally staff receives requests, either because there is some law enforcement problem, or some issue with vandalism, and staff investigates it, gets a report from the local police department and often will work out a management strategy that will address the problem while assuring that the public access is available.

    Commissioner Kondylis referred to page 5, under 4, Improvements within the total access area, the last sentence under (a) is confusing. “With a minimum of two public access signs, three benches, three bollards ...”

    Ms. Michaels said at this point in time there has been no specified number of bollards, bicycle parking, riding, etc., so it is only the benches. Commissioner Kondylis asked that the language be cleaned-up to make it more understandable.

    Commissioner Kondylis said it would help, if in the future, the Commission could get a schematic of what the site will actually look like.

    Commissioner Mossar said she needs some contextual sense about whether this project is similar to what the Commission has approved in the past. She personally feels 10 feet is small for a walking trail. Mr. McAdam said typically public access trails are between 10 and 12 feet wide. If it is a high use kind of trail within a park or different types of uses are expected then it would be 12 feet. This is a fairly urban area with a cozy setting and if a 12 foot path was made there would be very little room for landscaping.

    Commissioner Mossar said with regard to the reasonable rules and restriction clause, what is BCDC’s experience with exclusively residential areas butted up to public access. Ms. Michaels said there was a project down the street from this project that is similar and it works very well. The residents there have been very happy with this project.

    Mr. McAdam said this is a 25 foot wide public access area with a 10 foot set-back from the buildings. Because the 25 feet is along the front of these buildings it works much like an urban street face.

    Mr. Travis pointed out that the floor level of the private residential use is higher. What tends to happen is when the resident is in their private space they are looking out over the top of the public access and members of the public are not looking directly into their living room or bedroom. This is often what you find in the Brownstones of New York and the vertical separation solves much of the problems.

    Commissioner Halsted said one of the comments of the Design Review Board was that the northwest corner could be enhanced by more invitation. She asked if there was any response from the applicant. Ms. Michaels said in this version of the project there is a small entry point onto the project site that comes right off of the sidewalk.

    Commissioner Gibson said he would like to speak in favor of this project. He did not hear any compelling testimony that this project does not provide maximum public feasible access. There also was no compelling testimony that this project violated the Special Area Plan for the City of Benicia waterfront.

    On page 12 of the staff recommendation it shows that the access be wide enough to permit pedestrians to trails that they have high quality improvements and facilities, and the building be of human scale, provide variety and less than 40 feet in height. The project is in compliance with all these.

    AMENDED MOTION: Commissioner Halsted withdrew her earlier motion which had not yet been amended. Commissioner Balico, who seconded the earlier motion, withdrew his second. Commissioner Peskin moved, seconded by Commissioner Fernekes to approve staff’s recommendation as amended with the errata sheet.

    Motion carried unanimously.

    VOTE: The motion carried with a roll call vote of 19-0-0 with Commissioners Potter, Balico, Fernekes, Gibbs, Goldzband, Gordon, Jordan-Hallinan, Kondylis, Lai-Bitker, Lundstrom, McGlashan, Mossar, Moy, Peskin, Kato, Wagenknecht, Waldeck, Vice Chair Halsted and Chair Randolph voting “YES”, no “NO” votes and no abstentions.

  10. Public Hearing and Vote on Pending Legislation. Item #10 is a public hearing and vote on whether the Commission wants to take a position on a bill pending in the California Legislature.

    Steve Goldbeck presented the staff report and recommendation:

    The staff recommends that the Commission support Assembly Bill 1066, written by Assemblymember John Laird that would provide the Commission with explicit authority to develop regional strategies to address the impacts of global climate change on the Bay. This would be done in concert with local governments, (ABAG) and other agencies and interested parties. The bill would further direct the Ocean Protection Council to establish a state coastal management agency working group, including the Commission, to coordinate coastal land use actions related to mitigating and adapting to sea level rise and other global cli¬mate change impacts. AB 1066 would direct the Governor’s Office of Planning and Research to provide guidance to local governments on addressing climate change on coastal areas in local general plan preparation.

    Staff believes that this bill provides for a prudent approach to provide consistency in assessing and planning for climate change impacts on the coast and would provide an explicit role for the Commission in carrying out this process. Staff also believes that this bill is consistent with, and would provide an explicit basis for, your recently adopted climate change action plan.

    Commissioner Potter stated that administration did not yet have a position on this legislation.

    Commissioner Goldzband asked if the Resources Agency has taken a position on the bill. Commissioner Peskin said there is no official administration position on this bill.

    Commissioner Goldzband asked if the Commission were to adopt a position in favor of this legislation, how would it affect BCDC’s strategic planning process. Mr. Travis said judging by two years ago when the strategic plan said almost nothing about climate change, and this year when it is approximately one third of it, the next one will include even more. The Department of Finance asked if this legislation passed, what implications would it have on BCDC’s budget. The answer is it depends, because in the climate action plan that the Commission adopted, it requested that one position should coordinate everything having to do with climate change.

    Commissioner Goldzband asked Mr. Travis if the Commission were to adopt this request would there be anything that should be adopted concurrently, or in the next couple months that might benefit his planning process and his resource allocation process that he might not already have. Mr. Travis said one of the things that the Commission might want to ask staff to look at is how should the McAteer-Petris Act be changed in the long term. What should we do as a region? What role should BCDC play? What role should the Joint Policy Committee play; local governments, etc.? This is something the Commission might like staff to work up for the strategic planning session. Commissioner Goldzband said he would like an outline presented at the strategic planning session on this issue.

    Public Comment and Hearing

    There was no public comment.

    MOTION: Commissioner Kondylis moved, seconded by Commissioner Halsted to close the public hearing. The motion passed unanimously.

    MOTION: Commissioner Kondylis moved, seconded by Commissioner Goldzband to approve staff’s recommendation to support Assembly Bill 1066. The motion passed with one abstention.

  11. New Business. There was no new business.

  12. Old Business. There was no old business.

  13. Adjournment. Upon motion by Commissioner Mossar, seconded by Commissioner Kondylis, the meeting adjourned at 3:20 p.m.

SECOND MOTION: Commissioner Goldzband moved, seconded by Commissioner Peskin to adjourn in memory of Mel Lane. The motion passed.

Respectfully submitted,

Will Travis

Executive Director

Approved, as corrected, at the San Francisco Bay Conservation and Development Commission Meeting of August 16, 2007

R. Sean Randolph, Chair