STAFF REPORT SAUSALITO CITY COUNCIL

Transcription

1 STAFF REPORT SAUSALITO CITY COUNCIL MEETING DATE: September 12, 2017 AGENDA TITLE: LEAD DEPARTMENT: Consideration of Revised Ferry Landing Project Plans Administration/Community Development RECOMMENDED ACTION Receive a presentation of the revised ferry landing project plans, review the revised ferry landing project plans, receive public comment, and provide direction to staff to return on September 26th with a resolution of consent, conditional consent or denial for the Council's consideration. SUMMARY The Golden Gate Bridge, Highway, & Transportation District ("District ) has submitted revised plans to remove the existing ferry landing in Sausalito and build a new ferry landing ( Project ). The City Council is being asked to make a determination on whether or not to consent to the Project under the parties Lease. 1 The District first submitted a request for the City s consent to the Project on March 24, The City s Planning Commission and Historic Landmarks Board jointly reviewed that proposal during multiple public hearings before recommending denial. On May 5, 2015, the City Council denied consent for that proposed Project. On August 16, 2016, the District submitted revised Project plans for the City s consent. However, on September 2, 2016, the District asserted that the City lacked the legal authority to deny or impose conditions on the Project and thus withdrew its request for the City s consent. The City therefore filed a lawsuit against the District in Marin County Superior Court on September 13, 2016, which subsequently was transferred to the Contra Costa County Superior Court. 1 The Lease refers to the lease agreement dated December 1, 1995 between the City as lessor and the District as tenant authorizing for a 50-year term the District s operation of the ferry terminal on public tides and submerged lands owned by the City as trustee for the Public Trust. The Lease is available on the City s ferry landing webpage ( under Resources. 1 Page 1 of 12

2 On July 28, 2017, the City and the District entered into a Memorandum of Understanding ( MOU ) 2, staying the pending lawsuit for six months. Under the MOU, the District agreed to submit revised plans reducing the size of the Project for the City s consent determination under the Lease. The City and the District further agreed to meet and confer and cooperate to address other Project-related issues explained below. TIME FRAME AND PROCESS FOR THE CITY S REVIEW OF THE PROJECT Under the terms of the Lease the City has 45 days to review the Project. Under the MOU the parties agreed that the City s 45-day review period under the Lease began on August 31, Therefore, the City must make its determination by October 15, If the City fails to decide during this period (or if the City Council deadlocks in a 2-2 vote), the Lease provides that the City is deemed to have consented to the Project. Format of the meetings: At the September 12 meeting: Staff will introduce the Project and report on the public review process to-date. The District will present the revised plans for the Project; Public comment will be received; and City Council will review and provide direction. At the September 26 meeting: The District will make a presentation and respond to issues/questions raised at the September 12 meeting; Public comments will be received; and City Council to make its consent determination regarding the Project. THE REVISED PROJECT Pursuant to the MOU, the District submitted revised plans for the Project on August 28, from those most recently submitted to the City on August 16, The plans were revised to reduce the width of the proposed float by 4 feet, from 53 feet to 49 feet, with a corresponding reduction in the width of the gangway from 16 feet to 12 feet. The length of the proposed float also is reduced by 1.5 feet, from feet to 144 feet. The revised plans also incorporate changes to design features of the Project pursuant to input received in March of The District is proposing that the color used for gates, railings, and gangway be a galvanized steel (light grey). With regard to lighting, the District is proposing, warm spot lighting along the access pier and gangway. Additionally, the lighting on the float has been reduced in height by one foot, from 19 2 The MOU is available on the City s ferry landing webpage ( under Resources. 3 The Revised Plans are available on the City s ferry landing webpage ( under Resources. 2 Page 2 of 12

3 feet to 18 feet. Pursuant to the July 28, 2017 Memorandum of Understanding the District and the City are consulting with the Bay Conservation and Development Commission (BCDC) in an effort to persuade BCDC to consent to remove the belvederes from the proposed project. Where applicable in the plans, the District has provided two alternatives for the belvederes on the access pier; one version shows the belvederes on the access pier and the other version shows the access pier without the belvederes. On August 17, 2017, the District submitted revised photo renderings showing various 3- D viewpoints of the proposed Project in context within the City and Bay. These renderings have been posted online 4 and are on display in the lobby of City Hall where they will remain through the month of September. The City has requested that the professional planning and design consultant, Environmental Visions, confirm that the District s revised renderings are accurate. A summary of the history of the changes to the ferry terminal s proposed physical dimensions and design features is set forth in Table 1. The District contends that the revised Project will improve passenger accessibility and improve operational efficiency. The revised Project allows for the simultaneous use of both the front and back vessel doors to facilitate loading and unloading of passengers. It also facilitates the use of a variety of ferry vessels, including high-speed Catamarans, consistent with current and customary industry standards. The revised Project complies with Americans with Disabilities Act ( ADA ) requirements. The Project also involves the construction and use of a relocated float and gangway to the south of the existing location to serve as a temporary ferry terminal during construction of the permanent replacement terminal. The location of this temporary terminal is shown on Sheet CS.1 of the District s revised plans. The Project also requires the use of an approximately 8,000 square foot temporary construction and staging area, and the permanent construction and installment of two utility trenches and cabinets. One bumper on the permanent float, the temporary terminal, construction/staging area and utility trenching and cabinets are located outside of the existing Lease premises, and therefore would require a Lease amendment 4 The renderings are available on the City s ferry landing webpage ( under Resources. 3 Page 3 of 12

4 TABLE 1 EXISTING AND PROPOSED FERRY LANDING PHYSICAL DIMENSIONS AND DESIGN FEATURES Existing Proposed Proposed Proposed Proposed March 2015 March 2016 August 2016 August 2017 (dated 8/29/17) Float 110 long x 42 wide 150 long x 53 wide long x 53 wide Same as March long x 49 wide Gangway 70 long x 5 9 wide x 5.8 high 90 long x 18.3 wide x 8 high 90 long x 16 wide x 6.7 high Same as March long x 12 wide x 6.7 high Access Pier 96.5 long x 8.5 wide 96 long x 21 wide 96 long x Same as March 2016 Same as March wide Landside Pier 95 long x 20.5 wide No change to existing No change to existing No change to existing No change to existing Belvederes None Yes, per BCDC Yes, per BCDC. Included in plans but District will recommend deletion. Yes, per BCDC Two versions of plans provided; one with belvederes and one without Color Gray, blue Gray Gray Gray (galvanized steel)* Same as August 2016 Gate Lighting at Railings Lighting at Float Light at Gate Rails along Gangway Swing gate with steel grating Warm spot lighting along rails, downcast Lights along rails, one overhead light (cool), safety navigation lights Overhead light fixture on each side above gate (cool) Simple steel tube railing; 3.5 feet above walking surface Simple swing gate with steel grating Options for continuous rail cool lighting or spot warm lighting Simple transparent swing gate* Options for continuous rail cool lighting or spot rail warm lighting 19 ft. height overhead lighting 19 ft. height overhead lighting; District Investigating lowering height. Light pole with flat panel light fixture. Simple steel picket railing, 3.5 feet inches above walking surface; large steel truss structure 5 feet above walking surface Light pole with flat panel light fixture Simple steel picket railing, 3.5 feet above walking surface; no steel truss structure* Simple transparent swing gate* Spot rail warm lighting * 19 ft. height overhead lighting. Light pole with flat panel light fixture *Design feature incorporated per input during Planning Commission/Historic Landmarks Board meetings in March of Simple transparent swing gate with bird safety glass in a frit pattern doors (see sheet A2.23) Spot rail warm lighting along access pier and gangway* Note plans with belvederes show lighting on railings in middle of access pier 18 ft. height overhead lighting* Light pole with flat panel light fixture (see sheet A2.23) Note that prior renderings showed light taller than it is proposed; revised renderings show light pole accurately at /4 tall Same as March 2016 Same as March Page 4 of 12

5 BACKGROUND Beginning in early 2015, the City and the District agreed to a public process for the City s review of the Project. 5 The City s Planning Commission ( PC ) and Historic Landmarks Board ( HLB ) jointly reviewed the Project as initially proposed by the District on March 24, 2015 in multiple public hearings during April 2015 before recommending denial of that proposal. On May 5, 2015, following a public hearing, the City Council adopted Resolution No , denying consent for the proposed Project. The City s denial was based on the following findings: 1. The planning for waterside and landside improvements should be in tandem. 2. The overall size of the project is too large and should be reduced. 3. The project is not compatible with the historic district. 4. The proposed belvederes add unnecessarily to the size of the project. 5. The overall design negatively impacts the Sausalito Yacht Club and the Inn Above Tide. 6. Improvements are outside the boundaries of the leased area. 7. The City cannot yet determine whether the Project has been adequately analyzed pursuant to CEQA's requirements, as set forth in Section The project did not consider historic designations and historic context. On March 2, 2016, the District submitted an illustrative evolution of project changes which culminate in a revised project proposal. The City Council directed the PC and HLB to jointly review the revised documents and provide a recommendation to the City Council on whether the District satisfactorily revised the Project to address the grounds supporting the City Council s denial of the Project in May of The PC/HLB s determinations are set forth the memorandum to the City Council dated April 1, In May 2016, the City retained the engineering firm COWI North America ( COWI ) to peer review the District s revised Project plans. COWI is the engineer for the Water Emergency Transportation Authority s ( WETA ) ferries and terminals located throughout the Bay Area. COWI performed its peer review in two phases. In Phase 1, COWI assumed the accuracy of the District s future passenger growth projections and operational desires but analyzed whether the Project as proposed was optimized, (i.e., no larger than required). COWI determined that the District s then-proposed Project was not optimized and could be reduced in size. In Phase 2, COWI critically reviewed the District s future passenger growth projections and passenger load calculations purportedly justifying the District s then-proposed designs. COWI determined that the 5 A Project-review timeline is provided as Attachment 1. For all background materials and links to resources relating to the Project-review proceedings including staff reports, plans and other materials, please visit 6 Resolution No is available online on the City s ferry landing webpage ( under Resources. 7 This memorandum summarizing the PC/HLB s findings is available online on the City s ferry landing webpage ( under Resources. 5 Page 5 of 12

6 District s future passenger assumptions and passenger load calculations were not adequately supported. COWI further determined that the width of the proposed float and gangway could be reduced from 16 feet as then proposed to 12 feet, respectively, without compromising reasonable current and foreseeable operational needs. 8 On June 1, 2016, the City retained planning consulting firm Environmental Vision to conduct a peer review of four of the computer generated renderings/photo simulations prepared by the District. Environmental Vision identified certain technical errors rendering two of the simulations (i.e., depicting the donut fenders and the size of the structure as viewed from the Yacht Club) inaccurate by as much as 25%. 9 In response, the District resubmitted corrected simulations. In June 2016, the City requested that the District incorporate certain design features recommended by the PC and HLB regarding color, lighting, materials, and other physical design features. The District incorporated those requests which remain in the current proposal. On August 18, 2016, the District submitted supplemental plans to the City, further modifying the Project, and requested that the City make its consent determination under the Lease within 45 days. However, on September 2, 2016, the District withdrew its request for the City s consent to the Project. The City filed a lawsuit against the District in Marin County Superior Court on September 13, 2016, which subsequently was transferred to the Contra Costa County Superior Court. On July 28, 2017, the City and the District entered into the MOU. DISCUSSION The City reviews the District s proposed Project in three capacities: (1) as landlord under the Lease; (2) as trustee under the Public Trust Doctrine; and (3) as a Responsible Agency under California s Environmental Quality Act ( CEQA ) A. The Lease On December 1, 1995, the City as lessor and trustee of the Public Trust executed the Lease with the District as tenant, authorizing the District s use of the ferry terminal for a 50- year term. Section 3.1 of the Lease defines the District s Permitted Uses under the Lease to include activities customarily incident or convenient to operation of the District s ferry service, including the approved improvements set forth in Section 5.4 of the Lease. Under this 8 COWI s report is available is available online on the City s ferry landing webpage ( under Resources. 9 Environmental Visions Report is available is available online on the City s ferry landing webpage ( under Resources. 6 Page 6 of 12

7 section and Section 3.2, the City has no authority to regulate either the District s choice of ferry vessels or the schedule of its ferry service. Section 5.4, subsection (a) of the Lease provides that the: [District] shall not, without [City s] prior written consent, make any [1] major alterations, [2] improvements, [3] additions, or [4] utility installations in, on or about the Premises, provided however that [City s] consent shall not be unreasonably withheld, conditioned or delayed. Although the District must obtain the City s consent if any one of the four circumstances exist, the proposed Project triggers the District s requirement to obtain the City s consent based on all four criteria. The proposed Project constitutes a major alteration, improvements, additions, and utility installations within the meaning of Section 5.4, subsection (a). Under Section 5.4, subsection (b), the District s request for the City s consent must include detailed plans for the proposed project. The City must notify the District of its decision within forty-five days of the District s request. Failure to respond during this period is deemed under the Lease as City consent to the proposed project. California courts have deemed the following factors reasonable grounds for a landlord s denial of consent under lease: (1) the landlord s interest in preserving the property; (2) the landlord s interest in obtaining performance of the tenant s obligations; (3) the suitability of the use for the particular property; and (4) the need for alteration of the premises. Factors that California courts have deemed unreasonable grounds for a landlord s denial of consent include: (1) the personal taste, convenience or sensibility of the landlord; and (2) the desire for a better bargain than the contract with the tenant provides. B. The Public Trust Doctrine When California was admitted to the Union in 1850, it acquired ownership of all tidelands and the beds of inland navigable waters within its borders. These tidelands and submerged waters belong to the state and are held in trust for public purposes. (Cal. Civ. Code 670.) However, the trust powers of the state may be delegated to a municipality or other governmental body. In 1957, the state delegated the state s trust power over the San Francisco Bay tidelands and submerged lands that include the Leased premises to the City. The range of public trust uses authorized under the 1957 trust grant is broad, encompassing navigation, commerce, recreation and environmental preservation. The City as trustee for the Public Trust is responsible for balancing competing public trust uses, such as the needs of public transportation with recreation, aesthetics and environmental preservation. In making this assessment and considering competing public trust impacts, the City may consider and/or rely on information and analysis regarding the proposed project prepared pursuant to CEQA. 7 Page 7 of 12

8 C. CEQA The District is both the Project sponsor and lead agency under CEQA and therefore was responsible for analyzing the Project s potential environmental effects prior to approving it. In September 2012, the District published an Initial Study/Mitigated Negative ( MND ) for the Project. On December 14, 2012, the District s Board adopted the MND and approved the Project. Responsible agencies under CEQA are those public agencies, other than the lead agency, which have responsibility for carrying out or approving a project, or which have discretionary approval power over a project. (Public Resources Code 21069; CEQA Guidelines, ) The City is a responsible agency because it has discretionary approval authority over the Project pursuant to the Lease and as trustee under the Public Trust Doctrine. Additionally, the District requires City discretionary approvals for various temporary and permanent Project structures that would be located outside the existing leased premises. As a responsible agency, CEQA requires that the City consider the environmental effects of the Project prior to making its discretionary determinations. However, the City s review of the Project under CEQA is limited to substantial Project changes, changed circumstances or new information since the District s adoption of the MND. (Public Resources Code 21166; CEQA Guidelines, ) In other words, the City may not challenge the adequacy of the District s previously adopted MND as to the analysis (or lack thereof) regarding Project features, circumstances or information that existing at the time the MND was adopted. However, subsequent to the District s adoption of the MND, the District made multiple changes to the proposed Project, and new circumstances and information exist at the Project site because of increasing numbers of ferry passengers with bicycles particularly during the Summer and certain weekends. On August 15, 2016, the City retained the environmental consulting firm, LSA Associates, Inc., to analyze whether any Project changes, changed circumstances or new information triggered any obligations for supplemental environmental review under CEQA. However, the District withdrew its Project from the City on September 2, 2016 before LSA completed its analysis. On May 19, 2017, the District notified the City of its intention to approve an Addendum to the 2012 MND and authorize implementation of a modified Project. The District s Addendum identified various modifications to the Project, including locating the proposed 8,000 square foot temporary construction and staging area within the City s Lot 1, adjacent to the ferry terminal, and the addition of two public access belvederes (approximately 130 square feet each) requested by San Francisco Bay Conservation Development Commission ( BCDC ) to provide seating on the Project pier. The District s Addendum updated the MND to address several of the Project s modifications. It did not, however, consider the environmental effects of the use of Municipal Lot 1 for the proposed temporary construction and staging area. 8 Page 8 of 12

9 On May 24 and 25, 2017, the City submitted comments regarding the District s proposed Addendum, including a report prepared by Parisi Transportation Consulting explaining that the use Municipal Lot 1 for the temporary construction and staging area would cause significant environmental effects 10. On May 26, 2017, the District s Board approved the Addendum with the exception of the selection of the location for the temporary construction and staging area. OTHER ISSUES UNDER THE MOU: In addition to the District s agreement to submit revised Project plans for the City s consent under the Lease, the parties agreed under the MOU: (1) to meet and confer to address the City s CEQA concerns regarding the Project s proposed temporary construction and staging area; (2) work cooperatively in an effort to persuade BCDC to consent to remove the belvederes from the Project; and (3) agree on a timetable to meet and confer about landside improvements and ferry passenger crowd management issues. The Temporary Construction/Staging Area. The City and the District have conferred regarding proposed alternative locations for the temporary construction and staging area. The District has indicated that it will look to the contractor to make recommendations regarding the need, duration of use and location of a temporary construction staging area. Parking Lot 1 will not be used for this purpose. Belvederes: BCDC has regulatory authority over the District s Project under the McAteer-Petris Act ( Act ). The Act encourages BCDC to promote the maximum feasible public access to the bay and its shoreline consistent with the proposed project. BCDC staff reported previously that BCDC required the District to add belvederes to the Project. The belvederes consist of two public seating areas to be located on the Project pier spanning 130 square feet of Bay surface each. The District s revised plans also indicate that due to the width of the access pier from belvedere to belvedere, there will be inadequate lighting during nighttime hours and additional lighting on railings bisecting the access pier will be required. The City s denial of the previously submitted Project in May 2015 was based in part on the significant negative aesthetic impacts of the proposed belvederes, consistent with the recommendation of the PC/HLB. The District is concerned that the proposed belvederes may interfere with ferry terminal operations and concurs with the City that the Project would benefit from removal of the belvederes. Additionally, the existing area immediately adjacent to the Project provides substantial public access to the waterfront. This includes all of the promenade adjacent to and south of the Project, as well as the north along the shoreline of the City s Gabrielson Park. Further, by expanding the size of the Project s 10 May 24, 2017 and May 25, 2017 letters are available is available online on the City s ferry landing litigation webpage ( under Timeline and Materials. 9 Page 9 of 12

10 over-water coverage, the belvederes constitute fill that must be avoided under the Act. (Gov. Code ) Under the Act, fill should be authorized only when the public benefits from fill clearly exceed public detriment from the loss of the water areas. (Gov. Code 66605(a).) The public benefits of the fill caused by the belvederes do not clearly exceed public detriment from the loss of the water areas. Additional public access to the Bay and shoreline is better accomplished through added or improved public access to the current Dunphy Park Rehabilitation Project which will improve existing shoreline access along the approximately 1,000 linear foot frontage of Dunphy Park on Richardson Bay between the foot of Napa Street and the foot of Litho Street a mere 3,000 feet northwest of the Project site. The City and the District are meeting with BCDC staff on September 8, 2017 to discuss removal of the belvederes from the Project. An oral update on the status of this discussion will be provided at the September 12, 2017 meeting. Landside Improvements/Crowd Management The District and the City have agreed to a series of meetings to address a number of landside issues the City has raised with the District. These include the timing (and extent of District support) for future landside improvements adjacent to the ferry terminal, and the need for a solution to the ferry terminal operation s previous and ongoing fiscal and environmental impacts on the City. The City intends to make landside improvements to the City s property adjacent to the ferry terminal to reduce congestion and improve vehicle, bicycle and passenger circulation at the Project site. To facilitate these improvements, the District has agreed to pass through to the City two million dollars ($2,000,000) of a Federal Transit Administration ( FTA ) grant to the District. The FTA grant requires a 20 percent local match for use of these funds, thus requiring a landside improvements project budget of two million, five hundred thousand dollars ($2,500,000.) The District has further agreed to provide $400,000 towards the local match to directly benefit ferry patrons, with the remaining $100,000 of local funds to be provided by the City. The District and the City are currently negotiating the terms of the required Pass Through Agreement to effectuate the transfer of FTA funds from the District as FTA grantee to the City as FTA sub-grantee. Before the City undertakes these improvements it will seek community input. The District has no legal authority or control over the City s landside improvements project. The City may, however, reasonably condition consent to the Project on the execution of the Pass Through Agreement, adequate queuing and crowd management controls, and other conditions that have a direct nexus to the Project s potential fiscal and/or environmental impacts on the City. This City s legal authority to impose such conditions derives from CEQA, the Public Trust Doctrine and the Lease. Section 3.2 of the Lease provides in relevant part that the [District] shall not use nor permit the use of the Premises in any manner that will tend to create waste or a nuisance. 10 Page 10 of 12

11 Independent of the City s review of the Project, the City and the District have agreed to address during the meetings scheduled pursuant to the MOU the City s claims arising from the ferry terminal operation s previous and potential ongoing impacts on the City Under Section 7.3 of the Lease, the District must indemnify and hold the City harmless from all claims, damages, losses or liabilities arising from the District s business or activity on the leased premises. FISCAL IMPACT There is no fiscal impact associated with staff s writing of this report. CORRESPONDENCE Public correspondence received from August 23, 2017 through September 5, 2017 is provided in Attachment 4. STAFF RECOMMENDATIONS Receive a presentation of the revised ferry landing project plans, review the revised ferry landing project plans, receive public comment, and provide direction to staff to return on September 26th with a resolution of consent, conditional consent or denial for the Council's consideration. ATTACHMENTS 1. Project-Review Timeline 2. Revised Plans (August 29, 2017) 3. Revised Photorenderings (August 17, 2017) 4. Correspondence a. Sam Chase, August 23, Page 11 of 12

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