June 7, 2011 Council Meeting

June 7, 2011

Berkeley City Council Meeting


SIDEWALK REPAIR AND OWNER LIABILITY:  The city approved raising the property owners share for sidewalk replacement from 20% to 50% and also requiring the property owners to share 50% in the liability in the case of any lawsuit resulting from sidewalk defects.  Efforts will be made to inform the public prior to the date that the amendment will take effect.

FY 2012 – 2013 BUDGET UPDATE AND FY 2012 CITYWIDE WORKPLAN:  Many people from the public spoke on behalf of the proposed cuts to city agencies.  An analysis prepared by citizen group, Berkeley Budget SOS, was referred to the City Manager for study, referrals from councilmembers for agency and other funding increases were referred to the City Manager for incorporation into the proposed budget for FY 2012.

MODIFYING FEES FOR LAND USE APPEALS:  Land use appeal fees will be raised to attempt to lessen the number of annual ZAB and Council appeals.  Fees may be somewhat offset if the required numbers of signatures are obtained from neighbors.


Meeting Notes


  • Item # 1 – Held over from the Consent Calendar:   Bid Solicitation for Refuse Rate Increase Study

There is a $3 million gap in the refuse fund that needs to be addressed through a fee increase.  Staff recommends that a consultant recommend the optimal amount.  The proposed RFP is for consulting services

  • Council Member Comments
    • Wozniak – We have not seen the RFP.  Why can’t this be done internally?  We should have the expertise.  Much money has already been spent for refuse consulting.
    • Capitelli – What is the new business model for our refuse department and how do we develop a rate structure to support that study.
    • Maio – Can we get some detail on our franchise fees?
  • Action
    • Hold over until next week

Item 13 & 17 Sidewalk Repair and Property Owner Liability


  • An ordinance amendment will bring Berkeley into line with other cities regarding trip and fall liability.  City will be able to make property owners share the liability with the city 50/50, although there is no formula on who pays what.  Current annual claims = approx 11 with an annual payout of approx $120 thousand.  The trend is increasing.

Council Member Comments

  • Bates–If a city tree makes someone trip and fall is the homeowner liable?  This seems harsh.
  • Wengraf– If roots in the planting strip make a person trip who pays for that?  Current definitions state that the sidewalk extends to the street.  Failure of a property owner to repair the sidewalk would result in a lien on the property.  I worry about homeowners who do not have the funds to pay for this.  What efforts are you going to make to educate property owners that this is the new policy?  It is important that people understand that the policy is shifting.
  • Bates – I am happier once I know that homeowners insurance would pick up the liability portion of a law suit.
  • Anderson – I know we need to address budget issues.  If homeowner negotiations fall short who picks up that piece?  I suspect that if a homeowner had a bill or a lien they assume it would go to the city.  Adequate education of the public needs to occur.  In many policies where the public shares the cost we make allowance for people with low income.
  • Bates – There are two issues here.  One is the cost of sidewalk repair and the other is the shared liability responsibility.  The liability will be picked up by homeowners insurance.
  • Capitelli – If there is a lien and a homeowner refinances then the lien must be satisfied.  We need to find out if owners have a deductible on their liability policies.  Insurance companies might raise rates over this change of policy.  Is there a tendency, when there are 2 pockets to sue, that there might be higher law suit values?
  • Bates – When we have a problem we tell the homeowner and they need to repair it themselves or we do it and bill them.
  • Capitelli – I want to make sure this additional $300 thousand goes to correcting sidewalks and not funding employee salaries.  I want to see an additional 50% in annual sidewalk repairs with this change.  I would feel better if we wait until fall to start this so people can be informed.
  • Wozniak – This should be delayed to September


Accept the amendment as proposed but delay the shared repair expense change until October 1, 2011.

  • Maio– I am still concerned about communication.  I want a one page notification to be sent out to residents.
  • Moore – We need to address low income issues.  How do we address low income with this ordinance?
  • Wengraf – What about the unattractive asphalt patches?  Are these temporary?
  • Wozniak – I would like to see an ongoing report on the number of sidewalk repairs and the number of law suits.
  • Arreguin – This policy item changes the administration and procedure.  We need to look at imposing liens on properties.  We need to take into consideration economic issues.
  • Moore – What if insurance policies get cancelled due to a lawsuit?  Or if a person has no insurance – they could lose their home.
  • Vote
    • Abstain:  Moore
    • Yes:  all others

Item 1 – FY 2012 & 2013 Budget Update and 2012 Citywide Workplan

  • Worthington – This is the most comprehensive workplan we have ever seen

Staff Report

  • Budget referrals have been presented by the council and commissions.
  • Funding options for these referrals will be presented on June 14th and council will provide recommendations at that time.
  • Budget will be approved on June 28th.

Public Comment

  • Berkeley Budget SOS – Total 2.  Report was referred to the City Manager for study.
  • Arts Commission – Total 3 in support of continued funding
  • Berkeley Youth Alternatives – Landscaping Program – Total 5 in support of continued funding
  • Lifelong Medical, Suitcase Clinic, Acupuncture Services and Options Recovery Services – Total 12 in support of continued funding
  • Women’s Daytime Drop in Center – Total 1 in support of continued funding
  • Berkeley Boosters – Total 5 in support of continued funding
  • JASEI – Total 8 in support of continued funding
  • United for Health – Total 4 in support of continued funding
  • Homeless Commission – Total 5 in support of keeping this commission as a separate agency
  • Disaster Preparedness and Fire Safety – Total 1 in support of funding all of the programs submitted by this commission.

Council Member Comments

  • Moore – The Chief of Police wrote an amazing letter in support of the Berkeley Youth Alternatives program.
  • Anderson – I would like to refer Safe Community Partnership for $10 thousand.
  • Moore – I would like to refer the Berkeley Youth Alternatives (BYA) program for $50 thousand
  • Maio – BYA should provide a breakdown of stipends and salaries.  How would the $50K be used?  It should go directly to the young people.  Stipends are important to the young workers.
  • Anderson – It seems inordinate to have a discussion on how a group spends its money.
  • Moore – We have unfunded the LGTB pride event.  I would like to refer $5,400.
  • Wengraf – Public Works costs for all events have stayed flat.  Is this correct?  We have underfunded this cost by $200,000 in overtime.
  • Arreguin – I would like to refer the Cinco de Mayo event with $4,000 from the event savings indicated in the report
  • Worthington – If there is a new policy no new capital project would be completed until fully funded we cannot do projects for which we already have grants.  This new policy does not make sense.  Also projects identified for college improvements in  2015 are not part of a broader package and there is a possibility for getting additional funds.  This is too limiting.
  • Bates – That $3 million is controlled by Peralta College.
  • Capitelli – There are errors in your formula for Public Works costs and overtime as well as personnel costs during events.
  • Wozniak – The sick leave and vacation fund is up to $14 million and is only 2% funded.  We need to start funding current year obligations.  When an employee cashes out they get their current salary in payment even if it was earned at a lower rate.


Refer all verbal requests


Unanimous approval

Item 12 – Modifying Fees for Land Use


  • AUP appeal to ZAB fee would be set at $200 and could drop to $70 with 35% or 20 neighborhood signatures in support of the appeal
  • ZAB appeals to Council would be set at $500 and could drop to $100 with 50% or 25 neighborhood signatures in support of the appeal
  • Appeals by Applicant would be set at $2500
  • Affordable Housing Appeals would be set at $500 with no reduction available


  • It is hard to get the number of required signatures in some neighborhoods in order to qualify for the reduced fee.  The discussion about affordable housing fees needs to be clarified
  • Raising fees will make it hard to get appeals


  • Wengraf – How will staff validate signatures on applications?  Only projects that are defined as state defined affordable housing projects would qualify for the no reduction fee.
  • Worthington – This does not designate how much of the project contains affordable housing.  Would this fee apply to those projects with minimal affordable housing allocations?  I suggest that if a project has 50% or greater affordable units that the fee be set at $2500.  If there is 20 – 49% affordable units the fee be set at $500 and if only the minimum number of units are affordable the fee be set at $100.
  • Arreguin – My concern is that for all other appeals there is a fee of $500.  If it is a big density project and it is an affordable housing project then I would support a $2500 fee if the project was greater than 50% affordable.
  • Wozniak – Fees are currently too low as ZAB appeals historically some projects can appeal up to 15 times.  Current fees don’t even come close to covering our costs.  I don’t think is is hard getting 20 – 25 signatures and would rather have staff working on economic development projects.  I don’t have an issued adjusting the affordable housing fee higher.
  • Wengraf – Sometimes appeals improve projects at the ZAB level.  I don’t want to discourage appeals at the ZAB level.  What is the fee at the ZAB level for affordable housing and can it be reduced?  The larger density projects tend to be affordable housing projects and neighbors will have a hard time coming up with the $2500 fee to council.
  • Bates – I agree with Susan – we need to find a balance.
  • Arreguin – Make the fee for projects containing 50% or greater affordable units at $500 with no opportunity to reduce.
  • Capitelli – What about the density bonus projects?  If an appellant gets signatures to offset the cost they should sign an affidavit.  Do we verify signatures?
  • Anderson – When I first read it I didn’t like it.  However the fees we capture don’t come close to capturing the costs.  On the other hand we have seen frivolous appeals and perhaps this will drive down the number.  How can we evaluate if the number of appeals has decreased with this increased fee?
  • Wengraf – Most affordable housing projects will be in neighborhoods where the residents cannot afford the fees.  We are disenfranchising the people in those neighborhoods.
  • Bates – Let’s amend it so affordable housing project fees can be reduced with signatures.
  • Maio – People get nervous when they think poor people are moving into neighborhoods.  It is not abou the building – it is about the people who will live there.  I worry about watering down this fee due to my experience.
  • Arreguin – Many of these are housing trust fund projects so I agree with Maio.  We will agree with the amendment to keep the fee at $500 for affordable housing projects.


  • No:  Wengraf, Worthington, Bates
  • Yes:  All others

Item 16 – Affordable Housing Mitigation Fee


  • Worthington – Hold over until June 14th meeting.
  • Maio – Wh do we have to move so quickly?  How many projects are coming down the pike as there is much discussion over the affordable housing fees.
  • Arreguin – We need to adopt an ordinance to set a fee – then we can set the fee and the number of units that triggers the fee through a resolution.  Hold this over until the next meeting.
  • Wengraf – Does this apply to all rental units including those with only 2 units?  It needs to say that in the ordinance.  We want to be clear that a separate resolution will determine the fee and the # of units that triggers a fee.
  • Worthington – The court decision that requires this ordinance was a long time ago.  We have not had a policy fo rover a year.  We need something in place.  We can later adopt a resolution that will fix the fee and the number of units.  This will not get fixed in Sacramento for a couple of years.
  • Bates – I don’t mind having something on the books but don’t see the purpose of doing so without a fee.


  • Unanimous Approval