Regular Meeting of the Legislative and Litigation ...docs.bakersfieldcity.us/weblink/0/edoc/994663/05202013.pdf · Regular Meeting of the Legislative and Litigation Committee ...

Staff: City Council Members: Rhonda Smiley, Assistant to the City Manager Terry Maxwell, Chair

Jacquie Sullivan Russell Johnson

Regular Meeting of the Legislative and Litigation Committee

of the City Council – City of Bakersfield

Monday, May 20, 2013 12:00 p.m.

City Hall North

First Floor – Conference Room A 1600 Truxtun Avenue, Bakersfield CA 93301

A G E N D A

1. ROLL CALL

2. ADOPT APRIL 22, 2013 AGENDA SUMMARY REPORT

3. PUBLIC STATEMENTS

4. NEW BUSINESS

A. Discussion and Committee Recommendation Regarding the Human Life Ordinance Request – Gennaro

5. COMMITTEE COMMENTS

6. ADJOURNMENT

City Council Members: Rhonda Smiley, Assistant to the City Manager Terry Maxwell, Chair Jacquie Sullivan Russell Johnson

AGENDA SUMMARY REPORT

Special Meeting of the LEGISLATIVE AND LITIGATION COMMITTEE

Monday, April 22, 2013 - 12:00 p.m.

City Hall North First Floor – Conference Room A

1600 Truxtun Avenue, Bakersfield, CA 93301

The meeting was called to order at 12:00 PM. 1. ROLL CALL

Present: Councilmember Terry Maxwell, Chair

Councilmember Jacquie Sullivan Councilmember Russell Johnson

Staff Present: Rhonda Smiley, Asst. to the City Manager Ginny Gennaro, City Attorney Steven Teglia, Asst. to the City Manager Andrew Heglund, Deputy City Attorney Doug McIsaac, Community Development Director Richard Iger, Associate City Attorney Jim Eggert, Planning Director Tom Geddes, Associate City Attorney Phil Burns, Building Director Raul Rojas, Public Works Director Wanda Neal, Code Enforcement Officer Nick Fidler, Asst. Public Works Director Brian Clayton, Police Captain Ryan Starbuck, Traffic Engineer Joe Mullins, Police Lieutenant John Ussery, Engineer Others Present: Steven Mayer, Bakersfield Californian Jenine Snoddy, Bakersfield Citizen Gina Hayden, Golden Empire Transportation Linda Snoddy, Bakersfield Citizen Emery Rendes, Golden Empire Transportation Denise Netherton, Bakersfield Citizen Estelle Freeman, Kern Delta Adam, Netherton, Bakersfield Citizen Bailey Freeman, Kern Delta Mark Russell, Bakersfield Citizen Mariela Garza, Bakersfield Citizen Amy Moss-Russell, Bakersfield Citizen Michael Brancato, Bakersfield Citizen Dennis Fox, KAC

Legislative and Litigation Committee Meeting Monday, April 22, 2012

Agenda Summary Report Page 2

2. ADOPT NOVEMBER 26, 2012 AGENDA SUMMARY REPORT Adopted as submitted

3. PUBLIC STATEMENTS None

4. DEFERRED BUSINESS

A. Discussion Regarding Ownership of Chickens in Urban Residential Zones – McIsaac / Gennaro Community Development Director Doug McIsaac stated the matter was last presented to the Committee on November 26, 2012. The Committee recommended adoption of an ordinance to allow City residents to keep chickens only after meeting certain requirements and receiving approval from the Planning Director. There are several concerns including: a significant rise in complaints associated with chickens, therefore impacting code enforcement, noise, and sanitation. He also stated a total of 35 pieces of correspondence were received regarding the issue; 15 in support and 20 in opposition. Bakersfield citizen Linda Snoddy provided the Committee various statics regarding cities in the U.S. allowing backyard poultry. She also provided details regarding the benefits of backyard poultry. Bakersfield citizen Mariela Garza stated both ordinances restrict individuals from raising backyard poultry. She also stated the many benefits of raising backyard poultry. Bakersfield citizen Amy Moss-Russell stated there are several economic and organic gardening benefits with chickens; they are also great pets. Estelle Freeman with Kern Delta stated the learning experience children gain from poultry showing outweighs the concerns associated with raising backyard poultry. Chickens used for shows are usually only kept for six to eight months and then are sold at the Kern County Fair. Bakersfield citizen Dennis Fox stated there are several health concerns associated with backyard chickens including e-coli and salmonella. Bakersfield citizen Michael Brancato provided the committee with a picture of a chicken coop and stated this kind of program available to children helps keep them away and distracted from the dangers of society. Bakersfield citizen Denise Netherten stated there are several benefits to backyard chickens including: fresh eggs, insect control, easy to care for, and can help the local economy.

Legislative and Litigation Committee Meeting Monday, April 22, 2012

Agenda Summary Report Page 3

She also provided the Committee with 27 letters of support and 196 signatures of residents in support of backyard chickens. Committeemember Russell Johnson stated he had concerns regarding public health, particularly the spread of diseases transmitted from animal to humans and the added burden to Code Enforcement due to an increase in complaints. He requested staff analyze the costs to prepare an odor, air quality, and risks of spread of diseases from animal to humans’ studies. Committeemember Jacquie Sullivan stated the Committee was in favor of an ordinance allowing chickens by permit when the item was last heard in November. She acknowledged new concerns were a result of changes made to the make-up of the Committee and was still in favor of adopting an ordinance allowing chickens in residential zones when requirements are met and approval granted by the Planning Director. Committee Chair Terry Maxwell stated he supported the poultry programs. He asked what the typical finding of a complaint call was. Committee Chair Maxwell also asked how much it would cost to enforce compliance of the ordinance with an increase of complaints. Building Director Phil Burns stated the most common complaint is free range chickens and roosters. Chief Code Enforcement Officer Wanda Neal added that odors within the neighborhood and loose chickens roaming the streets are among the complaints. A large number of complaints result in compliance after an owner is made aware chickens are not allowed within the city limits. Ms. Neal stated no complaints have resulted from an individual not obliging to the proposed ordinance. Mr. Burns also stated an exact dollar amount on costs could not be computed at this time as there are several aspects involved. Community Director Doug McIsaac stated every complaint involves several hours of staff time to going to the complaint site, conducting an investigation, citing if necessary, and following up on citations when necessary. Committee Chair Maxwell also inquired if there were any legal aspects the committee should be aware of. City Attorney Ginny Gennaro stated she informed the previous committee members that an ordinance allowing chickens by right could potentially be challenged in opposition to the ordinance, citing no environmental review was conducted. Committeemember Sullivan stated allowing chickens in residential zones is feasible and would reduce the number of complaints if an ordinance is passed. She also stated public education regarding the benefits of backyard chickens is essential in getting the community to understand.

Legislative and Litigation Committee Meeting Monday, April 22, 2012

Agenda Summary Report Page 4

Committeemember Johnson made a motion to deny option A and option B previously presented to the Committee and keep the current ordinance as is. Assistant to the City Manager Rhonda Smiley stated that several pieces of correspondence in opposition to the matter had been received over the past year. Individuals in opposition would continue to complain about odors, free ranged chickens, and noise. Committeemembers Maxwell and Johnson voted in favor of the motion and Committeemember Sullivan opposed the motion. Committeemember Sullivan requested the matter be presented to the full City Council with a minority – majority report for further discussion.

B. Discussion and Committee Recommendation Regarding Bus Stop Location Signage Requests – Smiley / Rojas / Gennaro Assistant to the City Manager Rhonda Smiley presented the Committee with a brief summary on the recommendations of the previous Legislative and Litigation Committee and the action taken by the City Council in 2012 to amend the City ordinance relating to bus zones. The Committee unanimously recommended that the City’s ordinance be amended to prohibit parking in front of bus stop if the curb is painted or marked with the words “Bus Zone” and directed staff to forward their recommendation to the City Council for consideration. She also stated GET and other local organizations who advocate for individuals with special needs had recently informed staff that painting red curbing, rather than placement signage, is a more effective method of marking bus stop zones. Staff will also be pursuing further discussions with GET who has indicated they are willing to assist with the curb painting. Public Works Director Raul Rojas stated staff has continued working with GET and other local organizations who advocate for individuals with special needs to review locations where known problems exist. Communication between all the groups has improved significantly. Committeemember Russell Johnson stated he participated in a meeting with GET and other local organizations who advocate for individuals with special needs to address any outstanding concerns. As a result, it was suggested that as the City continues to grow and additional bus stops are added to the routes, that the new stops be painted with red curbing. Committeemember Jacquie Sullivan asked members of GET present if it was their preference to have red curbing at all stops. Gina Hayden with GET stated each stop should continue to be reviewed on a case by case basis. Some stops may not require the red curbing due to low passenger boarding, and/or any impacts it may have on a local business, so would not be practical. Ms. Hayden stated GET would be open to relocating bus stops where it would be beneficial, especially if doing so would provide the 130’ feet of parking space for a bus. This would also be reviewed on a case by case basis.

Legislative and Litigation Committee Meeting Monday, April 22, 2012

Agenda Summary Report Page 5

5. NEW BUSINESS

A. Discussion and Committee Recommendation Regarding Window Signage and

Projecting Signage – McIsaac Community Development Director Doug McIsaac stated the current regulation limits window signs to 25% of the window area or 32 square feet, whichever is less, on two building frontages. The Committee was provided with a chart displaying the regulations of comparable cities, with most regulations ranging from 10% to 50% window coverage. While Code Enforcement investigates and responds to all complaints, they also inspect the surrounding businesses for additional violators as well. Committee Chair Maxwell requested staff distribute a reminder notice to several signage companies to encourage customers to verify their signage with the City. Chair Maxwell made a motion to present the amended ordinance limiting window signs to 40% of the window area on three building frontages to the full City Council for a first hearing. The motion was unanimously approved. Planning Director Jim Eggert stated the Planning Commission began reviewing the projecting signs ordinance approximately a year ago. The Commission proposed changes to reflect current practices and will enhance opportunities to improve business identification. The changes will result in further promoting businesses and enhancing the pedestrian-friendly character of the downtown and Old Town Kern areas. The changes include allowing the use of projecting sings in the Central District and Old Town Kern areas, allowing the addition of monument signs for larger centers with over 500 feet of street frontage, allowing skyline signs to have two lines instead of one, and changes to signs in each of the following zones: C-0, C-1, and C-2. Committeemember Russell Johnson made a motion to present the amendments for adoption to the full City Council. The motion was unanimously approved.

B. Discussion and Committee Recommendation Regarding Adoption of the 2013 Committee Meeting Schedule – Smiley Adopted as submitted.

6. COMMITTEE COMMENTS 7. ADJOURNMENT The meeting adjourned at 1:50 PM cc: Honorable Mayor and City Council

DOCUMENTS HANDED OUT AT THE

COMMITTEE MEETING

5/21/2013

1

THE PROPOSED HUMAN LIFE

ORDINANCE

BY

VIRGINIA “GINNY” GENNARO

BAKERSFIELD CITY ATTORNEY

2013

TYPICAL PROCESS

• Receive letter from individual or group

proposing new law.

• Review the matter.

• Request proposing group provide similar

legislation from comparable cities.

5/21/2013

2

KEY PROVISIONS OF PROPOSAL:

• City has received five different versions. Ingeneral, the proposal purports to:

• Define “inhabitants” as: every individualmember of the species Homo Sapiens from thebeginning of its biological development; and

• Prohibits “killing” : It shall be unlawful withinthe City of Bakersfield for any entity to receiveany form of consideration for the purpose ofkilling any inhabitants of the City.

LEGAL ISSUES

• Ordinance is in conflict with both Federaland State Law re: abortion, privacy, andmurder.

• Ordinance will not withstand constitutionalchallenge based on the above and becauseother portions are vague.

• Ordinance will expose the City to costly litigation.

5/21/2013

3

LEGAL ISSUES

Roe v. Wade is still the law of the land when itcomes to general abortion issues. Seems clearunder federal law that a woman can abort:

• Before the fetus is viable without undue interference from the state…

In California, it is more permissive in thattermination of pregnancy is allowed:

• Before the fetus is viable without any denial orinterference from the state (definition includescities).

California law states:

The legislature finds and declares that every individual

possesses a fundamental right of privacy with respect to

personal reproductive decisions….every individual has

the fundamental right to choose or refuse birth

control….every woman has the fundamental right to

choose to bear a child or to choose to obtain an

abortion….the state shall not deny or interfere with a

woman’s fundamental right to choose to bear a child or

to choose to obtain an abortion.

(Health & Safety Code §123462)

LEGAL ISSUES

5/21/2013

4

LEGAL ISSUES

Murder is the “unlawful killing of a human being,

or a fetus, with malice aforethought.” [emphasis

added] But the definition of murder does not

include an act “solicited, aided, abetted, or

consented to by the mother of the fetus.”

(Cal. Penal Code §187)

Note: Law excludes a fetus

LEGAL ISSUES

• Proposal purports to avoid city liability by

giving others the right to sue.

• Original language was taken from Oakland

Code that safeguards patients of health

clinics.

• Even assuming that others have a right to sue,

this does NOT insulate the City from exposure

to liability.

5/21/2013

5

LEGAL ISSUES SUMMARIZED

• California’s constitution provides greaterprotection for privacy and abortion thusmaking the proposal unconstitutional.

• The “beginning of biological development” isvague.

• What is being proposed is in conflict with statelaws governing definition of murder.

• City cannot escape liability for anunconstitutional ordinance.

OPTIONS/RECENT NEWS

• Recent News supports concept that changes in abortion legislation is more appropriate at the State level.

• Federal Judge struck down an Idaho law prohibiting abortions after 20 weeks…indicating that it violates the US Supreme Court prohibitions against unduly impeding a woman’s ability to seek an abortion before her fetus is able to live outside the womb.

• Similar to limits adopted in at least 7 other states.

• Same legal reasoning applies to law adopted in Arkansas which bans abortions after 12 weeks

5/21/2013

6

The ruling does away with the age

restriction, and allows the

morning-after pill to be sold to

anyone without a prescription, like

aspirin. Source: Dr. Wayne Baker, annarbor.com 4/8/13

CONCLUSION

• We have followed our typical process.

• City Attorney sent a letter at Council’s direction thatclearly indicated that the matter would not be pursueduntil and unless we were presented with similarordinances from other cities in California; none havebeen received.

• Change in the law is more appropriate at the Stateand/or Federal level and an Ordinance will subject theCity to exposure to litigation at substantial legal cost.