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HomeMy WebLinkAbout03-06-2014 Council Agenda Item 10:10 AM 2 Supplement RECEIVED Agenda Item: 10:10 A.M. Date: 3/6/14 N,►1 i 0 19 FRESNO CITY COUNCIL M , Y CLERK, FRESNO CA City of CMC�\■ llli-In=—-:=:_va0 Supplemental Information Packet Agenda Related Items— 10:10 A.M. Supplemental Packet Date: March 5, 2014 Items WORKSHOP regarding California Redemption Value (CRV) beverage container recycling facilities in Fresno, and consider direction to staff regarding any revisions to approval criteria for these facilities— (Citywide)— Councilmember Olivier and Development and Resource Management Department Supplemental Information: Any agenda related public documents received and distributed to a majority of the City Council after the Agenda Packet is printed are included in Supplemental Packets. Supplemental Packets are produced as needed. The Supplemental Packet is available for public inspection in the City Clerk's Office, 2600 Fresno Street, during normal business hours (main location pursuant to the Brown Act, G.C. 54957.5(2). In addition, Supplemental Packets are available for public review at the City Council meeting in the City Council Chambers, 2600 Fresno Street. Supplemental Packets are also available on-line on the City Clerk's website. Americans with Disabilities Act (ADA): The meeting room is accessible to the physically disabled, and the services of a translator can be made available. Requests for additional accommodations for the disabled, sign language interpreters, assistive listening devices,or translators should be made one week prior to the meeting. Please call City Clerk's Office at 621-7650. Please keep the doorways,aisles and wheelchair seating areas open and accessible. If you need assistance with seating because of a disability, please see Security. l:Webb & Bordson, HFC Io:Hernandez - Correspondence to City Counsel - Na (1yb84BB100b) 13:03 03/0b/14 LSI P9 2-10 WEBB + BORDSON rC 3164niy ATTORNEYS AT LAW RECL_lVED 466W. FALLBROOK. SUITE 102 FRESNO, CALIFORNIA 93711 TELEPHONE: 559{131.4888 iii r;f1 10 09 FACSIMILE: 559.821.4500 www.W B LAw G ROU P.CO M r,i Y CLERK, FRESNO CA LENDEN F. WEBB MI RANDA M. BORDSON Email:ATiplon@-VBLaa•Group.com AMY LOVEGREN-TIPI'ON March 5, 2014 Via Email to clerk fresno.gov and Facsimile to 559-488-1005 Yvonne Spence, CMC Fresno City Clerk 2600 Fresno Street, Room 2133 Fresno, California 93721-3603 Re: CITY COUNCIL MEETING, March 6,2014—CRV Beverage Recycling Facilities An in-depth look into DARM s Report Dear Council Members, Our office represents the interests of the Flernandezes. The Hemandezes have applications on file with the Development and Resource Management Department("DARIM") for two proposed California Redemption Value("CRV") beverage container recycling facilities to be sited in the City of Fresno. One of the Hernandezes' applications was filed on May 30, 2013,and an application for a second location was filed on December 10,2013. Stunniary of Conclusion Our office has received a copy of the Report to the City Council prepared by DAMN4 ("Report"). After reviewing the Report, our office would like to ).Hake the following relevant observations concerning the contents of the Report. • The Report finds no measurable connection between crime and the operation of CRV beverage container recycling facilities, either at the site location or in the surrounding neighborhoods. • Existing city requirements mandate that CRV beverage container recycling facilities be designed to be aesthetic and otherwise compatible with surrounding areas. The pending applications are in frill compliance with these requirements. • The Report discusses the threat of overconcentration of CRV beverage container recycling facilities, but does not provide a basis upon which to measure overconcentration. It should be noted that the pending applications would site FRESNO OFFICE:466 W.FALLBROOK.SUITE 102. FRESNO.CALIFORNIA 93711 I:Webb & uordson, HNC lo:Hernandez - Correspondence to City Counsel - ma 0 bbU483100b) 13:04 03/0b/14 t51 Ng 3-10 WEBB & BORDSON, APC Fresno City Council—CRV Recycling Facilities March 5, 2014 Page 2 of 6 CRV recycling facilities in locations consistent with existing densities in the City of Fresno. • The Report does not conclude that there is an overconcentration of CRV beverage container recycling facilities, or a threat of overconcentration of CRV beverage container recycling facilities in the foreseeable future in Fresno. Therefore, we strongly encourage the City Council to maintain existing requirements for CRV beverage container recycling facilities in order to promote business and in order to promote recycling for a greener Fresno. More specifically, we respectfully request that the City Council instruct DARM to promptly process and approve the two pending applications for CRV beverage container recycling facilities in the City of Fresno. Not All.Ree rcligg Centers Are the Same. CRY.,acilities Du NOT Accept hkfz-Crime Materials At the outset,we think it important to distinguish between the different recycling facilities at issue. The Report addresses only CRV beverage container recycling facilities. ("CRV Recycling Facilities")The CRV Recycling Facilities only pay for glass, plastic and aluminum beverage containers. In contrast, a regular recycling facility not only pays for CRV beverage containers, but also pays for a myriad of other recyclable materials,including,but not limited to, scrap metal, copper, and glass. The distinction between the two types of facilities is especially important in light of an afticle in The Business Journal which provides the following quote from City Council Member Clint Oliver: "Unfortunately these recycling centers have become magnates [sic] for thieves who are stealing anything they can get their hands on to get fast cash." (Business Owners Want Theft of Recyclables Stopped, The Business Journal,published February 28, 2014,attached as Lxhibit "A".) Oliver appears to be addressing the complaints by business owners and residents regarding stolen air conditioners, copper pipe, and the like. CRV Recycling Facilities do NOT pay for these high-theft materials, and, therefore, consideration of this issue is not relevant to the analysis of the current CRV Recycling Facilities situation that is the subject of the Report. Further, it is worth noting that the state of California, in an effort to reduce the likelihood of large-scale theft of beverage containers,has recently reduced the daily amount of material that a CRV Recycling Facility may accept from any individual by eighty percent (80%). (See pg. 4 of Report, and&hibit "E"to Report.) Existence f CRV Beverage Reecling Facilities Mandated by Cal fornia Law As the Report indicates, CRV Recycling Facilities are mandated by California state enactment, to wit,the California Beverage Container Recycling and Litter Reduction Act. (See pp. 3-4 of Report.) Therefore, the existence of CRV Recycling Facilities in Fresno is not a detennination which falls within the purview of City Council. Instead, at issue is the purported proliferation of CRV Recycling Facilities in Fresno, or; alternatively, the potential for proliferation of CRV Recycling Facilities in Fresno. It is with this in mind that we would like to i:Vebb & Bordson, RPC To:Hernandez - Correspondence to City Counsel - Ma (15594881005) 13:04 03/05/14 EST P9 4-10 WEBB & BORDSON, APC Fresno City Council—CRV Recycling Facilities March S, 2014 Page J of 6 make the following points in response to the Report and in advance of the City Council's discussion of same. Analvsis ofPotential Problems Relating to CR Recj�c lirag Frtcilities The Report's analysis into potential problems associated with CRV Recycling Facilities can be narrowed down to two categories: Theft or crime, and visual blight! No Evidence pf Crinte Associated with_CRVRecj!cIji?g.q(c ity_Opercctiol:s In terms of crime at or near the CRV Recycling Facilities, the Report finds no measurable increase as compared with areas in which there are no CRV Recycling Facilities. (.See pp. 9-I1 ofReport.) Yet, notwithstanding the foregoing,the Report goes on to suggest that a policy change could be implemented through which applications for CRV Recycling Facility locations could be denied where the pre-existing crime rate is high. If it is the Report's unsubstantiated conclusion that CRV Recycling Facilities promote criminal activity, then it would flow from that logic that in denying applications in areas where pre-existing crime rates are high, the City will simply be forcing the criminal element from these high crime rate areas into areas of lower crime rates where CRV Recycling Facilities have been duly approved. It is worth noting that in terms of geographic size, Fresno is fairly small, and,therefore,the distinction between high-cringe rate areas and areas of lower crime rates is more a theoretical distinction. Proactive Steps Unnecessary in Licht of Fresno Pp Findings Further,the Report outlines additional proactive steps that may deter crime,if any, at the CRV Recycling Facilities. The potential policy changes could require applicants to choose a more visible location at the shopping center, or; alternatively use video surveillance at the location. (Seep. 10 of'Rep07-1.) A voucher system for paying people who drop off materials is also suggested. (Seep. 10 of Reporl.) Without any empirical evidence of criminal activity at CRV Recycling Facility locations, it is difficult to justify a series of conditions and limitations placed on the permitting of same, ostensibly in order to reduce the likelihood of criminal activity. Conclusory Statements Without Attendant Evidence Should Be Given No Wei ht Despite the determination that there is no measurable increase in crime associated with CRV Recycling Facilities, the Report makes the following assertions: • "It is widely observed that persons are stealing cans and bottles from curbside recycling bins . . . and leaving litter behind." (See p. 8 of Report.) • "Having too many recycling stations and/or siting them too close to each other can . . . potentially exacerbate the plundering of recyclable beverage containers [in] recycling and trash bins." (Seep. 8 of Report.) The Report mentions"Overconcentration of CRV recycling facilities"(Seep. 12 ofReport.)as an independent area of concern but then goes on to state that the potential for recyclable material theft is the hann that may result from overconcentration. Therefore,we will address that concern in conjunction with our analysis of the theft and crime component of the Report, a_Webb & 8ordson, HPG Io:Hernandez - Correspondence to City Counsel - Ma (1bbUM8100b) 13:Ub 03/0b/14 tSl Ng b-1N WEBB &BORDSON, APC Fresno City Council—CRV Recycling Facilities March 5, 2014 Page 4 of'6 The foregoing conclusory statements are not supported by any evidence establishing that the statements accurately reflect or predict criminal behavior. As such,the statements should be treated as unsubstantiated opinions. In fact, the evidence contained within the Report contradicts the implication that there is a wide-scale problem of persons stealing"cans and bottles from curbside recycling bins." (See P. 8 of Report;see also Seep. 11 of Report and Exhibit `J"to Report.) No Evidence that Theft from Recycling Bins is Problem Requiring Attention The Report, in looking into the criminal element that could be associated with CRV Recycling Facilities, specifically addresses the possibility of theft from recycling bins. However, the Report finds that there were only fourteen (14) incidents relating to theft from recycling bins in Fresno during the calendar years of 2012 and 2013. (Seep. 11 of Report and Exhibit `J"to Report.) Yet, the Report goes on to state that "[t]he low number of incidents in the database indicates that complaints are not being directed to the Police Department." (See p. 11 of Report) There is no factual assertion in support of this proposition. Rather,the Report states that other city offices have received complaints about this problem. (Seep. 11 of Report.) There is nothing in the Report, or any other source, to indicate that the low number of reported incidents relating to recycling bin theft is not reflective of the actual level of activity. Without more, the City Council should rely on the actual numbers provided by the Fresno Police Department in order to detennine the extent of the problem relating to recycling bin theft. As with the other crime data, the recycling bin theft numbers are too low to warrant further attention. An additional point worth noting is that persons willing to commit theft of another's recyclables will likely not cease simply because he or she has to travel a few extra blocks to cash in the stolen recyclables. The proposed changes requiring additional steps and procedures in the City's permitting of new CRV facilities will have little effect, if any, in terms of discouraging theft of beverage containers from recycling bins. Axialy_sis of Overconcentration,.of QRV Reding Facilities Cautionary,But Unsupported Finally,regarding potential for criminal activity, the Report mentions that an overconcentration of CRV Recycling Facilities could"exacerbate"theft of recyclable material. This assertion appears twice in the Report,but does not provide any supporting authority. (See pp. 8, 12 gf'Report) Therefore, the proposition merely amounts to speculation, and,as such, should be treated by the City Council accordingly. SummWN of Criminal Activity in Relation to CRV Recycling Facildies In sum, the Report is noticeably devoid of any facts or statistics that indicate that CRV Recycling Facilities increase crime rates, or otherwise encourage or foster criminal activity. While cursory steps should be contemplated to help reduce any potential for criminal activity, any changes in the application process should be weighed against the need for the additional steps. The City Council should consider that placing additional hurdles in front of prospective CRV recycling business owners may have the deleterious effect of discouraging new business in the City of Fresno as well as hampering community-wide recycling efforts. o:Webb & Bordson, HNC Io:Hernandez - Correspondence to City UOUnSel - Na O bb94881d0b) 13:0b 03/0b/14 tSl Ng 6-10 WEBB & BORDSON, APC Fresno City Council— CRV Recycling Facilities March 5, 2014 Page 5 of 6 Caerreret. City Requirements Address Location and Aesthetics a f CR VRecycling Facilities An additional area of concern addressed by the Report concerns"visual blight and poor design." (See pp. 12-13 of'Repor•t.) Overall,the analysis should center on aesthetics,while not giving short shrift to the other issues of concern. It would appear that some of the suggestions for improving aesthetics would actually result in more areas in and around the CRV Recycling Facilities being hidden from public view. (.Seep. 13 gf'Report.)This stands in contrast to an earlier suggestion contained within the Report which indicates a need to site the facilities in "visible, public areas of shopping centers." (Seep. 10 of'Report) Moreover, the Report suggests many upgrades and improvements which would improve the appearances of the CRV Recycling Facilities. The City Council should temper these suggestions with the reality that many of the CRV Recycling Facilities operate on a thin budget due to a small profit margin. Further,many CRV Recycling Facilities operate under short-teen leases with shopping center landlords. Therefore, to require CRV Recycling Facilities to erect permanent and setni-permanent structures with architectural and aesthetic qualities may be the coup de grace to many existing and prospective CRV recycling business owners. This too may have the deleterious effect of discouraging new business in the City of Fresno. Public Policy: Lesser of Tx,o.Evils A final comment worth noting involves public policy. From a public policy standpoint, even assuming that bad actors are in fact stealing recyclable beverage containers that would otherwise be picked up by the City's contractor, and therein diverting them to CRV Recycling Facilities, this conduct would be the lesser of the two evils if it prevented those same bad actors from engaging in nefarious acts of violence and/or damage to property or persons. Along those lines, the Report makes a passing reference to fiscal impact relating to losses of curbside recycling materials. However, these minimal losses, as inferred from the lack of"incidents" reported in 2012 and 2013, would be more than offset by the licensing and business fees that existing and additional CRV Recycling Facilities generate. Conclusion To recapitulate, there is no evidence of an increase of criminal activity in relation to CRV Recycling Facility operations, either at the site or in the surrounding neighborhoods. Further, there is no evidence to suggest that at present time, there is an overconcentration of CRV Recycling Facilities. Instead,it looks as though CRV Recycling Facilities have been unfairly targeted due to theft of scrap metal,copper materials and the like. However, these materials are not redeemable at CRV facilities, and, thus, the connection is unfounded. Moreover,the current City requirements already mandate that each CRV Recycling Facility be"located and designed to be aesthetically compatible with the design of the existing commercial center", so any additional requirements relating to aesthetics would be redundant. For the foregoing reasons, we respectfully request that the City Council instruct DARM to process the pending applications,pursuant to existing Arles for same, and allow those same regulations to govern until such a time when empirical evidence mandates action by the City Council regarding this matter. i-Vebb & Bordson, HPC To:Hernandez - Correspondence to City Counsel - Ma (15594881005) 13:07 03/05/14 EST P9 7-10 WEBB &BORDSON,APC Fresno City Council—CRV Recycling Facilities March 5, 2014 Page h of 6 Feel free to contact our office with any questions regarding the foregoing. Very truly yours, 7 4 11 L� Amy R. Lovegren-Tipton,Esq. WEBB &BORDSON, APC ART:mss cc: client(via email A:Rebb & Hordson, HPc Io:Hernandez - correspondence to city counsel - Ma O bbU48131M) 13:01 03/0b/14 t51 Pg 8-IU a:Webb & Bordson, HPG Io:Hernandez - Correspondence to City Counsel - Ma (1bbJ488100b) 13:01 03/0b/14 tSl Ng 9-10 3/5/2014 www.thebusinessiournal.com/newsigovernmeiit-and-politics/10966-business-owners-want-theft-of-recyclables-stopped?tmpl=component&print=l&layout=d.•. Business owners wart theft of recyclables stopped Published on 02/28/2014-2:29 pm Written by Business Journal Staff r.ia�_F •s:�Y5 !'5r a:.c`_Fi::._ - r`v `:��' .�i' r�'.c•. � ' ;;�s�M, fit.,. a•'� tii•S{ r.> �•'$•�:-.-s:S _ :�3{i�J irk r. :i`?':. .- ..:.�_ .. - -!Yf'TC`- ''r&sei�ai��e.:y � Fx.✓.+•-.�:r'_L}�...—.�? Clint Olivier with chain lock. Local business'owners, meeting with Fresno City Council member Clint Olivier on Friday, told Olivier that it'a time to stop thieves who steal goods for recycling. They also complained that the city has too many recycling centers, most of which they said are not well monitored. To start with, they want shopping carts removed from the streets of Fresno to reduce the theft of thousands of dollars of copper and other recyclable goods by people using the carts to haul away recyclables and then sell them to recycling centers. Thieves also use the carts to carry tools needed to steel copper and other goods, they said. They suggested that the city use cable locks to attach shopping carts to poles along streets until they can be picked up. The group also called on the city to provide a city truck and workers to gather carts that have been left on streets. They complained that supermarkets make little effort to gather up their carts. http://www.thebusinessjournal.corn/news/government-and-politics/10966-business-owners-want-theft-of-recyclables-stopped?tmpl=component&prinl=l&layout=d... 1/2 o:Webb & Bordson, HPc Io:Hernandez - correspondence to city counsel - Ma (MU4881d0b) 13:10 03/0b/14 tSl Pg 10-1d 3/5/2014 www.dicbusinessjournal.com/news/government-and-politics/I0966-business-owners-want-theft-of-recyclables-stopped?tmpl=component&print=l&layout=ti... In addition, they want the city to place tighter restrictions on the more than 100 recycling centers that are run under California's CalRecycle program. The business leaders charged that the centers are havens for people looking to cash in stolen goods. The City Council will address the recycling center issue at 10:10 a.m. on March 6. Don Plaster, owner of Skee's Recycling Inc. in Fresno, said some recycling businesses are lax, while others are more responsible. Skee's requires identification and a three-day wait for payment if the center does not have the sellers name and information on file. "We turn down people all the time," he said. Olivier said in a release that several business owners and residents contacted him about the high density of recycling centers in Fresno. They complained that criminals are targeting their stores, homes and offices to steal items that can be easily turned into cash at nearby recycling centers. "Unfortunately these recycling centers have become magnates for thieves who are stealing anything they can get their hands on to get fast cash," Olivier said. "Our business owners and residents have had enough and something must be done to address this issue. Items being stolen range from air conditioners and copper pipe to aluminum cans taken from city- issued recyclable trash barrels. Olivier said the city could place a moratorium on new recycling centers in the city. And code enforcement could be more strictly enforced, he said. But Rick Austin, owner of Austin Enterprises in Fresno, said that crime could be cut by 80 percent in 30 days simply by getting shopping carts off the streets. "The paperwork process doesn't do anything," he said regarding to making changes in recycling center laws. He said that without the carts, thieves simply cannot carry the heavy recyclables like copper that they are stealing. Austin handed a heavy-duty chain lock to Olivier, saying, "this is what we need." Olivier suggested some additional ideas, including requiring a permit to operate a recycling facility, requiring a recycling center to keep a security guard on staff and limiting the amount of recycling materials recycling centers can accept. http://www.thebusinessjournal.com/newslgovernment-and-politics/10966-business-owners-want-thef t-of-recyc fables-stopped?tmpl=comp one nt&prin t=1&la you t=d... 2/2 a:Webb & Hordson, HPG Io:Hernandez - Correspondence to City Counsel - Ma 0 bbU48H100y) 13:03 03/0b/14 tSl Ng 1-10 Dear Ms. Spence, Please find attached corresponded from our office regarding the DARM Report that will be discussed by the City Council at the March 6, 2014 meeting. Please provide a copy to all City Council members. Please fell free to contact our office should you have any questions regarding the foregoing. Regards, Michael Michael S. Shaddix, Post-bar Law Clerk WEBB & BORDSON, APC 466 W. Fallbrook Avenue, Suite 102 Fresno, CA 93711 Phone: (559)431-4888 Fax: (559) 821-4500 Direct: (559)579-1506 E-mail:MShaddixaWSLawGrottp.com Website: www.WBLawGroup.com NOTICE OF CONFIDENTIALITY: This confidential E-mail is from a law film.It is covered by the Electronic Convnmiications Privacv Act,18 U.S.C.Sections 2510-2521 and is legally privileged.If you received tMs transmission in error,please reply to the sender to advise of the error and delete this transmission and any attaclvnents.