HomeMy WebLinkAbout1998-10-13 City Council Summary Minutes (2)Verbatim Transcript October 13, 1998 City Council Meeting Re: Public Hearing on Chuck Thompson, 3009 Middlefield Road Mayor Rosenbaum: ...unfinished business, a public hearing: Palo Alto City Council will review a revised mitigated negative declaration and consider three appeals of a zoning administrator approval of a conditional use permit to allow the operation of a private outdoor recreation service, tennis facility, for property located at 3009 Middlefield Road on the site of the former Chuck Thompson Swim & Tennis Center including the reorientation of two of the four existing tennis courts, resurfacing of the two remaining courts, and construction of one additional court at passo? park area, restroom facilities, and related landscaping and site improvements. This item was continued from August 10th. Do we have a staff report to introduce this item? City Manager June Fleming: Yes, we do, Mayor Rosenbaum, but before we begin this item, we would like to welcome to the staff formally today, Ed Gawf, who is sitting in front of me. He is the new Director of Planning & Community Environment and we thought this would be a good item for him to start with and get a feel for our process. The presentation tonight will be given by Lisa Grote, who is our Zoning Administrator. Zoning Administrator Lisa Grote: I did want to recap where we have been with this item. It was last heard on December 1, 1997. At that time, the Council directed staff to revise the mitigated negative declaration and to incorporate several elements, potential environmental impacts in that revised document. Those impacts revolved around the sound walls, the height location, materials and maintenance of the sound walls, wind patterns created by the sound walls, any kind of air movement associated with those wind patterns, tree removal impacts, aesthetic impacts, and shadow impacts. Those items have been included in a revised Mitigated Negative Declaration. It was readvertised from July through August, the 20-day period required for a Mitigated Negative Declaration. It was again readvertised 21 days prior to this hearing, since it was continued from the August 10th hearing. The Council did vote at the December 1st meeting to include masonry sound walls, two 10-foot high sound walls on the north and west property lines. In the Mitigated Negative Dec, you may have noticed that it discussed wooden sound walls as well as masonry walls. Those were both included in order to give full disclosure of the environmental impact associated with each of those sound walls, or each of those types of sound walls. As far as tree removal is concerned, it was discovered that either
masonry or wooden sound walls could be constructed with a pure and grade beam foundation, which would preserve the majority of the trees on the CSI portion of the site and they would not harm the trees along Price Court in the backyards of the sites adjacent to the facility. It should be noted that our arborist is in the audience and is available to answer questions, should you have them, regarding the tree maintenance or removal. In addition, we do have Richard Rodkin here, with Ellingworth & Rodkin. He is our acoustical consultant who can answer the technical questions related to the sound walls themselves. With that, I will conclude the staff report saying we are recommending that the three appeals be denied, that the original approval be upheld with modified conditions, as shown in your staff report. Mayor Rosenbaum: Thank you. Before opening the public hearing, do we have questions from the Council? Council Member Mossar. Council Member Mossar: Yes. I'm probably, I suspect, Dick dealt with this issue before and probably the only Council Member sitting up here who hasn't had the long history with this project that many people in this room as well as up here have had, so I've been struggling, trying to recreate the history and understand how we got to where we are. So I have some questions that will help me better understand where we are. The permitted hours for this tennis facility are what hours, please? Ms. Grote: Those were included in the conditions of approval and I'll need to review those very quickly. Council Member Mossar: Okay, you can tell me when we get there. I'm wondering if much thought has been given to the affect of the sound walls should, heaven forbid, but should Matadero Creek overtop it's banks in that area. Ms. Grote: In answer to your first question, the hours of operation would be from 8:00 a.m. to dark, Monday through Saturday, and then 9:00 a.m. to dark on Sundays and holidays. In regard to your second question, the Public Works Department has reviewed the location of the sound wall and the potential for flooding, for the creek to flood. They do not believe that the creek will flood. If it does, the construction of the walls should and would be able to withstand some minor overtopping of the banks. Council Member Mossar: I did note in the staff report that permits would have to be obtained from the Water District. I was just curious if there had been thinking about that. And then, there's been a lot of discussion about permissible increases in noise and I've heard many different things from many different people, but I was provided with a copy of the original 1972 CMR
which came along with the new noise ordinance at that time, and there's some question, and I need for explanation on the part of the public, and I got curious as well, one interpretation of that CMR is that decibel levels in residential properties may only be increased by six decibels and on public properties by 15 decibels, and in this particular case, the residential properties would have the decibel level raised greater than six decibels, so, can the attorney or planning staff elucidate me on what the interpretation is and what the reasoning is behind the current findings. Ms. Grote: We used the public facilities section of the noise ordinance, since this property is zoned public facilities. So we were using the 15 db above ambient. We are using in the analysis for planning purposes, we are assuming the entire site is the noise source, so that if we were to measure noise impacts, it would be at 25 feet from the edges of the site itself. So, theoretically, a tennis ball could be hit anywhere on the site, we assumed worst case and that people might occasionally hit a tennis ball outside of an actual court and, therefore, would be taking a worst case situation to measure 25 feet from the edges of the site, so that's how we interpreted the ordinance and that's how we applied it in this particular case. Council Member Mossar: I understand that and I can also understand the frustration of a resident living on Price who would say, "But in my backyard, decibels will be at a certain level and the noise ordinance guarantees me protection from that large an increase." I was just curious what the staff response is to that comment. Ms. Grote: With the mitigation measures proposed being the 10-foot high sound walls, if you take the measurement anywhere behind the sound wall, on the other side of the sound wall from the noise source, it should mitigate that noise down to an acceptable level. Council Member Mossar: Acceptable by public facilities standards? Ms. Grote: Acceptable by public facilities standards. Council Member Mossar: Thank you. Now, I have one other question. Up...please. City Attorney Ariel Calonne: Council Member Mossar I think that question has been raised in a lot of detail in the appellant's comments. We're confident that the public property standard is the correct one. As I mentioned last December, though, the fact that we are using the edge of the property for planning purposes
in trying to use this ordinance for environmental review does not mean that the standard will be used for code enforcement. The standard remains 25 feet from the noise source. So these conditions by no means offer any protection or assurance to the tennis users that they wouldn't violate the ordinance. We have tried to interpret the ordinance to make sense of it for environmental review purposes, and I don't want the appellants, in particular, to misunderstand that that's our enforcement stance with it. Council Member Mossar: Okay, so you're saying that a neighbor could call saying that the noise ordinance is being violated by people playing tennis and a police officer would come out and measure that noise and if it was in violation of the noise ordinance, the tennis players could be sited, is that what you're trying to tell me? Mr. Calonne: Well, yes. I'm not trying to speak to whether the police would come out and all of that, but the ordinance calls for measurement 25 feet from the source. That we did not necessarily use that for planning purposes doesn't change that standard. Council Member Mossar: And I'm having, and it's only because I haven't been around long enough, having a little trouble understanding these tennis courts. They're not public tennis courts because there's a fee to use them, but they are on public lands and in materials that were provided by CSI, they refer to them as being neighborhood accessible. I can't quite figure out what this animal is. Can someone briefly explain that to me? Ms. Grote: We have considered that facility public in that anybody is eligible to pay the $100. It's a nominal fee for maintenance purposes, but we have considered them public courts, although there is that nominal fee. Council Member Mossar: And there's not a per-use fee? I don't have a problem with use fees, but... Ms. Grote: It's a $100 fee per year. Council Member Mossar: And that $100 allows you to play and gives you a key to get in the locked gates. Ms. Grote: That's correct. Council Member Mossar: Okay, thank you. Mayor Rosenbaum: Council Member Wheeler.
Council Member Wheeler: In some materials that were delivered to us over the weekend from CSI, and I believe they were delivered to staff today so I hope you've had an opportunity to look at it, there's a letter from Edward L. Pack Associates which would seem to indicate that the difference in sound attenuation between an 8-foot wall and 10-foot wall, for instance, is minimal. I don't know if our sound expert has had an opportunity to review any of that and would have any comments, or if any of our staff members would have any comments about the validity of the contention in that letter. Mr. Calonne: Well, while I'm loathe to do it, I need to interject that, first of all, I want to make sure the appellants have these materials. Secondly, at this point, the Council's directed some findings and so the extent to which you're going to entertain new evidence is something that's up to you. But I would caution Council to make sure the appellants have a fair shot at it as well. The first that I've seen this is today. I think Lisa was copied on the letter, so we want to make sure the appellants have it first of all. Secondly, the Council needs to be very mindful that the legal standard here for the use permit is different from the environmental review and we're dealing with the touchiest environmental review standard there is, and that's the one that applies when you're deciding whether an EIR or a Negative Declaration is required. Here, we're operating under a Negative Declaration and the legal standard is that you can only do that if there's not a fair argument that the project may have significant impacts. Last Fall, we were very concerned with the warring experts that we had that fair argument and an EIR would be required. The City's noise consultant came down very firmly that we had an acceptable mitigation package and so we didn't have an unresolved environmental issue. To the extent that the applicant is reopening that issue tonight, I think is very dangerous ground for the Council to get into from an environmental review standpoint. And so, I would simply caution that I think these numbers might be interesting, but I don't think they are properly before Council tonight. If you want them properly before you, let me know and I'll figure out how we can handle it procedurally. Council Member Wheeler: Thank you for that warning to us. I have a question about, you know, this five-year process. What if, by some almost mixed miracle the Council does take some action tonight, what is the timeline and process from here on out, assuming all goes well. Ms. Grote: The next step would be for the applicant to submit engineered and architectural drawings to us to take to the Architectural Review Board for the sound walls themselves and landscaping, tree issues related to the sound walls. That would
take probably up to six weeks for review and then they could apply for the building permits to do their, provided no one appealed that ARB decision, they could apply for their building permits. Council Member Wheeler: And as far as a use permit to actually commence operations. Ms. Grote: That's what you would be deciding tonight. So, if you approve a use permit with conditions, they would be operating, once they start to operate under that use permit, with those conditions. It would not have to come back to me, as the Zoning Administrator, except for those conditions that specifically call for review as part of the condition. Council Member Wheeler: Okay, thanks. Mayor Rosenbaum: Council Member Ojakian. Council Member Ojakian: I just want to make a quick comment, Mr. Mayor, since Council Member Mossar alluded to this. Her comments were correct. As a Planning Commissioner, I heard this item initially on November 13, 1996, and then we heard it on two other
occasions. I recollect all those meetings I was at, so I=m fairly familiar with this and still retain all my prior reports which are now a tremendous amount of paper, but it's just to inform my colleagues that I'm very familiar with this issue. Mayor Rosenbaum: Thank you for that. Seeing no further questions, I will now open the public hearing. In this situation, we have an applicant and we have three appellants, two of them together and two individuals. Each of them is entitled to speak for up to ten minutes and then at the end, at the close of the public hearing after we've heard from other members of the public, each is entitled to speak for up to three minutes if they feel that's necessary. So, let me begin with the applicant to be represented by three people: Jack Morton, Linda Jensen, and Marni Barnes. Mr. Morton are you going to start off? Mr. Calonne: Mr. Mayor, let me interrupt again. Given the passage of time and the reference to this weekend letter, I think it's well that Council identify any outside-of-the-hearing context of contacts it may have had from either the applicant or the appellant before we get into it so anyone who hears about that can rebut anything you may have heard. As you recall, your policy calls for you to disclose any significant contacts that influence you or provide information. Mayor Rosenbaum: Okay, Mr. Morton before you begin, let's run down the line and see what contacts Council Members have had.
Council Member Mossar? Council Member Mossar: I had the packet of materials delivered to my doorstep from CSI, I had a phone call, a lengthy conversation with a gentlemen from CSI whose name I have forgotten, my apologies to him, I had a phone call from Robin, and I only know Robin from Pete's, so I only know her as Robin, though we did not speak, and I spent time in the yards in the back of the subject property with three neighbors, Wei Wang, John Abraham, and my, I'm really showing off my name skills tonight, but another one of the neighbors, and I did that yesterday. Council Member Fazzino: I spoke to Mr. Morton several weeks ago, and a week ago I visited the site within the last week and walked around unsupervised by anyone, and probably I don't know how long it's been including Mr. Calonne, Mr. Calonne was not there, counting the amount of time I spent on that property, I fully expect I will receive that report soon from him, and I did meet with the neighbors probably eight or nine months ago now, on the property. Council Member Wheeler: Mayor Rosenbaum and I had the opportunity to meet and have an extensive tour of the property and the houses bordering the north side of the property with Mr. Abraham and Ms. Wang. In addition, I have my packet, which was hand-delivered to me by one of the CSI board members, we had a brief conversation at the time, and I later had a more extensive conversation with Mr. Morton and Mr. Mike Cobb. Mayor Rosenbaum: In addition to the visit that Council Member Wheeler mentioned, I have spoken numerous times to both the applicant and all three of the appellants. Council Member Huber: I received the information from CSI and a brief phone conversation with a couple of people, but they were not significant and did not influence my opinion. Council Member Kniss: I would echo the former Mayor's comments. I visited it, walked around, I have not significantly been impacted by any of my contacts. Council Member Ojakian: I also had the CSI packet delivered to my home, spoke with Ms. Wang, I guess it was yesterday, probably had some other conversations with people going back to Planning Commission days, if you want to go that far back, including Mr. Bradley, who I've known for a long time. Mayor Rosenbaum: All right, we've now unburdened ourselves and we are ready to begin the public hearing. Mr. Morton, would you start off please.
Jack Morton: Mayor Rosenbaum, I can't really say, oh, that I could unburden myself from the load I bear here. My name is Jack Morton. I'm a board member of Community Skating, Inc. I'm a founding member of the Trust for Community Skating, which was the organization that put the ballot measure on the ballot in 1985. We began that journey, Midtown had an outdoor skating rink, one unique asset, it had a pool, it had a gym, it had five tennis courts. After vote of approval of Measures A and B, CSI joined forces with the Y. We undertook to operate the Winterlodge, the Y negotiated the lease with the City to operate the Chuck Thompson site. The Winterlodge grew and flourished and, I'm sad to say, the Chuck Thompson site just continued to deteriorate year by year. The pool has been lost, the gym is gone. We now have four courts that are marginally operational. Five years ago, CSI responded to the City's RFP to reestablish a swim and tennis program in the Middlefield site. Council eliminated the swim component and then imposed strict conditions on the tennis program. Tonight you are asked to support your Zoning Administrator's decision to grant us a use permit. We have accepted the conditions that have been imposed on us. There are 48. We've asked you to remove two conditions, or parts of two conditions. One, the requirement that we double-lock the facility, which seems to us to be an unnecessary additional burden, and the other one was condition 38, which requires ten feet per block, which imposes a tremendous additional expense on us for a program that has been variously cut back. Our position is simple. We don't want to provide the community prison yard tennis courts. We want to have tennis courts that have the open feel that we in our community pride ourselves on, whether it's the Baylands, the hill park. We are asking tonight for you to support your Zoning Administrator but we also ask you to put this long issue to bed and direct staff to draft a lease that permits us to begin operating what the City now sort of passively operates under the existing use permit. During the next few years, we will implement those conditions. None of them can be done overnight. They are going to require an extensive amount of funding on our part and that funding will not come from the revenues generated by the tennis program so the Winterlodge will not only be self-supporting, it will now support a tennis program. We're excited to do that. I'm going to defer now to Linda Jensen, who is the Executive Director of the Winterlodge, because I want you to understand what kind of program we are fighting to offer the community. It is time to give the community the benefit...?, so that's what we're asking tonight, to not only support your Zoning Administrator, but let us move forward. Linda Jensen: I'm the Executive Director of the Winterlodge, 3009 Middlefield Road. My staff and I are excited and eager to begin offering a youth tennis program to the community. As you
probably know, our youth ice skating school is an award winning program and has been consistently listed as a top ten ice skating school in the nation. We have over 1,000 students enrolled in our skating school and, every year our program grows. We pride ourselves on running a high quality, recreational program in a positive and nurturing environment. We plan to provide the same quality program for tennis. Our facilities and parking are now updated, expanded, and ready to serve yet another customer base. For many years, we have worked well and continue to have good rapport with numerous community organizations including the public schools, private schools, and the Palo Alto Recreation Department. We look forward to continuing these relationships and the 42-year history of quality recreation on ice and hopefully soon on foot. This evening we ask that besides supporting your Zoning Administrator's decision to grant the use permit, that you also authorize completion of the lease under the existing use permit so we can begin to serve, no pun intended, the community in yet another capacity. Thank you. Mr. Morton: May I introduce Marni Barnes who is the landscape architect who's going to make a few comments about the dispute about what sort of fence we should have. Marni Barnes: Thank you. I wanted to just quickly run you through your packet and say that in terms of the wind situation, this is not a high wind area, so the change in fence height would be minimum to the extent that it does impact the wind, the best mitigation, as is indicated on your plans that you received, is through shrubbery and landscaping in terms of plant materials, and that's already incorporated into the plan. In terms of the sum angle studies, I can walk you through that at your request. But suffice it to say, that for every two feet of wall that you increase in height, at noon you're adding about 3-1/2 feet of shade on December 22nd. So on the longest shadow day of the year, at noon, you're going to be adding about 3-1/2 feet of shade for every incremental height. So, there's a 6-foot fence there now. By going up to ten feet, you will add seven more feet of shade at high noon on the most vulnerable northern property line where we have some houses set back right on the 20-foot property line. And then the third issue is the structure of the fence itself and Mr. Dockter and I were just talking a moment ago about the need for a pier construction, and that is viable with all kinds of walls. It is the easiest to construct with a wooden wall. I'm sorry, it's viable with a tilt-up, pre-cast concrete wall, it's viable with a wooden wall, it's quite expensive to do a concrete block wall that way. And it's the having a glass block top would prohibit either a wooden base or tile-up base. So, if we're thinking about the trees and going with the type of construction that would mitigate any root damage, then we're looking at probably not a concrete block wall. And I have a
quick, this was not in your packet, picture of the trees at risk are the yellow. These two Cedars Ceadora in the parking lot, a Chinese Elm on the condominium side, and two of the remaining Italian Cedars, Italian Cypress, sorry. So. And questions, if you have them. Mayor Rosenbaum: We have a question from Council Member Ojakian. Council Member Ojakian: I had a couple of questions or, one's a request. Can you show what you just showed us to the audience so everybody can see what you're talking about. Ms. Jensen: The trees at risk are the yellow trees, obviously the ones near the property line. Those were the trees that were intended to be saved but ... can be saved...it's a matter of ... properly. [she was off the mike] Council Member Ojakian: Okay, then the other question was you mentioned that the solid or the concrete-type wall that you would have to build with the, we'll call it the see-through substance at the top of it, was very expensive. Could you define what "very expensive" is? Ms. Jensen: Concrete, sorry, black block would have to go on top of concrete block wall. The typical construction for a concrete block wall is a continuous foundation. So, if you are going to move to a different type of foundation, and you might want to come up and help me with this with your charts, but to compensate for not having continuous foundation, the piers are going to have to be quite substantial. Whereas, if you look at a wooden fence, that's normally done with piers and same with a tilt-up, and so you're not talking about the weight and bulk so the piers don't have to be as large. Mr. Morton: It would be a more than 100 percent increase over pre-cast, normal glass block fence. So it more than doubles it. Council Member Ojakian: Thank you. Mr. Morton: As a final comment, we could have filled the Council Chambers tonight with people, all of whom might have signed cards to speak. We'd like to defer the rest of the time back to the Council so that maybe you can debate among yourselves and come up with a solution that makes the community proud of what we did 15 years ago. Thank you so much. Mayor Rosenbaum: We have another question from Council Member Mossar. Council Member Mossar: Hi. It was you I spoke with on the
phone, I think, you voice sounds familiar. I'm good with voices, not names. Can you briefly describe the program that the tennis program that you envision for these courts. Mr. Morton: That program, we have a clear view of the teaching program we want to operate. We've wrestled with the issue you raised earlier about access. The neighbors want clearly usage limited. The best way we determined to ask in earlier discussions with Council to limit that access is to do what they do in Menlo Park on their public courts, is to have a key system, so that you have some identity, you know the identity of the people appearing on the court. So, what we've done for the public component, the non-scheduled use component, is come up with a key system and require people to register via a $100 fee per key. And then they can use it. If they misuse it, if they are found on the court at non-authorized hours, they lose the key and can no longer violate those conditions. Our teaching program will be modeled after the wonderful success we've had with Winterlodge. We envision as rec departments do less and less, teaching more, site provision, we're going to go back and get into the youth tennis, 7, 8, 9 up to 14, the junior high level, that's the population of the Winterlodge. We have a staff that is, can get excitement into those kids. We know how to manage groups on that. We will have a tennis pro this summer. So, it will be like the Winterlodge program that kids can go to on their bikes, if their parents are aware that there's control on the facility, that there's supervision. The teaching program will begin late May and run through the summer in like 6 to 9 week programs. We will run that year after year. Council Member Mossar: So you don't envision it being a year-long teaching program, really a spring and summer. Mr. Morton: It will be a spring/summer program. It will be, a complement. Historically, Chuck Thompson ran a summer program where the program began in May when the Winterlodge closed and closed in October when the Winterlodge opened. So, for 40 years there have been complementary programs. The parking lot has been shared and the sites have been shared. We will continue with that tradition. Council Member Mossar: Thank you very much. Mayor Rosenbaum: All right, let's move on to the appellant now. We have first appellant, a set of two people, Natalie Fisher and John Abraham. Who would like to go first? Between the two of you, you will take your ten minutes. John Abraham: Yes, that's correct. First of all, I would if I may point out that printed materials apparently have been
delivered to several Council Members. We had absolutely no idea of that communication. It may well be that you have before you a different proposal than what we have been told. We have assumed that exactly what we are talking about tonight is what is in the staff report. If you're talking about a new kind of fence, a different height, additional calculations from an engineer, I definitely want a copy of that report and I object to any negotiations that completely ignore our input or even understanding of that document. However, go from here, and they're ahead because I had no idea what standing we had on that issue and we have extremely limited time. We are stating that the project as it is currently designed demonstrably fails to satisfy the Palo Alto noise ordinance, one. The second point is that we are asking... Mr. Calonne: Excuse me, Mr. Abraham, I apologize for interrupting. I think it's appropriate to offer Mr. Abraham and any other appellant a few minutes to look at this material that is available at places tonight. I would recommend doing that, Mayor. Mayor Rosenbaum: All right, let's take a short break and allow the appellants to look at the material that was distributed. [break] Radio/TV announcer speaks -- not transcribed. Mayor Rosenbaum: All right, Mr. Abraham, let's begin again. Mr. Abraham: I notice that just even the engineering calculations, I'm totally unable to respond on the spot here to these calculations. I'm asking either that you throw out every last bit of communication of this sort from the applicant or else give us time to read the entire record and get some sort of, it's too detailed and circumstances are not so, ...?eyes can get really firm understanding of how the applicants are changing their request. Mayor Rosenbaum: Mr. Abraham, let me suggest that you proceed with the remarks you wanted to make and should, indeed, the Council make changes in accordance with something that the applicant has requested then you may have a good point. But why don't we wait and see what that situation is. Mr. Abraham: All right. May I have my ten minutes? Mayor Rosenbaum: Yes. We will start your ten minutes over again.
Mr. Abraham: We are saying that the project, as it is currently designed, is demonstrably fails to satisfy Palo Alto's Noise Ordinance. That's the first thing we're saying. The second statement we're making is, and I'll come back to that later, but we're asking that the City Council uphold our appeal based on that demonstration. Third, failing that, we're asking for an Environmental Impact Report under CEQA guidelines for the same reason and we'd like the Mitigated Negative Declaration fails, we do have disputing experts compare October 6, 1997, letter of Dr. Salmon and the minutes of the September 15, 1997, City Council page 84-283. A Mitigated Negative Declaration we believe is inappropriate under those circumstances. Now let me read my statement, a statement, concerning our view, which really does get to the basis of what we're saying. "The undersigned Natalie Fisher, John Abraham, own and reside on the property of 736 Ellsworth Place immediately west of the tennis court project proposed on the City-owned public property at 3009 Middlefield Road. We oppose the project and particularly protest the Mitigated Negative Declaration, even with the sound wall as mitigation, the project will impose on our property and that of our neighbors, noise levels well in excess of six decibels over the 41 ambient noise level in our neighborhood. We, and our attorneys, have studied the noise ordinance and it's history with some care. The general plan and ordinance provisions are clearly intended to protect Palo Alto residential properties from a six decibel increase at the property line. There is an exception where residential areas are bordered by commercial or industrial properties, in which case an increase of eight decibels at property lines is permitted. We are uncertain as to whether the proposed project will change the zoning from public property under Section 9.10.050 to commercial, under Section 9.10.040, but either way, the maximum allowable decibel should be 39 decibels. While a noise source on public property is allowed to generate much high levels within the confines of public property under Section 9.10.050, we think it clear that at the boundaries between public and residential properties, the six decibel limit applies. Attached is a copy of our letter to City Attorney Calonne which refers to the acoustical engineering report in your administrative record substantiating that one ambient decibel level is 41 and two, with the mitigating sound wall, the decibel level at our property line will exceed 55 decibels, according to all three acoustical engineers whose reports are part of the administrative record before you. At the very least, we believe this application requires an Environmental Impact Rreport (EIR) under CEQA guidelines in that a fair argument can be made that the project will violate the ordinance as set forth above. Respectfully, John Abraham and Emily Fisher." It is signed and there is a copy in the City Clerk's Office on view for the public. The one sentence which is perhaps more important than any other sentence, if I can just quote that from the noise
ordinance, is very simple. It says, basically, "No person shall produce, suffer or allow to be produced, by any machine, or device, or any combination of same on public property a noise level more than 15 db above the local ambient at a distance of 25 feet or more, unless otherwise provided in this chapter." That's the one sentence that governs this case, as you can determine. There isn't a whole lot of direction there, it's just one sentence. The CMR that I have included in the record from 1972 makes it clear that as far as the original intent is concerned, they are talking about 25 feet from the noise source. Now, what the police actually do currently is go to the property plane nearest the complainant, in case we have an off-site complaint, and they measure at the property plane. Now, strictly speaking, that interpretation isn't mentioned in the noise ordinance either. Be that as it may, and I know that Mr. Rodkin feels that if the police measure at the property plane throughout the property plane at a level of say 15 feet, that that is unreasonable. Be that as it may, what the police do is actually measure at the property plane. Now what the Planning Department is doing, or recommending as using as the criteria in this project, is saying that they go to the property plane between the source and the residential properties and go 25 feet towards the residential property, in our case it amounts to a distance of 105 feet, from the fixed noise source. At that point, they measure the noise level in our backyard, so they're taking an ambient measurement on the site, the public facility site, then they're going to the property of private residents and taking the noise measurement in our backyard. Noise measurement in the residents' yards, ambient in the source property. There's nothing like that in the noise ordinance. Absolutely inconsistent with everything in the noise ordinance. For the listed case of residential and commercial. Now admittedly this one little sentence doesn't say much about what to do in public property cases. But we're saying you're going way way beyond what's allowed and pushing the meaning of the noise ordinance and allowing this hybrid interpretation and it is outside the noise ordinance and is not sustained by it. In the case that we are completely ignored, that argument is completely ignored, and that we are essentially pushed upon us, we then, the question comes up, what litigation would you accept or what would you prefer. In that case, the discussion so far has always included the masonry wall at a height of ten feet. On the west, to the north, the condominiums as it stands now, there is no mitigation there at the beginning of the project. Mr. Rodkin asked for either a 14-foot wall at the condominium line or 10-foot wall next to the courts. The City is refusing to do that. There is no wall at all there. They have no protection should that fifth court be built. There is nothing here that says that fifth court cannot be built any time the applicant wants. And that is an issue that hasn't been addressed. The fact of the matter is under Mr. Rodkin's
assumptions, his interpretation of the noise ordinance, not mine, there's a five decibel excess at the fifth court, if we use the same assumptions we're using to design the 10-foot wall at our property line or the 10-foot wall at the other property line, the north property line. We are also asking for construction hours, we're asking for 9:00 Saturday, 10:00 on Sundays and holidays, prohibit ball machines and dogs on the property, sound amplifiers, practice wall. The applicant has stated no interest in this. There is absolutely nothing to prevent them at any time putting these things on. You've got to have it in writing or we're vulnerable. And with the kind of relationship we've experienced with the applicant, we need it in writing. If we don't have it in writing, we don't feel we have anything. With this in mind, I'm asking basically once again to say that this project, you should, we're asking you to uphold our appeal. Mayor Rosenbaum: Thank you, Mr. Abraham. Wei Wang, do you want to speak to us as an appellant?
Wei Wang: Good evening, Honorable Mayor and Council Members. Page 60 of the City of Palo Alto Comprehensive Plan says, "Noise levels over 55 decibels disrupt all types of normal listening activities. Noise also causes such subtle effects as distraction, annoyance, stress, and irritation. If these effects are continued, it can cause very severe, serious, emotional and psychological problems." In Mr. Rodkin's report, dated October 29, 1997, we can see that Mr. Rodkin used a ? ruler to derive the height of the wall to bring tennis ball hit noises down to 56 decibels at and below 5-1/2 feet from the ground ? up our backyards. In reality, the noise level we will be receiving from even the inside of our houses will be higher than Mr. Rodkin's calculation, because Mr. Rodkin did not take into consideration circumstantial effects such as: 1) Winterlodge sloped roof is specially designed to bounce all the noise backwards toward where we are; 2) the amount of noise generated during tournaments, when all five courts are in use at the same time; 3) all the five well-maintained, hard surface tennis courts located right next to each other in a closely surrounded area become a very powerful noise reflector and the two opposite? courts are at a mere distance of 20 feet from my property (and her property and there's another neighbor, they're not here); 4) when the police is called in to make a noise measurement, he or she will measure the noise by standing on the deck in my backyard, the deck is about one-foot in height. If the police is six feet or taller and he or she want to measure the noise by his or her ear drum, then the measurement will be taken at 5-1/2 feet from the ground. It would be a waste of everyone's time and we will not slummy? to build a wall that cannot pass test in real life. 5) estimation of noise, this project is in serious violation of the
City's noise ordinance. 6) When Lisa Grote was over at the site, I asked her to explain the 25-foot rule in the Palo Alto Municipal Code, Chapter 9.10.040(a) where the public property noise limit is defined. Let me quote the public property noise limits right here, "No one shall produce on public property a noise level more than 15 decibels above the local ambience at a distance of 25 feet or more, unless otherwise provided in this chapter." Ms. Grote said that "it means for public property that the whole side is considered as one noise source, therefore, noises made 25 feet beyond the property line isn't public property." ? found that the staff report written at the time of the noise ordinance was about 1972, let me quote it here, "on public property, each individual has an equal right to use and enjoy the available space, that is why, it says, so that is why in increment of 15 decibels over the local ambient at a distance of 25 feet from the noise source is allowed." This document and the noise ordinance is very clear that this 15 decibels increment over the local ambient is allowed only on public property where both the noise generator and noise receiver have equal access to it. This amount of noise increment over the local ambient is never never intended for residential property. The noise ordinance is also very clear that the maximum for residential property is eight decibels above ambient. In every report we can find Mr. Rodkin April 16, 1997, Mr. Rodkin says, "In our opinion, the commercial and industrial property noise limits are appropriate in relation to the proposed project. As noted above, this would set a limit for the noise level of no more than eight decibels above the local ambient at any point outside of the property of the project site." It's very important to notice here it says "at any point," because that's a way people can decide, otherwise you can say at a certain height or above a certain height, is very, not a good definition. Even Mr. Pack, the acoustic engineer hired by Winterlodge wrote in the June 12, 1997, report, page 2, "Edward L. Pack Associates, Inc. was directed by the City to use the public property noise limits for the tennis court project specifically as we originally had analyzed the project using the commercial limits." So, all the professionals said, yeah, the commercial and industrial noise limit is perfect and the City use the public property and want us to accept the 15 decibels increment that we have to live with every day. We have a clear interest in convincing the City Council that this facility is for the public to use. But how many people in the City of Palo Alto think that this is a public facility instead of a public facility we ? we give it up. The majority of us have no interest in another tennis facility in a city which already has more than 60 public tennis courts. This land, and it's beautiful landscaping, can be ours to use if this project is rejected. This past July, I think this instructor you said second court, which is 150 feet away from my backyard for tennis lessons. Some early morning, crystal clear and persistent
tennis ball noises can be heard from everywhere inside my house. I couldn't sleep in the early morning nor rest of the day. I found myself inundated to the point where I was unable to ? my daily schedule. This project would force us to live with this type of intense and non-stop voices and noises that are officially documented as detrimental to our emotional and psychological health. Everyday from as early as 8:00 in the morning until sunset and maybe longer because of the recent approval of four lines in the parking lot next to the tennis courts. The reason this project has gone so far is because we neighbors had to fight for every little ? ordinance. Now we are fighting for the simple fact that ? increment of local ambient is not for residential properties. Nor, is not either the 25 feet into residential properties as indicated in the negative declaration. The ? project has is the same to us, the City cannot protect your roadgame? The City's noise ordinance does not protect everyone equally. Then, for the sake of protecting our all basic needing lives, we have to call the police every time the noisy event takes place in this facility which is very time consuming for everyone involved. And the ? will be scrutinized for every possible angle and by every possible means. We are also concerned about the construction of the wall on our property line. The first concern is walter grenich?. In February of this year when the flood came to our neighborhood in unexpected force, the sound wall along highway 101 and Oregon Expressway saved the properties behind it, but on the other side of the wall, water stagnation was so severe that the highway had to be closed. That is the only area along highway 101 closed during the flood. The proposed wall would be like the flood bearing on highway 101 and we would like to be protected like the properties behind the wall. Water stagnation can also be a difficult problem to solve because a clear cut ditch on our side of the wall would cut into the roots of our trees and beach? water to the nearby Matadero Creek, and water backup can occur during flooding because the concrete wall is along the side of the Matadero Creek are several feet higher than the neighbors' yards. We are also concerned about the construction of the wall damaging the roots of our trees. six? Lisa Grote ? the proposed site. We could see the mere 20 feet distance from where the...thank you. Mayor Rosenbaum: Thank you, Ms. Wang. The third appellant is David Bukhan. [someone off mike] All right, as long as it's within a ten-minute period. Olu Ajilore: I'm a resident of 3065 Middlefield Road and I'm also a member of the board of homeowners at Middlefield Condo Association and basically I just wanted to propose what I think would be a fair compromise considering on one side you have residents that don't want any tennis courts and on the other hand
you have CSI who wants to build five tennis courts and have landscape improvements and bathroom addition. I think a fair compromise would be just to resurface the four existing courts and that should more than serve the needs for a tennis program. I participated in many tennis programs as a youth and four courts is more than enough and I don't see what's wrong with resurfacing the existing courts. Thank you. Mayor Rosenbaum: Thank you. Sofia Deng: I hope I only, I mean I'm not going to use up other people's time, so I want to clarify, do I have three minutes, or... Mayor Rosenbaum: At the request of Mr. Bukhan, you are speaking as a representative of the appellant and the total would be ten minutes for the people speaking in the category. Ms. Dang: Okay, yes. I just moved in. I bought the unit in 1473 Middlefield Road early this year. I just moved in about two months ago and I was told yesterday there was a major operation going to start and so on and so forth so everything's new to me. However, I moved into Palo Alto because I have many friends in Palo Alto and I know it's a beautiful community and I thank very much for the Council Members who make this community such a wonderful place to live and that's why I moved here and I hope that Council Members can help us in preserving this community and make our living environment as nice as it is. I have two concerns so far when I just glanced through the paperwork just in the past two hours. First is about a ten feet sound wall, it's not very clear yet, what it's going to be made out of they are going to make it out of glass blocks or masonry bricks. My concern, we were talking, I think everybody was talking about the flood situation, how about earthquake safety issue. Second concern I have is, it started with my unit, my town house, my first floor is garage and second floor is a bedroom and living room, and two bedrooms on the third floor and on the letter that's written by Edward L. Pack Associates, I think is regarding the sound impact, it say, on the second page of that letter, "the above ? adoptions are for first floor elevations of the most impacted residences." How about second and third floors? Are we, if the City allowed this operation, are we going to see 30 or 40 feet sound walls? I don't know what I'm buying into a place that I have to look up, I hope this is not going to pass. Thank you very much. Mayor Rosenbaum: Thank you. Gershon Luria: I'm from 3065 Middlefield Road and I'm also currently the president of the homeowner association. Just two
points, one to mention here 60 courts in the City of Palo Alto. One is just in Embarcadero and Middlefield, less than probably three minutes drive, so what's the urgency of having another court, another court so close by. Certainly, there's no need because anybody could walk or drive three minutes. Another one, just wanted to explain why people think that this Winterlodge is not a friendly neighbor to us and all these people here they come because Winterlodge is not a friendly neighbor. We have a problem with trees and their trees grow on our property and we ask them to trim them because they are in there and on their property and they should trim them and we got a letter from Ms. Jensen, I believe, that we cannot trim them, if I understood I'm not quoting from it, we cannot trim them because they are not on our property and they will not trim it to us because it's not their concern. What kind of friendly neighbor is that? They will not trim it to us because they don't care that the leaves go on our property and we cannot trim them because they are not our trees. So, how can we live with a neighbor like that? This ? create wars around there because basically the concern is their concern is to make money, even though there is a court just three minutes away, and our concern is to live a little bit in peace and quiet. This is not the most peace and quiet area in Palo Alto, we admit. I mean, it's near the road, it's maybe more noisy than other places anyway. So taken maybe the most noisy place is all Palo Alto other than maybe Downtown and putting a tennis court where already tennis court is three minutes away, what kind of sense, Mr. Mayor and members of the Council. Thank you. David Bukhan: 3073 Middlefield Road, apartment 204, a few points here. First of all, I would like to also request that the EIR, Environmental Impact Report, that be prepared for this project. And this is the reason for it. Numerous acoustical analysis will be made and I suggested that the latest one which was entered in October 30th by Mr. Rodkin was accepted as the final one. The reports showed that there be significant noise impact on the east side, try impacts on the other sides. Everybody talking about our side for now. There's no mitigation on our side. There's no sound walls which protect us. Basically there is no mitigation on our side. Because of this, it doesn't qualify for negative declaration, it just by definition, there is no mitigation. And ? environmental impact. It is not for a negative declaration. I think that just on this just because of this it should be from this clause from concealing for negative declaration and most into EIR stage and this is the only way to go. Are there issues here. During the discussions about the project, there were at least two suggestions about Mr. Gigin kinawson? our side that was a 10-foot wall along the site of the fifth and there was forkeen? football along the property line. None of this suggestions found place in the final report and this is why we think that we are
not prepared to by any means we don't know why any of those suggestions were removed. Once again I will defer to the final report that Mr. Rodkin which suggested 10-foot barrier along the east side of the first court. Not the east side, not the property line of the fifth court, once again just a little bit of history from the fifth court is the focus of the condemning what concerns us the most. Never against teaching program, never against the things for children, but we are against using fifth court to run tournaments, not just in summertime, but throughout the year, I just want to make sure we get clear and not confused those two issues. We do not oppose any things, programs for children and we never have opposed those programs. Now, I would also like to talk situation you then you've been particularly two phrases like it was originally done and the first court is what are the guidelines and what circumstances the fifth court could be moved. We don't find any clear guidelines in their final report absolutely declare the City Council to specify those guidelines if you break into phases. Thank you. Mayor Rosenbaum: Thank you Mr. Bukhan, let's see, that finishes the presentation by the applicant and the three appellants. We'll now hear from other members of the public. Claire Geber. Claire Geber: Thank you. My husband's Keith Geber who owns the property at 3060 Price Court. We use it as a rental property and there's no doubt in my mind that the presence of the fifth court so close to our backyard would diminish its value. I would like to support the comments by Ms. Wong and Mr. Buchan. Thank you. Mayor Rosenbaum: Thank you. Herb Borock, followed by Lynn Chiapella. Herb Borock: Good evening. I'd like to welcome the new Director of Planning & Community Environment, Mr. Gawf. Perhaps learn how process takes place in Palo Alto. This has been going on as Council Member Mossar said, I guess for five years, and I believe there are two reasons and it's a hypothesis of mine, I don't know that it's fact, but my hypothesis is that the plan from the beginning was that the program for the Palo Alto Tennis Club and because that's not been the open plan, that people have been going on for so long to try and find out what the plan is. The sufficient condition is that neighbors had been willing to continue the battle for this long. There have been many issues in Palo Alto where the seat? is used to try and wear people down and as the appellants have indicated, they believe, as I do, that the record is clear that this requires an Environmental Impact Report and when the courts rule that there should be an Environmental Impact Report, they pay the appellants the cost and as we found out in the case of the Arastra property, the real party at interest also has liability and may be put in a position
of not getting anything. I listened carefully to the applicants' opening comments. They said nothing about the Palo Alto Tennis Club. I suggest to them again, if they were telling the truth when they submitted their response to your Request For Proposal, that they wanted a non-competitive program for children patterned after the Winterlodge program for ice skating, they should come here now and offer a compromise to the appellants as a condition of approval to have no tournaments and no league play for any ages. I'd like to review for you five issues over the course of time where at one time the public and appellants have been presented with one set of conditions and then suddenly they've been switched. At the beginning, the proponents of using the site had the ballot measures for the trade of land and for ice skating and they said, and that's evidence that's in the public record in the minutes, that if tennis was included in the ballot measures, it would have been defeated. Maybe there are public meetings going on and over the course of years some people are confused and think that the public approved tennis, but they did not. That's not in the record. In fact, former Mayor Sutorius at the time was a sponsor of the motion said he wanted to leave flexible to use the land perhaps for housing. Another issue that's changed over time is the project definition. It started off as non-competitive construction for children, then it was only at the Council's direction that the tennis club was included and now it's come back again where the opening statement the tennis club has disappeared. There are two negative declarations prepared in response to the Council's direction from the last meeting. The first one was noticed for May 18th and then suddenly staff said, "we're going to have to continue this," but they didn't tell you why. What they did was to change the mitigated negative declaration for the benefit of the applicant without the participation of anybody else. And then, in less than a week after the applicant agreed to those conditions, in the new mitigated declaration, they submitted another application on the same property providing the parking lot, which is really part of this project under CEQA and you have to continue this item tonight so that that separate application, 98 ARB 86, is included in the single project and environmental review before you. And then there's a question of four versus five courts, which again has been changed. The City Attorney informed at the last meeting of August 10th when you continued this, that you have a change in the regulations, for example, regulations changed pursuant to a new Comprehensive Plan, that the applicant, who might get this use permit, doesn't have to abide by the conditions in effect at the time of application for use permit, they can abide by new conditions which may be more lenient. So that's another form of piece-mealing when you start with four courts, change the rules, and then go to a fifth. Mayor Rosenbaum: Thank you, Mr. Borock. Lynn Chiapella.
Lynn Chiapella: 631 Colorado Avenue. I want to reiterate what Wei Wang said and what I've said also in previous times, this is a terrible land use decision. It locks up two or three valuable City acres for decades for five tennis courts and a park that can't be used by neighbors. In that particular area, there are probably more lower income families in this area because of all the apartments around there with young children, several families in some of those apartments. They will not be able to use this facility for their children the park area. This is a terrible horrible land use decision. This decision you are making tonight is going to last 20 or 30 years. It is absolutely the worst decision you have to make. You're going to tie this land up for what, $100 a year or is it a dollar a year. I don't know. It isn't very much. Lots of good proposals came in for that land, none of them were considered that were more socially responsible to say the least. The noise issue here is very problematic since enforcement in Midtown is difficult to impossible. Two construction sites started work at 7:30 a.m. on a Sunday morning. Neither were sited. They both had hours. Don't tell me that PacBell and Longs Drug Store don't know you shouldn't be working at 7:30 in the morning. They stop work when the officer drives up. Same thing on the tennis courts. You just stop playing, stand there and chat. How can an officer enforce that unless you get the neighbors out of bed to do a citizens arrest, which was suggested I go make a citizens arrest of PacBell at 7:30 in the morning. It's very problematic to enforce this noise ordinance. If you decide that you want to have this noisy project go through, the hours should be limited to a 9:00 a.m. start Monday through Saturday and 10:00 a.m. on Sundays. No better and no worse than leaf blowers that we experience. The hours must be posted at key entry, otherwise the police cannot enforce the noise ordinance. The same with construction sites. Without a posting, all we can do is warn. There's no way for the policeman to get the names, probably, of these folks to report them to CSI, since they won't be on site. So there won't be any moderation here, there won't be any way for them to find out who are the people who are using it. And the last thing I want to address is the light issue. The lights should not come forward as a separate application. The lights have to be shielded, which they are not now. You can play tennis over there easily at night with the current lights, it doesn't take much. It's lit up very well. The lights cannot be taller than 12 feet and they should be shielded in such a way that there is no light on the tennis courts at night from the parking lot, the same as you required at Fry's. Unfortunately, when Fry's came back, they had changed it to 15 to 20 feet tall and only because of persistence by residence were those lowered. So someone has to keep checking up, even when it goes through, your hands back to planning, the
ARB staff, or whoever is in charge of that, may not catch that and then those 20-foot lights go up. So, somehow this all has to be brought together as one project and has to be open for public review at one place, at ARB, preferably. Thank you. Mayor Rosenbaum: Thank you, Ms. Chiapella. Jane Hayes. Jane Hayes: Hi, Jane Hayes, 718 Ellsworth Place. I won't take much time, I just wanted to emphasize the same feeling about the lights that have come in afterwards. I have a concern that these are the types of things that the appellant is going about through the whole process, that there are things that are slipping in through the back door and one of them is the lights that there are sufficient lights there now and they have been. They're not going to change the parking lot at all and I think those two issues should be addressed together, that they should be one process and not something that is approved secondarily after this is approved. Thank you. Mayor Rosenbaum: Thank you, Ms. Hayes. That's all the members of the public that want to speak to us on this issue. The appellants and the applicants now have up to three minutes if they care to add anything. Let's do this in reverse order and ask if any of the three appellant groups would like to speak further to us. Please come forward. Natalie Fisher: Thank you. I would like to get a comment or two in. Am I talking all right? Mayor Rosenbaum: Yes. Ms. Fisher: I live at 736 Ellsworth Place, I'm a co-appellant with John Abraham for Ellsworth Street. I would like to further comment, with all the other comments, that the City staff's reading of the noise ordinance is allowing a public facility to impose an added noise level of 19 to 22 decibels to neighboring residential properties. The ambient on Ellsworth Place, my backyard, is 37 decibels, and the ambient on Price Court is 34. So, 68 for most to 56 is adding 19 to 22 decibels. Note that a residential neighbor, however, is allowed only to add 6 decibels to the ambient. Such interpretation of the noise ordinance, giving the public authority a much larger increase impact on residential properties and another resident or commercial area is discriminatory. It's discriminatory to residential neighborhoods or commercial/industrial sites and this kind of discrimination cannot be the intention of the noise ordinance. The spirit and intent of the noise ordinance is to protect residential properties from increased noise levels above 6 decibels above the ambient, with a minimum ambient of 40 decibels. The actual ambient of bark gars? are below 40, so I'm taking that 40
decibels to the floor? Therefore, the maximum noise level allowed by the noise ordinance on our residential properties is 46 decibels, not 56. What staff has done is take an ambient of the tennis site, 41 decibels, add 15 decibels for public facility, and then apply that result, 56 decibels, to the neighboring residential properties. That is no where justified in the noise ordinance. Allowing a 56 decibels in our yards by this site is illegal and you can be sure it will be found illegal by a judge. Mayor Rosenbaum: Thank you, Ms. Fisher. Anybody else from the appellant? [someone off mike] Mayor Rosenbaum: Your time was just about up. Anybody else speaking as a representative of the appellant, not a new member of the public. Wei Wang. You did not speak previously. No, you cannot speak at this time. Wei Wang. Wei Wang: I want to finish what I have to finish because this I refer to a fence. On August 6, Lisa Grote and Mr. Dockter visited the proposed site. I think it was near 20 feet distance from where the sound wall would be to the inside of my house. They could also see the large trees in my neighbor's backyards. One right next to the existing fence on the property line. One of my neighbor's backyards, the trunk of a very large tree, even pushes away the wooden fence, so we don't think that...next to me is one more house and next to her is also another house. At one time, the owner was not there, so their trees just go and go. So, if wooden fence is put in, it is very possible that the big tree, the old tree will push away the wooden fence. Another thing I want to mention is the attitude that staff. Throughout the visit, I couldn't get either Ms. Grote or Mr. Dockter to promise in writing that the construction of the wall won't damage roots of our trees. So I consulted Mr. Veeterusen?, the chief engineer in the office of environment at CalTrain whose office did all the sound walls along highways in this area. He advised me to insist written answers to all my questions from the City. I wish we could get better answer from the City about the trees and drainage if a wall is going to put in. Because if this problem, if we cannot get resolution to this problem, it would just create much more trouble in the long run. Thank you. Mayor Rosenbaum: Thank you, Ms. Wang. We have one more representative for the appellant. Mr. Bukhan, you would be entitled to speak. [someone off mike] No, no, not at this point. We asked for members of the public to address us, Mr. Bukhan do you wish to use your three minutes? [bunch of people talking off mike] Oh, all right, well then fine. Come, come right ahead
then. Diana Wigner: I live at 3060 Middlefield. I've been involved in this process for at least five years, it seems like 50. This is, tonight is the first time I have even heard about these additional lighting and I'm very concerned about that. I think as a Council, when Council voted to build condominiums, they took commercial property, turned it into residential, to bay? the condominium. And I think in all fairness, I don't think you should add to our level of discomfort. In the winter, we have the Winterlodge, and now in the summer, we're going to have tennis players and tournaments should absolutely not be allowed on this property. Our property is being treated like public facility. Will our taxes also be adjusted to reflect public facility or public property? This is private property and I think you really need to look at the fairness of the decision you make. Thank you. Mayor Rosenbaum: Thank you. Does the applicant wish to take up to three minutes to respond to anything that's been said? Mr. Morton: Council Members, maybe I can just conclude our presentation by reminding everybody that tennis has been played continuously on this site for over 42 years and we look forward to continuing to provide tennis to youth and the greater Palo Alto community. Thank you for your attention. Mayor Rosenbaum: Thank you. All right, let me bring this matter back to the Council. Council Member Kniss. Council Member Kniss: If there are no further questions from any of us, I will make a motion. In that case, I will move the recommendation from the staff with two additional comments. That is, to review and approve the attached revised litigation negative dec and that determines that it will have no significant environmental impact and I will speak to the findings in a moment, to deny the three appeals, and to approve the use permit, the cup? allowing the operation of an outdoor recreational tennis facility with related parking and landscaping and so forth, as is attached. Why don't I speak briefly to the findings and wait for a second first. Mayor Rosenbaum: Right, do we have a second to that motion? We have a second by Council Member Ojakian. All right, Council Member Kniss do you want to speak to your motion? Council Member Kniss: Yes, thank you. Let me add one thing to that, since Council Member Huber has also asked that I speak to the two conditions that are included in this and let me see if the second will remain in that case. This would be to eliminate
condition #23 which speaks to an employee that would be on site and also to speak to the height of the fence which would remain at 10 feet and be made of masonry. Council Member Ojakian: I would second the two additional conditions, partly for a matter of discussion because I'm sure my colleagues are going to want to talk a little bit about the 10-foot fence. Mayor Rosenbaum: All right, we've got a motion and a second that includes the staff recommendation with the deletion of conditions #23 and #38, I believe. Council Member Kniss. Council Member Kniss: I find it ironic that I've been dealing with this since the first year I was on the Council and this is now my ninth year and I find that ironic and also frustrating. I think that Mr. Morton's last comment that tennis has been played here for this many years is certainly a telling comment and I also believe, and I think it's in my minutes tonight, that the last time we discussed this I asked the apartment dwellers if there was any disclosure regarding this when they moved in and they indicated that there definitely was disclosure, at least around the Winterlodge. So, having said that, let me first speak to the findings and then perhaps we can negotiate, Vic, on height and type of fencing that will go up. In order to do this, I'm going to speak to the draft findings, which are on Attachment C and the date on that is August 10, 1998, and the first finding is that this will not be detrimental or injurious to the property or improvements in the vicinity. I can make that finding. And second, that it will be located and conducted in a manner and in accord with the Comp Plan and the purposes of Title 18. So, having spoken to both of those, which also number 2 includes the noise analysis, let me go back to a bit of the history and why I'm supporting this tonight. We initially put out an RFP regarding this, as I recall it was 1990. The proposals came back at that point and we spoke to this being a continuous recreational facility. And it's also somewhat ironic to me that many people try to move into areas where there are facilities such as this, something where you can play tennis or where you could swim, and that the pool has now been eliminated obviously, but also where you could play tennis. I'm sympathetic to the neighbors, but I also feel that this is that which will certainly speak to the needs of the greater community, even though there may be other tennis courts nearby I think our Mayor, among others, will probably speak to the fact that this is certainly a community that enjoys playing tennis on a regular basis and frequently does have trouble finding available courts. So, having said that, move the recommendation, thank you for the second, Vic. Let me stop there and see if we get into discussions regarding either the fence or the other condition regarding the employee.
Mayor Rosenbaum: Council Member Ojakian, do you want to speak to your second? Council Member Ojakian: I'll be very brief. I agree with Liz's comments and the conditions being opposed, which I think are extensive, having dealt on the Planning Commission for six years with several projects, the Y, Sand Hill Road, several other ones. I mean, we've imposed extensive amount of conditions in terms of the use permit that I think make this a fairly acceptable project. The one other thing I'd be interested in hearing any discussions from my colleagues on this that I've picked up from some of the appellants' comments is the hours of operation and I'd be interested in if people were willing to, as at least as a discussion point, maybe instead of starting as early in the morning as 8:00, maybe follow what Mr. Abraham said in his correspondence to us, and I think he mentioned it tonight, and that is change the hours to correspond a little bit more to the construction times in terms of start times in the morning. And other than that, I find the project acceptable and particularly attracted by the idea that we're going to have a facility that allows for youth tennis to go on and having had all four of my children to some degree use the Winterlodge, I'm fairly comfortable with the people who are going to operate this operation will do that in a way that serves the community. Mayor Rosenbaum: Council Member Mossar. Council Member Mossar: Here we go. I support the Winterlodge and I know that we got into this project, Oh, so many years ago because as a community we wanted to have the Winterlodge, we wanted skating, youth skating programs, here in our community. I have no problem with that. I have no problem with tennis. I understand that tennis has been played there for many years. I have no problems with tennis continuing. I have to say, I'm looking at it with fresh eyes. I can't have experienced with you the long decision process that you've gone through. But I can't believe that the forefathers and foremothers of this community intended to end up with a facility surrounded by 10-foot walls. I'm feeling a little bit like we've got a square peg in a round hole and it just isn't working for me. I think, what I want to say is that the mitigation is almost worse than the project. When I visited the homes on Price, I could not in good conscience imagine a 10-foot wall that close to those properties. It will impact those properties and because their backyards are so shallow, they have limited ability to sort of mitigate, if you will, in their own way, that wall. So, I'm really interested in, I'm interested in the project going forward, but I'm very reluctant to support the package in the way it currently is. That's my...
Mayor Rosenbaum: Council Member Kniss, go right ahead. Council Member Kniss: Ariel, my understanding regarding the 10-foot fence, aside from the fact that it speaks to the noise issue, is that it also is that which is approved under the current conditions that have been put forth. Could you speak to that briefly, am I in error? Could we, for example, put forth an 8-foot fence tonight, pass it, and that would be in keeping with what you have put out for us to approve? Mr. Calonne: I'll defer to Lisa Grote. I will say that Council's hands are relatively constrained, freedom relatively constrained, with respect to the fence height or wall height because of the noise mitigation. Ms. Grote: The 10-foot high sound walls were found to be the minimum required to bring the noise to within an acceptable level on the neighboring properties. So there isn't the flexibility to lower those. Council Member Kniss: That was my understanding before. Otherwise, I might have suggested that, Dena, but my understanding is that in order to meet that noise requirement that the neighbors asked for, that this was necessary. I couldn't agree more that ten feet is pretty high. Council Member Mossar: If I may, then, I'll just say that maybe we've got a project here that from my perspective doesn't really work and I think ultimately that I'm going to find I cannot support the motion that's on the floor. Mayor Rosenbaum: Council Member Wheeler. Council Member Wheeler: Dena, I would just comment briefly on some of your observations that the forefathers and foremothers, and they were mostly fathers, if not entirely fathers, they didn't have CEQA. They didn't operate under CEQA and there are many City facilities that are constructed quite close to neighboring residential properties that have been there for very long period of time where there are no mitigations for the neighbors of those properties. So, I think that we're in a different time and a different place and the rules under which the City operates are different and we are trying our best to comply with those rules and also provide an opportunity for people to enjoy the recreational benefits that have been provided on this property for many years in the past. I would generally support the motion that is on the floor this evening. I would like to raise one point of discussion, however, with my colleagues. Several of the speakers tonight mentioned the participation in this process of the Palo Alto Tennis Club. And
it is true that the initial RFP that came to us came to us from CSI alone and it was at the request, is the nice way of putting it, of a majority of my colleagues anyway that CSI collaborated with the Palo Alto Tennis Club. I think the reason that we didn't hear anything about the Tennis Club tonight is that that collaboration took the form of discussions with the Tennis Club and attempting to meet the needs of the Tennis Club, most particularly for that fifth court. But the Tennis Club, so far as I could tell, has not made any commitment in terms of, you know, financing this package and I have thought from the very beginning that it would be unfair for the Council to demand that the applicant cooperate and collaborate with another organization that is not going to contribute financially to the materialization of plans that it would like to see implemented. And, as I say, to my knowledge, that has not happened. Now, the fifth court doesn't come in. The fifth court creates quite a number of problems for a number of the appellants and it does not come in until Phase 2 and it is not required to carry on the program that Community Skating Inc. has presented to us tonight. It doesn't come in until Phase 2. I would be interested in having some discussions with my colleagues as to whether we could stop tonight at approval of Phase 1 of this project and thereby delete the fifth court and, I believe, many of the problems that have been associated with this application. And, if there is any other interest, I would be happy to move an amendment to the motion to delete Phase 2. Mayor Rosenbaum: All right, let's let Council Member Fazzino speak first, and then we'll see if somebody wants to take you up on that.
Council Member Fazzino: Well, I will certainly comment on that issue during the course of my remarks, Lanie. I first of all want to address an issue that's somewhat related and that has to do with, and I know I'll surprise most of staff with this, the entire issue of the location of Palo Alto with respect to the direction of true north. Those of us, and this is the issue I've raised before with you Emily Harrison in these same chambers, I know that Palo Alto lies at a southeast/northwest direction and for those of us who've been here for many years, Oregon Expressway goes east/west and Middlefield goes north/south. This area is south Palo Alto, not east Palo Alto, and the directions reflected here, would have you believe that while staff's north is my east, where historic Palo Alto east, and staff's west is my north, or historically Palo Alto's north. So I would ask staff to address this issue, and please resolve it one way or the other, because I counted, first of all, I would not want you to go against 100 years of tradition. I don't want you to be the generation that changes our directions, and second, I found it
very confusing, as I worked through these conditions, figuring out which wall was where. Okay? So, please, would you resolve that issue one way or the other? It's a significant issue and I found it very very difficult to work through this. And I'm happy to, I mean, you don't have to do it tonight, but I'm happy to work through this with you and demonstrate and indeed it was quite confusing. Okay? So I hope the future the Planning staff can resolve this issue. They will all be less confused, both Council and staff and public. Okay. Now, let me move on to the issue which is before us. First of all, I think that this issue has got to be resolved one way or the other now and soon. Period. And I know there are lots of very difficult issues before us. I, let me just lay out some general thoughts about this issue. There's no question that this site has long been used as a tennis facility. Listening to one speaker tonight you'd think this was a solid waste facility suddenly being imposed on the neighborhood. The reality is that this was a tennis club for many many years. That's the historic reality and let's recognize that. In addition to that, the winter club concept was approved by voters in 1984 after a long extensive campaign. The public opted for recreational uses on this site. Period. The issue of the land use on this site was left open. The specific land use for this site was left open for future Councils and public to deal with. I acknowledge the fact that the juxtaposition of the condominium is a very difficult issue. In fact, I don't know if Herb Borock is still here, he can probably remind me of my vote, but I either voted against the condominiums in 1982 or expressed serious concerns because I recognized at that point when I was on the Council that we were creating a serious juxtaposition problems with this kind of public use. However, having said that, the reality is that the condominiums are here, they're people's homes and those individuals who live in those homes should have their rights respected. I think what makes this situation more difficult than most is that, in fact, somewhat like the YMCA situation a few blocks away which we dealt with back in 1992. It's amazing the smaller the geographical area and the smaller the project, the more heat that seems to be generated over it. I think we'd have an easier time approving 2,500 affordable housing units in the middle of Palo Alto neighborhood than dealing with this one. But, I think a big part of the problem here is the history of the enmity between the Winterlodge and the neighbors. We, as acting here in a quasi judicial capacity, cannot resolve that issue. That issue has got to be resolved between the Winter Club and the neighbors. Because if it's not resolved, I know the Council will step forward and simply shut down recreational uses in this part of Winterlodge Club site, and I don't think that would serve anyone in the public, not even the neighbors. I generally support the conditions before us. I would change some of them. I generally support the, well some things I do, I support the
sound wall. I acknowledge that Dena has some legitimate concerns about how they'll look, they'll feel, what they'll do to sunlight. I think the reality is that they are a necessary mitigation, given the noise situation. I support the time of use restrictions, limited tourney use. I would probably change the requirement that an employee be available 24 hours a day to lock the facility, although I would certainly make someone's phone number at CSI available to neighbors at all times to make sure problems are addressed. I agree with Lanie on the fifth court. I'd drop the entire concept of the fifth court. I think four courts are adequate and, frankly, I think it would go far toward resolving this entire situation. I would, beyond that I do view this as a community facility, again, consistent with the vote that was taken back in 1985 and, in that spirit, I would be willing to have the City contribute something in the way of cost to putting up the sound walls as a mitigation. So, Mr. Mayor, those are my general thoughts. I'm sure you'll want to hear from some others. I'm sympathetic to Lanie's issue of the fifth court and I maybe will have a motion with respect to the issue of possible City funding, partial funding, of the sound walls. Mayor Rosenbaum: Fine. Actually, that would seem to be all the speakers. Let me make a couple of comments and clarify some of the conditions. If I could have the attention of the maker and seconder of the motion, let's see if we can clarify a couple of things. Condition #32, where it says, "The operator of the tennis facility shall construct a 10-foot high, air-tight acoustical sound wall along the western edge of the site," I think we want to make it clear that we're talking about the edge of the site adjacent to the tennis courts and not all the way out to Middlefield Road. Ms. Grote: That is correct. Mayor Rosenbaum: Okay, so let the clarification be made. And then condition #33 where it specifies materials, "any of the following materials may be used to construct the above-required sound walls, masonry panels, masonry block, wood, or concrete panels." It was certainly the intention of the Council when we discussed this last year and I would think what we'd want to do is eliminate wood from that list. Council Member Kniss: Yes, that's why I included that in my motion. My initial motion said, "masonry of some type." Mayor Rosenbaum: Well, specifically, it says "masonry panels, masonry block, or concrete panels," I want to make it clear. Council Member Kniss: I'm not a builder, so I'm going to presume that anything other than wood would provide that sound
protection. Mayor Rosenbaum: Okay, so those are the two items that we'd want to consider. I'd make a couple of comments and partially in response to Dena. When the mitigation for the noise was drawn up, we agreed to use a noise level from a tennis player, which is that of a near-professional serving as hard as he can. That's what lead to the 10-foot walls. I don't think that's reasonable, but we agreed to that because that was a feasible approach. Throughout this community we have tennis courts, as Lanie was suggesting, which are very close to homes. We get no complaints. So, it's my feeling that we are not really going to have the noise problems that have been suggested, but we have gone out of our way to provide very substantial mitigation and along those lines, I'm going to be sympathetic to what Gary was talking about, that is, we've imposed mitigation on this project which is going to produce a cost for the applicant which is simply not consistent with the revenues that you can derive from four or possibly five courts. I see this as a very important community facility. It's City property and I'd feel perfectly comfortable contributing say, something on the order of half the cost of those sound walls. So, with that, do we want to consider... Actually, there were two things I noted, Council Member Ojakian, do you want to pursue something with respect to the hours of operation? Council Member Ojakian: I do. I didn't find Mr. Abraham's, or I find Mr. Abraham's request reasonable and that is, instead of starting at 8:00 a.m. Monday through Saturday, and this is condition #3, by the way on attachment D, is to change that to on Saturdays, change that to 9:00 a.m. and on Sundays change that to 10:00 a.m., which is consistent with, as he pointed out, our construction code. I think the logic behind why we did that initially was sound logic, so yes, I would suggest or offer up to my colleagues the fact that we do change conditions to reflect that. Mayor Rosenbaum: All right, we have a motion to change the times to, the starting times, 9:00 a.m. Monday through Saturday and 10:00 a.m. on Sunday and holidays. Do I hear a second? Hearing none, Council Member Wheeler. We have a second from Council Member Mossar. Do we have any discussion? Let me put out the lights and do we have any discussion on that motion? Council Member Kniss: Dick, could I ask just one question about the other tennis courts in town? What, as I recall, since I'm out and walking fairly early, almost all those tennis courts are in use almost as soon as it's daylight. Am I correct? Mayor Rosenbaum: Yes. There are no hour restrictions that I'm
aware of for any of our public courts. Council Member Kniss: In that case, I appreciate that motion very much, Vic, but I imagine in the summer, kids are going to want to start playing somewhat earlier so that adults get a chance later. So, I don't believe that I'll support this. Mayor Rosenbaum: All right, is there any further discussion on the amendment to change the hours? If not, let's vote please. That amendment fails on a 2-5 vote with Council Member Ojakian and Mossar in favor. Council Member Wheeler, do you want to pursue? Council Member Wheeler: Yes, I think I would like to pursue the deletion from the approvals tonight of Phase 2 of the project which in essence allows and establishes mitigations and conditions for the fifth court. Mayor Rosenbaum: All right, we have a motion by Wheeler and a second by Fazzino to eliminate further consideration of the fifth court. Do we have some discussion on that? I guess I, let me comment. I would oppose that. I think we do have this as a Phase 2 that is going to require separate mitigation. I don't know whether this fifth court will ever be proposed but I would like to leave it in with the understanding that there are further conditions to be made if Phase 2, along with this fifth court, is ever to be considered. So, I would oppose that motion. Is there any further discussion? Seeing none, let's vote please. That motion fails on a 3-4 vote, with Council Members Wheeler, Fazzino, and Mossar voting "yes." So, we are, Council Member Fazzino. Council Member Fazzino: Just to clarify that issue, since those of us whose terms continue beyond 1999 will probably have to deal with this issue, and my hair has suddenly tuned very grey, my understanding is that we start this whole process again, correct, with respect to Phase 2? Ms. Grote: That would be correct. You would be an amendment... Council Member Fazzino: So the public at that time would have the opportunity to comment on the proposal and will, okay. We'll repeat this experience. Okay, thank you. Mayor Rosenbaum: All right, those are the amendments which we have considered. I think the original motion by Council Member Kniss with a second by Ojakian is before us. Let's vote on this and then take up, yes, we have City Manager Fleming. Ms. Fleming: Yes, I know this is complicated enough but I'm not
sure that Lisa understood your statement, Council Member Fazzino, so I would ask you, for the record, and so that this record is clear, that you ask your question again and allow her to answer it because I think she may have misunderstood you. Council Member Fazzino: Okay, I'll try English this time rather than Italian. I want to ask this question. My understanding is that the process begins anew with respect to Phase 2 which includes the proposed fifth tennis court and restroom facilities, is that correct? Ms. Grote: I'm sorry, I did misunderstand your question. They would not have to go through another use permit. If the amendment had passed, it would have had to have gone through a new use permit should they have reintroduced it at some later date. The way it's currently written, it does not have to come back through another use permit hearing, they can simply implement Phase 2 when they felt it was necessary. Ms. Fleming: And I apologize, but I know that you want to make sure you have your record accurate. There was just too much discussion going on here for Lisa to... Council Member Fazzino: I appreciate that clarification. I would hope that one of my colleagues who voted the other way will reconsider that vote because I think there was a general impression here that we'd have the opportunity to review Phase 2 before it was implemented. Mayor Rosenbaum: There would be additional conditions that would have to be implemented was part of Phase 2. Council Member Fazzino: Well, the question, well how will it come back to us? Ms. Grote: It will not come back. Those conditions would be automatically attached to Phase 2. Mayor Rosenbaum: All right. I'm...it doesn't look as if anybody is interested in reconsidering that, so that will stand. So, is there any further discussion on the motion before us which is the motion by Kniss with a second by Ojakian being the staff recommendation with the elimination of conditions #23 and #38 with the elimination of the word "wood" from condition #33 and with the understanding that the wall along the creek is, extends along the boundaries of the tennis courts and not beyond that. Let's hear from the attorney first. Mr. Calonne: Thank you, Mayor, I'm trying to confirm the conditions and the motion as well and let me just restate them. As I understand it, then, all of #38 is gone so that the glass
block is not a part of the masonry wall. What remains unclear is in condition #23. Did Council intend to delete both lock provision and the staffing provision or simply the staffing, it wasn't clear from the comments. Mayor Rosenbaum: I think the features, the second lock and the staffing goes along with the second lock, so the intent was to eliminate that condition. Mr. Calonne: Thank you. Mayor Rosenbaum: All right. Now, Council Member Fazzino. Council Member Fazzino: Sorry, I don't mean to sound like the old Soviet representative to the United Nations prolonging this exercise, but I want to be very clear. I think everyone needs to be very clear on what we're doing here. Let's get to the issue of Phase 2 once again. I'm obviously hoping to convince one of my colleagues to do something while I'm asking this question, but even if they don't do anything, if during Phase 1, neighbors raise concerns with respect to operation of the four-court proposal with respect to the conditions that we have imposed on them, could a neighbor force consideration of reconsideration of Phase 2 by raising concerns about compliance with the conditions? Mayor Rosenbaum: Does somebody from staff care to respond? Ms. Grote: During Phase 1, there would have to be proven violations that the conditions that are attached to Phase 1 in order for the Zoning Administrator to call a use permit hearing to review those conditions and whether or not they are being complied with. The conditions, specifically #47 which talks about violations of the use permit, those conditions do not become effective until they construct that fifth court and actually implement Phase 2. So, neighbors or any other concerned party would need to show that there are violations of Phase 1 conditions. Mr. Calonne: Basically, Council Member Fazzino, with Phase 2, the only sort of jurisdictional hook we've built in is with respect to eight feet versus 14 feet, essentially recommended a performance standard at eight feet that can go to 14 if eight feet doesn't do the job. Other than that, it's the, as Lisa said, only violation would cause a rehearing. Mayor Rosenbaum: Council Member Ojakian? All right, I think we are now ready to vote on the motion that I previously described. Ms. Grote. Ms. Grote: Thank you. If I could interject. The condition #29, I didn't mention this in my staff report, but condition #29
requires the replacement of the three parking lot trees. Our City Arborists, both the Planning Arborist and the Public Works Arborist, no longer feel that's necessary. The trees are in good health and they don't need to be replaced, if you wanted to consider that. I apologize for leaving that out of the staff report. Mayor Rosenbaum: All right, we have a suggestion from staff that condition #29 be deleted, is that correct? Council Member Ojakian: You're in essence saying drop condition #29 because there's no need for it, and I'm amenable to that. Mayor Rosenbaum: All right, the maker and seconder of the motion have agreed that condition #29 will also be dropped, so the motion as I described earlier with the additional deletion of condition #29. Let's vote please. That motion passes on a 6-1 vote, with Council Member Mossar voting "no," and Vice Mayor Schneider and Council Member Eakins absent. Now, Council Member Fazzino. Council Member Fazzino: Mr. Mayor, as I indicated earlier, I will move that the Council authorize City payment of up to $50,000 for construction of the sound walls. Mayor Rosenbaum: Let's see. To be more specific, you're suggesting we direct staff to come back with a budget amendment ordinance for $50,000 to pay some fraction, would you say maybe 50 percent of the cost of the sound walls? Council Member Fazzino: I could not have said it better. Mayor Rosenbaum: So, we have a motion. Do we have a second? All right, we have a motion by Fazzino and a second by Ojakian to direct staff to return with a budget amendment ordinance of $50,000 to be used to pay up to one-half of the cost of construction of the sound walls. Discussion on that? Council Member Fazzino do you wish to speak further to that? All right, Council Member Wheeler. Council Member Wheeler: Well, I'm going to oppose the motion and I'm going to do so not because I do not respect that this is quite an investment on the part of the applicant but I'm going to do so because I think quite conceivably this opens a pandora's box. As I have said in my statements earlier this evening, we have a large number of City facilities, City park and recreation facilities, which back up to adjacent residential properties and where the City and the property owners share common fences. To my knowledge and this was so in my neighborhood because there was a request made of the City in my neighborhood and I know it for
what the response was. If the fence between the City property and the residential property needs to be replaced, it is done so at the sole expense and with the sole design of the residential property owner. The City has not heretofore ever participated, to my knowledge, in the reconstruction or replacement of fencing surrounding its park facilities where they back up to residential property. And I can't imagine if we do participate in this particular project that we will not have numerous requests to participate in the replacement of fence structures throughout the community. I think that request would be fair on the part of homeowners throughout the community if the Council sets this precedent. So, I hesitate to do it. I think it's not just a matter of this project, which is a worthy project, but I believe that it is making policy throughout the City on the sly here tonight, and that is why I object to it and I hope you will consider those comments. Mayor Rosenbaum: Is there any further discussion? Council Member Ojakian. Council Member Ojakian: I want to quickly respond to that. I, just off of Lanie's comments, I don't see this as a blanket policy decision. I look at it as a particular individual situation that we're looking at and since we began this process in a public/private partnership, I'm not adverse to the fact that in this particular case we're going to provide some money to build this one fence, just like on another issue we had tonight which I didn't comment on under the Consent Calendar item where we use our, we rent out our restaurant, or rent out a facility or golf course for restaurant use in which we provide all the kitchen equipment and so on and so forth. It's not always a black-and-white situation. I think there are some situations where we've, through partnership, provided or defrayed some of the costs and that's the way I look at this particular one. Mayor Rosenbaum: Okay, I think we're ready to vote. Motion by Fazzino, second by Ojakian to direct staff to return with a budget amendment ordinance for $50,000 to pay one-half of the cost of the fence up to a maximum of $50,000. Let's vote please. That motion, this is just a motion to direct staff to return the budget amendment ordinance. When it returns to us, we'll require six votes. So, the direction to staff has been given and we'll see what happens when it returns to us. I believe that concludes the action on this item. We will now take a break. I would anticipate we should be able to finish the agenda tonight. Thank you all for participating.