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Minutes 2010/01/11 r~ ! ==~~~~ ~ - --- ~- - ---- ------- ~ -----_.._---~-----_.~------ - City of Gilroy City Council Meetina Minutes January 11. 2010 I. OPENING A. Call to Order Mayor Pinheiro called the meeting to order at 7:03 p.m. and led the Pledge of Allegiance. The invocation was given by Frank Azad of the Bahai Faith. City Clerk Freels announced that the agenda had been posted on January 6, 2010 at 4:30 p.m. Roll Call Present: Council Member Peter Arellano, M.D.; Mayor Pro Tempore Dion Bracco; Council Member Bob Dillon; Council Member Craig Gartman; Council Member Cat Tucker; Council Member Perry Woodward; Mayor AI Pinheiro B. Orders of the Day Item V.C. was pulled from the consent calendar. Mayor Pinheiro wished everyone a Happy New Year. C. Proclamations, Awards and Presentations Mayor Pinheiro presented a proclamation naming January, 2010 as National Blood Donation Month. Mayor Pinheiro presented a proclamation recognizing the establishment of the First Annual Martin Luther King, Jr. prayer breakfast hosted by Bethany Community Church of God in Christ. II. PRESENTATIONS TO COUNCIL A. PUBLIC COMMENT BY MEMBERS OF THE PUBLIC ON ITEMS NOT ON THE AGENDA, BUT WITHIN THE SUBJECT MATTER JURISDICTION OF THE CITY COUNCIL Recreation Manager De Leon shared the spring recreation guide. B. Presentation of the Peninsula Division of the League of California Cities by Morgan Hill Mayor Steve Tate Morgan Hill Mayor Tate presented the !tem. 9146 C. Presentation of the 2009 Young Artists Poster Contest "Judges Favorite" Awards III. REPORTS OF COUNCIL MEMBERS Council Member Woodward A. Discussion Regarding Demanding from Berliner Cohen a Refund of Attorneys' Fees and Costs Paid in Connection with Medileaf Litigation Council Member Woodward suggested that a subcommittee of Council be formed to review the City Attorney fees associated with the Medileaf litigation. City Attorney Callon explained that a litigation fee budget could be developed for the specific litigation and Council could review it while determining the strategy for the case. Public comment was opened Marc Perkel spoke on the litigation and costs associated suggesting that the item may not have been heard in the appropriate court. Ron Kirkish spoke on the Judge's ruling during the preliminary injunction and then spoke on the lack of information regarding the suggested Brown Act violation. Public comment was closed. Failed Motion on Item 1I1.A. Motion: to create of a subcommittee of Council to meet with Berliner Cohen to discuss the fees for the preliminary injunction, and to set a cap on the litigation, with updates of the fees throughout the litigation process. Moved by Council Member Perry Woodward, seconded by Council Member Craig Gartman. Vote: Motion failed 3-4. Yes: Council Member Peter Arellano, M.D.; Council Member Craig Gartman; Council Member Perry Woodward No: Mayor Pro Tempore Dion Bracco; Council Member Bob Dillon; Council Member Cat Tucker; Mayor AI Pinheiro Motion on Item III.A. Motion: to approve holding a Closed session on the matter to discuss a litigation budget. Moved by Council Member Perry Woodward, seconded by Mayor Pro Tempore Oion Bracco. Vote: Motion carried 7-0. Yes: Council Member Peter Arellano, M.D.; Mayor Pro Tempore Dion Bracco; Council Member Bob Dillon; Council Member Craig Gartman; Council Member Cat Tucker; Council Member Perry Woodward; Mayor AI Pinheiro Council Member Dillon spoke on the Library ad-hoc committee meeting and stated that the opening for the temporary library was planned for February 23, 2010. City Administrator Haglund explained that Council Member Dillon had requested information on the proposed hotel development at Leavsley and Forrest Streets. - Development Center Manager Abrams and Traffic Engineer Dey shared information on the proposed hotel development. MAYOR'S REPORT A. Appointment of Council Members as Member and Alternate to the Valley Transportation Authority Policy Advisory Committee 9147 There were no public comments. Motion on Item Mayor's Report A Motion: to Appoint Council Member Tucker to Serve as Member and Mayor Pro Tempor Bracco as Alternate to the Valley Transportation Authority Policy Advisory Committee Moved by Council Member Bob Dillon, seconded by Council Member Perry Woodward. Vote: Motion carried 7-0. Yes: Council Member Peter Arellano, M.D.; Mayor Pro Tempore Dion Bracco; Council Member Bob Dillon; Council Member Craig Gartman; Council Member Cat Tucker; Council Member Perry Woodward; Mayor AI Pinheiro IV. FUTURE COUNCIL INITIATED AGENDA ITEMS Council Member Bracco asked for an update report on the squirrel problem at Christmas Hill Park and suggested the possibility of utilizing perches for birds of prey. The Council agreed to agendize the item. V. CONSENT CALENDAR A. Minutes of December 7,2009 Regular Meeting B. Minutes of December 14,2009 Regular Meeting D. Adoption of Ordinance 2010-01 of the City Council of the City of Gilroy Adding a New Article III, Sections 24.38 Through 24.45 to Chapter 24 of the Gilroy City Code, Which Implement the Provisions of the Digital Infrastructure and Video Competition Act of 2006, Codified in California Public Utilities Code Section 5800 Et Seq., Which the City is Required to Administer and Enforce Throughout the City Motion on Consent Calendar Items A. B & D Motion: to approve consent agenda items A, B, and D Moved by Council Member Cat Tucker, seconded by Council Member Perry Woodward. Vote: Motion carried 6-0. Yes: Mayor Pro Tempore Dion Bracco; Council Member Bob Dillon; Council Member Craig Gartman; Council Member Cat Tucker; Council Member Perry Woodward; Mayor AI Pinheiro Absent: Council Member Peter Arellano, M.D. C. Claim of Hanna & Brunetti, c/o Stan Linker, Esquire of Kennedy, Archer & Harray Motion on Item V.C. Motion: approve Consent Calendar Item V. C. Claim of Hanna & Brunetti, c/o Stan Linker, Esquire of Kennedy, Archer & Harray Moved by Council Member Perry Woodward, seconded by Council Member Craig Gartman. Vote: Motion carried 7-0. Yes: Council Member Peter Arellano, M.D.; Mayor Pro Tempore Dion Bracco; Council Member Bob Dillon; Council Member Craig Gartman; Council Member Cat Tucker; Council Member Perry Woodward; Mayor AI Pinheiro Council Member Gartman asked the Council to agendize a future item on the practice of ABAG as lead attorney for claims, and the possibility of the changing the Charter to allow for another attorney other than the City Attorney to be lead on such claims cases, or to direct staff to follow the Charter. 9148 The Council agreed to agendize the item. VI. BIDS AND PROPOSALS There were no bids or proposals. VII. PUBLIC HEARINGS A. A Resolution of the City Council of the City of Gilroy Authorizing the City to Join the CaliforniaFIRST Program; Authorizing the California Statewide Communities Development Authority to Accept Applications from Property Owners, Conduct Contractual Assessment Proceedings and Levy Contractual Assessments Within the Territory of the City of Gilroy; and Authorizing Related Actions The item was presented by Development Center Manager Abrams. The public hearing was opened; there being no public comment, the public hearing was closed. Motion on Item VII.A. Motion: to Adopt Resolution 2010-01 of the City Council of the City of Gilroy Authorizing the City to Join the CaliforniaFIRST Program; Authorizing the California Statewide Communities Development Authority to Accept Applications from Property Owners, Conduct Contractual Assessment Proceedings and Levy Contractual Assessments Within the Territory of the City of Gilroy; and Authorizing Related Actions Moved by Council Member Cat Tucker, seconded by Council Member Peter Arellano, M.D.. - Vote: Motion carried 7-0. Yes: Council Member Peter Arellano, M.D.; Mayor Pro Tempore Dion Bracco; Council Member Bob Dillon; Council Member Craig Gartman; Council Member Cat Tucker; Council Member Perry Woodward; Mayor AI Pinheiro VIII. UNFINISHED BUSINESS A. Interviews and Appointment of One Member to an Open Seat on the Historic Heritage Committee with a Term Ending December 31, 2011 The Council interviewed the applicant. There were no public comments. Motion on Item VIII.A. Motion: to Appoint Terri Aulman to the Historic Heritage Committee with a Term Ending December 31, 2011 Moved by Council Member Bob Dillon, seconded by Council Member Cat Tucker. Vote: Motion carried 7-0. Yes: Council Member Peter Arellano, M.D.; Mayor Pro Tempore Dion Bracco; Council Member Bob Dillon; Council Member Craig Gartman; Council Member Cat Tucker; Council Member Perry Woodward; Mayor AI Pinheiro ~ B. Adoption of an Ordinance of the City of Gilroy Amending Chapter 13, Article VI, Entitled "Regulation of Massage Establishments and Massage Practitioners" -- The staff report was presented by City Administrator Haglund. There were no public comments. 9149 Motion on Item VIII.B. Motion: to Adopt Ordinance 2010-02 of the City of Gilroy Amending Chapter 13, Article VI, Entitled "Regulation of Massage Establishments and Massage Practitioners" Moved by Council Member Cat Tucker, seconded by Council Member Bob Dillon. Vote: Motion carried 6-0-1. Yes: Council Member Peter Arellano, M.D.; Council Member Bob Dillon; Council Member Craig Gartman; Council Member Cat Tucker; Council Member Perry Woodward; Mayor AI Pinheiro Absent: Mayor Pro Tempore Dion Bracco IX. INTRODUCTION OF NEW BUSINESS A. Consideration of the Recommendation from the Open Government Commission to Amend the Open Government Ordinance to Add the Requirement that City Council Closed Sessions be Videotaped Council Member Woodward presented the item suggesting that the Council consider videotaping closed sessions. City Attorney Callon spoke against taping closed sessions sharing the court determination which would need to take place to view a closed session video tape. She then explained that there were no standards set to govern when the videotape would be released. She suggested that if the Council wished to move forward with the item, her recommendation would be to have the Open Government Commission with staff support, work out the conditions for release. Public comment was opened. Marc Perkel spoke in support of videotaping closed sessions stating that the video tapes should only be released by court order. Public comment was closed. Failed Motion on Item IXA. Motion: to Amend the Gilroy Open Government Ordinance to Add the Requirement that City Council Closed Sessions be Videotaped Moved by Council Member Peter Arellano, M.D., seconded by Council Member Perry Woodward. Vote: Motion failed 2-5. Yes: Council Member Peter Arellano, M.D.; Council Member Perry Woodward No: Mayor Pro Tempore Dion Bracco; Council Member Bob Dillon; Council Member Craig Gartman; Council Member Cat Tucker; Mayor AI Pinheiro B. A Resolution of the City Council of the City of Gilroy Authorizing the Lead Collaborative Entity to Apply for Funds on Behalf of the City of Gilroy The staff report was presented by Development Center Manager Abrams. There were no public comments. Motion on Item IX.B. Motion: to Adopt Resolution 2010-02 of the City Council of the City of Gilroy Authorizing the Lead Collaborative Entity to Apply for Funds on Behalf of the City of Gilroy Moved by Council Member Bob Dillon, seconded by Council Member Cat Tucker. Vote: Motion carried 7-0. Yes: Council Member Peter Arellano, M.D.; Mayor Pro Tempore Dion Bracco; Council Member Bob Dillon; Council Member Craig Gartman; Council Member Cat Tucker; Council Member Perry Woodward; Mayor AI Pinheiro C. A Resolution of the City Council of the City of Gilroy Declaring Certain Blight Conditions at 1221 Cypress Court, Gilroy, California in the City to be a Public 9150 Nuisance, Describing These Blight Conditions Which Constitute such Nuisance, and Providing Notice of the Adoption of the Resolution By Publication Thereof Pursuant to Gilroy City Code Section 5B.20, and Direction to the City Administrator to Begin the Process to Abate Such Nuisance The staff report was presented by Development Center Manager Abrams. There were no public comments. Motion on Item IX.C. Motion: to Adopt Resolution 2010-03 of the City Council of the City of Gilroy Declaring Certain Blight Conditions at 1221 Cypress Court, Gilroy, California in the City to be a Public Nuisance, Describing These Blight Conditions Which Constitute such Nuisance, and Providing Notice of the Adoption of the Resolution By Publication Thereof Pursuant to Gilroy City Code Section 5B.20, and Direction to the City Administrator to Begin the Process to Abate Such Nuisance Moved by Council Member Bob Dillon, seconded by Council Member Cat Tucker. Vote: Motion carried 7-0. Yes: Council Member Peter Arellano, M.D.; Mayor Pro Tempore Dion Bracco; Council Member Bob Dillon; Council Member Craig Gartman; Council Member Cat Tucker; Council Member Perry Woodward; Mayor AI Pinheiro The Council adjourned for a 5 minute recess. D. Urgency Ordinance of the City Council of the City of Gilroy Banning Medicinal Marijuana Dispensaries The staff report was presented by City Attorney Callon. Public comment was opened. Eric Madigan spoke against the adoption of the ordinance and asked what the Council was taking issue with regarding medicinal marijuana. Marc Perkel spoke in opposition to the ordinance suggesting a shorter ordinance banning marijuana for 30-90 days as it could be more beneficial in the long run to allow for an Attorney General opinion. Greg Correnti spoke in support of the adoption of the ordinance stating that the residents of the city did not want medical marijuana in the City of Gilroy. He explained that there were no revenues to be gained as the facilities were co-operatives and were a drain on local government services. Denise Apuzzo stated that there was no public concern of a Brown Act violation regarding the item. She then spoke in opposition of the adoption of the ordinance and the inability for children to be impacted by the facility. Brenda Maggiora spoke in support of the adoption of the ordinance stating that her children attended a dance studio near Medileaf, and she didn't want her children exposed to it. She then suggested that the facility be located in a medical area not in a strip mall. Eric Madigan stated that children should be told that the facility was for seriously ill people. He then spoke on the permitting process and judgment against the City regarding the opening of the facility. He explained the Attorney General requirements for medicinal cannabis testing that his facility followed, and spoke on the Hemp Industrialization Association. Brenda Maggiora asked what the next illegal substance would be to be sold in the City. Dennis Trimble stated that he used medicinal marijuana for his arthritis and then spoke on the legalization and growth of the hemp industry. 9151 Public comment was closed. Motion on Item IX.D. Motion: approve Motion to Read the Ordinance by Title Only and Waive Further Reading of the Ordinance with amendments; with the strike out "in addition to Medileaf' of J at the last sentence. Moved by Council Member Bob Dillon, seconded by Council Member Cat Tucker. Vote: Motion carried 5-2. Yes: Mayor Pro Tempore Dion Bracco; Council Member Bob Dillon; Council Member Craig Gartman; Council Member Cat Tucker; Mayor AI Pinheiro No: Council Member Peter Arellano, M.D.; Council Member Perry Woodward Failed Motion on Item IX.D. Motion: to adopt Ordinance 2010-03 with amendments; with the strike out "in addition to Medileaf' of J at the last sentence. Moved by Council Member Bob Dillon, seconded by Council Member Cat Tucker. Vote: Motion failed 4-3 (5 affirmative votes required). Yes: Mayor Pro Tempore Dion Bracco; Council Member Bob Dillon; Council Member Cat Tucker; Mayor AI Pinheiro No: Council Member Peter Arellano, M.D.; Council Member Craig Gartman; Council Member Perry Woodward E. Introduction of an Ordinance of the City Council of the City of Gilroy Banning Medicinal Marijuana Dispensaries Public comment was opened. Marc Perkel suggested a once sentence ordinance to ban medical marijuana dispensaries. Greg Correnti spoke in support of adopting the ordinance and suggested additional language with regards to the findings. Public comment was closed. First Motion on Item IX.E. Motion: to Read the Ordinance by Title Only and Waive Further Reading of the Ordinance Moved by Council Member Bob Dillon, seconded by Mayor Pro Tempore Dion Bracco. Vote: Motion carried 7-0. Yes: Council Member Peter Arellano, M.D.; Mayor Pro Tempore Dion Bracco; Council Member Bob Dillon; Council Member Craig Gartman; Council Member Cat Tucker; Council Member Perry Woodward; Mayor AI Pinheiro Second Motion on Item IX.E. Motion: to Introduce an Ordinance of the City of Gilroy Adding a New Article VII, Section 13.65, entitled "Medical Marijuana Dispensary as a Prohibited Use" to the Gilroy City Code, Chapter 13, entitled "Licenses." Moved by Council Member Cat Tucker, seconded by Council Member Bob Dillon. Vote: Motion carried 4-3. Yes: Mayor Pro Tempore Dion Bracco; Council Member Bob Dillon; Council Member Cat Tucker; Mayor AI Pinheiro No: Council Member Peter Arellano, M.D.; Council Member Craig Gartman; Council Member Perry Woodward X. CITY ADMINISTRATOR'S REPORTS City Administrator Haglund suggested March 5th and 6th or 1 ih and 13th as alternate dates for the Council goal setting session. The Council agreed to reschedule the session to March 1ih & 13th, 2010. 9152 XI. CITY ATTORNEY'S REPORTS There was no report. XII. CLOSED SESSION A. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION; Pursuant to Government Code Section 54956.9 (a) and Gilroy City Code Section 17A.11(c) (1); Name of Case: City of Gilroy v. WLC Architects, Inc, et aI., Case No. CIV 471337, Superior Court, County of San Mateo City Attorney Callon explained that she needed to give the Council her opinion on the reason to adjourn to closed session regarding the going litigation. She then explained that there was a proposed settlement working itself through the litigation and she believed discussing the litigation in open session would settlement of the case. There were no public comments. The Council adjourned to Closed Session at 11 :05 p.m. Motion to Adiourn to Closed Session on Item XII.A. Motion: to adjourn to Closed Session Pursuant to Government Code Section 54956.9 (a) and Gilroy City Code Section 17A.11(c) (1); Name of Case: City of Gilroy v. WLC Architects, Inc, et aI., Case No. CIV 471337, Superior Court, County of San Mateo Moved by Council Member Cat Tucker, seconded by Council Member Bob Dillon. Vote: Motion carried 7-0. Yes: Council Member Peter Arellano, M.D.; Mayor Pro Tempore Dion Bracco; Council Member Bob Dillon; Council Member Craig Gartman; Council Member Cat Tucker; Council Member Perry Woodward; Mayor AI Pinheiro The Council adjourned to open session with a public report of action taken in Closed Session Closed Session Announcement: Pursuant to Government Code section 54957.1 and Gilroy City Code section 17 A.13, the following actions were taken in Closed Session and reported out in Open Session by the City Attorney on January 11,2010: All Councilmembers were present in Closed Session. There was a unanimous vote to proceed with the matter in Closed Session. There was a unanimous vote to approve a final settlement of the litigation among all parties by which the sum of $1,935,000.00 will be paid to the City of Gilroy, with suitable releases of liability. There was a unanimous vote to make this information public upon coming out of Closed Session. XIII. ADJOURNMENT