Minutes of August 21, 2008 Commission Meeting

  1. Call to Order
    The meeting was called to order by Chair Randolph at the MetroCenter Auditorium, Oakland, California at 1:05 p.m.
  2. Roll Call
    Present were Chair Randolph, Vice Chair Halsted, Commissioners Baird (represented by Alternate Potter), Bates, Bourgart (represented by Alternate Sartipi), Brown (represented by Alternate T. Smith), Gibbs, Gioia (represented by Alternate Uilkema), Jordan Hallinan, Hicks, Kniss (represented by Alternate Carruthers), Lundstrom, Maxwell (represented by Alternate Addiego), McGlashan, McGrath, Moy, Silva (represented by Alternate Reagan), Thayer (represented by Alternate Kato), Wagenknecht, and Wieckowski.

    Not Present were: Department of Finance (Finn), Governor’s Appointee (Goldzband), San Mateo County (Gordon), Alameda County (Lai-Bitker), Senate Rules Committee (Nelson), San Francisco County (Peskin), and U.S. Environmental Protection Agency (D. Smith).
  3. Public Comment Period
    David Lewis, Executive Director of Save the Bay, encouraged Commissioners to see more of the Bay. He passed out a newsletter that contained a schedule of events for this fall. He noted that one of the events was “Coastal Clean-Up Day” and asked Commissioners and their families to participate. There will be five locations for clean-up, including two locations in San Jose (Coyote Creek and Guadalupe River), San Francisco (Mission Creek), Oakland (Martin Luther King Shoreline), and Hayward (Eden Landing Salt Ponds).

    He said Eden Landing is an unusual spot with a spectacular setting and this may be an area commissioners might be interested in signing up for with Coastal Clean-Up Day.

  4. Approval of Minutes of July 17, 2008 Meeting
    Mamie Lai noted that there is one correction to the minutes: page 9, item 9 (Public Hearing and Vote on Gas Well) the vote has been corrected to read 18-0-1 as there was one abstention.

    MOTION: Commissioner Wagenknecht moved, seconded by Commissioner Wieckowski to approve the July 17, 2008 minutes with the above noted correction. The motion carried with four abstentions.

  5. Report of the Chair
    Vice Chair Halsted reported on the following items:
    1. Next BCDC Meeting. The next BCDC meeting will be held in two weeks on September 4, 2008. At that meeting, which will be held at the Ferry Building in San Francisco, the following items will be taken up:
      1. Public hearings and votes on two related regulatory decisions to enhance the natural habitat of the former salt ponds in the South Bay. One hearing and vote will be on a permit application from the California Department of Fish and Game, and the other will be on a federal consistency determination by the U.S. Fish and Wildlife Service.
      2. A public hearing and vote on a stipulated enforcement order to resolve problems at a pier for dining yachts on the San Francisco waterfront.
      3. Two briefings, one on the latest scientific research dealing with the Sacramento-San Joaquin River Delta, and the second on low-impact development.
    2. Strategic Planning Workshop. Chair Randolph reminded the members of the Commission that an all-day workshop will be held on September 18, 2008 to update the BCDC strategic plan. Both Commissioners and their alternates should make every effort to attend this important meeting, which will be held at Jack London Square in Oakland.
    3. Former Commissioner. Joe Fernekes passed away several weeks ago and the Commission will recess this Commission meeting in his honor.
    4. Ex-Parte Communications. If anyone has forgotten to provide staff with reports on any written or oral ex parte communications, please submit them now.

      Commissioner McGlashan said he has had two ex-parte communications about the Greenwood Beach Road; one with Marin Audubon Director Barbara Salzman and one with the Director of the Audubon Tiburon Preserve, Brook Langston.
  6. Report of the Executive Director
    Mr. Travis provided the following report:
    1. Budget. The Legislature and the Governor have not yet reached agreement on a state budget for the fiscal year that began on July 1st. This has created considerable uncertainty and for all state agencies and a lot of inconvenience for the public we serve. The Governor has issued an executive order imposing a state hiring freeze, laying off all temporary state workers, and curtailing contracts. The Governor has asked BCDC and other independent boards and commissions to voluntarily comply with this executive order because he has acknowledged that he does not have the power to order BCDC’s compliance. BCDC is largely doing so. Part-time staff who are paid with General Fund revenues have been furloughed; new staff are not being hired; the use of contractors have been stopped except those who provide legally-mandated services (such as the court reporter); vendors are not being paid until the budget has been approved. Also, the Governor has directed that most of BCDC staff be paid only the federal minimum wage and that he (Mr. Travis) not be paid at all. On the other hand, the Controller, who issues checks, said he cannot and will not comply with the Governor’s order. In turn, the Governor has sued the Controller. The first hearing on that lawsuit will not be held until September 12 so BCDC staff will be fully paid when the Controller issues the paychecks for this month on the first of September. However, Commission members will not be paid the $100 stipend they receive for attending BCDC meetings until the budget is approved. The Commissioners’ continued patience is appreciated by him, staff, and the Governor.
    2. legislation. Assembly Bill 2094, Assemblymember Mark DeSaulnier’s measure that BCDC is sponsoring to give BCDC the authority to address climate change in its planning work and to become a voting member of the regional Joint Policy Committee, has been approved by both houses of the California Legislature. AB 2094’s next stop is the Governor’s desk.

      However, another of the actions the Governor has taken to deal with the budget impasse is to vow to veto all bills that reach his desk until the budget bill is signed. Therefore, AB 2094 will be held in the Legislature either until the budget bill is passed, or the Governor changes his position, or August 30th, the last day for action on bill this year, whichever comes first.

      Also, Assembly Bill 2954, the measure to establish a new San Francisco Bay Restoration Authority, has bee approved by the Legislature. The final version of the bill has been provided to the Commissioners, which was amended to increase the membership of the new authority’s board. A letter from Save the Bay, the bill’s sponsor has been received where they suggest that these amendments can help achieve the Commission’s goal of having at least two BCDC members serve on the authority’s board. BCDC staff agrees with Save the Bay’s assessment. Therefore, unless the Commission directs otherwise, staff will advise the Governor that the Commission now fully supports AB 2954. This bill too is being held in the Legislature until the budget is resolved.

    3. Personnel
      Kerri Davis, one of BCDC’s permit analysts, has resigned to pursue other professional and personal adventures. We will wait until we know precisely what the budget for this fiscal year will look like before deciding what to do about this vacancy.

    4. Suisun Marsh Appeal
      On June 26th BCDC received an appeal from June Guidotti, challenging the Solano County Board of Supervisors’ approval of a re-circulated Final EIR and land use permit amendment for the Potrero Hills Landfill expansion project. There were earlier appeals to the County’s permit for this project, and in December 2005, the Commission found that appeals raised substantial issues and agreed to hold a de novo public hearing on the project. That public hearing has been delayed due to a number of circumstances, one of which was a court ruling that the Final EIR was inadequate. Because the Commission retains jurisdiction over the appeal, BCDC staff informed Ms. Guidotti that this project is already on appeal to the Commission and that her latest appeal is unnecessary. A copy of the July 24th letter to Ms. Guidotti was provided to the Commissioners.
    5. Bay Restoration Funding
      In 1982, the Commission issued a permit to the City of Menlo Park for work at the city’s landfill. To mitigate the impacts of the project, the permit required that the city provide $150,000 to the Peninsula Open Space Trust for the acquisition of property suitable for restoration. In the ensuing quarter century, the landfill has been converted to the Bay Front Park, but no suitable property that could be purchased for $150,000 was ever identified. However, thanks to compounding interest, the fund has grown to over $488,000.

      Rather than continue to look for a property to purchase, the City of Menlo Park and the Peninsula Open Space Trust believe the money could be put to better use by supporting the creation of wildlife habitat in Salt Pond SF2 near the Dumbarton Bridge. As part of the larger South Bay Salt Pond Restoration Project, this 250-acre pond will be managed by the U.S. Fish and Wildlife Service for nesting and migratory birds and will include a hiking trail with two wildlife viewing platforms. To allow the funds to be used for restoration rather than acquisition, the City of Menlo Park has requested a minor amendment of BCDC’s permit, which would authorize the Peninsula Open Space District to release the funds for the Pond SF2 project. Unless the Commissioner directs otherwise, BCDC staff intends to approve this minor permit amendment.

      Commissioner McGrath asked what the original purpose was for the $150,000. Mr. Travis said it was to purchase property suitable for restoration. He asked if this project is for restoration. Mr. Travis said it is for restoration on property that has already been purchased as opposed to purchasing property that could later be restored.

      Commissioner Carruthers asked whether the two bills BCDC is involved with are one- year bills or two-year bills; and if the Governor does not act by the end of the month would the one-year bill die. Mr. Travis said they would both be dead because this is the second year.

    6. Bay Area License Plate
      There is a wonderful opportunity to help protect and restore the special places in the Bay Area. You can do this by signing up for a new license plate that features an iconic image of the Golden Gate Bridge and the tagline “Nature Within Reach” to identify your vehicle as belonging to someone who loves the Bay Area.

      Proceeds from the sale and renewal of these special plates will be used by the San Francisco Bay Area Conservancy Program to fund habitat restoration, conservation, recreation and public access projects throughout the nine-county Bay Area.

      To get this wonderful program established 7,500 paid pledges are needed by July of next year. The plates cost $50 for initial registration, and $40 for annual renewals. The goal of the program is to eventually raise a million dollars a year and have more than 25,000 plates in circulation. With BCDC’s help, the first of these wonderful, new Bay Area special license plates will be issued by the Department of Motor Vehicles in the second half of 2009.
    7. Web Site Improvements
      As called for in our strategic plan, a brief report describing BCDC’s new website has been provided. The website will be launched on Monday. The improvements made go a long way toward achieving BCDC’s goal of creating an attractive portal through which the public can easily get information about BCDC and the Bay. Caitlin Sweeney can answer any questions about the new website.
    8. Regulation Changes
      On July 25th staff sent eight revised pages of BCDC regulations which reflect the revisions this Commission approved dealing with dredging projects. These pages should replace the old pages in each member’s file copy. He explained that because the memo was sent out with the cancellation notice for the August 7th meeting he was concerned that Commissioners may have overlooked the memo.
  7. Commission Consideration of Administrative Matters
    There were no questions on administrative matters.
  8. Public Hearing and Vote on Proposed Stipulated Cease and Desist and Civil Penalty Order No. CCD 1-08; Golden Gate Bridge, Highway, and Transportation District. Chair Randolph noted that this item is a public hearing and vote on a recommendation from the Enforcement Committee to resolve a series of violations at the Golden Gate Bridge District’s ferry terminal in Larkspur.

    Commissioner McGlashan said he serves on the Board of the Golden Gate Bridge Highway and Transportation District therefore he will recuse himself for this item.

    Commissioner Gibbs presented the Committee’s recommendation as follows:

    The Enforcement Committee met on July 10th to consider an enforcement action undertaken by the staff against the Golden Gate Bridge Highway and Transportation District. The staff alleged violations of the District’s permit that authorized construction of the Larkspur Ferry Terminal. The allegations included (1) allowing ferry patrons to park on the required public access path; (2) placement of unauthorized structures within the required public areas; and (3) failure to maintain landscaping and other required public improvements.

    The District and staff had reached an agreement on the terms of an order. The Committee’s task was to determine whether the order was reasonable and appropriate.     The Committee concluded that the order was appropriate and now recommends that this Commission agree and issue the order. The proposed order would require the District to complete public access requirements and make additional improvements including: (1) updated paths and landscaping, and install a new viewing deck, bike racks, and seating; (2) obtain approval for final precise plans from BCDC staff prior to construction; (3) follow a schedule to remove unauthorized structures and uses from the public access areas; (4) record a legal agreement to permanently reserve a view corridor to the Bay; and (5) provide additional public benefits including replacing a concrete wall with a transparent metal fence to improve Bay views and providing free rides to cyclists on weekends during May 2009.

    The District would not have to pay the $50,000 civil penalty unless it fails to comply with any term or condition of the order. In that case, it would owe the entire $50,000.

    The Committee believes that the District is fully prepared to comply with this order. As part of the solution, the District will expand the parking lot and revise and improve the public pathway. The District has obtained a new permit amendment to authorize this work and the work necessary to satisfy the other conditions of the order. The District has already commenced work under the new amended permit.

    Jim Swindler, Deputy General Manager with the Ferry Division for the District, said the District so stipulates to the order and thanked BCDC staff.

    Chair Randolph opened the public hearing. There were no public comments.

    MOTION: Commissioner Carruthers moved, seconded by Commissioner Reagan to close the public hearing. The motion carried.

    Commissioner Lundstrom commended the Enforcement Committee, the staff, and the Bridge District for all their efforts. This will bring tremendous public benefit.

    Commissioner McGrath asked whether the agreement accounted for the temporal loss of public access.

    Ellen Sampson said there are some other steps that the Bridge District is taking: they are going to make further improvements to the public access areas and amenities above and beyond what would be required for simply the expansion of a parking lot. There will be a net benefit beyond the public access benefits required for simple expansion of their parking lot, including a dedicated view corridor out to the Bay that will include maintaining landscaping so that views of the Bay will be preserved, a viewing deck, and some other significant improvements including a bridge for cyclists. Staff is satisfied that the losses experienced in the past are being accommodated in this plan.

    Commissioner Addiego said it seems that the free ferry rides for the one month in the year 2009 only on weekends when space is available is an extremely modest gesture. He asked if anything more was envisioned for cyclists. Ms. Sampson said this was a process of negotiation. More opportunities for cyclists on ferries were discussed and this is what they were prepared to provide.

    Commissioner Wieckowski asked that this opportunity for bicyclists in May be posted on the BCDC website.

    MOTION: Commissioner Bates moved, seconded by Commissioner Tim Smith to adopt the Enforcement Committee’s recommendation.

    VOTE: The motion carried with a roll call vote of 18-0-0 with Commissioners Potter, Bates, Sartipi, T. Smith, Gibbs, Uilkema, Jordan Hallinan, Carruthers, Lundstrom, Addiego, McGrath, Moy, Reagan, Kato, Wagenknecht, Wieckowski, Vice Chair Halsted and Chair Randolph voting “YES”, no “NO” votes and no abstentions.
  9. Public Hearing and Vote on Amending the Regional Airport Planning Committee’s Memorandum of Understanding. Chair Randolph said this item is a public hearing and vote on an amendment to the Memorandum of Understanding dealing with the Regional Airport Planning Committee.

    Ms. Lindy Lowe provided the following information:
    Staff requests approval of an amendment to the Regional Airport Planning Committee’s (RAPC) Memorandum of Understanding that BCDC is a party to, along with the Metropolitan Transportation Commission, and the Association of Bay Area Governments.

    RAPC’s MOU was developed in the early 1970’s by MTC and ABAG to create a Committee to analyze airport and air transportation needs and issues at a regional scale. BCDC became the third member agency in 1998 when it signed on to the MOU.

    The current amendment which was endorsed by RAPC at its June meeting would expand RAPC’s membership to include three new members and alternates from Sacramento, San Joaquin, and Monterey counties. The new members, who would be non-voting, would be elected officials from each of these counties and the alternates would be the airport directors from each of these counties.

    The amendment would also allow the Bay Area’s three main commercial airports to identify alternates to serve when the primary member is unable to attend. The purpose of the amendment is to expand RAPC’s membership to better reflect the catchment areas for the Bay Areas three main commercial airports. In San Joaquin and Monterey counties, significant proportions of air travelers use San Francisco International Airport, in particular, and Oakland and San Jose International to a lesser extent.

    The addition of mega-regional representation is also an important acknowledgement of the emergence of a mega-region that extends beyond the nine counties that have traditionally defined the Bay Area. This mega-region has been described as the area from Monterey to Auburn and Cloverdale to Modesto and acknowledges the interconnected nature of the Bay Area’s economic, social, and ecological connections with its surrounding counties.

    Staff requests that the Commission approve the amendment language that was included in the staff’s report on this item which would expand RAPC’s membership to include three new extra regional members and allow San Francisco International, Oakland International, and San Jose International Airports to appoint alternates to serve when the primary member is unable to attend.

    Chair Randolph opened the public hearing. There were no public comments.

    MOTION: Commissioner Carruthers moved; seconded by Commissioner Lundstrom to close the public hearing. The motion carried unanimously.

    Commissioner Reagan said there is one big airport in the area, Travis Airport that is not included. Ms. Lowe said Travis is included in the nine counties and the recommendation is to extend beyond the nine county regions.

    Commissioner Reagan said Sacramento Metropolitan Airport is identified but McClellan and Mather are not identified. Staff chose the airport director from the primary airport from each county to serve as the alternate as opposed to all of the airports within a particular county.

    Commissioner McGrath asked if the scope of the work of the RAPC effort include considerations of price elasticity. He said he is particularly concerned that the increased fuel prices have dramatically affected the demand for air travel. Ms. Lowe said this is being considered in the analysis of projected demand into the future.

    MOTION: Commissioner Tim Smith moved, seconded by Commissioner Lundstrom to approve staff’s recommendation for amending the Regional Airport Planning Committee’s Memorandum of Understanding.

    VOTE: The motion carried unanimously with a hand vote of 19-0-0.

  10. Public Hearing and Possible Vote on Issuance of a Nonmaterial Amendment to BCDC Permit No. 12-78 (Amendment No. Eight); Shelterpoint Equities LLC
    Chair Randolph said Item 10 is a public hearing and a possible Commission action on the issuance of a nonmaterial amendment to remove a small floating dock from the Bay.

    Ms. Adrienne Klein provided the following briefing:

    This matter is a request from Shelterpoint properties to remove a private boat dock, pilings and gangway from the Bay at 591 Redwood Highway in the City of Mill Valley Marin County.

    In 1978 the Commission authorized the development of this site as a commercial office center. The public access required by BCDC included a pathway along the shoreline of the property and ten public parking places.

    In 1979 the permit was amended to authorize the construction of the boat dock and gangway. However, these facilities were not required to be provided as public access. Nevertheless, the owner has made these privately owned facilities available to the public since that time.

    A member of the public has asked the property owner to re-model the dock and gangway to make them accessible to people with disabilities. However, the owner does not want to make the improvements and is instead, seeking the Commission’s permission to remove them from the Bay.

    The staff intends to approve the request to remove these private facilities as a non-material amendment because the amendment would result in the removal of fill from the Bay and the fill is not a public benefit required by the Commission. However, because of the public interest in this private facility, the staff believes a public hearing is appropriate to enable the Commission to hear public testimony, and if the Commission so chooses, to provide direction to the staff.

    Richard Skaff, the member of the public who initially objected to the staff authorization of the removal of this dock and gangway and who asked for a public hearing on this matter, contacted staff yesterday to advise that he will not be testifying today because he now understands the Commission’s legal obligations regarding the removal of the dock and gangway.

    Staff will be meeting with Mr. Skaff to discuss how BCDC can provide better access to the Bay for disabled persons.

    In addition to Mr. Skaff’s comments, staff has received 6 telephone calls and 2 e-mails in response to the public notices posted at the site. Each citizen objects to the removal of the boat dock and gangway.

    A letter was provided to the Commission from Deputy Attorney General, Chris Tiedemann, regarding BCDC’s obligations and liabilities under state and federal disability laws. Ms. Tiedemann and Chief Counsel Tim Eichenberg are available to answer any legal questions. Ray Hoffman, owner of Shelterpoint properties and his attorney, Peter Flaxman are also available to answer any questions.

    Chair Randolph opened the public hearing.

    Mark Wagner said he has lived in Mill Valley for the past 30 years and he uses this boat dock quite frequently and he, as well as many other public members, have thoroughly enjoyed the use of it. He is sad to see it go and thanked Mr. Hoffman for providing this resource to himself, his friends, and family over the years.

    Tom Frazier said he is a life long resident of Mill Valley and he has used this dock regularly to launch his canoe, he fishes there, and it is a great place. He appealed to Mr. Skaff as an advocate for ADA and he believes this has become an all or nothing situation. He does not believe Mr. Hoffman would be seeking this amendment if it were not for the action by Mr. Skaff. He thanked Mr. Hoffman for the use of this dock. This is a special place for him and his family and he feels badly that this has become a situation where Mr. Hoffman is forced to remove it, especially since there are Coastal Conservancy monies for ADA accessible facilities, possibly in this area. He asked Mr. Hoffman if he does remove the dock and the gangway not to close the door to this.

    Peter Flaxman, attorney for Mr. Hoffman, said he has been practicing at the project at 591 Redwood Highway in Mill Valley for almost 25 years and he represents Shelterpoint Equities. Mr. Hoffman’s predecessor built this project and put in a large pier and a gangway and dock principally to serve his own private water based aircraft. Mr. Hoffman has allowed public use of the gangway and dock.

    Mr. Hoffman was recently sued because the claim was made that the dock and gangway did not meet current ADA standards and he has now been put in the position of having to defend himself in court. He has regrettably come to the conclusion that he has no choice but to remove the gangway and dock.

    Proponents of the ADA have said if the dock is not suitable for people with disabilities they would rather see it removed.

    Mr. Flaxman said the staff’s report is complete; it is a voluntary item of fill that was authorized but not required. As a matter of law Mr. Hoffman was entitled to simply remove it but he felt he would rather accommodate the process for BCDC.

    MOTION: Commissioner Wagenknecht moved, seconded by Commissioner Reagan to close the public hearing. The motion carried.

    Commissioner McGlashan thanked Mr. Hoffmann on behalf of the people of Southern Marin for his incredible generosity all these years. He noted that he strongly agrees with Mr. Wagner and Mr. Frazier. He is angered how good public policies get abused by certain advocacy individuals and groups such that the public is losing on situations like this. This is at least the third excellent project that has been scuttled by this kind of zealotry.

    Commissioner McGrath said trying to maintain the facilities in existence to make them accessible and get disabled people to the water is a challenge and must be done in a way that is feasible. He does not believe that every facility needs to be ADA accessible, but make as many as possible accessible.

     MOTION: Commissioner Wieckowski moved to accept the staff’s recommendation. There was no second and no action by the commission upon clarification by Executive Director Travis that the commission could, but did not have to, take any action on the Executive Directors approval of a non-material amendment.
  11. Commission Consideration of a Contract Amendment with Metropolitan Transportation Commission (MTC). Chair Randolph said this item is consideration and extension of BCDC’s contract with the Metropolitan Transportation Commission.

    Ms. Lindy Lowe provided the following information:
    Staff is requesting that the Commission authorize the Executive Director to extend an existing contract that BCDC has with MTC that will provide BCDC with an additional $170,000 to work on regional planning and land use issues. For the past two years BCDC has worked closely with MTC and ABAG staff under this contract on a variety of regional land use and transportation projects and programs.

    Under the terms of this extension, MTC would provide BCDC with $170,000 to support this work during the period from October 16, 2008 to October 15, 2009. Staff requests that the Commission authorize the Executive Director to execute on behalf of the Commission a one year agreement with MTC under which MTC will provide $170,000 to the Commission for the Commission’s continued assistance in advancing key collaborative projects; to amend the contract as necessary, including revising the amount or duration of the agreement so long as the amendment does not involve substantial changes to the scope of work and to enter into similar contracts in the future.

    Chair Randolph noted that this has been a good relationship and is in furtherance of the objective the Commission set several years ago to engage BCDC more directly and in a material way with ABAG and MTC, particularly around regional land use and transportation and environmental planning issues. This has been a very constructive relationship that he would like to see continued.

    Mr. Travis thanked Vice Chair Halsted who initiated this partnership and Commissioner Bates who serves on MTC because without their support BCDC would not be at this point.

    He also stated that MTC was likely to increase the contract amount in the next year or so and that is the reason for providing him with the ability to amend the contract as necessary.

    MOTION: Commissioner Tim Smith moved, seconded by Commissioner Bates to approve the staff recommendation. The motion carried unanimously by voice vote 20-0-0.
  12. Consideration of Strategic Plan Status Report
    Mr. Travis said there are two deadlines he would like to change. On page two, number three he would like to change the date to October 31 and on page three there is another date that needs to be changed to October 31.

    MOTION: Commissioner Halsted moved; seconded by Commissioner Wieckowski to change the requested dates to October 31. The motion carried.
  13. New Business
    There was no new business.
  14. Old Business
    There was no old business.
  15. Adjournment
    Upon motion by Vice Chair Halsted, seconded by Commissioner Reagan, to adjourn the meeting in memory of Joe Fernekes. The meeting was adjourned at 2:06 p.m.

Respectfully submitted,

Will Travis
Executive Director

Approved, with no corrections, at the San Francisco Bay Conservation and Development Commission Meeting of September 4, 2008

R. Sean Randolph, Chair