San Mateo County Grand Jury
• 2006-2007
Issue | Background | Findings | Conclusions | Recommendations | Responses | Attachments Building in East Palo Alto Is
⚠️ Translation Notice: This content has been automatically translated. The original English text is the official version. Translation may contain errors.
⚠️ Este contenido ha sido traducido automáticamente. El texto original en inglés es la versión oficial. La traducción puede contener errores.
Findings 3 findings
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Inappropriate Participation of the City Manager in the Planning Process The current City Manager served as Planning Director for agencies in other jurisdictions for a total of about 20 years, leaving him with a strong interest in planning issues. The following examples suggest that this interest may have led to inappropriate interventions in the granting of building permits. Before proceeding, it should be noted that the role of the City Manager in the East Palo Alto planning process was changed a few years ago. The role of the City Manager in planning process appeals is governed by a March 2004 revision of Section 6581.1 of Chapter 30 of the East Palo Alto City Code (Appeal of Decision on Which Administrative Review and Approval is Sought), which now removes the City Manager from planning decisions. Originally, the code stated: “In the event of dissatisfaction with the decision of the Planning Director on any entitlement for which administrative review is sought … the proponent may appeal in writing to the City Manager. … The City Manager shall render his or her decision within 45 days after the conclusion of said hearing of the appeal. … In event of dissatisfaction with the decision of the City Manager, proponent may appeal in writing to the City Council.” The revised code eliminated the role of the City Manager in the planning appeal process, while leaving the City Manager with a role in the building permit approval process itself. Some of the following information suggests that the City Manager has not adjusted to the changed rules. Incident 1 involved the City Manager’s March 13, 2007 termination of the Planning Manager for refusing to sign a Final Inspection card related to a recently completed residential structure. The terminated Planning Manager allegedly refused to sign the inspection card or direct any of the planners she supervised to do so, because none of them had inspected the project. Furthermore, she had allegedly informed the City Manager and the City Attorney that the building permits for the second phase of development were issued without planning approvals and had allegedly informed them that the permits did not comply with the Zoning Regulations. On the same day that the Planning Manager was terminated, a Notice of Warning was issued by the City Manager to an Associate Planner, who had also refused to sign the card. The City Manager has authority to terminate exempt employees at any time without cause. It appears in this case that employees were disciplined because they refused to undertake an action that they felt was professionally improper. The fact that this particular incident involved two employees who refused to sign off on a property makes the City Manager’s actions particularly questionable. Incident 2 involves allegations that the City Manager interceded after a planning application had been denied by the Planning Commission. With regard to the property involved, a Planned Unit Development project, the City Manager wrote the staff reports that were submitted to the City Council for its July 25 and September 5, 2006 meetings, and he failed to forward the minutes and records of the Planning Commission for consideration by the City Council before they took action. Environmental documents with a Mitigated Negative Declaration for the property were also not forwarded for Council consideration. As a result, the Council acted to amend the General Plan, rezone the subject property, and adopt the Mitigated Negative Declaration without having received the required supporting documents. The City Manager and the City Attorney directed the Planning Manager and the Associate Planner to file the Notice of Determination. Allegedly, both refused because the Council’s actions were not yet complete and therefore inconsistent with state law. The City Manager and the Council went on to approve the Planned Unit Development project entitlements without the required Conditions of Approval and findings. Instead, the City Manager substituted the draft Conditions of Approval and findings provided by the developer. Such a procedure is inconsistent with California Land Use laws. The grading plan for this same property was issued without planning and engineering review and approval. Allegedly, the Planning Manager recommended to the City Manager that the grading permit be revoked and that a Mitigation Monitoring/Tracking table be prepared in order to comply with the California Environmental Quality Act (CEQA), but the City Manager ignored the recommendation and allowed the grading to proceed. At the same time that the above activities were going on, the City Manager worked directly with the same developer on the processing of building permits for another project involving certain industrial condominiums on the east side of Pulgas Avenue. Even though the Planning Manager allegedly informed both the City Manager and the developer that the Conditions of Approval required the payment of a $10,000 fee for the services of a contract planner for the building permit application review and mitigation monitoring review, the fee was not paid to the City. The City Manager allegedly intervened in the above matters because the Planning Manager was on leave and the planning staff was short-handed. Incident 3 involved the City Manager’s reversal of an earlier decision by the Planning Manager concerning a third property. The Planning Manager denied the permits on July 5, 2006. On August 4, 2006, the City Manager granted building permits for two 3 duplexes. The City Manager again allegedly acted because the Planning Manager was on leave.
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Possible Conflict of Interest Concerning the Previous Mayor On July 25, 2006, the previous Mayor voted (City Resolution 2619) to rezone the property discussed in Incident 2, even though that project was within 500 feet of his residence. The City staff may have failed to alert the Mayor that his residence was so close to the project in question, but it is the responsibility of elected officials to recuse themselves in these situations. It has recently been acknowledged that the Mayor’s residence is within 500 feet of the project and that the Mayor should have recused himself from any vote on the project. The grand jury was informed that the Council must now reconsider the environmental determination, the general plan and amendment and the rezoning ordinance, all of which require public hearings at additional expenses to the City. The grand jury was further informed that the City Attorney will also recommend that the previous Mayor contact the Fair Political Practices Commission (FPPC) to report this potential violation of FPPC rules.
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Improprieties in a Contract Award by the City Council During November and December of 2006, the City Council sought bids and awarded a contract for planning services and the preparation of an Environmental Impact Report (EIR) for a large live/work development. The contract was awarded to a company that had not been recommended by the Planning Manager, and is alleged to have received an unfair advantage during the award process. According to the allegations, two companies (hereafter referred to as Company A and Company B) were the finalists in a competition to provide contract planning services to the City and prepare an EIR for the above development. On November 8, 2006, the Planning Manager presented an analysis of the two Companies to the City Council and based on technical considerations recommended that Company A receive the contract. During the public forum, the developer requested that Company B be hired, in spite of the Planning Manager’s recommendation. The Council later directed the Planning Manager to give Company B a copy of Company A’s proposal. On November 15, Company A wrote to the City Council noting that it was “ … inappropriate and raised ethical questions … ” for the City to give Company A’s proposal to Company B, but the City did so anyway. Company B subsequently revised its proposal, but the proposal still did not include an evaluation of the impact of a hazardous waste materials facility in close proximity to the project site. Company A had included such an evaluation in their scope of work. The City Manager allegedly changed the Planning Manager's report after Company B revised their proposal, and then recommended that the Council award the contract to Company B. The City Council chose Company B, in spite of the above mentioned 4 deficiency with regard to the hazardous materials study. The Grand Jury could find no documentation that justified overruling the Planning Manager’s recommendation and the award to Company B.
Recommendations 3
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R1Page 1Clarify the role of the City Manager, if any, in planning and zoning decisions, and direct the City Manager to avoid any unauthorized participation in such processes.
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R2Page 1Clarify the roles and duties of those involved in the planning/building permit approval process in order to eliminate confusion and improve public confidence.
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R3Page 1Instruct the City Manager to update the zoning ordinances on the City website by September 2007. CITY OF EAST PALO ALTO OFFiCE OF T"E CITY MANAGER October 18, 2007 Hon. John L. Grandsaert Judge ofthe Superior Court Hall of Justice 400 County Center, 2nd Floor Redwood City, CA 94063-1655 Re: East Palo Alto's response to 2006-2007 Civil Grand Jury Report Dear Judge Grandsaert: Attached is East Palo Alto's response to the 2006-2007 Civil Grand Jury Report, in the following format: • October 16, 2007 administrative report to the East Palo Alto City Council, containing the Grand Jury reports and the City's proposed responses to each report. Please be advised that on October 16, 2007, the City Council reviewed and approved the responses to the reports. An electronic version of the City's responses is being sent directly to the Grand Jury at [email protected]. Very truly yours, Alvin D. James, Attachment: as indicated cc: City Council City Attorney 2415 University Avenue, East Palo Alto, CA 94303, Telephone 650.853.3100, Fax 650.853.3115 CITY OF EAST PALO ALTO OFFIC~ OF TH~ CITY MANAG~R AdDrln~U3«veReport Date: October 16, 2007 To: Honorable Mayor and Members ofthe City Council Manager~ From: Alvin D. James, City Re: 2006-2007 Civil Grand Jury Report: Proposed Responses from East Palo Alto Recommendation: Review and accept the proposed responses to the 2006-2007 San Mateo County Civil Grand Jury Report The 2006-2007 San Mateo County Civil Grand Jury issued three reports related to East Palo Alto: I. Electronic Communication Among City Officiili: A valuable Tool in Need ofCareful Guidance
Conclusions 7
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CL1 Page 5Allegations of Improprieties by a Former Building Official A former Building Official has been alleged to have engaged in dubious practices in connection with several different properties. Some of these same properties have been discussed above. The following chronological narrative is supported by various testimony and documents. • On May 9, 2005, the Building Official issued building permits for foundations at a site in the City without planning approval and prior to the payment of park-in- lieu and below-market rate in-lieu fees. • On June 10, 2005, the Building Official issued building permits for another property without obtaining planning, fire and engineering approval. • On March 28, 2006, the Building Official issued building permits for the residential structure mentioned in connection with the termination of the Planning Manager without planning review and approval. • On October 18, 2006, the Building Official issued grading permits without planning and engineering review for the planned development project that was near the former Mayor’s home. • During 2006, the Building Official issued a grading permit without planning and engineering review.
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CL2 Page 5Other Irregularities A Planning Commission meeting scheduled for February 28, 2005 was cancelled for lack of a quorum. The following day, the Building Official allegedly was informed that the Planning Commission had reviewed the plans for the subdivision mentioned in connection with the termination of the Planning Manager, so building permits could then be issued. In fact, the project could not had not have been approved by the Planning Commission because of the aforementioned lack of a quorum. Finally, the zoning ordinance on the City website is out of date. It was last updated in October 2003. The lack of current information could be quite misleading for permit applicants, necessitating undue expense and delay. 5 Conclusions In reviewing the several citizen complaints, the Grand Jury noticed the key role played by the City Manager in many of the incidents. This may reflect the considerable planning director experience (in other jurisdictions) of the current City Manager. Evidence was presented to the Grand Jury that many confrontations occurred between the recently terminated Planning Director and the City Manager over planning issues. Prior to the revision of Section 6581.1 of the East Palo Alto City Code that was noted earlier, the City Manager played an unusually active role in the building permit approval process. As stated before, Chapter 30 was repealed and a new chapter was enacted on March 2, 2004, eliminating the role of the City Manager in the planning appeal process. The City’s ordinance now sets forth a procedure common in other cities, i.e., “In the event of dissatisfaction with the decision of the Planning Director on any entitlement for which administrative review is sought … any interested party may appeal in writing to the Planning Commission.” As noted previously, the City Manager continues to oversee final inspection and certificates of occupancy. The allegations concerning the City Manager indicates that he continues to interfere with decisions made by the Planning Manager even though the 2004 revision of the zoning ordinance eliminated his involvement in the planning process. Allegations of questionable action involving the City Manager, the now-departed Building Official, the former Mayor, the Planning Commission and the City Council have been reported above. About one dozen different properties have been involved. Throughout the course of this investigation, the Grand Jury observed that members of the Building Department, the Planning Department, and other City staff were confused about their roles and duties in the building permit approval process. The atmosphere of uncertainty and confusion suggests that current and former City officials have not consistently followed the established building permit approval policies and procedures.
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CL3 Page 29Possible ConDlct of Interest Concerning the Previous Mayor On July 25,2006, the previous Mayor voted (City Resolution 26191 to rezone the property discussed in Incident 2, even though that project was within 500 feet of his residence. The City staff may have failed to alert the Mayor that his residence was so close to the project in question, but it is the responsibility of elected officials to recuse themselves in these situations. It has recently been acknowledged that the Mayor's residence is within 500 feet of the project and that the Mayor should have recused himself from any vote on the project. The grand jury was informed that the Council must now reconsider the environmental determination, the general plan and amendment and the rezoning ordinance, all of which require public hearings at additional expenses to the City. The grand jury was further informed that the City Attorney will also recommend that the previous Mayor contact the Fair Political Practices Commission (FPPC) to report this potential violation of FPPC rules. The respondent disagrees partially with this finding: It is true that the previous Councilmember and now current Mayor voted as indicated on July 25, 2006. It is also true that stafffailed to alert the Mayor that his residence was so close to the project in question. The current Mayor lives in a subdivision, thefirstphase ofwhich hadbeen completednot long bf!{ore theproject that is the subject Qfthe GrandJuryfinding before the cityfor consideration of l1'aS approval. The City Planning Division subscribes to a private real estate service to update its mailing list irif'ormation used/orpublic not,!lcation on an ongoing basis. That service provides updated information every three months. When the Senior Planner initially responsible for processing the project in question (who has since left city employment) utilized the real estate service, the service provided information that did not include mailing information for the development in which the Mayor resides. II appears that the service utilizes county propefty ownership information and that the new development had not as yet been included in records available to the real estate service. 9 The Planning Manager used the listfor the Planning Commission hearings on the project and infact no one in the Mayor's development received notice ofthe project for those hearings. After the Planning Manager departed on her leave ofabsence, neither the City Manager nor the staffresponsibleforpreparing thepublic notice for the City Council were aware ofthe omission and utilized the same mailing list- - again, no one in the Mayor's residential development received notice ofthe pending City Council appeal regarding the proposed development. When the matter was before the City Council on July 18. 2006 and subsequently, neither the citystaffnorany member ofCity Council m;>re aware ofthe omission in the mailing list. When the Mayor's improper vote became manifest, the City Attomey advised the Council to rescind the vote and he advised the Mayor to voluntarily report the matter to the state Fair Political Practices Commission (FPPC). The Council rescinded the vote and the Mayor took the City Attorney's advice and voluntarily reported the incident to the FPPC.
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CL4 Page 30Improprieties in a Contract Award by tbe City Council During November and December of 2006. the City Council sought bids and awarded a contract for planning services and the preparation of an Environmental Impact Report (ElR) for a large live/work development. The contract was awarded to a company that had not been recommended by the Planning Manager, and is alleged to have received an unfair advantage during the award process. According to the allegations, two companies (hereafter referred to as Company A and Company B) were the finalists in a competition to provide contract planning services to the City and prepare an EIR for the above development. On November 8, 2006, the Planning Manager presented an analysis of the two Companies to the City Council and, based on technical considerations, recommended that Company A, receive the contract. During the public forum, the developer requested that Company B be hired, in spite of the Planning Manager's
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CL5 Page 5Other Irregularities A Planning Commission meeting scheduled for February 28, 2005 was cancelled for lack of a quorum. The following day, the Building Official allegedly was informed that the Planning Commission had reviewed the plans for the subdivision mentioned in connection with the termination of the Planning Manager, so building permits could then be issued. In fact, the project could not had not have been approved by the Planning Commission because of the aforementioned lack of a quorum. Respondent does not agree or disagree with the finding for the following reason: The proposedfinding does not logicallyfollow, in that the Building Official "UuLd not have had any responsibilityfor determining the quorum ofthe Planning Commission. Consequent~v, additional i'!formation is necessary to review the matter. In any event, the said project fully entitled and permitted to move l1US forward. The Planning Commission had no jurisdiction to review the matter on February 28, 2005. Consistent therewith, on March 9, 2005, the Planning Manager l1,Tote a detailed letter to a complaining neighbor, pointing out all of the entitlementsfor saidproject andwhysaidproject wasfully vested. Finally, the zoning ordinance on the City website is out of date. It was last updated in October 2003. The lack of current information could be quite misleading for permit applicants, necessitating undue expense and delay. Respondent agrees with the finding for the following reason: The City ofEast Palo Alto is committed to providing the most current information availabLe requiring zoning requirements. Please note the follo'Wing information in the Preface ofthe online version ofthe Municipal Code: The electronic version of the City of East Palo Alto Municipal Code is up to date through Ordinance 305, passed July 17, 2007. For mCl'e recent provisions, please conlad the City. 13 The City currently maintains an arrangement with a private update service to ensure that the latest revisions are reflected in the online Municipal Code which does not cover the online version ofthe Zoning Regulations. The City Attomey expects to present a proposalfor City Council consideration by December 31, 2007for obtaining the same or a similar update service for the city's zoning regulations.
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CL6 Page 6In reviewing the several citizen complaints, the Grand Jury noticed the key role played by the City Manager in many of the incidents. This may reflect the considerable planning director experience (in other jurisdictions) of the current City Manager. Evidence was presented to the Grand Jury that many confrontations occurred between the recently terminated Planning Director and the City Manager over planning issues. Prior to the revision of Section 6581.1 of the East Palo Alto City Code that was noted earlier, the City Manager played an unusually active role in the building permit approval process. As stated before, Chapter 30 was repealed and a new chapter was enacted on March 2, 2004, eliminating the role of the City Manager in the planning appeal process. The City’s ordinance now sets forth a procedure common in other cities, i.e., “In the event of dissatisfaction with the decision of the Planning Director on any entitlement for which administrative review is sought … any interested party may appeal in writing to the Planning Commission.” As noted previously, the City Manager continues to oversee final inspection and certificates of occupancy. The allegations concerning the City Manager indicates that he continues to interfere with decisions made by the Planning Manager even though the 2004 revision of the zoning ordinance eliminated his involvement in the planning process. Allegations of questionable action involving the City Manager, the now-departed Building Official, the former Mayor, the Planning Commission and the City Council have been reported above. About one dozen different properties have been involved. Throughout the course of this investigation, the Grand Jury observed that members of the Building Department, the Planning Department, and other City staff were confused about their roles and duties in the building permit approval process. The atmosphere of uncertainty and confusion suggests that current and former City officials have not consistently followed the established building permit approval policies and procedures.
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CL7 Page 6In reviewing the several citizen complaints, the Grand Jury noticed the key role played by the City Manager in many of the incidents. This may reflect the considerable planning director experience (in other jurisdictions) of the current City Manager. Evidence was presented to the Grand Jury that many confrontations occurred between, the recently terminated Planning Director and the City Manager over planning issues. Respondent does!!!!! agree with the conclusion for the following reason: There has never been a "confrontation ,. ofany kind between the former Planning Manager and the City Manager over planning issues. The Grand Jury does not indicate: how many co'!frontations occurred, when they occurred, whether not a legitimate basis existedfor the City Manager's position ifindeed a difference of opmion existed, etc. The Grand Jury does not define "planning issues" --- in at lease hw ofthe aforementioned GrandJuryfindings believed to beplanning issues, the matter infact, involved building code issues and a third involved City Council discretion in determining an appropriate contractor to provide planning services to the city. While a difference ofopinion mayor may not have existed between the former Planning Manager's perspective and that ofthe City Manager, none involved any confrontation between the parties. Prior to the revision of Section 65 & 1.1 of the East Palo Alto City Code that was noted earlier, the City Manager played an unusually active role in the building permit approval process, As stated before, Chapter 30 was repealed and a new chapter was enacted on March 2, 2004, eliminating the role of the City Manager in the planning appeal process. The City's ordinance now sets forth a procedure common in other cities; i.e., "In the event of dissatisfaction with the decision of the Planning Director on any entitlement for which, administrative review is sought." any interested party may appeal in writing to the Planning Commission." As noted previously, the City Manager continues to oversee final. inspection and certificates of occupancy. Respondent does!!2! agree with the conclusion for the following reason: 14 Per Title 15ofthe City's Municipal Code, the Building qlJieialoverseesfinal inspection and issuance ofCertificates ofOccupancy. The allegations concerning the City Manager indicates that he continues to. interfere with decisions made by the Planning Manager even though the 2004 revision of the zoning ordinance eliminated his involvement in the planning process. Allegations of questionable action involving the City Manager, the now departed Building Official, the former Mayor, the Planning Commission, and the City Council have been reported above. About one dozen different properties have been involved. Throughout the course of this investigation, the Grand Jury observed that members of the Building Department, the Planning Department, and other City staff were confused about their roles and duties in the building permit approval process. The atmosphere of uncertainty and confusion suggests that current and former City officials have not consistently followed the established building permit approval policies and procedures.
No Responses Found 1
Government entities assigned to respond to this report. No response documents have been linked in our database.
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