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Burlingame City Council December 4, 2017
Approved Minutes
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BURLINGAME CITY COUNCIL
Approved Minutes
Regular Meeting on December 4, 2017
1. CALL TO ORDER
A duly noticed regular meeting of the Burlingame City Council was held on the above date in the City Hall
Council Chambers.
2. PLEDGE OF ALLEGIANCE TO THE FLAG
The pledge of allegiance was led by former Councilmember John Root.
3. ROLL CALL
MEMBERS PRESENT: Beach, Brownrigg, Colson, Keighran, Ortiz
MEMBERS ABSENT: None
4. REPORT OUT FROM CLOSED SESSION
City Attorney Kane reported that direction was given but no reportable action was taken.
5. UPCOMING EVENTS
Mayor Ortiz reviewed the upcoming events taking place in the City.
6. PRESENTATIONS
There were no presentations.
7. PUBLIC COMMENT
BCE President Sari McConnell presented the Council with the 2016-2017 BCE Annual Report. She stated
that BCE raised over $1.9 million for TK through 8th grade in Burlingame public schools.
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8. CONSENT CALENDAR
Mayor Ortiz asked the Councilmembers and the public if they wished to remove any item from the Consent
Calendar. No items were removed.
Vice Mayor Brownrigg made a motion to adopt the Consent Calendar; seconded by Councilmember
Keighran. The motion passed unanimously by voice vote, 5-0.
a. ADOPTION OF CITY COUNCIL MEETING MINUTES NOVEMBER 20, 2017
City Clerk Hassel-Shearer requested Council adopt the City Council Meeting Minutes of November 20,
2017.
b. ADOPTION OF A RESOLUTION AUTHORIZING THE CITY MANAGER TO AMEND
THE AGREEMENT WITH BAY AREA TREE SPECIALISTS FOR THE REMOVAL OF
NINE EUCALYPTUS TREES AND AMENDING THE FY 2017-18 PARKS AND TREES
CAPITAL IMPROVEMENT PROGRAM TO APPROPRIATE AN ADDITIONAL $13,555
FROM GENERAL FUND RESERVES TO FUND THE REMOVAL
Parks and Recreation Director Glomstad requested Council adopt Resolution Number 129-2017.
c. ADOPTION OF A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE
A SERVICE AGREEMENT WITH EVGO SERVICES LLC FOR A HIGH SPEED
ELECTRIC VEHICLE CHARGING PLAZA
Sustainability Coordinator Michael requested Council adopt Resolution Number 130-2017.
9. PUBLIC HEARINGS
a. PUBLIC HEARING TO CONSIDER AN APPEAL OF THE BEAUTIFICATION
COMMISSION’S DENIAL OF THE REMOVAL OF A DEODAR CEDAR AT 1555
ALTURAS DRIVE
City Council disclosed their ex parte conversations. Councilmember Beach, Councilmember Colson, and
Mayor Ortiz stated that they each visited the site. Councilmember Keighran stated that she visited the site
and met the applicants. Vice Mayor Brownrigg stated that he had no ex parte conversations.
City Arborist Bob Disco presented the staff report concerning the appeal of the Beautification Commission’s
denial of the removal of a Deodar Cedar at 1555 Alturas Drive. He explained that on September 18, 2017,
the property owners submitted an application for the removal of the Deodar Cedar on 1555 Alturas Drive.
The removal was listed by Dave and Anne Nannini (the applicants) as necessary because of Ms. Nannini’s
allergies, the tree’s invasive roots damaging the driveway, excessive leaf debris, and because the tree is a fire
hazard.
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City Arborist Disco stated that he inspected the tree and denied the removal because the request did not meet
the requirements for tree removal per Chapter 11.06.060(d)(1-7) of the Burlingame Municipal Code. He
explained that the applicants appealed his decision to the Beautification Commission on November 2, 2017.
During the hearing, the three Commissioners in attendance heard why the City Arborist denied the removal
and then heard from the applicants and several neighbors, who voiced their support for the tree’s removal.
The Beautification Commission voted 2-1 to deny the appeal because the tree was healthy, structurally
sound, and did not meet the criteria for removal. Thereafter, the applicants appealed the Beautification
Commission’s decision to City Council.
Mayor Ortiz asked if the City Arborist investigated the cracks in the applicants’ driveway. City Arborist
Disco replied in the affirmative and stated that they weren’t significant.
Councilmember Colson asked if the staff had received previous requests for a tree to be removed because of
allergies. City Arborist Disco replied that he had seen it as a secondary reason in the past but that the request
was usually more closely tied to the ordinance.
Councilmember Keighran explained that the tree had been trimmed in 2008 and 2013. She asked how far
back trees can be trimmed and how far back this tree was trimmed. City Arborist Disco stated that trees can
be trimmed back a third.
Applicant Anne Nannini explained that they were requesting the removal of the Cedar tree for health issues.
She stated that they had lived in Burlingame since 1979 and that her husband’s father had planted the tree to
welcome them to Burlingame. She explained that while she understood that Burlingame was the City of
Trees, residents shouldn’t have to live with a tree that causes health issues. She recognized that the City had
no legal basis to allow removal of the tree but hoped that the City would find a way because of her allergies.
She included a letter from her doctor recommending the tree’s removal. Additionally, she discussed the
proximity of the tree to the chimney, which created a fire hazard. And lastly, she stated that to replace the
Cedar, they would plant a mature perennial evergreen tree.
Councilmember Keighran asked how much of their tree was trimmed back in 2013. Ms. Nannini stated that
it was trimmed in between not necessarily the outside girth.
Vice Mayor Brownrigg asked how Ms. Nannini was sure that her allergies and headaches stemmed from the
tree and not another source. Ms. Nannini replied that she was tested in 2009 and was found to be allergic to
the Cedar.
Councilmember Colson asked if it was possible to create a policy that would allow a resident to remove a
tree on their property for health reasons but not demand that the same type of tree be removed on their
neighbor’s property. City Arborist Disco stated that there is nothing in the ordinance regarding health issues.
Councilmember Colson asked if the City granted the removal of the tree, would it be outside the purview of
the ordinance. City Attorney Kane stated that an individual’s health is not a factor for removal pursuant to
the ordinance but that if supported by findings it could be found to fall under economic consequences.
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Mayor Ortiz asked about the tree being too close to the chimney. Ms. Nannini expressed her concern about
the tree’s needles collecting in the chimney.
Mayor Ortiz asked if it was the applicant’s belief that the tree is a fire hazard. Ms. Nannini replied in the
affirmative.
Councilmember Beach asked if the tree could be trimmed in a way to reduce the likelihood of the needles
and debris going into the chimney. City Arborist Disco replied in the affirmative. He stated that it is
difficult to trim the tree back and keep it aesthetically pleasing.
Mayor Ortiz asked if the fire hazard could be mitigated by trimming the tree. City Arborist Disco replied in
the affirmative.
The arborist hired by the applicants spoke about the size of the tree and how the roots extend to the
driveways on both sides. He stated that the curb of the driveway and sections of the driveway were lifted,
creating tripping hazards. Therefore, just trimming back the canopy wouldn’t solve the issue of the roots,
and if the roots are cut, it could make the tree unstable.
Councilmember Colson stated that the damage to the sidewalk seemed minimal. She stated that she was
confused if the appeal was based on the applicant’s allergies or because it was a fire hazard or because of
property damage. Ms. Nannini stated that it was all of the above.
Mayor Ortiz asked if the City Arborist had any concerns about the structural safety of the tree’s canopy.
City Arborist Disco stated that he would need to review the tree.
Mayor Ortiz opened the item up for public comment.
A neighbor and former Burlingame Library Trustee member spoke about the neighborhood’s support of the
tree’s removal.
Burlingame resident Bruce Carlton spoke about the amount of pollen that the applicants’ tree creates and
stated he supported the tree’s removal.
Burlingame resident Helaine Darling voiced her concern about the discussion surrounding protecting the tree
versus helping a resident whose health is suffering as a result of the tree.
Burlingame resident Cheryl Goldman voiced her support for the removal of the tree.
Burlingame resident Jennifer Pfaff voiced her concern for allowing trees to be removed for health reasons.
She stated it was a dangerous precedent.
Mayor Ortiz closed public comment.
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Vice Mayor Brownrigg stated that he believed the economic consequences and obligations of keeping the
tree could be profound for the owner. He discussed the neighborhood and how the neighbors have agreed
that the tree needs to be removed. Additionally, he stated that the tree ordinance should be reviewed as to
allow health issues of the property owner to carry some weight in the matter.
Vice Mayor Brownrigg stated that he would rule in favor of the removal of the tree.
Mayor Ortiz stated that he is not convinced that there are any economic consequences as the damage to the
sidewalk and driveway is minimal. Additionally, he stated the fire hazard could be mitigated by trimming
back the tree. Lastly, he stated that pursuant to the ordinance, there is nothing that would allow the applicant
to remove the tree for health reasons. Accordingly, Mayor Ortiz stated he would uphold the Beautification
Commission’s decision.
Councilmember Keighran stated that she respected the fact that the applicant followed the process and that
they had the support of the neighbors to remove the tree. However, she explained that the job of the Council
is to look at the law, and the applicant’s request doesn’t fit under the law’s criteria. Additionally, she
explained that her worry was that if the tree was removed for health reasons it would set a dangerous
precedent. She stated it could allow neighbors to remove trees, or individuals with minimal allergic
reactions, to remove trees. Lastly, she explained that while she empathized with the applicant’s health
issues, she didn’t think the tree should be removed.
Councilmember Beach stated that she empathized with the pollen issue. She stated that she agreed with
Mayor Ortiz and Councilmember Keighran’s statements that an individual’s health is not included in the
ordinance, and therefore she can’t approve its removal. She did note that Council would be reviewing the
tree ordinance, and an individual’s health could be considered a reason for removal at that time.
Councilmember Colson stated that she understood the applicant’s allergies to pollen. She stated that she
spent hours looking through the code and trying to figure out how the issue of health would fit into the code.
However, she stated there are no legal grounds to remove a tree in Burlingame because of health issues. She
stated if Council wanted to have that in the code, then the ordinance would need to be amended.
Additionally, she suggested that the applicants continue to trim back the tree as it is a large tree in a small
area. She explained that the applicants might need to come back in a few years when the tree’s roots have
done additional damage to ask for its removal.
Councilmember Colson stated that she would vote to uphold the Beautification Commission’s decision.
Mayor Ortiz made a motion to uphold the Beautification Commission’s decision; seconded by
Councilmember Colson.
Vice Mayor Brownrigg stated that he understood the point about precedent but that if you reviewed the
applicant’s health issues you could see that this tree was causing her significant discomfort. He stated that
his concern with the decision is that the City allows a developer to buy a lot, knock down a house, and
remove protected trees in order to build a new development. But that in this case, when a long-term resident
needs to remove a tree with the neighbors’ support, the law does not allow it. He stated that he believed it is
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an economic consequence that the City is imposing on the applicants, and the City should review the
ordinance.
The motion passed by voice vote, 4-1 (Vice Mayor Brownrigg dissented.)
b. ADOPTION OF A RESOLUTION APPROVING AND LEVYING 2018 SAN MATEO
COUNTY TOURISM BUSINESS IMPROVEMENT DISTRICT ASSESSMENTS ON HOTEL
BUSINESSESS WITHIN THE DISTRICT
Finance Director Augustine presented the staff report requesting Council’s approval and levying of the 2018
San Mateo County Tourism Business Improvement District (“TBID”) assessments on hotel businesses
within the district. She explained that TBID was created in 2001 and is administered by the San Mateo
County Convention and Visitors Bureau. She stated that Burlingame has acted as the lead agency since
TBID’s inception. TBID now has 14 cities and unincorporated San Mateo County as its members. She
explained that the Board is recommending that the Council adopt and levy the assessments for 2018.
Finance Director Augustine asked if there had been any protests. City Clerk Hassel-Shearer replied that
there had been no protests.
Mayor Ortiz opened the public hearing. No one spoke.
Councilmember Keighran made a motion to adopt Resolution Number 131-2017; seconded by Vice Mayor
Brownrigg. The motion passed unanimously by voice vote, 5-0.
10. STAFF REPORTS AND COMMUNICATIONS
a. BURLINGAME AQUATIC CLUB PRESENTATION AND PROPOSED MODIFICATIONS
TO THE REIMBURSEMENT PAYMENTS TO THE CITY FOR ANNUAL MAINTENANCE
EXPENSES
Recreation Supervisor Nicole Acquisti introduced Burlingame Aquatic Club (“BAC”) Executive Director
Sylvia Lam.
Ms. Lam began by stating that BAC is a 501(c)(3) non-profit whose mission is to serve the community by
providing excellent aquatic opportunities. She reviewed the history of BAC, stating that in 2000, the aquatic
center was built with a 50 meter by 25 yard pool. She explained that in BAC’s early days, they offered age
group and masters swim teams and age group water polo.
Ms. Lam stated that in 2011, BAC began its partnership with the City and San Mateo Union High School
District (“SMUHSD”). One of the primary goals of the partnerships was to maximize use of the facility and
increase the number of people that BAC served. Ms. Lam stated that BAC receives a generous subsidy from
the City that is used to fund community programs including lap swim, summer camps, and seasonal
recreation programs. The partnership with SMUHSD provides BAC with use of the aquatics facility and
cost-sharing.
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Ms. Lam explained that the City and SMUHSD share expenses 50/50 when it comes to major capital
improvements and capital expenses. For operations such as chemicals and supplies, BAC and the City share
the cost with SMUHSD 78/22.
Ms. Lam stated that as a result of BAC’s partnerships with the City and SMUHSD, BAC is now able to offer
several additional programs including: year-round swim lessons, water aerobics, and community events.
Ms. Lam reviewed a few charts that reflected the community’s participation in BAC’s facilities over the past
few Julys. She showed the upswing in recreation swim patrons from 2016 to 2017, which required the hiring
of four additional staff members. Additionally, she showed the upswing of lap swimmers and youth lessons
in July 2017 from July 2016.
Ms. Lam reviewed BAC’s new risk management programs. She stated that CCFD provided service training
for the lifeguards and staff.
Ms. Lam reviewed BAC community events including the Easter egg hunt, polar bear swim, park clean ups,
and fundraisers for North Bay fires and BAC scholarships and financial aid assistance programs.
Ms. Lam discussed the City’s subsidy to BAC over the years. She showed the difference between what was
requested and what was used. She explained that five years ago, BAC informed Council that they would get
to zero subsidy in the coming years, which has not been the case. She stated that there are a lot of different
factors that go into operating a pool and change revenues and expenditures. Ms. Lam explained that in
summer 2018, the pool facilities will be closed for 16 weeks as the pool deck is renovated. She stated that as
a result of construction during BAC’s peak season, they can’t predict their revenues and what their returning
participation will be when they reopen. Accordingly, she explained that the City’s subsidy remains
important. She stated after the pool deck renovation, BAC can come back to the Council and talk about a
realistic goal of decreasing the subsidy each year.
Councilmember Colson asked if the pool would be closed between Memorial Day and Labor Day in 2018.
Ms. Lam replied that it would probably be closed until the third week in September.
City Manager Goldman stated that the challenge in finding a time to close the pool for renovations is that
high school students get priority. Therefore, they were trying to work around the swimming and water polo
teams’ schedules.
Vice Mayor Brownrigg thanked Ms. Lam for her presentation and stated that the City’s subsidy helps to
provide a great benefit to the community.
Mayor Ortiz opened the item up for public comment.
BAC board member Teresa Wall-Cyb thanked Vice Mayor Brownrigg for his comments on the City’s
subsidy benefiting the community. She stated that BAC works hard to make the pool a great place for the
community.
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Mayor Ortiz stated that the item was on the agenda to request the Council approve the proposed plan to
stabilize BAC reimbursement payments for annual maintenance expenses for the BHS pool.
Parks and Recreation Director Glomstad reviewed the proposed change to the reimbursement plan. She
stated that under the new plan, the City will continue to make payments quarterly, but staff will review actual
costs as of March 31st each year and determine whether a refund or an additional payment is due for the year
just ended. Then in July of each year, staff will update the calculation, taking into account the over- or
under- payment in order to determine the next year’s quarterly payment amount. She stated that this will
benefit the City, as the payments will be made within the corresponding quarter, rather than delaying
payment until the City’s actual invoices are received from SMUHSD.
Councilmember Colson made a motion to approve the change to the reimbursement payment structure,
seconded by Councilmember Keighran. The motion passed unanimously by voice vote, 5-0.
b. RECENT DEVELOPMENTS IN CALIFORNIA HOUSING LAW
Planning Manager Gardiner stated that during the 2017 legislative session, the State Legislature passed over
one dozen bills pertaining to housing. The intent of the Legislature was to provide a range of responses to
address the shortage of housing (particularly affordable housing) throughout the state. While the package
raises funds to support affordable housing, much of the attention has been on the new requirements for
streamlining development proposals.
Mr. Gardiner introduced Eric Phillips of Goldfarb & Lipman LLP to provide the Council with an overview
of the legislation.
Mr. Phillips began by reviewing AB 678, SB 167 and AB1515, which collectively changed the Housing
Accountability Act (“HAA”). In summary, he explained that the changes to the HAA are threefold:
1. limit the City’s ability to apply non-objective standards to housing development projects,
2. require the City to provide a mandatory timeframe to advise the applicants about consistency with the
City’s objective standards, and
3. require the City to make specific findings if it wants to deny a housing development application or
reduce its density.
Mr. Phillips stated that the Housing Accountability Act applies to all housing development projects whether
or not affordable. He explained that the key provision of the law requires that if a housing project complies
with all “objective” general plan, zoning, and subdivision standards, it may only be denied or have its density
reduced if the jurisdiction can find a “specific adverse impact” on public health and safety. Additionally, the
impact must be such that it cannot be mitigated. Mr. Phillips noted that HAA doesn’t define what an
objective standard is but that there is a set of published decisions that have scrutinized cities’ responses and
actions with respect to housing development projects.
Mayor Ortiz asked if the City’s current architectural review process would be null and void as it wouldn’t be
considered an objective review. Mr. Phillips replied that it depends on the individual standard. He stated
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that examples of objective standards are height, setback, materials used, slope of roof, etc. However, criteria
that isn’t considered objective is language like “compatible with community character.”
Councilmember Keighran asked what the definition of housing project was under HAA. Mr. Phillips stated
that a housing project includes all residences, transitional housing, and mixed use projects.
Councilmember Keighran asked if residential included single-family homes. Mr. Phillips replied in the
affirmative.
Vice Mayor Brownrigg asked how HAA defines density. Mr. Phillips stated that HAA doesn’t include a
specific definition of density so it would look to local code.
Councilmember Keighran voiced her concern that pursuant to the new HAA legislation, a city couldn’t
articulate architectural preferences in the design review process. Mr. Phillips replied that it could be done,
but it had to be done in a way that is objective, i.e. written standards that are in place at the time the
application is submitted.
Councilmember Keighran stated that the City’s design review guidelines deal with neighborhood
consistency. Therefore under the new legislation, the City would no longer be able to require neighborhood
consistency. Mr. Phillips replied in the affirmative.
Councilmember Beach asked what the role of the Planning Commission would be if HAA requires objective
standards. Mr. Phillips replied that the Planning Commission in many ways has their discretion severely
limited when it comes to housing developments. HAA amendments force the Planning Commission to be
more forward looking with an emphasis on the planning aspect versus an ad hoc review of projects that come
before the Commission.
Councilmember Colson asked how remodels on single family homes would be affected by the objective
standards requirement. Mr. Phillips stated that it depends on the scope and what entitlements are being
sought. He stated that HAA doesn’t necessarily apply to the interior of a house, but it has been found to
apply to demolition permits.
Councilmember Colson asked about historic preservation or properties that have a historic covenant. Mr.
Phillips stated that cities could write in objective standards for historical preservation. He stated that
covenants are a different issue as they are usually a private agreement that doesn’t involve the City and
therefore wouldn’t be subject to HAA.
Mr. Phillips continued reviewing the amendments to HAA by discussing affordable housing projects. He
explained that pursuant to the HAA, to be considered an affordable housing project, a project would need to
include at least 20% of the units affordable to low-income households or 100% affordable to either
moderate-income households or middle income households. If a project is found to be “housing for very low,
low, or moderate income households,” additional findings need to be made to deny the project or reduce the
density even if the project does not comply with all “objective” standards.
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Mr. Phillips stated that the biggest change to the HAA is the timeframe cities are given to process the
housing development application. For projects that are smaller than 150 units, cities have 30 days to process
the application. They have 60 days for larger projects. Within the 30 day timeframe, the City has to give the
applicant a list of any inconsistencies with any “plan, program, policy, ordinance, standard, requirement or
similar provision,” and explain why the project is inconsistent. If the City doesn’t supply the applicant with
that list during the 30 day timeframe, the project is deemed consistent. Moreover, he stated that a project can
be deemed consistent if there is substantial evidence in the record that would allow a reasonable person to
conclude that it is consistent. Mr. Phillips explained that what this means is that an applicant can submit a
letter and their own evidence of why their project is consistent. If the matter goes to court, the court can
choose to defer to the applicant’s evidence over the City’s evidence.
Vice Mayor Brownrigg stated that in Burlingame there isn’t room to build additional units under the current
General Plan. He stated that the City is considering amending the General Plan to create new neighborhoods
and communities. However, the new housing legislation doesn’t provide the City with any incentive to open
up these areas to housing. He stated that he believed other cities were in similar situations and that this could
prove to be a significant problem in promoting the development of new housing.
Vice Mayor Brownrigg asked if it a city could set a lower density and then allow for a second story only if
the applicant volunteered to go through the design review process. Mr. Phillips stated that some jurisdictions
allow a base density and then with certain community benefits additional density can be approved.
However, with the amendments to the HAA, he stated he would need to further review this question and get
back to Council with an answer.
Councilmember Keighran stated that the new timeframes will be difficult for smaller cities because of their
staff size. She asked how the new timeframes will work when you have an EIR or a negative declaration
being processed. Mr. Phillips replied that even if CEQA hasn’t been completed, the City would have to give
a list of inconsistencies within the 30-60 day timeframe.
Councilmember Keighran asked what happens if the project is deemed consistent but then the project goes
through the CEQA process and there are adverse effects. Mr. Phillips stated that HAA doesn’t override
CEQA.
Councilmember Keighran stated that pursuant to SB 35, if a project is within ½ mile of public transit, the
project has no parking requirements. Mr. Phillips replied in the affirmative.
Councilmember Keighran gave the example of a project going through the CEQA process where it is
determined that there are traffic issues, which relates to parking. She asked if this would be a problem under
SB 35 where projects are not required to have parking. Mr. Phillips stated that SB 35 projects are exempt
from CEQA.
City Attorney Kane stated that she believes HAA is looking for a series of generally applicable standards but
doesn’t address site specific issues that arise through CEQA. Therefore, if something is discovered through
the CEQA process, then it is something the City would be well-advised to take into account. Mr. Phillips
agreed with City Attorney Kane’s statement.
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Next, Mr. Phillips gave an overview of SB 166, the No Net Loss (“NNL”) statute, which applies to all
developments on sites listed in the Housing Element. He explained that each city in its housing element
must list specific sites that can accommodate its Regional Housing Need Allocation (“RHNA”) for three
income levels: lower (very low and low); moderate; and above moderate. For each site listed, the Housing
Element must show the number of units that can be constructed on the site, and whether the site is intended
to meet the need for lower-, moderate-, or above-moderate-income housing.
Mr. Phillips stated that under NNL, cities will need to make “no net loss” findings if projects are approved
on designated housing element inventory sites with either fewer units or a different income category than
shown in the housing element. Therefore, if a site shown as suitable for lower or moderate-income housing
is developed at market rate, the city must either:
1. make a written finding that other sites shown in the housing element are adequate to meet the RHNA
for lower or moderate-income housing or
2. “identify and make available” other sites zoned at a density suitable for lower or moderate-income
housing, either by identifying existing properly zoned sites or by making such sites available through
rezoning.
Mr. Phillips explained that NNL puts a burden on the City to keep track of housing development applications
so that it can demonstrate it is keeping up with housing needs.
Mr. Phillips stated that the purpose of NNL is to ensure that at all times in the Housing Element cycle, the
city has enough land to meet the number of units and the income level of units.
Vice Mayor Brownrigg asked if affordability is only for rental units or if it is also for purchase. Mr. Phillips
stated that the way RHNA is allocated, it is broken out at all different levels including rental and purchase.
Ultimately, the city has to show that it is meeting its RHNA in each of those levels.
Councilmember Beach asked if the City currently zones for income level. Planning Manager Gardiner stated
not explicitly. Mr. Phillips stated that assumptions are written into the Housing Element law that state if land
is zoned at a particular density, for purposes of the Housing Element it will be assumed to be appropriate for
lower income. He stated that what NNL does is “put teeth” behind the assumption.
Councilmember Colson stated that the RHNA numbers have a specific time associated with them. She asked
how NNL and RHNA take into account that housing developments are mostly done by private developers
and not the city. Therefore, what control do cities have in obtaining those units under each RHNA level.
She noted that if the city doesn’t meet its RHNA numbers it can be subject to penalties. Mr. Phillips stated
that the city is on an eight year housing element cycle, so the RHNA numbers are assigned for an eight year
period. He explained that for NNL, the city just has to demonstrate that for the eight-year period they have
either developed or have enough land that is appropriate for the development that was assigned to them for
that eight-year period. However, he explained that under HAA, if the city is found in violation of the law by
improperly denying a project, the city can face penalties of $10,000 per unit if it is found to have ignored a
court ruling.
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Councilmember Keighran stated that the city could have a 100 unit project, deny it, and now the penalties are
$10,000 per unit plus attorney’s fees. Mr. Phillips replied in the affirmative.
Councilmember Colson asked if a developer had a project in the pipeline could they withdraw it and
resubmit it once this law becomes fully implemented. Planning Manager Gardiner replied in the affirmative.
Mr. Phillips stated that under the NNL, if a developer applies for a lower density, than the City is not on the
hook. But if the developer has applied at the number shown in the housing element, then the city cannot use
it as the basis for denying the application, and the developer doesn’t have to find an alternative site if the
rezoning is required.
Councilmember Keighran asked what happens if the city has no room to expand. Mr. Phillips stated that
there are many factors that constrain growth, resources, water, etc. He stated that these are all good
questions that the legislation is not suited to address. Instead, the legislation is a one-size fit all approach.
Next, Mr. Phillips reviewed SB 35, which streamlines specific housing development applications. He stated
if a project is able to meet SB 35 qualifications, the project is only subject to a ministerial approval process
and not CEQA. The limiting factor is that there are three levels of analysis that need to occur to see if a
project can invoke SB 35.
1. It has to be determined that the jurisdiction is subject to SB 35. Cities are subject to SB 35 if they
have not issued enough building permits for each income category to keep up with RHNA. Mr.
Phillips noted that that no jurisdiction in California has issued enough building permits to keep up
with RHNA.
2. The project must show that it is eligible for streamlining: multi-family, zoned for residential use,
meet objective standards, and two or more units.
3. The project must meet affordable housing and labor requirements. Even if a project is able to show it
is eligible for streamlining, there is a list of legislative exclusions including flood and fire hazards.
Mr. Phillips further reviewed the affordable housing requirement under the third level of analysis. He
explained that on average, 40% of RHNA is allocated to low and very low; 20% is allocated to moderate,
and 40% is allocated to above moderate. Accordingly, under SB 35, the California Department of Housing
and Community Development (“HCD”) will review the number of building permits being issued in each
category. If the city has not issued enough building permits to meet its RHNA for low-income housing, a
project qualifies under SB 35 if it dedicates 50% of its total units to low-income households. If the city has
not approved enough units to meet its RHNA for above-moderate-income housing, then only 10% of the
project has to be reserved for low-income housing. If the city is failing at both, than an applicant gets to pick
whether they reserve 10% or 50% to use SB 35.
Mr. Phillips then discussed the labor requirements of SB 35. He explained that if a project is proposing 10 or
more units, it must pay prevailing wages. If a project is proposing 75 units or more, it must use a “skilled
and trained workforce”. He stated that the definition of “skilled and trained workforce” in the statute implies
union labor. He explained that the combination of the labor and affordable housing costs will limit the scope
of SB 35 because the financial cost might not outweigh having a CEQA exemption. Mr. Phillips stated that
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the one exemption to the requirement of using a “skilled and trained workforce” is if the project is 100%
affordable.
Mr. Phillips next reviewed some of the exclusions to SB 35 including:
1. site must not have contained housing occupied by tenants within last ten years
2. site must not be in the coastal zone, agricultural land, wetlands, fire hazard areas, hazardous waste
sites, former mobile home park, floodplain, floodway, fault zone, or other specified areas
3. project may not involve a subdivision unless financed with low income housing tax credits and pays
prevailing wage or satisfies all labor requirements
Councilmember Colson discussed the first exclusion and asked if it would also apply to owner-occupied
housing. Mr. Phillips stated that owner-occupied housing is not protected.
Councilmember Colson followed up by asking if Airbnb and other similar programs would fit under the first
exclusion. Mr. Phillips stated that he would have to do more research on this question.
Next, Mr. Phillips discussed the parking requirements of SB 35. He explained that if a project qualifies
under SB 35, no more than one parking space can be required, and in many instances, if it is within public
transit, no parking can be required.
Mr. Phillips reviewed other benefits that an applicant receives if they are able to invoke SB 35. He stated
that within 60 days of submittal for projects of 150 units or less, the City must provide a list of all
inconsistencies with “objective” zoning and design review standards in effect at submittal, or the project will
be “deemed consistent.” For projects with more than 150 units, the City has to submit the list within 90
days. He explained that this differs from the HAA, because it is upon submittal of the application that the
clock starts, whereas HAA requires the application be completed to start the clock.
Vice Mayor Brownrigg asked if the applicant has to state on the application that they are invoking SB 35.
Mr. Phillips replied in the affirmative.
Mr. Phillips stated that within 90 days, all “public oversight” of an SB 35 project has to be completed.
Mr. Phillips explained that SB 35 and AB 879 have imposed some additional requirements in connection
with reports that the City issues each year under the Housing Element. The new reports are asking for
additional information including how much housing is actually being produced. AB 879 also directs HCD to
evaluate the “reasonableness” of local development fees under the Mitigation Fee Act.
Mr. Phillips explained that under the new legislation, HCD is authorized to revoke a finding of Housing
Element compliance. If the city is not keeping up with its NNL findings, HCD can revoke compliance,
which opens up the city to be challenged by housing advocates and private developers. HCD is also
authorized to refer violations to the California Attorney General.
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The Legislature, in connection with the new housing legislation, adopted two funding bills. SB 3 puts a $4
billion bond on the November 2018 ballot that would raise money for Veterans and Affordable Housing
programs. SB 2 creates a new recording fee and is estimated to raise $200-$300 million a year for local
governments and HCD to fund affordable housing developments. He explained that in year one of SB 2,
50% of the funds will be allocated to local governments, and 50% will go to HCD. The 50% for local
governments is to be used to update planning documents and zoning ordinances. He explained that in year
two and beyond, the allocation is increased to 70% for local governments to support affordable housing,
homeownership opportunities, and other housing-related programs.
Mr. Phillips next highlighted SB 540, AB 73, AB 1568 and AB 1598, which put new economic development
tools at cities’ disposal. He stated that AB 1568 and AB 1598 are tax increment tools that give a city the
opportunity to pledge portions of its sales and use tax and bond future taxes to finance affordable housing
development.
Mr. Phillips reviewed changes under the Accessory Dwelling Units legislation. He stated that interior ADUs
that don’t require exterior construction are permitted by right. The legislation also limits the ability to
restrict tandem parking and parking setbacks.
Mr. Phillips discussed the return of rental inclusionary housing. He stated that AB 1505 has overturned the
Palmer decision, which prevented all cities in California from imposing inclusionary rental requirements. He
explained that AB 1505 doesn’t overturn Measure T in Burlingame, but if the voters revisited Measure T,
AB 1505 would give the City the option of requiring inclusionary housing. City ordinances under AB 1505
must provide “alternative means of compliance” with inclusionary requirements. The alternatives may
include, but are not limited to: in lieu fees, land dedication, off-site development of units, and acquisition and
rehabilitation of existing units.
Vice Mayor Brownrigg asked how the City can tell a private developer that he has to rent units to people
who only make a certain income, stating that he believed it would freeze development. Mr. Phillips replied
that what NNL states is that if a developer comes to the City with a large project, the City has to approve that
project but also show where it can replace the zoning with the applicable density so that the next non-profit
developer has land available to them. Therefore, the City is not forcing someone to provide affordable
housing; rather they are constantly relooking at their land to ensure that the zoning can accommodate
affordable housing.
Councilmember Keighran stated that with these new housing laws she would think some cities would be
very reluctant to try to rezone or encourage building. She stated that she found the legislation frustrating
because Burlingame has worked to make neighborhoods consistent.
Councilmember Colson stated that she could see how the legislation would work in larger cities where
modern buildings are next to older buildings but in smaller cities like Burlingame that look for neighborhood
consistencies it doesn’t work.
Councilmember Colson asked when the Council would be talking with the Planning Commission about this
and whether the City would need to hire consultants to comply with the timeframes of the legislation.
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Planning Manager Gardiner stated that staff will continue to work with consultants and evaluate workload as
the housing legislation is implemented. City Attorney Kane added that staff would need to come back to
Council with some objective standards.
Mayor Ortiz opened the item up for public comment.
Burlingame resident Jennifer Pfaff voiced her concern about the housing legislation.
Vice Mayor Brownrigg stated that the housing legislation could have a chilling effect on cities like
Burlingame who are deciding whether to expand residential zoning.
c. ADOPTION OF A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE
AN AGREEMENT WITH LIMEBIKE TO OPERATE A PILOT BICYCLE SHARING
PROGRAM IN BURLINGAME
Sustainability Coordinator Sigalle Michael presented the staff report requesting Council adopt Resolution
Number 132-2017.
Ms. Michael stated that cities are engaging in bike sharing programs because of the numerous benefits
including reducing greenhouse gas emissions, removing cars from the road, and improving bicycle
infrastructure. She explained that LimeBike submitted a proposal to offer a six- month pilot program to the
City. Under the pilot program, LimeBike will manage all operations, maintenance, and customer service.
Ms. Michael reviewed the easy access the community would have to LimeBike’s program and the steps that
she was taking to assist residents.
Vice Mayor Brownrigg stated that Council received a letter from BPAC that raised a number of concerns.
Ms. Michael stated that BPAC is concerned that LimeBikes may take up valuable bike rack space and create
bike clutter. She added that the Limebikes would not be parked in the racks but rather next to the racks.
Councilmember Beach asked if LimeBike had any experience dealing with bike clutter in other communities.
LimeBike representative Megan Colford stated there is a 24/7 customer service line where users can call to
get bikes removed within two hours. She stated that LimeBike has smart parking practices where locations
are identified in the app.
Mayor Ortiz opened the item up for public comment. No one spoke.
Councilmember Keighran made a motion to adopt Resolution Number 132-2017; seconded by
Councilmember Colson. The motion passed unanimously by voice vote, 5-0.
d. CITY COUNCIL DIRECTION REGARDING THE 50/50 SIDEWALK REPAIR PROGRAM
DPW Murtuza presented the staff report regarding the 50/50 sidewalk repair program.
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DPW Murtuza gave a brief background on the 50/50 sidewalk repair program. He stated that prior to the
2001 economic downturn, sidewalk repairs were fully funded by the City. However, due to the economic
downturn, the City implemented a pilot sidewalk repair program that was fully funded by the adjoining
property owners in accordance with State regulations. This program resulted in huge protests from property
owners. As a result, except for sidewalks fronting City properties and interim repairs consisting of asphalt
patchings and grindings, the City did not undertake major sidewalk repairs for the next several years. Then
in 2010, the City Council adopted the 50/50 Sidewalk Repair Program (Ordinance 1858). The ordinance
provides for sharing the costs of the sidewalk repairs at a 50/50 participation level between the City and the
adjoining property owners. DPW Murtuza stated that since the passage of Ordinance 1858, the City has
completed over 200,000 square feet of sidewalk repair.
DPW Murtuza stated that the challenge in the 50/50 sidewalk repair program is that it is intensive in terms of
dealing with property owners. He discussed the administrative costs associated with the program that more
than double those of the previous 100% City-funded sidewalk repair program. DPW Murtuza reviewed the
extensive process that is in place to notify and bill property owners. Additionally, he stated that pursuant to
Ordinance 1858, the City is prohibited from charging the adjoining property owners for additional sidewalk
repairs for a period of 12 years. Accordingly, on tree-lined streets, when staff notices after six years that the
roots are lifting the sidewalk, the City must cover the full cost.
DPW Murtuza reviewed three options for the future of the 50/50 sidewalk repair program.
Option A. Continue with the current 50/50 program, or
Option B. Revert back to the previous 100% City funded program, or
Option C. Modify the current 50/50 program by removing the 12 year clause.
Councilmember Beach asked if a sidewalk needed repair, regardless of who paid for its repair, would there
be shared liability. City Attorney Kane stated that in a San Jose decision, the court ruled on the exact way to
transfer liability onto the adjoining homeowner in order to ensure liability attaches. However, the City’s
ordinance doesn’t match this language, and therefore it is a little ambiguous.
Vice Mayor Brownrigg asked what it means to complete one full cycle of repairs, as it doesn’t mean that
staff has redone all the sidewalks in the city. DPW Murtuza stated that an entire cycle means they have
covered the sidewalks that have lifts, tripping hazards, etc.
Councilmember Beach stated that if the City fully funded the sidewalk repair program, the administrative
cost would be 10%. She explained that currently, the administrative cost is between 18-20%. She noted that
in running the numbers, she is still seeing a net gain of $500,000 under the 50/50 program versus 100% City
funded. DPW Murtuza stated that last year, the property owners ’ contribution was $333,000, and the total
administrative cost was $164,000. Therefore, while there is a positive cash flow, a big chunk of it is going
towards staff time versus repairing sidewalks.
City Manager Goldman stated that the net gains will continue to diminish as the City is prohibited from
charging homeowners to repair the same sidewalks again during the 12 year period. She stated that she
believed the administrative cost will increase.
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Vice Mayor Brownrigg stated that since 2010, the City has paid $2.5 million in sidewalk repairs, and
homeowners have paid approximately $700,000. He asked if the discrepancy is because the City is paving
areas that don’t have adjoining property owners. DPW Murtuza replied in the affirmative and added that
much of the $2.5 million is for City owned properties and that the City doesn’t charge property owners for
ADA ramps or curb replacement.
Mayor Ortiz opened the item up for public comment.
Burlingame resident Jennifer Pfaff stated that the City had to take the good with the bad when it comes to
trees, and because Burlingame is the City of Trees, she believed that the City should fully fund the program.
Councilmember Colson stated that she believed the 50/50 program initially worked. However, now it made
less sense with repairs needed to sidewalks that are within the 12 year period and the amount of staff time
utilized for noticing and administrative processes. She added that the City recently conducted a survey of
residents and their top concern was getting potholes and sidewalks fixed. And from that survey, the City
passed Measure I. Accordingly, she stated that she was in favor of Option B.
Councilmember Beach stated that if pursuant to state law homeowners are 100% responsible for sidewalk
repairs, it is generous of the City to go 50/50. She discussed that other communities similar to Burlingame
require the homeowners to pay 100% of the costs like Belmont and San Carlos. She stated that if the City
ends up subsidizing 100% of the repairs, it will include commercial properties not just residential. She stated
that she was okay with streamlining the program to assist staff by removing the 12 year requirement.
However, she was not in favor of the City fully subsidizing repairs.
Councilmember Keighran stated that she was the councilmember that incorporated the 12 years because she
didn’t think it was fair for the individuals living on a tree-lined street to constantly pay for their sidewalks to
be repaired. She stated that she wouldn’t compromise on taking the 12 years out of the ordinance. She
explained that in listening to DPW Murtuza, it seemed that staff time could be used more effectively.
Accordingly, she was in support of Option B.
Vice Mayor Brownrigg stated that he also wouldn’t waive the 12 year rule. He stated that he was concerned
about the fairness of making the program 100% subsidized since some residents had paid 50%. He stated
that although he wrestles with the equity, he is in support of Option B because that is what was asked for
under Measure I.
Mayor Ortiz concurred with the Vice Mayor.
e. ACCEPTANCE OF THE COMPREHENSIVE ANNUAL FINANCIAL REPORT FOR THE
YEAR ENDED JUNE 30, 2017
Councilmember Beach left before this item was introduced due to illness.
Finance Director Augustine presented the Comprehensive Annual Financial Report. She stated that the audit
is complete and that the audit committee reviewed the report.
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Councilmember Colson stated that she and Vice Mayor Brownrigg are on the audit committee and spent time
carefully going through the CAFR, especially the pension reporting. She stated that their synopsis was that
the report was complete and thorough.
Mayor Ortiz asked about the higher than anticipated charges for services at $776,000 and where it came
from. Finance Director Augustine stated that she would need to get back to the Mayor on this item.
Mayor Ortiz opened the item for public comment. No one spoke.
Councilmember Colson moved to accept the report; seconded by Vice Mayor Brownrigg. The motion
passed by voice vote, 4-0-1 (Councilmember Beach was absent).
11. COUNCIL COMMITTEE AND ACTIVITIES REPORTS AND ANNOUNCEMENTS
Council reported on various events and committee meetings they each attended on behalf of the City.
12. FUTURE AGENDA ITEMS
No items were suggested.
13. ACKNOWLEDGEMENTS
The agendas, packets, and meeting minutes for the Planning Commission, Traffic, Parking & Safety
Commission, Beautification Commission, Parks and Recreation Commission and Library Board of Trustees
are available online at www.burlingame.org.
14. ADJOURNMENT
Mayor Ortiz adjourned the meeting at 10:36 p.m.
Respectfully submitted,
/s/
Meaghan Hassel-Shearer
City Clerk