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HomeMy WebLinkAbout1997-03-10 City Council Summary Minutes 03/10/97 −159 Regular Meeting March 10, 1997 1. City Council Selection of Candidates to be Interviewed for the Planning Commission and Human Relations Commission....82-161 ORAL COMMUNICATIONS........................................82-162 APPROVAL OF MINUTES........................................82-163 2. Confirmation of Appointment of Emily Harrison as Assistant City Manager...............................................82-163 3. Resolution 7652 entitled “Resolution of the Council of the City of Palo Alto Expressing Appreciation to Earl Harvey Upon His Retirement”...........................................82-164 5. Request for Authority to Participate as Amicus Curiae in San Jose Mercury News v. City of San Jose.................82-164 AGENDA CHANGES, ADDITIONS, AND DELETIONS...................82-164 6. Conference with City Attorney--Existing Litigation....82-164 7. Conference with City Attorney--Existing Litigation....82-164 8. Ordinance of the Council of the City of Palo Alto Amending Chapter 9.48 of the Palo Alto Municipal Code Relating to Obstructing Streets and Sidewalks to Add Section 9.48.025 Prohibiting Sitting or Lying Down Upon the Public Sidewalk on University Avenue Between High Street and Cowper Street (continued from 1/21/97)Ordinance of the Council of the City of Palo Alto Amending Chapter 9.48 of the Palo Alto Municipal Code Relating to Obstructing Streets and Sidewalks Ordinance of the Council of the City of Palo Alto Amending Chapter 10.10 of the Palo Alto Municipal Code Relating to Temporary Street Closures.............................82-165 03/10/97 −160 9. Vice Mayor Andersen and Council Members Fazzino and Kniss re Proposed Direction to Staff to Develop a Comprehensive Approach to Downtown Needs (continued from 1/21/97)............82-181 9A. (Old Item No. 4) Traffic Signals and Roadwork Along El Camino Real..................................................82-182 ADJOURNMENT: The meeting adjourned at 11:20 p.m............82-183 03/10/97 −161 The City Council of the City of Palo Alto met on this date in the Council Chambers at 7:13 p.m. PRESENT: Andersen, Eakins, Fazzino, Huber, Kniss, McCown, Rosenbaum, Schneider, Wheeler SPECIAL ORDERS OF THE DAY 1. City Council Selection of Candidates to be Interviewed for the Planning Commission and Human Relations Commission RESULTS OF THE VOTING FOR INTERVIEWS FOR PLANNING COMMISSION VOTING FOR ABERG: Eakins, Fazzino, Huber, Wheeler VOTING FOR BIALSON: Andersen, Eakins, Fazzino, Huber, Kniss, McCown, Rosenbaum, Schneider, Wheeler VOTING FOR LEHMANN: Andersen, Eakins, Fazzino, Huber, Kniss, McCown, Rosenbaum, Schneider, Wheeler VOTING FOR MIDOLO: Andersen, Eakins, Fazzino, Huber, Kniss, McCown, Rosenbaum, Wheeler VOTING FOR SCHUBERT: Andersen, Eakins, Fazzino, Huber, Kniss, McCown, Rosenbaum, Schneider, Wheeler City Clerk Gloria Young announced that Clarence Aberg, Annette Bialson, Leonard Lehmann, Michael Midolo, and Gail Schubert received four or more votes and would be interviewed on Wednesday, March 19, 1997. RESULTS OF THE VOTING FOR INTERVIEWS FOR HUMAN RELATIONS COMMISSION VOTING FOR AGIEWICH: Andersen, Eakins, Fazzino, Huber, Kniss, McCown, Rosenbaum, Schneider, Wheeler VOTING FOR ASH: Eakins, Fazzino, McCown VOTING FOR BACHMAN: Andersen, Fazzino, Kniss, McCown, Rosenbaum, Wheeler VOTING FOR BURROUGHS: Eakins, Fazzino, Huber, McCown, Rosenbaum, Wheeler VOTING FOR COOK: Fazzino, Kniss VOTING FOR EMMONS: Andersen, Eakins, Fazzino, Huber, Kniss, McCown, Rosenbaum, Schneider, Wheeler VOTING FOR FROST: VOTING FOR KHABBAZ: Andersen, Eakins, Fazzino, Huber, Kniss, McCown, Rosenbaum, Schneider, Wheeler VOTING FOR KIERNAN: Fazzino 03/10/97 −162 VOTING FOR LOOP: Eakins, Fazzino, Huber, Kniss, Schneider VOTING FOR OZER: VOTING FOR PIERCE: Andersen, Eakins, Fazzino, Huber, McCown, Rosenbaum, Schneider, Wheeler VOTING FOR PRATT SHELLING: Fazzino, Huber, Kniss, McCown, Wheeler VOTING FOR TAYLOR: Andersen, Fazzino, McCown, Rosenbaum, Schneider, Wheeler VOTING FOR ULLMAN: Eakins, Fazzino, Kniss, Schneider VOTING FOR WOODSON: Eakins, Fazzino, Huber, Kniss, Wheeler City Clerk Gloria Young announced that Eve Agiewich, Mervin Bachman, Henrietta Burroughs, Gretchen Emmons, Adele Khabbaz, Liza Loop, Andrew Pierce, Alison Pratt Shelling, Shelley Taylor, Peter Ullman, and Kirk Woodson received four or more votes and would be interviewed on Wednesday, March 19, 1997. The meeting would begin at 6 p.m. ORAL COMMUNICATIONS Mayor Huber presented a proclamation honoring Boy Scout Troop Nos. 87, 627, 5, and 50. Ben Bailey, 343 Byron Street, spoke regarding bicycle safety on Churchill at Alma/Emerson. T. J. Watt, homeless, spoke regarding improvements. Michael Campbell, 364 Kingsley Avenue, spoke regarding interim regulations for renovation of pre-1940 houses. Ian MacLeod, 1325 Howard Avenue #422, Burlingame, spoke regarding recent water meter bid. Edmund Power, 2254 Dartmouth Street, spoke regarding City Hall politics (letter on file in the Clerk’s Office). Margaret Ash, 465 Webster Street, spoke regarding homelessness and community. David Muncie, 180 Hamilton Avenue, spoke regarding homelessness. Ted Kai, Green Party of California, 164 Hamilton Avenue, spoke regarding homeless shelter. 03/10/97 −163 Elsie Begle, 1319 Bryant Street, spoke regarding moratorium. Stephen Vernon, 627 Seneca, spoke regarding three-part test for laws. Carol Gallagher, Palo Alto Hotel, spoke regarding quality of life. APPROVAL OF MINUTES MOTION: Council Member Schneider moved, seconded by Rosenbaum, to approve the Minutes of December 9, 1996, as submitted. MOTION PASSED 7-0-1, Eakins “abstaining,” Kniss absent. MOTION: Council Member Schneider moved, seconded by Rosenbaum, to approve the Minutes of February 26, 1997, as submitted. MOTION PASSED 7-0, Eakins “not participating,” Kniss absent. CONSENT CALENDAR MOTION: Council Member Kniss moved, seconded by Andersen, to approve Consent Calendar Item Nos. 2 through 5, with Item No. 4 removed by the Mayor at the request of a member of the public. 2. Confirmation of Appointment of Emily Harrison as Assistant City Manager 3. Resolution 7652 entitled “Resolution of the Council of the City of Palo Alto Expressing Appreciation to Earl Harvey Upon His Retirement” 5. Request for Authority to Participate as Amicus Curiae in San Jose Mercury News v. City of San Jose MOTION PASSED 9-0 for Item Nos. 2, 3, and 5. AGENDA CHANGES, ADDITIONS, AND DELETIONS City Manager June Fleming announced that Agenda Item No. 4 was removed at the request of a member of the public and would become Agenda Item No. 9A. CLOSED SESSION 6. Conference with City Attorney--Existing Litigation Subject: Babcock v. City of Palo Alto, SCC No. CV760187 03/10/97 −164 Authority: Government Code section 54956.9(a) 7. Conference with City Attorney--Existing Litigation Subject: Scott, et al. v. City of Palo Alto, SMC No. 302290 Authority: Government Code section 54956.9(a) Public Comment None. UNFINISHED BUSINESS 8. Ordinance of the Council of the City of Palo Alto Amending Chapter 9.48 of the Palo Alto Municipal Code Relating to Obstructing Streets and Sidewalks to Add Section 9.48.025 Prohibiting Sitting or Lying Down Upon the Public Sidewalk on University Avenue Between High Street and Cowper Street (continued from 1/21/97) Ordinance of the Council of the City of Palo Alto Amending Chapter 9.48 of the Palo Alto Municipal Code Relating to Obstructing Streets and Sidewalks Ordinance of the Council of the City of Palo Alto Amending Chapter 10.10 of the Palo Alto Municipal Code Relating to Temporary Street Closures Hal Mickelson, P. O. Box 3662, urged the City Council to pass the measure as an essential public safety matter for the community. He felt it was important to keep things in perspective and to validate and reaffirm that it was a caring community with a great deal of social commitment. He said if it were indeed a measure to stigmatize or to punish the homeless or the poor, certain people would be against the measure. He said the measure merely stated that all people in the community, whether advantaged or disadvantaged, needed to conform to very minimal standards of behavior which were necessary for the common good and the community’s safety. He said that the discussion at the prior evening meeting on the subject indicated that there was a couple of alternatives, one of which was to reposition those zones for communicative sitting and lying. He said that it might be very difficult in practice for the Police Department to decide what communicative sitting and lying were. The measure deserved support as a part of a balanced approach to the problem. Kyra Kazantzis, Attorney, Mental Health Advocacy Project, San Jose, opposed the ordinance. The ordinance which appeared to have the effect of moving the homeless from Palo Alto sidewalks would 03/10/97 −165 disproportionately and negatively affect the Mental Health Advocacy Project clients. During the past year, over two million men, women, and children were homeless, and even more people were at risk of homelessness. It was estimated that one-third of the homeless had mental health or developmental disabilities. She said there was a desperate need for supportive housing in the North Santa Clara County area, and the median rent in the area was $739 in Santa Clara County. She said support services for her clients had diminished greatly in the last three years. She said that the way to address the social and economic problems of homelessness was not to sweep the problem out of the way but to attach and address the underlying problems. She was concerned about a possible failure in the ordinance with respect to someone who was either disabled or medicated and might not be able to comply immediately to an order of the police to move away. She asked the City Council to imagine being in the shoes of a homeless person with a disability. If a homeless person were fortunate to find an available shelter bed the evening prior, he or she would be asked to leave the shelter at 6:00 a.m. and asked not to return until 6:00 p.m. Most homeless would look for a safe place which allowed for the company of others. She asked that the City Council consider the impact on the Mental Health Project’s clients before enacting the ordinance. Vice Mayor Andersen asked if Ms. Kazantzis’ clients would be able to rationally respond to the directions that a police officer may give. Ms. Kazantzis said the person might be slow to understand, might not understand, or might be unable to get up from the sidewalk. Carl McConnell, Hoge, Fenton, Jones & Appel, Inc., Attorneys at Law, 3775 Wright Place, representing the Mental Health Advocacy Project, said that several letters had been submitted outlining opposition to the proposed ordinance. The proposed ordinance was unreasonable. He said the way that the ordinance was drafted not only affected the zone where pedestrian traffic occurred but also applied to any other area of the sidewalk. The ordinance was overbroad, applied to people who had no intent to obstruct, and possibly included people who had no ability to understand or comprehend commands. He said the ordinance was unnecessary because existing state law specifically prohibited intentional obstruction of the sidewalks. He said while the debate of the ordinance had been going on, the Police Department had provided additional police presence in the downtown area, and the effect of that had basically cured the problems that were perceived in the ordinance. He said that the ordinance raised First Amendment issues and came from a concern for aggressive panhandling, assaultive behavior, and types of conduct that were not appropriate, but in effect the ordinance would not address those measures at all. If there needed to be some type of sit/lie 03/10/97 −166 ordinance, the City Council should refer to the correspondence that was submitted that evening (letter on file in the City Clerk’s Office). Raymond Giraud, 2200 Byron Street, said that the newspapers spoke about the prosperity of the country, although it was not necessarily shared by the homeless. He said yearly the gap between the rich and poor grew wider as more people lost their jobs. He said the attempt to legislate the problem away by making needy people invisible evaded the issue rather than confronted it. He said what people in distress needed was help and not to be chased off the street. Unemployment and homelessness were not the crimes, and the police should not be held responsible for dealing with the issue. It was a national problem and was sadly met with little more than token rhetoric. Kathleen Haney, 235 Hamilton Avenue, said the issue had bothered her. She felt that the ordinance was not directed at the homeless, it affected only seven blocks in the City of Palo Alto where there was a major congestion problem. She said in light of the heavy traffic downtown, eventually someone would be injured. She did not feel that people’s rights were being limited or violated. The proposed ordinance would give the police the tool to work with. Lise Giraud, 2200 Byron Street, was opposed to the sit/lie ordinance. She was not offended by a person sitting or lying on the sidewalk. She was ashamed by it. She felt that the City should find humane and dignified solutions to the problem. She urged the City Council not to vote for the ordinance. Robert Norse, 309 Cedar 14B, said the proposed anti-panhandling or sitting/lying ordinance was an anti-homeless law. He said that the City Council had wisely and generously allotted a significant amount of time for public testimony on the issue. He said issues had been raised by the speakers that required not only thoughtful reflection but also more research. He said if what the City Council wanted was an anti-solicitation law to prevent harassment, then that should be requested rather than what might be legitimate concerns in phony and unpersuasive public safety camouflage. He noted the Santa Cruz experience with homelessness. He asked the City Council to consider the Palo Alto Human Relations Commission’s (HRC) proposal to work out a voluntary downtown code of conduct to find nonviolent solutions to the inevitable social conflicts. Becky Johnson, 1019 N. Branciforte Avenue, Santa Cruz, said enforcement of such laws as the proposed ordinance was increasing in a drastic way and should be of concern. She suggested a different approach to what kinds of laws needed to be passed. She said that a homeless person who was cited under a typical infraction might 03/10/97 −167 be convicted and charged a $162 fine which could result in a warrant if the person did not make the court appearance. She said the administrative process would cost a great deal more than any programs that might have provided shelter, transportation, food, and job counseling. She said there were better solutions than to criminalize poverty and homelessness, and Palo Alto needed to take the lead in finding positive solutions. Faith Bell, 536 Emerson Street, said she had some profound concerns with the sit/lie ordinance. She asked whether her children who bought ice cream and sat outside of Swenson’s would be asked to move on or be cited. She said that it could be argued the proposed ordinance was racist. People from other parts of the world had no problem with sitting on the ground or using the pavement. She said that people who sat on the sidewalks had as much right as the “power suited” men and women who stood and chatted. She said there were laws in place that protected the community against aggressive panhandling. She said there were real problems in Palo Alto that needed to be addressed, and she suggested that the City Council focus on the real problems. She urged the City Council to endorse the list of six recommendations submitted by the Homelessness Task Force. Michael Midolo, 362 Channing Avenue, said many of the residents of the City of Palo Alto supported the ordinance. He said that the Palo Alto community had dedicated volunteers and City employees working to solve the needs of the homeless. The HRC and the Community Development Block Grant provided funds and support to address the needs of the homeless. The ordinance simply prohibited sitting or lying on certain blocks of the sidewalk on University Avenue. He said it was unfortunate that Palo Alto was forced to legislate common sense, good judgment, and basic manners because a few people refused to use their own. He urged Council’s support for the ordinance. Trina Lovercheck, Human Relations Commissioner, 1070 MacGregor Way, said the HRC was bothered by the way the whole issue had been characterized. First it was addressed as a safety issue, not an issue of bad behavior. The HRC did not feel that bad behavior could be regulated. The proposed ordinance regulated all behavior. She said if the Council felt the need to pass an ordinance because of bad behavior, then it should be obstructions on the sidewalk. She said the HRC was against the ordinance because it was mean-spirited and it was wrong. She said most Palo Altans were middle class or above middle class, and the ordinance sent the message that those who were not were not welcomed in Palo Alto. She asked that the Council include a sunset clause, if the ordinance had to be passed, to allow for an evaluation after one year. 03/10/97 −168 Mark Sabin, 4274 Wilkie Way #C, said when a person’s mobility was compromised, it was not simply a matter of moving slowly. When a person came upon certain bottleneck, it was a real possibility that he or she could fall over. He said the ordinance was not only reasonable but prudent for the situation. It was important that University Avenue be open and attractive for everyone in the community. He urged Council’s support. Michael Schwartz, 110 Pasito Terrace #218, Sunnyvale, said people from the underclass had a reduced access to authority. He quoted from a book titled Friendly Fascism. He urged that the City Council not pass the law. Michael Mahan, homeless, said if he did not have money to eat, he would hold his sign. He asked how the Council would like it if a law were passed that said no one could drive BMWs or Mercedes on University Avenue at certain times of the day. Monty Black, 630 Lincoln Avenue, said the issue came down to good judgment. He did not feel that there was any objective way to solve the situation. He felt there could be rational debate between the two decisions and could be justified to some extent. With respect to good judgment, there were issues of regulation and what role the government played in trying to interact with those situations. He said that regulations had its benefits but also had its problems, and in some circumstances government could overstep its bounds. He said with respect to the proposed ordinance, the police officers might not be able to use their good judgment if they were told what they had to do in the situations. He asked the Council to think about its decision. Herb Borock, 2731 Byron Street, said the Council had given the City Attorney a very difficult job to do. The City Attorney had an ethical and professional responsibility to try and implement the Council’s policy decisions. He said the difficulty was that the City Attorney had to ignore the remarks in the records of the July 8, 1996, City Council Meeting, when Council Member McCown pointed out that there was a lack of evidence and facts in the record. He said that those who attended the last Council meeting on January 21, 1997, also noted a lack of evidence and facts supporting the proposal. He said that Council Member McCown’s remarks were important because they appeared in the record after the remarks of Police Chief Durkin which the City Attorney had relied upon as evidence to support the draft ordinance. He said the specific proposal was related to the kinds of the decisions that the City Council usually made which were with respect to land use. He referred to the Draft Comprehensive Plan and said that the intent was to intensify development in the commercial areas in primarily three areas in South Palo Alto by giving them a fancy name called “Urban Village.” However, if those 03/10/97 −169 situations were analyzed carefully, they would result in the same problems that the Council was addressing that evening. He said the City Attorney was directed to create an ordinance which was essentially against a particular group of people and resulted in the proposed sitting and lying ordinance rather than against the people who did most of the obstruction of pedestrian traffic in Palo Alto on University Avenue. He concurred with the remarks of Council Member McCown and Vice Mayor Andersen which were made at the July 8, 1996, City Council Meeting, that the proposed ordinance was inappropriate and unconstitutional and there was no facts or evidence to support the proposal. Purusha Obluda, 31570 Page Mill Road, Los Altos Hills, said there was an outcry of people who spoke against the ordinance, and she urged the City Council to listen to them. He said there was no problem, yet an enormous amount of time was spent on the ordinance which was intended to drive the poorest of the poor off University Avenue so that they did not interfere with the tourist business or the restaurant business or cause emotions when people walked down the street and saw others who had no place to live. He said that the Council had procrastinated on the recommendations of the Homelessness Task Force with the exception of hiring a couple of people at $8.00 per hour to work for the City. He asked how much more time the Council would waste trying to pass the shameful ordinance which was not needed. He asked the Council to forget the ordinance. Daniel Daye, homeless, asked what sense it made to pass the ordinance because it would not change anything. People still had to eat, sleep, and earn money. He said the ordinance would cost the City $25,000 to $50,000 that could be better spent somewhere else. He asked why the Council was trying to push something that was a waste of time. He asked the Council not to pass the ordinance. He said if he were tired, he would sleep whether it was on University Avenue, California Avenue, Lytton Avenue, etc. Stephen Player, Attorney, 1874 Guinda Avenue, said he supported the sit/lie ban. He said the ordinance was designed to assist in a very limited area of the downtown which was the most obstructive and dangerous in terms of pedestrian traffic in the entire downtown area. He said the ordinance would serve not only the users of the downtown but also all citizens of the downtown. The ordinance was a very limited, focused effort to try to take the first step to give the Police Department the opportunity to deal with the problem. He said that the City Attorney had presented a very well-reasoned argument for a cautious approach to an ordinance that he believed would be sustainable in a court of law. He said the Council represented not only the downtown area but also the entire community which included diversified citizens who were concerned about the downtown, 03/10/97 −170 specifically, the seniors. The ordinance addressed those types of issues and did not lessen the commitment of the Council or the community to the problems which the homeless had raised. He urged the Council to adopt the ordinance. Helen Person, 270 University Avenue, relayed a personal experience about one of her employees who had been hit by a truck on Hamilton Avenue and subsequently died of his injuries. She was concerned about safety issues in the downtown area. Several of her customers had complained about safety issues in the downtown area. She said given the heavy traffic congestion and more people in the downtown, it was necessary for the passage of ordinance to provide safety. Winter Dellenbach, 457 Kingsley, said many were speaking on behalf of those in the community who were less fortunate because of the difficulty that they would experience if the ordinance passed. She valued the chance to hand out spare change as she saw fit. She found value in having the economic diversity that was left in the community; however, she had a much easier time accepting the lower end of the diversity than the higher end. She noted a tent that covered a home under construction in order to allow the building to occur during the rainy season. The temporary tent cost $50,000 which caused her more concern than anybody sitting and lying in the downtown area. She was struck by the fact that some of the people involved in drafting the ordinance could not afford to live in Palo Alto without financial assistance. She urged the Council not to pass the ordinance. Paul Gilbert, 785 Barron Avenue, said he had reviewed the proposed ordinance, the supporting documents, and the video of the January 21, 1997, Council meeting. He was struck by the shallowness of the basis for the ordinance. The ordinance was offered as a partial remedy for a condition which might be a threat to public safety and to the free flow of pedestrian traffic in the most congested section of California Avenue. The City Attorney stated that the ordinance was offered to avoid the risk of pedestrians tripping on persons sitting or lying on the sidewalk, although neither he nor any other staff person cited any instances of pedestrians tripping on such a sitting or lying person. He said the second thrust of the ordinance was to eliminate obstructions to the free flow of pedestrian traffic. He said only the most credulous could accept the notion that persons sitting or lying on the sidewalk of University Avenue constituted one of the several most egregious obstructions to the free flow of pedestrian traffic. He felt there were many more things along the street that were much greater distractions to the pedestrian. He could not find any support for the ordinance and urged the Council to defeat the proposal. RECESS TO CLOSED SESSION: 9:20 P.M. - 9:55 P.M. 03/10/97 −171 The City Council met in a Closed Session to discuss two matters involving existing litigation as described in Agenda Item Nos. 6 and 7. Mayor Huber announced that the City Council took no reportable action on Item Nos. 6 and 7. Vice Mayor Andersen asked how the police would respond to persons who were unable to provide a rational response, e.g., persons with mental health issues. Police Chief Chris Durkin said he asked the police officers how often they interacted with persons with mental health issues, and the officers said the occurrences were rare. He said their experience had been that on those rare occasions, the police officers were dealing with people who were intoxicated. He said the police officers would require medical assistance for dealing with persons with mental health issues. City Attorney Ariel Calonne said there was no intent to exclude mental incapacity from the phrase “medical emergency” in the ordinance. He said the Council needed to keep in mind that a person needed to be capable of forming a general intent of violation of the ordinance in order to be guilty of the infraction. Vice Mayor Andersen referred to the Endnotes of the City Attorney’s report, page v, which said that it was no longer necessary to have findings and asked for an explanation. Mr. Calonne said the Council wanted to know what evidentiary obligation it had, e.g., what facts needed to be proven to support an ordinance. The answer was that it could be very general. There needed to be some evidence that the regulation would advance the interest that the Council said it would. He said it was a relatively low threshold, and he felt the Council had sufficient information to support that kind of finding. He said that the staff had stayed away from findings that were in other ordinances that were difficult to support, in particular, relating to economic vitality or relating to communicable disease exposure. Vice Mayor Andersen said that the City provided encroachment permits for various restaurants to extend into the sidewalk area. If the ordinance were adopted and there was an accident in which someone tripped and fell on a customer of a particular downtown establishment, he asked whether the City would have any exposure. Mr. Calonne said no. The encroachment permit process spelled out who was responsible for the maintenance of the area and how the tables 03/10/97 −172 or seating needed to be placed. He said enacting a law that prohibited some behavior did not make the City liable should that behavior cause injury. Council Member Schneider asked what encroachment permits were required for in the downtown area and whether they were enforced. Mr. Calonne said the encroachment permits were enforced with the exception of an occasional A-frame sign that had appeared on weekends but had not been permitted. He said that the tables and chairs in the downtown area were subject to the encroachment permits. He said that $500,000 personal injury insurance was required by the City as well as eight feet of clearance between the seating and the nearest tree well or other obstruction. He said that information appeared as an attachment to the July 3, 1996, City Attorney report. Council Member Kniss asked about the actual enforcement of the ordinance. Mr. Calonne said there were some exceptions to the ordinance which avoided the problem of having to prove actual obstruction. He said a child with an ice cream cone who was sitting on the sidewalk would be subject to enforcement to the extent that any child was subject to enforcement. He said the exceptions were related to medical emergencies; using a wheelchair due to disability; a child accompanied by an adult in a stroller; sitting or lying on any of the chairs, benches; or public planter boxes; sitting in an encroachment area; or sitting during a parade. Chief Durkin said he did not envision the police officer approach- ing and asking a small child sitting on the sidewalk with an ice cream cone to move on. He said the police officers would be allowed to assess the situation and determine whether or not it would clear itself up in a few minutes or so. He said if the small child presented a pedestrian-traffic issue, then the situation would be handled differently. Council Member Kniss asked if there were any problem with judgment being used in the enforcement of the ordinance. Mr. Calonne said yes, if it demonstrated a pattern of discrimination against some protected category or status or selectively enforcing the ordinance for the wrong reasons. He said there was nothing wrong with the police officer’s exercising judgment along the lines that Chief Durkin mentioned. Council Member McCown asked whether it would be possible to essentially modify the medical emergency exception in the ordinance 03/10/97 −173 to clarify the issue of people who had medical conditions that impaired their ability to respond to the ordinance. Mr. Calonne said it was possible although it would be tough. He said if the Council wanted to make it clear that medical emergency included a cognitive impairment that prevented someone from understanding the instruction, then staff could do that. Council Member McCown asked whether there would be any risk that the District Attorney would overrule the City’s ordinance if the ordinance were adopted and the concept were added that the police would enforce the ordinance if there was an actual obstruction. Mr. Calonne said yes. He said there was an ordinance that addressed sidewalk obstruction, but in his opinion, it was not intended to apply to people. Council Member McCown wanted to understand what the Council’s options were. As she understood it, if the ordinance were adopted and if there were an additional element which had enforcement and citation beyond the warning stage after the determination of an actual obstruction, then the police officer could make that determination under the City’s terms in the ordinance. Mr. Calonne said the City would have the authority to do that. Council Member Eakins asked if the City Attorney could explain why the ordinance was not about panhandling since several speakers had asserted that. Mr. Calonne made that statement based on his own observations and hearing how the police described the situations. When he felt the ordinance would be of most value to the community was during the crowded nighttime hours that were experienced on University Avenue. He said the reason he did not believe it was about panhandling anymore than it was about reading scripture, giving political recitation, signing, or any other form of expression was that it really dealt with a very limited part of the community. He contrasted the proposed ordinance with the City of Seattle’s and City of Berkeley’s ordinances in which the sit-lie ban essentially affected an entire commercial district. The proposed ordinance dealt with a portion of University Avenue, so anyone who wanted to communicate by panhandling, preaching, etc., and needed to be seated while doing so would have all the benches and planter boxes on University Avenue as well as the side streets. He said the side streets were important because most of the parking and other access routes to University Avenue came from the side streets. The ordinance would be most effective at night when there was a large 03/10/97 −174 group of people, many of whom might have consumed alcohol. He said it was an exciting situation as well as a volatile one. Council Member Eakins asked how the police saw the ordinance being used during the nighttime. Chief Durkin agreed with the City Attorney. He said at night there were less light and more likelihood of people’s tripping on others who were sitting on the sidewalk. He said the sheer numbers were greater than the daytime hours. MOTION: Council Member Fazzino moved, seconded by Schneider, to introduce the Ordinances with a revision to the ordinance amending Chapter 9.48 to delete Section 2(b)(7)(i) and (iii), and to direct staff to report back to the City Council on an annual basis regarding any ordinance related issues. Ordinance 1st Reading entitled “Ordinance of the Council of the City of Palo Alto Amending Chapter 9.48 of the Palo Alto Municipal Code Relating to Obstructing Streets and Sidewalks to Add Section 9.48.025 Prohibiting Sitting or Lying Down Upon the Public Sidewalk on University Avenue Between High Street and Cowper Street” Ordinance 1st Reading entitled “Ordinance of the Council of the City of Palo Alto Amending Chapter 9.48 of the Palo Alto Municipal Code Relating to Obstructing Streets and Sidewalks” Ordinance 1st Reading entitled “Ordinance of the Council of the City of Palo Alto Amending Chapter 10.10 of the Palo Alto Municipal Code Relating to Temporary Street Closures” Council Member Fazzino said there was no doubt that University Avenue had become a very busy street over the last decade. He said it was increasingly difficult, particularly at night, to navigate around newsracks, signs, tables, and people. He said the City had begun to address the first three issues, and it was entirely reasonable to address the issue of people obstructing sidewalks as well. He said that no one had the constitutional right to block a sidewalk or any other thoroughfare. It was also the right and responsibility of the City Council to assure that the citizens and visitors had the ability to traverse the public streets safely and without risk of injury. He said the Police Department had made a very strong case that the ordinance was needed. He said the Police Chief had indicated that “when people sat on sidewalks, the normal flow of pedestrian traffic was impeded, putting others at risk...People obstructing the University Avenue sidewalk created a significant hazard for the elderly, some of whom used walkers, canes, visual impairments, and were not capable of reacting to someone sitting 03/10/97 −175 on a sidewalk...” He said that the Council had also heard from representatives of the Senior Center and the City Attorney. As a Council Member who resided in the downtown area, he had had his own personal experiences. He felt the ordinance was reasonable and was limited to the most congested street in Palo Alto and applied to every class of person. The City continued to provide plenty of benches and park space in the downtown area for people to sit. He thought it was very unfortunate that some with very good intentions had tried to make it into a homeless issue. He asked that those persons and the Council bring the same degree of passion to relevant and constructive discussions of truly homeless issues. He had tremendous respect for the advocates of the homeless. He said for the most part, the debate had been very thought provoking, policy-oriented, and generally free of personal attack. He agreed that the measure should not be used as a hammer against any particular class of people. He agreed that people needed to be treated with compassion. If someone were incapable of understanding a police request, then he or she should be assisted, not penalized. He said the City’s Police Department had certainly demonstrated through its policies and practices that its primary emphasis was to assist and not penalize people. He said that the City Attorney agreed an exception for Lytton Plaza alone was sufficient to address his concerns regarding free speech zone. Also, he agreed with several of the speakers that a regular ordinance review process was appropriate. He proposed that on an annual basis the City staff be directed to prepare a report which outlined its observations and experiences regarding the sit-lie situation downtown. He felt that on balance the ordinance was the right action to take to ensure increased public safety in the downtown area. Council Member Schneider said public safety in the downtown was not a new issue and had been the topic of discussion for years. She said that residents and nonresidents, merchants, their customers, families, the elderly, and all who enjoyed Palo Alto had asked for police help in dealing with sidewalk and street hazards caused by a multitude of factors, including more people, cars, panhandlers, night life. The ordinance was simple and straightforward. University Avenue between Cowper and High Streets had become uncomfortably and unsafely crowded. She urged her colleagues to support the ordinance. Council Member Kniss said the City of Palo Alto was a city of very generous citizens. She said the City had a huge number of non-profit programs and actually gave more to charity than any other city in the county had as shown by a study done several years before. She felt the issue was one of balance, e.g., providing services and programs while providing safety. She said that over the past year the City had spent approximately $200,000 of Community Development Block Grant funds on homeless issues, added a $30,000 homeless 03/10/97 −176 employment pilot program, and added other programs for a sum of between $400,000 and $500,000. She said when the issue of support was balanced against that of safety, she came to support the ordinance that was before the Council that evening. She said the ordinance was not onerous and would be enforced judiciously by the police officers. She strongly supported the ordinance and the inclusion of an annual review. Council Member Wheeler felt that the issue had been unfortunately miscast and misinterpreted by very well meaning members of the community as an anti-homeless measure. She said indeed one of the saddest things about it was that as a community, much negative energy was spent talking to and about the ordinance rather than addressing the list of items that Council Member Kniss alluded to in her remarks. She said for her the ordinance had always been a matter of public safety. Objects that were on sidewalks that were not at a pedestrian’s eye level did pose a safety hazard for a pedestrian. She said an object or person who was sitting or lying on the sidewalk was not within an easy eye grasp and, therefore, posed a danger to those trying to navigate sidewalks. She said there was some danger for the person who was sitting or lying on the sidewalk. She said the Council needed to take into account all of its community members, and as Council examined legislation on a weekly basis, it needed to balance the rights of all of the citizens of the community. The City had provided many places for citizens of the community to sit. She said the City was in the process of redesigning the downtown, which would enhance the places for people to sit on University Avenue. She said the downtown area was zoned as a retail location. She said in a retail location it was important to have attractive store displays and to have people walk up to the windows to see what the stores had to offer. People had a right to do that. She used jaywalking as an example of a right that some people thought they had, but laws in the state and in the country indicated that there was a need to balance the safety of individual pedestrians crossing the street with the safety of people who were driving vehicles and were at risk of hitting a pedestrian who came from between cars. She felt that the proposed ordinance was another piece of legislation which recognized the rights of all of the citizens, and she supported the motion. Council Member McCown said she had tried to understand the problem that the ordinance was trying to get at which was termed as obstructions or the creation of hazardous conditions to the free flow of people who used the sidewalks. She said to be consistent with the stated purpose of the ordinance, there needed to be an exception that would apply to persons who did not obstruct or cause a hazard and an 18-month sunset provision to conclude in September 1998. 03/10/97 −177 AMENDMENT: Council Member McCown moved, seconded by Andersen, to amend the main motion to direct the City Attorney to include language to provide for an exception that would apply to persons who do not obstruct or cause a hazard; and that there be a 18-month sunset provision to conclude in September 1998. Council Member McCown said the other issue was whether the ordinance should be broadened to the definition of a medical emergency to encompass persons which mental disabilities. Chief Durkin said in reality if the police officer encountered that type of a situation, he or she would not take any enforcement action. He said if clearly the person was impaired and could not comprehend what was going on, the Palo Alto police officers would take a different course of action from enforcement. If a medical course of action were required, then the officer would pursue the medical avenue. Council Member McCown said if what she understood from Chief Durkin was that as matter of practice someone with a mental disability would be treated, then she was comfortable with that since it was on the legislative record. Council Member Fazzino said he would oppose the amendments. He said the intent of the ordinance was that people sitting or lying on the sidewalk represented a potential obstruction. He did not want to place the police officers in a position of trying to go beyond that and define actual obstructions versus potential obstructions. He was concerned about setting precedents of sunset provision. He said the proposed review process provided an opportunity to assess the situation on an annual basis and to make any changes that were necessary, so the sunset provision was unnecessary. Council Member Kniss concurred with Council Member Fazzino. Council Member Schneider also concurred with Council Member Fazzino. Council Member Eakins asked for a definition of what a hazard constituted and the need to have it designated in the ordinance. Council Member McCown said her goal was that the ordinance provided for the citing and fining of a condition in which obstruction existed, and if a person were not obstructing anything and were sitting peacefully, that person would not be subject to the ordinance. Mr. Calonne explained that what would not be considered as an obstruction would probably be a person who was sitting immediately next to a lawful obstruction, e.g., a planter box or newsrack, because 03/10/97 −178 most likely the person would not be blocking traffic. In practical terms, it would be a free passage ordinance that would require some minimum space between the buildings and any obstructions at all points of University Avenue. Council Member Eakins was concerned with providing for some opportunity for selective enforcement rather than for an actual hazard. Council Member McCown said her intent was to get at the question of a narrower, more precise definition of what was obstruction rather than just anybody any place on the sidewalk on University Avenue. Vice Mayor Andersen said he had difficulty understanding why the Council would not be willing to sunset the proposed ordinance when it had for the curfew ordinance. He felt it was appropriate to sunset the proposed ordinance. AMENDMENT DIVIDED FOR PURPOSES OF VOTING FIRST PART OF THE AMENDMENT FAILED 3-6, Andersen, Eakins, McCown “yes.” SECOND PART OF THE AMENDMENT FAILED 3-6, Andersen, Eakins, McCown “yes.” Council Member McCown said there was no question in her mind that her colleagues were not intending in anyway to pass an ordinance which discriminated against or targeted people based on status. Unfortunately, while the ordinance was phrased and cast on its face as neutral in getting to the stated purpose of public safety and obstruction, in all honesty the effect was towards people of a status of poverty in the community who were currently in a situation in which they chose to sit or lie on the sidewalks. She said the effect of the ordinance was to ensure that those people would not be present on the sidewalks and was not to ensure that other types of obstructions for safe passage, such as tree wells, chairs, and tables, would be moved off the sidewalk. The second problem that she had with the ordinance was the lack of underlying, even anecdotal, evidence that there was a problem. She was disappointed that the Council was not putting itself to the test of reevaluating the ordinance by imposing the sunset clause. She said if the point of the ordinance were obstruction and hazard, then the Council needed to deal with that, and the ordinance did not do that. Vice Mayor Andersen opposed the motion because of many concerns. He agreed with Mr. Daye who asked what the ordinance would change. He said there was no evidence of anyone tripping on another human being in Downtown Palo Alto. He referred to the San Jose Mercury 03/10/97 −179 News article which accurately described what the Council was doing, and that was to change behavior. He said the changes that would happen as a result of the ordinance would be minimal. He hated to see the law enforcement staff spending a lot of time trying to enforce the ordinance. He strongly opposed the ordinance. Council Member Rosenbaum supported the ordinance. He felt that a common sense observation could be made that crowded sidewalks should be reserved for walking. He said the Council did not always convert common sense observations into ordinances. He said that what he found persuasive was the number of other cities which were similar to Palo Alto, e.g., Berkeley, Santa Cruz, Seattle, in that they had liberal Councils who found it necessary to take similar action. He was forced to come to the view that rather than being premature, the Council would be proactive. He said it was an opportunity to take a reasonable action, and he supported the ordinance. Council Member Eakins supported the ordinance. She was still concerned about the amount of judgment that was left to the police department, but she was comfortable with the word “reasonable” in terms of the enforcement. She felt it was appropriate to amend the sidewalk ordinance so that it was more useful. She said the issue had been confused unduly. She did not appreciate the heightened and inaccurate use of symbols. She said it was necessary to continue to learn how to live in the City’s public spaces which, in some cases, meant laws. Mayor Huber said the ordinance was not all encompassing. It was directed towards the highest foot traffic area in the City and was limited to a very few blocks. He thought the approach was very carefully done so as not to exceed what was a reasonable control device. He said signs, smoking, jaywalking, skateboarding, etc., were regulated and necessary for people to get along as it became more crowded. He said it was too bad to be placed in the position of legislating behavior, but that was frankly what the Council needed to do. He said that he had practiced law for over 30 years, and every court that he went in had a whole list of rules of courtesy that attorneys needed to apply. He said something had changed in society which forced legislation to occur. He did not believe that the sunset clause was necessary, and if it appeared necessary in the future, he would raise it. MOTION PASSED 7-2, Andersen, McCown “no.” 9. Vice Mayor Andersen and Council Members Fazzino and Kniss re Proposed Direction to Staff to Develop a Comprehensive Approach to Downtown Needs (continued from 1/21/97) 03/10/97 −180 Faith Bell, 536 Emerson Street, thanked the Homelessness Task Force (Task Force) for their careful and comprehensive work. She requested that the Council institute the suggestions of the Task Force. Hal Mickelson, Vice President, Government Affairs, Chamber of Commerce, P. O. Box 3662, said the segment of the community that the businesses represented supported the referral. He said the Chamber of Commerce felt it was appropriate to study the possibil- ity of providing usable rest room facilities downtown and would be happy to participate in an effort to promote and publicize successful efforts to employ the homeless and provide jobs. He said that the City should join with other cities in finding shelters to alleviate the problem of homelessness. MOTION TO REFER: Council Member Andersen moved, seconded by Fazzino, to refer to the Policy and Services Committee as follows: 1. A commitment to provide public rest room facilities in the Downtown area, perhaps on public property; 2. Short-term, transitional employment opportunities for those who indicate their willingness to work rather than to panhan- dle for resources, perhaps the Chamber of Commerce and other private entities can be involved as well; and 3. Work with the Urban Ministry or other agencies to provide additional housing and shelter opportunities for those who are homeless. MOTION PASSED 9-0. REPORTS OF COMMITTEES AND COMMISSIONS 9A. (Old Item No. 4) Traffic Signals and Roadwork Along El Camino Real Resolution of the Council of the City of Palo Alto Authorizing Execution of an Agreement with the State of California Department of Transportation for Modifying Traffic Signals and Performing Roadwork Along El Camino Real at Arastradero Road/Charleston Road, Maybell Avenue and Los Robles Avenue/El Camino Way Resolution of the Council of the City of Palo Alto Approving and Adopting No Parking Zones on El Camino Way and Maybell Avenue Agreement between the City of Palo Alto and Caltrans to Modify and Upgrade Traffic Signals and Perform Roadwork Along El Camino 03/10/97 −181 Real at Arastradero Road/Charleston Road, Maybell Avenue, and Los Robles Avenue/El Camino Way City Manager June Fleming said that the speaker who had requested the item be removed from the Consent Calendar for discussion had left the meeting. She requested that the item be continued to the next meeting. MOTION TO CONTINUE: Council Member Wheeler moved, seconded by Andersen, to continue the item to the March 17, 1997, City Council Meeting under the Consent Calendar. MOTION TO CONTINUE PASSED 9-0. ADJOURNMENT: The meeting adjourned at 11:20 p.m. ATTEST: APPROVED: City Clerk Mayor NOTE: Sense minutes (synopsis) are prepared in accordance with Palo Alto Municipal Code Sections 2.04.200 (a) and (b). The City Council and Standing Committee meeting tapes are made solely for the purpose of facilitating the preparation of the minutes of the meetings. City Council and Standing Committee meeting tapes are recycled 90 days from the date of the meeting. The tapes are available for members of the public to listen to during regular office hours.