Public Comments and Staff Communication — Brentwood City Council, October 10, 2023

From: John R. Sutton
To: Wimberly, Margaret
Subject: Hate Speech at Council Meetings
Date: Thursday, October 5, 2023 2:58:58 PM
CAUTION – EXTERNAL SENDER
Dear Ms. Wimberley: I write to thank you for your management of last week’s council meeting. While I was not present, I read the Letter to the Editor by M.Carolina Villaseca, in last week’s The Press, which noted “your poise and strength” in how you managed this outside caller’s hate speech, and disruption of the meeting.

I discussed this situation with Rabbi Goldschmid (CHABAD of the Delta), who has previously discussed this with Mayor Bryant, and who told me that such callers are from out-of-town, and as such, are essentially untraceable.

But I believe the issue is something else:

Prior to COVID, Council meetings were “in person” only. As COVID is essentially past us, I recommend that City Council and other meetings revert to In Person Only.

Special arrangements could be made, in advance, to accommodate an outside caller who could not attend in person, for some good reason. E.g. using a secure phone line or a call-in from a pre-arranged phone number, etc.

Again, thank you for all that you do, “keeping the wheels on” in Brentwood.

October 10, 2023 Client-Matter: 70193-030
VIA EMAIL ([email protected])
Mayor Joel R. Bryant,
City Councilmembers
City of Brentwood
Re: Comments on Proposed Oil and Gas Ordinance; City Council Meeting October 10, 2023 Agenda Item No. G.2
Dear Mayor Bryant and Councilmembers:

This firm represents the Native Oil Producers and Employees of California (“NOPEC”).

These comments are submitted on behalf of the NOPEC regarding the City of Brentwood’s (“City’s”) proposed oil and gas ordinance, imposing additional regulations and requirements on oil and gas development and operations, and enacting a permanent ban on oil and gas development and operations (the “Ordinance”).

The Ordinance is unlawful and invalid for several reasons. The Ordinance is preempted by state law; is not supported by substantial evidence; exceeds the City’s police power; violates due process; and constitutes an unconstitutional taking of property and deprivation of vested rights. Equally as importantly, the City has failed to consider significant environmental impacts that will result from the Ordinance and improperly relies on inapplicable exemptions under the California Environmental Quality Act (“CEQA”). The City should defer any approval of the Ordinance until these issues are fully addressed.

The Ordinance is particularly egregious light of the California Supreme Court’s recent decision in Chevron U.S.A. Inc. v. County of Monterey (2023) 2023 Cal. LEXIS 4349. In that decision, the Supreme Court considered Measure Z, a County of Monterey Ordinance that, in part, prohibited: (1) the development of any facility in support of oil and gas wastewater injection or oil and gas wastewater impoundment; and (2) the drilling of new oil and gas wells. (Id. at *5, *6.) The Supreme Court held that Measure Z was preempted by Public Resources Code section 3106, which gives the State Oil and Gas Supervisor the mandate to, among other things, supervise the drilling, operation, and maintenance of oil and gas wells so as to permit well owners and operators to utilize all methods and practices that, in the opinion of the Supervisor, are suitable for the purpose of increasing the ultimate recovery of underground hydrocarbons. (Id. at *14, *24.) The court held that “[b]y banning some oil production methods altogether, Measure Z takes those methods off the table and nullifies the supervisors express, Mayor & City Councilmembers, City of Brentwood
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statutorily-conferred authority to decide what oil production methods are suitable in each case.” (Id. at *23.)
The Ordinance is likewise preempted by Public Resources Code Section 3106 because, among other reasons, they bans new wells, maintenance, redrilling, deepening and sidetracking on existing wells and other methods and practices of oil operations at existing drilling site within the City. The City Council wisely continued its consideration of the Ordinance, originally scheduled for August 8, 2023, when the Monterey decision was published on the same day.

CIPA understands that the City now believes the Ordinance as drafted and revised in light of that decision is not preempted by state law. CIPA disagrees, as further discussed below. Simply put, the Ordinance cannot be enacted in any form that would avoid preemption by state law, because it go toes the fundamental purpose of oil and gas operations, an area which is fully regulated by the state. Therefore, the Ordinance is preempted by state law.

We ask that NOPEC’s comments be made part of the record of proceedings regarding the Ordinance.

1. The Ordinance Conflicts with State Law; It Is Therefore Preempted.

The Ordinance is preempted by state law because the state legislature has expressed a clear intent to occupy the field in regard to the regulation of oil and gas operations. Under California law, “[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” Cal. Const, art. XI, § 7.

However, “[i]f otherwise valid local legislation conflicts with state law, it is preempted by such law and is void.” Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897, citing Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885.

Local legislation conflicts with state law where it “duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.” Id. Local legislation is “duplicative” when it is coextensive of state law. Id. And local law is contradictory where it obstructs or harms state law. Id. at 898. Finally, local legislation enters an area that is “fully occupied” by state law when the legislature expressly or impliedly manifested intent to occupy the area. Id; see also Candid Enterprises, Inc., supra, 39 Cal.3d at 885.

Implied preemption exists where, inter alia, the subject matter of the local legislation has been (1) "so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern;" or (2) "partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action." Sherwin, 4 Cal.4th at p. 898; see also Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725; N Cal. Psychiatric Soc'y v. City of Berkeley (1986) 178 Cal.App.3d 90, 106-07 ("if the subject matter is one of general or statewide concern, the Legislature has paramount authority; and if the Legislature has enacted general legislation covering that matter, in whole or in part, there must be a presumption that the matter has been preempted"); City of Santa Clara v.

Mayor & City Councilmembers, City of Brentwood
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Von Raesfeld (1970) 3 Cal.3d 239, 246 (where a subject is regional in scope or statewide in character, it is not a local or municipal affair). The regulatory processes in the Ordinance are preempted by state law. Consistent with its strong interest in oil and gas resources and its intent to maximize the "wise development of oil and gas resources," California has adopted numerous statutes and regulations that comprehensively regulate virtually all aspects of oil and gas operations, including in particular all downhole activities. See e.g., Pub. Resources Code, § 3106(d). The state has vested complete authority in CalGEM to “supervise the drilling, operations, maintenance, and abandonment of wells so as to permit owners or operators of wells to utilize all methods and practices known to the oil industry for the purpose of increasing the ultimate recovery of underground hydrocarbons and which, in the opinion of the supervisor, are suitable for this purpose in each proposed case.” Pub. Resources Code,§ 3106(b).

Further expressing the explicit policy of the state, section 3106(b) provides:

To further the elimination of waste by increasing the recovery of underground hydrocarbons, it is hereby declared as a policy of this state that the grant in an oil and gas lease or contract to a lessee or operator of the right or power, in substance, to explore for and remove all hydrocarbons from any lands in the state ... is deemed to allow the lessee or contractor ... to do what a prudent operator using reasonable diligence would do ... including, but not limited to, the injection of air, gas, water, or other fluids into the productive strata, the application of pressure heat or other means for the reduction of viscosity of the hydrocarbons, the supplying of additional motive force, or the creating of enlarged or new channels for the underground movement of hydrocarbons into production wells, when these methods or processes employed have been approved by the supervisor.

Id. (emphasis added).

As discussed above, the Supreme Court has recently made abundantly clear that Public Resources Code section 3106 preempts a local jurisdiction’s authority to regulate the methods of oil and gas production. Monterey, 2023 Cal. LEXIS 4349.

The City argues that the Ordinance is not preempted, because it only addresses location where oil and gas production is permitted, and not methods and practices. Staff Report, at 4.

However, this is an inaccurate reading of Monterey. The Ordinance’s requirement that oil and gas production be subject to a conditional use permit, and the Ordinance’s bar on new development without express conditions do, functionally, impact the methods and practices of oil and gas production. The fact that the City acknowledged that “future revisions may be warranted, depending on CalGEM regulations and/or subsequent judicial decisions” does not save the Ordinance from preemption by state law. Staff Report, at 5.

Mayor & City Councilmembers, City of Brentwood
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Thus, the Ordinance is preempted.

2. The Ordinance Is Not Supported by Evidence, Exceeds the City’s Police Powers to Enact, and Their Adoption Violates Owners’ Substantive Due Process Rights.

The Ordinance is not supported by substantial or sufficient evidence, and therefore is arbitrary and capricious. The City has provided only a cursory, seven-page staff report supporting the Ordinance. The City has not conducted – or at least not made public as lawfully required – its own health risk study or other analysis of the health and safety impacts of the Ordinance. This is insufficient to support the sweeping changes and infringements of property rights in the Ordinance.

In addition, the Ordinance exceeds the City’s police powers. As noted above, the City is preempted by state law from implementing the Ordinance. While cities maintain the power to enact zoning and similar ordinances, they may not do so in arbitrary fashion and without providing a justification reasonably related to legitimate government objectives. Pacific Palisades Assn. v. City of Huntington Beach (1925) 196 Cal. 211; Marblehead Land Co. v. City of Los Angeles (1931) 47 F.2d 528.) The City attempts to justify the Ordinance by relying upon unproven and alleged environmental impacts from oil and gas facilities. The City cannot arbitrarily prohibit activities that have taken place safely throughout California for at least 75 years without providing reasonable justification. Moreover, existing state laws adequately protect public health, safety, and the environment; therefore, the City’s arbitrary prohibitions create serious costs without any concomitant benefits. In cases involving the prohibition of oil and gas operations, the California Supreme Court has long held that "it is elementary that the enjoyment of property cannot be interfered with or limited arbitrarily" and must be supported with reasonable, non-arbitrary justifications. Pacific Palisades Assn., 196 Cal. at 216. In their current form, the Ordinance would arbitrarily prohibit safe oil and gas operations in the City without providing reasonable justification for doing so.

Finally, the unwarranted efforts by the City to move forward with the Ordinance, without fully considering and addressing the impacts of the Monterey decision, constitutes a violation of the substantive due process rights of oil well operators, owners, and royalty holders. Due process requires that all members of the public have a fair and meaningful opportunity to be heard. The City’s release of the recently-revised versions of the Ordinance, containing significant modifications in light of the Monterey decision, prevented CIPA and its members of from fully participating in the process and having substantive engagement with the City on the preparation and revision of the Ordinance. Here, the City is considering depriving property owners of their property rights. A higher level of due process is therefore required. The City should therefore postpone the consideration of the Ordinance.

Mayor & City Councilmembers, City of Brentwood
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3. The Ordinance Is an Unconstitutional Taking of Private Property.

The Ordinance represent an unconstitutional and unlawful taking of private property without just compensation, in contravention of the United States and California Constitutions. The state and federal Constitutions prohibit government from taking private property for public use without just compensation. Cal. Const., art. I, ß 19; U.S. Const., 5th Amend.; Chicago, Burlington &c. R’d v. Chicago (1897) 166 U.S. 226, 239 (applying the federal takings clause to the states). In Penna. Coal Co. v. Mahon (1922) 260 U.S. 393, 415 (Penna. Coal), the United States Supreme Court recognized that a regulation of property that “goes too far” may effect a taking of that property. When a regulation does not result in a physical invasion and does not deprive the property owner of all economic use of the property, a reviewing court must evaluate the regulation in light of the “factors” the high court discussed in Penn Central Transp. Co. v.

New York City and subsequent cases. Penn Central emphasized three factors in particular: (1) “[t]he economic impact of the regulation on the claimant”; (2) “the extent to which the regulation has interfered with distinct investment-backed expectations”; and (3) “the character of the governmental action.” Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 124.

Subsequent cases, as well as a close reading of Penn Central, indicate other relevant factors such as whether the regulation affects the existing or traditional use of the property and thus interferes with the property owner’s “primary expectation” (id. at 125, 136), and whether the regulation “permit[s the property owner] . . . to profit [and] . . . to obtain a ‘reasonable return’ on . . . investment.” Id. at 136. Under these factors, regulations which significantly limit the uses of private property constitute a taking. Such changes require just compensation, as well as due process and public consultation. This is true, for example, of zoning ordinances which render an existing use nonconforming.

In addition, the United States Supreme Court has definitively established that a land use regulation "goes too far”—amounting to a facial taking of property—where it "denies an owner economically viable use of his land." Lucas v. SC Coastal Council (1992) 505 U.S. 1003,1016, citing Agins v. City of Tiburon (1980) 447 U.S. 255, 260. This occurs where a regulation, by implementation alone, leaves the property owner without "substantial economic use" of the affected property. See Maritrans Inc. v. U.S. (2003) 342 F.3d 1344, 1351-52. A facial taking analysis does not require a fact-based probe as set forth in Penn Central. Rather, the dispositive inquiry is "whether the mere enactment of the [regulation] constitutes a taking." Agins, 447 U.S. at 295, abrogated on other grounds; see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency (2002) 535 U.S. 302, 318.

The Ordinance would give rise to a claim for just compensation by oil well operators and owners as well as mineral rights owners, commonly referred to as royalty holders. The Ordinance would severely restrict the ability of well operators, owners, and royalty holders to use their property and would materially infringe on their property rights and interests, up to and Mayor & City Councilmembers, City of Brentwood
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including completely eliminating the value of those rights. Therefore, the Ordinance constitutes a taking for which compensation must be made.

4. The Ordinance Violates Owners’ Vested Rights.

The Ordinance constitutes a violation of the vested rights of oil well operators, owners, and royalty holders. Under Avco Community Developers, Inc. v. South Coast Regional Commission, (1976) 17 Cal.3d 785 (“Avco"), where a permit holders make an investment in that permit, they possess vested legal rights. Subsequent case law has clearly concluded that the doctrine of vested rights applies to use permits and the activities authorized thereunder. See Hansen Brothers Enterprises v. Board of Supervisors, (1996) 12 Cal.4th 533 ("Hansen"). Post-Avco decisions have held that use permits confer vested rights. HPT IHG-2 Properties Tr. v. City of Anaheim (2015) 243 Cal. App. 4th 188, 199 (where a CUP has been issued and the landowner has relied on it to its detriment, the landowner has a vested right.); see also Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 367. The scope of the vested rights is the scope of activity authorized under the permit. Santa Monica Pines, Ltd. v.

Rent Control Bd. (1984) 35Cal.3d 858, 865. Here, the Ordinance will unlawfully curtail the vested rights related to the oil wells at issue.

The staff report claims that “there are no active wells – including idle wells that may be reengaged in the future – within City limits, meaning there are no vested rights to continue drilling or any related oil and gas operations that would be affected by a permanent ban.” Staff report, at

3. However, this is incorrect. While there are active operations outside of the City’s limits, at least one CIPA member (and other royalty and potential royalty owners) maintain rights to land—and accompanying rights for oil and gas exploration and extraction—within the City. The Ordinance would infringe on their vested rights.

5. The City Fails to Take Into Account Significant Environmental Impacts.

The City failed to consider the significant, unmitigated and unmitigable environmental impacts of the Ordinance, in violation of CEQA. Specifically, the City failed to consider the increases in greenhouse gas (“GHG”) emissions that will result from adoption of the Ordinance.

Reducing oil and gas production in California will result in an immediate, foreseeable increase in the importation of foreign oil. Importation of foreign oil results in increased GHG emissions from tanker ships carrying the oil and the oil itself, which is not climate compliant. 1 These
significant impacts include, among other things, impacts to air quality, which are required to be analyzed under CEQA. For example, the increase in foreign oil shipped to California to replace oil that cannot be extracted under the Ordinance will result in an increase in the release of 1 By contrast, oil produced in California is climate compliant—meaning that oil produced in the State is produced in compliance with some of the most rigorous GHG reduction programs in the world.

Mayor & City Councilmembers, City of Brentwood
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volatile organic compounds (VOCs) and nitrogen oxide (NOx) emissions from tanker ships (and, to a lesser extent, trucks) bringing this oil to California ports and refineries.

California produces only a fraction of the oil consumed by the State. Through the end of 2021 California produced an average of 358,000 barrels of oil per day, while consuming more than 1,400,000 barrels per day, requiring over 70% of California’s oil to be imported. Since California is an "oil island", meaning that it does not have any pipelines that bring crude into the state, oil must be imported. The largest exporter of crude oil to California is Ecuador, followed by Saudi Arabia and Iraq (65% total from these three countries). In addition, California imported 18,000,000 barrels of crude from Russia in 2021. There are significant impacts associated with these importation activities, which the City failed to consider.

6. The City’s Reliance on Categorical Exemptions Is Improper Because the Exemptions Relied On Are Not Available and Because Exceptions Apply.

The City purports to comply with the environmental disclosure, evaluation, and mitigation mandates of CEQA in its adoption of the Ordinance by relying on four (4) categorical exemptions. Such reliance is improper. In deeming the Ordinance exempt from CEQA, the City failed to consider the significant, foreseeable impact the Ordinance would have on mineral resources. The City must undertake a legally adequate evaluation of the impacts to this CEQA resource class prior to adoption of the Ordinance.

Specifically, the City relies on exemptions for Existing Facilities (Class 1), Actions by Regulatory Agencies for the Protection of the Environment (Class 8), Alterations to Land (Class 4), and the Common Sense exemption (15061(b)(3)). Reliance on these exemptions is improper.

First, the Ordinance does not qualify for the Existing Facilities exemption. Contrary to the City’s assertions, the Ordinance involves significant changes to existing facilities, in that it would completely bar their operation in the near future. Therefore, use of this exemption is inappropriate. Second, the Ordinance does not qualify under the Protection of the Environment exemption, because it will result in adverse impacts to CEQA resources. Third, the Ordinance cannot be exempt under the Alterations to Land exemption, because the scope of impacts likely to occur from the enactment of the Ordinance is completely beyond the effects contemplated by the exemption, such as “sale of Christmas trees” and “gardening or landscaping.” Finally, the Ordinance is not exempt under the Common Sense exemption, because, contrary to the City’s assertion, there is substantial evidence that there will be significant environmental impacts. As discussed above, the Ordinance will result in the foreseeable and material increase in GHG emissions. As discussed below, the Ordinance will also result in significant impacts to mineral resources.

CEQA recognizes any limitation on access to mineral resources of local, regional or statewide importance to be an environmental impact, in and of itself. Given that the Ordinance Mayor & City Councilmembers, City of Brentwood
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will necessarily result in limiting access to mineral resources of local, regional and statewide importance, it cannot be said that the Ordinance provides blanket “assurance” that the environment—which includes mineral resources—will be only protected, and not at all impacted. Petroleum and gas reserves in Contra Costa County, including within the City, constitute a “known mineral resource that would be of value to the region and the residents of the state” the loss of availability of which necessarily results in a significant environmental impact.

State CEQA Guidelines, Appendix G, section XII(a). Indeed, at least one CIPA member, and potentially others, maintains the rights to mineral reserves within the City, and there are three fields in and around the City that continue to produce oil and gas resources: Brentwood, Brentwood East, and River Break. The City’s failure to consider or address these impacts requires additional review under CEQA, and makes the Ordinance ineligible for exemption under the Common Sense exemption. For the same reasons, the Ordinance cannot be exempted under Class 8, because it will have impacts on minerals, a CEQA resource.

Even if the City could reasonably show that the exemptions it relies on applied to the Ordinance—and, as discussed above, it cannot— the unusual circumstances exception of State CEQA Guidelines, section 15300.2, bars reliance on the Class 8 exemption, or any other categorical exemption found in State CEQA Guidelines, sections 15301 through 15333. The unusual circumstances exception is invoked when evidence shows that a project will have a significant impact on the environment. Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1105; World Business Academy v. Cal. State Lands Commission (2018) 24 Cal.App.5th 476, 499. Under this one-element test, if a project will have a significant environmental effect, that project necessarily presents unusual circumstances and cannot be found exempt from environmental review. World Business Academy, supra, at 499. Here, it is clear that the Ordinance will result in a significant impact on the environment. And because the Ordinance will have significant impacts on mineral resources, it falls into the unusual circumstances exception to the exemptions and requires CEQA review, which the City failed to conduct. Under both of these thresholds, the Ordinance requires CEQA review.

Moreover, the Ordinance is not exempt because application of the claimed exemptions are barred under CEQA Guidelines sections 15061(b)(2) and 15300.2. The exception for cumulative impact, 15300.2(b), applies in this case, because (as noted above) there will be significant cumulative impacts arising from the foreseeable and unavoidable closure of facilities under the Ordinance, including but not limited to GHG and Air Quality Impacts. In addition, the Ordinance may not be exempt under other exceptions that may apply.

Finally, the City fails to provide sufficient evidence for its assertions. Despite an agency's factual determination that a project qualifies for a CEQA exemption, such claims will only be upheld if supported by substantial evidence. Fairbank v. City of Mill Valley (1999) 75 Cal. App. 4th 1243, 1251; Citizens for Environmental Responsibility v. State ex rel 14th Dist.

Agric, Ass'n (2014) 224 Cal. App. 4th 1542, 1555; North Coast Rivers Alliance v. Westlands Mayor & City Councilmembers, City of Brentwood
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Water Dist. (2014) 227 Cal. App. 4th 832, 852. The Ordinance fail to provide necessary evidence to qualify for a CEQA exemption. Instead, the City only provides conclusory statements regarding potential impacts, which are insufficient to support the exemptions claimed. * * *
CIPA appreciates your time and attention to this matter. Given the significant and material defects in the Ordinance and the lack of any environmental review conducted to support the Ordinance, CIPA strongly urges the City to discontinue its processing of the proposed Ordinance and decline to adopt the Ordinance.

Sincerely,
Sigrid R. Waggener

From: Nina Damiano
To: webCityClerk
Subject: 10/10 Public Comment for Ordinance on Oil and Gas Development Date: Tuesday, October 10, 2023 2:59:37 PM
CAUTION – EXTERNAL SENDER
Good afternoon!
The following is a public comment for the Tuesday 10/10/23 City Council meeting for the Ordinance on oil and gas development:

My name is Nina Damiano and I’m a high school senior in Contra Costa.

I want to underscore the urgency and necessity of this ordinance on the ban on oil and gas development and more stringent regulatory control on existing oil and gas developments. This ordinance is crucial to the safety of all Brentwood citizens- It is urgent that we continue on the path we’re already on to keep Brentwood a healthy and safe place for all of us and I am glad for the progress we have made so far.

Brentwood has already taken major steps in ensuring that oil and gas development rights are limited, and these amendments to the ordinance are proof of that. We are all aware of the intense dangers oil and gas development pose to land, air, and most importantly, residents. It is no secret that oil and gas drilling emit toxins such as carbon monoxide and nitrous oxide that can cause serious health issues like cancer, asthma, and respiratory diseases. Leaving space for oil and gas development leaves space for a future in nonrenewable, health-hazardous energy sources to continue to permeate our community and affect future generations and youth. By banning oil and gas drilling now, we can collectively progress towards a future that protects all of us and set the precedent for a clean energy future.

Thank you,
Nina
From: Victoria Sandberg
To: webCityClerk
Subject: Zoom Public Comments
Date: Tuesday, October 10, 2023 12:31:31 PM
CAUTION – EXTERNAL SENDER
Dear Mayor, Vice Mayor, Council members,
I would urge you to follow suit with other Bay Area communities and suspend public comments over Zoom. If Brentwood is the only city that still accepts Zoom pubic comments it will only make us more of a target. I was watching the meeting where the offensive calls were made and was horrified to watch as Margaret had to keep accepting calls even though she knew what was coming. And even knowing, it wasn’t possible to cut off the call before horrible, disgusting things were said. Limiting Zoom public comments to only agendized items obviously won’t help because even our own citizens are able to get in quite a few off topic words under the guise of speaking on an agendized item. The majority of the antisemitic/white supremacist callers did not speak under general comments.

For those that complain that our First Amendment rights are being curtailed-the right to make public comments at a city council meeting is obviously a limited right. We can’t talk as long as we would like or whenever we would like. The limits have to be equally applied, but the right to make comments is obviously limited. And clearly we did not have the convenience of making public comments over Zoom before the pandemic necessitated it.

Some have said suspending public Zoom comments won’t stop someone from coming in person to spew their hateful rhetoric which is true, but at least they will have to stand before the public and Council when they make their vile comments and not just be an anonymous, disembodied voice coming into the chambers and our living rooms.

I’m aware that it will inconvenience some people to not be able to make comments on Zoom but we always have the opportunity to submit written comments. Could you also have written pubic comments read into the record if requested (if they are within the time limit)? That might be a fair compromise.

Thank you for your careful consideration of this item.

Sincerely,
Victoria Sandberg
From: McVey, Amanda
To: =yCouncil Members
Subject: Revision to the Draft Meeting Minutes of September 26, 2023 Date: Tuesday, October 10, 2023 3:24:00 PM
Attachments: Draft Minutes - CCM_Sep26_2023.pdf
Good afternoon Mayor and Council Members,
Staff has provided a revision to the draft Meeting Minutes of the September 26, 2023 City Council Meeting to provide clarification on the motion as well as the amendments made to the motion on Items I.2.1, I.2.b, and I.2.c.

Please note for approval, these changes must be acknowledged when making the motion to approve the consent calendar.

The revised draft minutes are attached.

Thank you,
Amanda McVey
1 CITY COUNCIL/SUCCESSOR AGENCY MINUTES
September 26, 2023, 7:00 p.m.

A. CALL TO ORDER & ROLL CALL
Mayor Bryant called the meeting to order at 7:00 p.m.

Roll Call found the following members present: Mendoza, Meyer, Pierson, Oerlemans, and Mayor Bryant.

B. PLEDGE OF ALLEGIANCE
Mayor Bryant led the Pledge of Allegiance.

C. REPORT ON CLOSED SESSION
There were no reportable actions.

D. PUBLIC COMMENTS
Lilian Pierce provided an update on the upcoming Brentwood Community Chest events and provided the organization's website, brcchest.org.

Danny Dohrmann requested the City work with Liberty Unified School District related to students drinking and smoking in school and spoke to a lack of control of city government and accountability.

Denise Duran thanked the City Council, City staff, and the Police Department for support with the La Gran Fiesta, thanked the Rotarians for the Brentwood Craft Beer Festival, thanked the Economic Development Department for the Tech Meetup at the Brentwood Community Center, and provided an update on upcoming Chamber events.

The following individuals provided comments related to concerns at the Senior Center:

Mary Kohler
Rosa Chang
Rosa Gascoigne
John Gascoigne
Jose Pannitto
Sandra Smith
Carmen Mendoza
Rosie Foulato
Ian Cohan thanked the Police Department for the extra security at the homecoming game and provided comments related to staffing at the Senior Center.
2 Carolina Villaseca provided comments related to a previous public comment.

Sinziana Todor expressed disappointment in the 3-minute speaker limit and provided comments related to the City Manager's evaluation.

Mary Kohler provided clarification on her previous comment that she is not a City of Brentwood employee.

Rod Flohr expressed concerns related to the public comments made related to the Senior Center.

E. INFORMATIONAL REPORTS FROM COUNCIL MEMBERS, COMMITTEES,

LIAISONS, AND STAFF
Council Member Mendoza reported she attended an Our neighborhood Voices town hall, Los Medanos College Teach Fundraiser at Trilogy, League of California Cities (Cal Cities) Annual Conference, School Board Interagency meeting, and attended a California Alliance of Local Electeds (CALE) call with Assembly Woman Pellerin.

Council Member Pierson reported she attended the Alameda County Mayor's Conference as a speaker related to the Chicago 50 Resolution, School Board Interagency meeting, is working with Police Activities League (PAL) Board on the Tamale Festival which will be held at City Hall on November 17, 2023 from 5 p.m. to 10 p.m., attended the Cal Cities Annual Conference, met with two residents, watched the Planning Commission meeting, and together with the Mayor, City Manager, and Police Department she greeted Brentwood Elementary School's 5th Grade field trip to the Library, Sip and Scoop, and City Park.

Council Member Oerlemans reported he attended the Cal Cities Annual Conference, the Farmers Market, visited the PAL booth at the Shop and Chill event at Chill Tea and Coffee, and watched the Planning Commission meeting.

Vice Mayor Meyer thanked the members of the public for attending and voicing their concerns, reported she attended a planning session of the Cal Cities Resolution Committee prior to attending the Cal Cities Annual Conference Cal Cities, CALE meeting, watched the Planning Commission meeting, attended the Los Medanos College Teach Fundraiser at Trilogy, and visited the Senior Center for open session to answer questions and address concerns.

Mayor Bryant, attended the meet and greet with the Brentwood Elementary students at City Park, attended the Cal Cities Annual Conference, Transplan, BART, State Route 4, and ECCRFFA meetings, and met with multiple residents regarding similar concerns as expressed during public comment.

F. CONSENT CALENDAR
Mayor Bryant pulled item F.3
3 Moved by: Susannah Meyer, Vice Mayor
Seconded by: Jovita Mendoza, Council Member
Adopted the Consent Calendar, with the exception of Item F.3, as recommended by staff.

Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Vice Mayor, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor
Motion Approved (5 to 0)
F.1 Minutes of the City Council/Successor Agency meeting of September 12, 2023
F.2 A Proclamation Proclaiming September 26, 2023 as Human Resources Professional Day
F.3 A Proclamation Proclaiming September 29, 2023 as Veterans of Foreign Wars Day
Moved: Susannah Meyer, Vice Mayor
Seconded: Pa'tanisha Pierson, Council Member
Adopted a proclamation proclaiming September 29, 2023 as Veterans of Foreign Wars Day.

Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Vice Mayor, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor
Result: Approved
F.4 A Proclamation Proclaiming October 9, 2023 as Indigenous Peoples' Day
F.5 A Proclamation Proclaiming October 2023 as Breast Cancer Awareness Month
F.6 A Proclamation Proclaiming October 2023 as All Abilities Month F.7 A Proclamation Proclaiming October 2023 as Filipino American Heritage Month
F.8 A Proclamation Proclaiming October 2023 as Polish American Heritage Month
F.9 A Proclamation Proclaiming October 2023 as Cyber Security Awareness Month
F.10 Contract for Brentwood Family Aquatic Complex Pool Heaters Replacement
4 Adopted Resolution 2023-119 approving the contract documents, award the bid, and authorize the City Manager or designee to execute the contract and necessary documents, including the use of contingency amounts, for the Brentwood Family Aquatic Complex pool heaters replacement, to National Aquatics Services, Inc. in the amount of $179,028.13 plus funding authorization for a 10% contingency amount of $17,902.81 for additional services, for a total funding authorization not to exceed amount of $196,930.94; and amend the 2023/24 Parks and LLAD Replacement Fund Operating Budget in the amount of $196,931.

G. PUBLIC HEARINGS
G.1 Call for review of a tentative parcel map and design review for Lazy Dog restaurant, approved by the Planning Commission on August 15, 2023
Associate Planner Miguel Contreras presented the item.

Mayor Bryant opened the Public Hearing.

Ryan Nicholson with LRG Investors and Jared Taylor with Lazy Dog spoke on behalf of the applicant.

The following individuals spoke in support of the item:

Sinziana Todor
Carolina Villaseca
Denise Duran
There being no one else wishing to speak, it was moved/seconded by Mendoza/Pierson to close the Public Hearing, and carried by the following vote:

Ayes (5): Council Members Mendoza, Meyer, Pierson, Oerlemans, and Mayor Bryant

Moved by: Jovita Mendoza, Council Member
Seconded by: Susannah Meyer, Vice Mayor
Adopted Resolution 2023-120 resolution affirming the Planning Commission approval of Tentative Parcel Map 354-22 for Lazy Dog restaurant, as conditioned by the Planning Commission.

Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Vice Mayor, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor
Motion Approved (5 to 0)
5 Moved by: Jovita Mendoza, Council Member
Seconded by: Tony Oerlemans, Council Member
Adopted Resolution 2023-121 affirming the Planning Commission approval of Design Review 22-011 for Lazy Dog restaurant removing conditions of approval 8, 11, 12 and 13; and if during construction of the building it is found by the Director of Community Development that rooftop equipment is visible from any adjacent development at street level or from any portion of the Sand Creek Road right-of-way, the applicant will develop a screening plan to be reviewed and approved by the Director of Community Development. The screening materials shall match the primary building colors and materials, be integrated into the design of the building and shall not appear to be an “added on element”, to the satisfaction of the Director of Community Development. Screening shall be installed and inspected for compliance prior to issuance of certificate of occupancy for the building.”
Allowed staff to correct a typo on the first page of each resolution.

Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Vice Mayor, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor
Motion Approved (5 to 0)
G.2 Final Engineer’s Report, and confirming and ordering the formation of Landscape & Lighting Assessment District No. 23-1
Park Maintenance Manager Aaron Wanden presented the item.

Mayor Bryant opened the Public Hearing and inquired if there were any additional ballots to be submitted.

There being no one wishing to speak and no additional ballots to be received, it was moved/seconded by Mendoza/Meyer to close the Public Hearing, and carried by the following vote:

Ayes (5): Council Members Mendoza, Meyer, Pierson, Oerlemans, and Mayor Bryant
After the City Council confirmed the formation would take place with a simple majority property owner approval, Mayor Bryant asked the City Clerk to tabulate the ballots and read the results.

City Clerk Margaret Wimberly read the single ballot cast as an affirmative vote.

Moved by: Susannah Meyer, Vice Mayor
Seconded by: Jovita Mendoza, Council Member
6 The City Council confirmed the formation with a simple majority property owner approval, weighted by assessment amount.

Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Vice Mayor, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor
Motion Approved (5 to 0)
Moved by: Pa'tanisha Pierson, Council Member
Seconded by: Susannah Meyer, Vice Mayor
Adopted Resolution 2023-122 ordering the Formation of Landscape & Lighting Assessment District No. 23-1, and taking all implementing actions.

Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Vice Mayor, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor
Motion Approved (5 to 0)
H. BUSINESS ITEMS
H.1 Review of City Council/Administrative Policy Ethics and Conduct Policy 110-5
Council Member Pierson requested the item be continued to a future meeting date to provide time for a more thorough report.

Mayor Bryant opened the public comment period.

Rod Flohr stated he liked the Carlsbad version of ethics, that he would like to hear more on the actively listening to public comments, and that the people of Brentwood should come first in decision making.

Moved by: Pa'tanisha Pierson, Council Member
Seconded by: Tony Oerlemans, Council Member
Continued the item to October 10, 2023.

Ayes (4): Jovita Mendoza, Council Member, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor Noes (1): Susannah Meyer, Vice Mayor
Motion Approved (4 to 1)
H.2 Former Davis Camp Site Historical Display
Assistant City Manager Darin Gale presented the item.

Mayor Bryant opened the public comment period.
7 Doreen Forlow provided comments in support of the item.

Mary Black provided comments in support of the item.

There being no one else wishing to speak, Mayor Bryant closed the public hearing period.

Moved by: Susannah Meyer, Vice Mayor
Seconded by: Jovita Mendoza, Council Member
City Council directed staff to continue to collaborate with East Contra County Historical Society to design an interpretive historical display that recognizes the significance of the former Davis Camp and its contribution to the history of Brentwood on or near the former Davis Camp property and return with draft layout and design for Council consideration.

Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Vice Mayor, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor
Motion Approved (5 to 0)
I. REQUEST FOR FUTURE AGENDA ITEMS
I.1 NEW REQUEST(S)
Council Member Mendoza requested the following future agenda items:
 Appraisal for the land value of Davis Camp and process discussion on rezoning the site for development, in part, as a park
 Create a Budget Subcommittee
 Create a Design Standard Guidelines Subcommittee
 Department Directors report directly to the City Council Council Member Pierson requested the following future agenda items:
 Creation of a Citywide Racial Equity Plan
 Create resolution or policy on anti-racism /anti-hate  Review of Brentwood Municipal Code sections that are no longer enforceable.
 Creation of Ethics and Conduct policy for all Commissions  Create a Race and Equity Committee of the City Council Vice Mayor Meyer requested the following future agenda items:
 Establish a proclamation presentation process
8  Create a Committee of the City Council for Age Friendly Communities
I.2 REQUESTED ITEM(S)
I.2.1 Consider a Request of September 12, 2023 from Vice Mayor Meyer regarding the Senior Center programming and operations
Items I.2.a, I.2.b, and I.2.c were heard together.

Vice Mayor Meyer, Council Member Mendoza, and Council Member Pierson presented each of their items.

Mayor Bryant opened the public comment period.

City Council recessed at 9:20 p.m.

City Council resumed open session at 9:40 p.m.

The following individual spoke in favor of these items:

Danny Dohrmann
Mary Kohler
Sinziana Todor
Carolina Villaseca
Rod Flohr
Robbie Myers
The following individuals provided comments unrelated to the agenda item:

Mike Johnson
Judy
Ernie
Jim
Hans
Tom
Moved by: Susannah Meyer, Vice Mayor
Seconded by: Pa'tanisha Pierson, Council Member
Vice Mayor Meyer's Motion: City Council directed staff Tto spend staff time and resources on items I.2.A and I.2B. and I.2.C; allinclusive of the details included in the staff reports for those items, except items directly related to any staff identifying information and personnel information.
 Interview all the staff and all the stakeholders that participate in the programming of all of those facilities and programs
 Former employees who are residents if they’d like to
participate
9  Include seniors and any participants in programming with the Parks and Rec
 Investigation be independent
 Staff time and resources to create an RFP
o To be reviewed by Council
 Set the budget amount for the investigation at $100k
 The full list of items for investigations specific to the senior center
 Questions on the survey for residents questions related to Youth services
 Include in the RFP for consultant to put together a survey to encompass all of the various requests that you've
mentioned tonight
 Independently created, independently evaluated, and
then presented to the city council
 Additional programming based on the Survey with all
programming in Parks and Recreation to be included.
 Add facilities and customer service
 Council will authorize the RFP unless that authority is delegated
Council Member Pierson amended Vice Mayor Meyer's motion to include a top down investigation, with the following from Vice Mayor Meyer:

Pierson friendly amendment to Vice Mayor Meyers motion:

Top down independent investigation of
 Current non-profit and CBO partnerships and those
terminated since 2019 including reasons for termination  Current MOU use those that expired since 2019 and those about to expire
 Current programs, special projects, events and activities and those terminated since 2019, including reasons for
termination
 How staff is chosen to work at the center
 How training is managed for that staff, whether
temporary or long term
10  Senior related experience qualifications of leadership positions of regular center staff
 Everything considered when placing staff there
 Any future plans being explored that potentially change the format infrastructure or offerings of the senior center  Yearly attending number since 2019
 Confirmation of language and cultural access efforts
 The on-site schedule for Parks and Rec leadership
 The status of the previously printed Brentwood seniors’ activities guide
Council Member Pierson included the following items in the motion:
 To include facility usage of the senior center
 Effectiveness of the programming customer service
 Recommendations from the Parks and Commission, on
how we can ensure a positive experience for our
residents
 A review of staffing levels in over the last 3 years in Parks and Recreation
o With organizational charts and position and attrition over the 3 years and reason for leaving (general
without names or position titles, should not be
employee specific)
 The City Attorney has the authority to use staff time and resources time and resources to run our motion past
outside council
Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Vice Mayor, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor
Motion Approved (5 to 0)
I.2.2 Consider a Request of September 12, 2023, from Council Member Mendoza regarding staffing issues in the Parks and Recreation Department
Items I.2.a, I.2.b, and I.2.c were heard together. Motion is reflected under Item I.2.a.
11 I.2.3 Consider a Request of September 12, 2023, from Council Member Pierson regarding Senior Center programming survey and input from the Parks & Recreation Commission regarding the Parks & Recreation Director's evaluation
Items I.2.a, I.2.b, and I.2.c were heard together. Motion is reflected under Item I.2.a.

I.2.4 Consider a Request of September 12, 2023 from Council Member Pierson regarding a review of the adopted Utility Rate Studies, and provide data to Council Member Mendoza to do her own
calculations
Council Member Pierson presented the item.

Mayor Bryant opened the public comment period.

Rod Flohr spoke in favor of the item.

There being no one else wishing to speak, Mayor Bryant closed the public hearing period.

Moved by: Pa'tanisha Pierson, Council Member
Seconded by: Jovita Mendoza, Council Member
The City Council, by motion, authorized staff to spend time and resources to provide Council member Mendoza the numbers to run calculations and that staff be allowed to spend time and resources to work with the consultant to review her calculations, and to allow Council Member Mendoza and the Consultant to present the findings on the rate study to see if there are any discrepancies with the adopted Rate Studies.

Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Vice Mayor, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor
Motion Approved (5 to 0)
I.2.5 Consider a Request of September 12, 2023, from Council Member Mendoza regarding amendments to the Special Events Application Council Member Mendoza presented the item.

Mayor Bryant opened the public comment period.

Rod Flohr spoke in favor of the item.

Denise Duran spoke in favor of the item.

There being no one else wishing to speak, Mayor Bryant closed the public hearing period.
12 Moved by: Jovita Mendoza, Council Member
Seconded by: Pa'tanisha Pierson, Council Member
City Council authorized staff to spend time and resources to add the work they're doing on special events to add a garbage cleanup policy, the consequences of not following through with that policy, and a process to work on conflict of business types with a brick and mortar type not being situated within a certain distance in front of that business.

Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Vice Mayor, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor
Motion Approved (5 to 0)
I.2.6 Consider a Request of September 12, 2023, from Council Member Mendoza regarding monitoring of Council Member time and requests of staff
Council Member Mendoza presented the item.

Mayor Bryant opened the public comment period.

Rod Flohr spoke in favor of the item.

There being no one else wishing to speak, Mayor Bryant closed the public hearing period.

Council Member Mendoza withdrew her request.

No action was taken on the item.

J. ADJOURNMENT
It was moved/seconded by Meyer/Pierson to adjourn at 12:02 a.m.

Brentwood City CouncilOctober 10, 2023

Brentwood City Council
October 10, 2023