CITY OF RANCHO PALOS VERDES
SEPTEMBER 23, 2003
CALL TO ORDER
The meeting was called to order by Vice Chairman Mueller at 7:03 p.m. at the Fred Hesse Community Room, 29301 Hawthorne Boulevard.
Commissioner Duran Reed led the assembly in the Pledge of Allegiance.
Present: Commissioners Cartwright, Cote, Duran Reed, Lyon, Tomblin, Vice Chairman Mueller. Chairman Long arrived at 9:20 p.m.
Also present were Director of Planning, Building, and Code Enforcement Rojas, Senior Planner Mihranian, Associate Planner Blumenthal, Assistant Planner Luckert, Assistant Planner Yu, and Recording Secretary Peterson.
APPROVAL OF AGENDA
The agenda was approved as presented, without objection.
Director/Secretary Rojas reported that the City Council would be accepting applications for Commission and Committee positions after the November election.
Director/Secretary Rojas distributed two items of correspondence for agenda item no. two, two items of correspondence for agenda item no. 3 and one item of correspondence for agenda item no. 5.
COMMENTS FROM THE AUDIENCE (REGARDING NON-AGENDA ITEMS)
1. Height Variation and Site Plan Review Permit (Case ZON2003-00059): 38 Cinnamon Lane
Director/Secretary Rojas presented the staff report, explaining that this item was the Resolution memorializing the action the Planning Commission took at the last meeting regarding the approval of the height variation. He stated that the public hearing is closed and the only discussion on this item should be to ensure that the Resolution and Conditions of Approval reflect the Planning Commission’s decision.
Commissioner Duran Reed stated that she would abstain from this item, as she was not present at the meeting in which this item was discussed.
Commissioner Cartwright moved to adopt P.C. Resolution 2003- 42, thereby approving the height variation and site plan review as presented by staff, seconded by Commissioner Cote. Approved, (5-0-1) with Commissioner Duran Reed abstaining.
2. Grading, Variance, and Minor Exception Permit (Case ZON2002-00602) and Tentative Parcel Map and Negative Declaration (Case SUB2003): 30357 Diamonte Lane
Assistant Planner Yu presented the staff report, explaining the scope of the project and the need for the various applications. She stated that staff could make all of the necessary findings for the different applications and therefore recommended approval of the proposed project.
Commissioner Cartwright noted that one of the neighbors of the applicant had requested the Planning Commissioners call and make appointments to come on to his property. He explained that it was very difficult to make appointments, and felt staff should make it a practice to tell homeowners that if property owners need specific appointment times with Commissioners that it may make it difficult for the Commissioner to make a site visit, and if the Commissioner does not make the site visit they may feel they have to recuse themselves from the public hearing.
Director/Secretary Rojas agreed that it was difficult to make appointments for visit sites, and that the property owner had been informed that it was not the practice of the Planning Commission to make appointments. However, the property owner had been adamant that the Planning Commission and staff phone him for appointments to visit his site.
Vice Chairman Mueller asked if Mr. Boag had requested the Planning Commission visit his property.
Assistant Planner Yu answered that Mr. Boag had not specifically requested a site visit, however staff felt that the Planning Commission may want to see the views from Mr. Boag’s property, which is what prompted the memo regarding the need for an appointment.
Commissioner Cote noted that she had not been able to visit Mr. Boag’s residence, therefore she would listen to the comments of the Planning Commission and the public speakers, and would decide at that time if she had enough information to make a decision on the project, otherwise she would abstain from the voting.
Commissioner Tomblin noted the staff report mentioned clearing and trimming trees to address view issues, and asked if staff was referring to just the lot being developed or to both lots.
Assistant Planner Yu answered that staff was addressing both lots in regards to the foliage.
Commissioner Tomblin discussed the septic tanks, and asked if there was any reason it would not be feasible to request both lots be tied into the sewer system.
Assistant Planner Yu responded that the location of the septic tanks was a concern raised by the City Engineer, and as a result, staff has conditioned that the location of the septic system be approved by the City prior to issuance of building permits.
Director/Secretary Rojas added that if the distance from the house to the sewer connection is more that 200 feet, there is no code requirement that the landowners connect to the sewer system. However, he stated that the Planning Commission could require the applicant to connect to the sewer system if they could make the finding that the septic tank and/or seepage pit would cause an adverse impact. However he also noted that he did not know how far away the sewer line was and connecting to the sewer may not be economically feasible.
Commissioner Tomblin asked if the City Geologist had raised any concerns regarding slide movement or any other potential problems due to the septic system.
Director/Secretary Rojas answered he was not aware of any concerns of this nature from the City Geologist.
Commissioner Tomblin asked if the Planning Commission could require the properties to become part of a sewer assessment district.
Director/Secretary Rojas answered that it would be up to the individual property owners, as the City could not mandate that through the parcel map.
Vice Chairman Mueller discussed condition no. 11, and asked staff to clarify the condition as to how low the foliage should be trimmed, noting that 16 feet is below the proposed ridgeline.
Director/Secretary Rojas responded that staff could require that all of the foliage be trimmed and maintained at a height of 16 feet. He noted that trimming some of the trees to 16 feet may not leave much and it was at the discretion of the property owner as to whether or not to remove such trees.
Commissioner Duran Reed asked if there would be a replacement tree for any tree removed.
Director/Secretary Rojas stated that this was not a view case and therefore a replacement tree would not apply in this situation.
Commissioner Lyon noted that condition no. 11 clearly states that the trimming will be done to the satisfaction of the Director of Planning, Building, and Code Enforcement, he felt that should satisfy the concerns of how low the trees should be trimmed.
Director/Secretary Rojas agreed, however he felt that because of a similar case several years ago, that a definitive direction from the Planning Commission regarding the trees would be helpful.
Commissioner Cartwright asked if the trees in question were trees that are significantly blocking views, or if they were all of the trees on the property.
Director/Secretary Rojas answered that staff felt that all of the trees on the applicant’s property significantly impair a view. However, he noted that staff does not usually require the palm trees in these types of situations be cut the height of 16 feet.
Vice Chairman Mueller opened the public hearing.
Mike Tramontin 30357 Diamonte Lane stated that he and the architect have taken a great deal of time in the design of the proposed residence. He explained that the house is designed to compliment the surrounding area, and his goal is to become a welcome member of the community. He pointed out a model and pictures prepared by his architect to depict the proposed residence. He stated that he and his wife probably want the trees on the property trimmed more that anyone else, as they are also blocking his view of the ocean, and did not think there would be any problem bringing the trees into conformance with the view restoration ordinance. He asked that he be able to identify the trees that he may want to remove rather than trim down so that they can be removed while the grading is taking place. He stated that trees he removes will be replaced, as he enjoys the foliage and does not want to live on a barren hill. Concerning the issue of the septic tanks, he explained that there have been four tests taken on the properties which confirm that the soil and area are very suitable for the septic tanks, and has geologic reports to support that, which he can provide to staff.
Charles Boag17 Diamonte Lane noted that the palm trees are not an issue as they are not on the applicant’s property. Regarding septic tanks, he stated that nobody on Diamonte Lane has sewer hook-up, and all are on septic systems. He stated that the sewer hook-up is quite a distance from the applicant’s property and it would be an extreme burden to the applicant to be required to hook up to the sewer. He stated that many of the trees on the applicant’s property exceed 30 feet, and noted that Proposition M requires that if an applicant wants to do new construction the trees must be cut to a height of 16 feet. He stated that there are other neighbors that are also impacted by the trees to some degree. He stated that he was not aware that Planning Commissioners were going to visit his property until very recently and that he had not asked that any Planning Commissioners visit his property. He stated that he had requested a one-hour notice before the Commissioners arrived. He was unhappy with the notification process concerning new construction, and urged the Planning Commission to use certified mail when notifying the neighbors, as he did not receive timely notification of this project. He concluded by stating that he supported the proposed project.
Mr. Tramontin (in rebuttal) stated that if there are trees on the property that have to be cut, he will cut them. He did not want to let the trees stop him from building his house, but noted that he did not want to have to take down a tree if he didn’t have to.
Vice Chairman Mueller closed the public hearing.
Commissioner Cartwright asked staff if Proposition M states that the trees must be cut to the ridgeline or 16 feet, and if the ridgeline is impairing the view then the trees need not be cut to 16 feet, or only the ridgeline.
Director/Secretary Rojas answered there are situations where a ridgeline might be taller than 16 feet and the trees would not have to be trimmed down to 16 feet. He noted that staff would modify the condition to reflect that situation.
Commissioner Cote asked staff to clarify if this case was a view restoration case to be considered under Proposition M or was this a height variation issue where, as a condition of approval, foliage was being considered. She also asked if the Planning Commissioners had the obligation to visit all sites in order to vote on the item, as is required in view restoration cases.
Director/Secretary Rojas answered that Proposition M has many components, one of which addresses foliage prior to permit issuance, which was the case in this situation. He explained that this process was to determine if any conditions of approval should be added to the applicant’s permit whether to trim foliage on his property to restore a view. He stated that because this is not a view restoration application, Planning Commissioners are not required to visit the site to vote on the application.
Commissioner Cote explained that it is important to her to see the properties in question and look at views, and because she had not had the opportunity to do so, she would abstain from the vote on this matter.
Commissioner Duran Reed stated that she visited the Hillsinger’s home and they were not as concerned with the height of the structure as they were with the foliage. She stated that she was able to look from various rooms on the ground floor, and looking to the south where the proposed home would be, there were trees that, even though the structure might be higher, because the trees were right next to each other and were higher than 16 feet, they would nevertheless block the view. She explained that this was a different view than from Mr. Boag’s residence, and wondered if any of the other Commissioner’s had an opportunity to look from the Hillsinger property. She felt that a number of trees, if allowed to remain at the height of the proposed structure, would block a view, and therefore should be lowered to 16 feet.
Assistant Planner Yu stated that staff visited the property and determined that the Hillsinger’s main viewing area was toward the east and not the south where the proposed residence will be located. She showed pictures on power point that were taken from the Hillsinger’s property.
Commissioner Cartwright moved to adopt P.C. Resolution 2003-43 adopting the Negative Declaration, and adopt P.C. Resolution 2003-44, approving the Tentative Parcel Map No. 27090, Height variation, Grading Permit, and Minor Exception Permit with the amendment that language be added to state that all trees that significantly impair views be trimmed to a height of 16 feet or to the ridgeline, whichever is lower, seconded by Commissioner Lyon.
Commissioner Tomblin suggested a revision to add language to clarify that the tree trimming condition applies to both parcel lots.
Commissioner Cartwright agreed to add the amendment to his motion.
Commissioner Duran Reed asked staff if they felt this motion would help the view impaired from 30404 Diamonte Lane.
Director/Secretary Rojas felt that trimming the foliage on both lots should restore the views from the neighboring properties.
The motion passed (5-0-1) with Commissioner Cote abstaining.
3. Conditional Use Permit (Case ZON2003-00282): 6510 Ocean Crest Drive
Commissioner Lyon stated that his residence is within 500 feet of the project, and therefore would excuse himself from this case.
Commissioner Duran Reed stated that she would abstain from this item, as she had not had the opportunity to visit this site.
Associate Planner Blumenthal presented the staff report, explaining the scope of the project. He explained that when staff did their analysis of the project it was based on the photo simulation, which he displayed on power point. However, once the mock-ups of the antennas were installed staff realized that they were not what was represented on the photo simulation. Therefore, staff was concerned and recommended the applicant request a continuance on the item to allow time for clarification. He stated that the applicant is requesting a continuance to allow time to redesign the project to address staff concerns, and staff was recommending the item be continued to the October 14 Planning Commission meeting.
Commissioner Cartwright asked what the difference was between the photograph simulations and the mock-up.
Associate Planner Blumenthal explained that the differences were in the overall height and basic structure. He noted that the photo simulation depicted a much smaller appearance of the chimneys.
Commissioner Tomblin moved to continue the item to October 14, 2003, seconded by Commission Cartwright. Continued, (4-0-2) with Commissioners Lyon and Duran Reed abstaining.
4. Coastal Sage Scrub Habitat Protection Ordinance: Citywide
Commissioner Tomblin moved to continue the item as recommended by staff to the meeting of October 14, 2003, seconded by Commissioner Cote. Approved, (6-0)
RECESS AND RECONVENE
At 8:15 p.m. the Planning Commission took a short recess until 8:30 p.m. at which time they reconvened.
In looking at the agenda, Vice Chairman Mueller suggested hearing item no. 6 before item no. 5. The Planning Commission unanimously agreed.
6. Height Variation, Extreme Slope, and Site Plan Review (Case ZON2003-00188): 4955 Browndeer Lane
Assistant Planner Luckert presented the staff report, explaining the scope of the project and the need for the Height Variation, Extreme Slope Permit, and Site Plan Review. He stated that staff found all of the findings for the applications could be made and therefore was recommending approval of the proposed project.
Commissioner Tomblin asked staff if they had received any comments from the neighbor in regards to the extension of the deck on the east side.
Assistant Planner Luckert answered that there had been no comments from the neighbor.
Vice Chairman Mueller asked staff to clarify if the code differentiated between placing additions on an extreme slope area as opposed to decks over an extreme slope area.
Assistant Planner Luckert responded that the code expressly prohibits decks over extreme slopes, where it does allow decks on an extreme slope, provided the necessary findings can be made.
Vice Chairman Mueller asked staff to respond to the neighbor’s letter regarding this proposed addition.
Assistant Planner Luckert explained that the letter was from a neighbor across the canyon on Diamondhead Lane, and their main concern was that any change in the neighborhood would result in a structure that would look out of character in the neighborhood. He stated that staff felt that the proposed addition was compatible with the neighborhood.
Commissioner Duran Reed asked if it was common to have decks built on extreme slopes.
Assistant Planner Luckert answered there are quite a few decks over extreme slopes in the City.
Director/Secretary Rojas added that these decks have to be structurally engineered and require geotechnical reports.
Commissioner Lyon moved to adopt P.C. Resolution 2003-45 thereby approving the submitted Height Variation, Site Plan Review and Extreme Slope Permit, seconded by Commissioner Cartwright. Approved, (6-0).
CONTINUED BUSINESS (continued)
5. Code amendment to clarify the application of the 16-foot height limit and the view findings for height variation and grading applications (Case No. ZON2003-00417): Citywide
Senior Planner Mihranian presented the staff report, explaining that the code amendment before the Planning Commission is based on the July 15th City Council action, affirming the 16-foot height limit as the by-right height limit for building on pad lots. He stated that the staff report and resolution reflects staff’s interpretation of the City Council’s direction, and noted that the City Attorney has reviewed the proposed language in the Resolution. He suggested that the Planning Commission’s discussion be broken down into two categories: 1) the discussion of specific code language that is in the Resolution, as well as the staff report; and 2) provide staff direction with respect to the grading findings pertaining to views and with Height Variation finding no. 4 as it relates to defining the viewing area.
Vice Chairman Mueller felt there were three things the Planning Commission needed to discuss: 1) the code amendment having to do with the height variation; 2) the grading permit and the necessary recommendations; and 3) how to modify or not modify finding no. 4 and finding no. 6. He suggested the Planning Commission discuss the items in that order.
Commissioner Lyon felt that staff has done an outstanding job in summarizing the issues and documenting reasonable changes to implement the City Council’s desires.
Regarding the specific code changes, Commissioner Lyon moved to accept the staff’s recommendations as documented in the staff report, seconded by Commissioner Tomblin.
Commissioner Cartwright discussed the language in the height variation finding addressing the portion of the structure below 16 feet, and noted on page 6, the last paragraph stated "this finding shall also apply . . ." He stated that it was his understanding that the City Council had made it very clear that the decision maker may review portions of a structure below 16 feet when a part of a project is over 16 feet, rather than shall, as reflected in the proposed language.
Director/Secretary Rojas acknowledged the City Council direction but explained that when it came down to writing legally defensible language, the City Attorney was concerned that the word "may" implied ambiguity to the public. He stated that since the proposed language differs from the City Council direction, the City Attorney intended to make this same explanation to the City Council.
Commissioner Cartwright reiterated that the City Council had made it very clear that there was a big difference between "may" and "shall" and they wanted to use "may". The language presented in the staff report is different than what the City Council directed. He felt that the City Council wanted to capture the current practice, which is that if some adjustment can be made that opens up a view and does not penalize the applicant, then it is suggested by the Planning Commission, and in some instances it happens. However, by using the word "shall", the direction from the City Council has been completely changed. He asked staff to clarify if there is a situation where there is a proposed two-story addition, and a proposed single story addition under 16 feet in height that is not connected to the two-story addition, does this language now say that the Planning Commission must now consider that separate addition under 16-feet in their view analysis.
Senior Planner Mihranian answered that staff had drafted the language such that, if a second story addition was being proposed in one part of the home, and a separate single story addition, under 16 feet in height is being proposed in a completely separate area of the home, that as long as the one story addition is not directly below or attached to the two-story addition, it would not be considered in the view analysis.
Vice Chairman Mueller stated that he has read the verbiage and understands the City Attorney’s concern. He felt that the meaning of the word "shall" is clear, however the use of the word "minimize" doesn’t place a tight bound on anything. He asked if "minimize" was defined in the code anywhere to give one direction as to what minimize means.
Senior Planner Mihranian answered that "minimize" is not defined in the Code.
Director/Secretary Rojas added that the way the finding is currently written, staff tries to direct applicants to minimize impairment of view of that portion over 16 feet, however if the addition is under 16 feet in height and blocks a view there is nothing staff can do about that. He felt using the terms "minimize" and "shall" would give the Planning Commission more ability to direct applicants to minimize view impairment, as it would no longer be a negotiating game where the applicant threatens to retract their height variation and build a 16-foot structure.
Commissioner Duran Reed discussed finding no. 4 as it relates to minimizing the impairment of views, and felt that it gives the Planning Commission’s discretion to make the finding one way or the other depending on how the structure is designed. However, in reviewing the City Council’s July 15th minutes, there is a discussion on page 13 in which Councilman Clark says that the Planning Commission may consider the impact of new construction below the 16-foot level. She noted that he did not say only that area of the structure that is below the second story. Therefore, she would be opposed to including the proposed language in height variation finding no. 4 which says, "if said new portions are attached to and directly below the new portions above 16 feet."
Commissioner Cote felt that the point made and the motion made by the City Council made a clear difference in situations where the public has come forward for a height variation, and made a big demarcation in situations where that variation was not required and situations where it would be required and how it would be dealt with. She felt the City Council direction was that when someone came forward requesting a height variation there is the opportunity to analyze potential impairment of views below 16 feet. She felt that that approach would allow the Planning Commission much more discretion because the applicant is asking for something that others within the community do not have the ability to have. She was very concerned with the language staff drafted, and specifically remembered several cases before the Planning Commission where applicants were asking for a height variation because portions of their new structure were going above 16 feet, but other portions of the new structure were at 16 feet, and there was a view impact across the entire property. She explained that her interpretation of the City Council decision was that if a new structure was going to be at the 16 foot level there would be no view impairment finding, however if the new structure or addition to an existing structure were to go above 16 feet and another portion of the addition, not attached to the second story addition, the Planning Commission can look at the entire project proposed to be constructed in terms of view impairment.
Commissioner Cote also briefly discussed finding no. 4 and finding no. 6 that have to be made for a height variation, and noted that they are two very distinct findings. She felt that those two findings were being collapsed into one finding, and noted this in the language on page 9.
Commissioner Cartwright was troubled that the possibility that the language for the height variation would allow the Planning Commission to deny the approval of a portion of the structure that goes up to 16 feet that is totally separated from that portion which is being considered for a height variation. It was his understanding that the City Council had made it very clear that one had a right to build to 16 feet in height. He felt that by doing what Commissioner Cote suggested would take away a right that a majority of the residents think they have, which is to extend their property up to 16 feet as long as they don’t violate the Development Code.
Director/Secretary Rojas pointed out that currently when an application comes before the Planning Commission there may be a section of the project over 16 feet that requires a height variation application, while a portion of the project, which is not below the second story and is under 16 feet, would only require a Site Plan Review application.
Commissioner Cartwright added that his concern was that if the Planning Commission interprets this differently then they are not following the City Council’s direction, which he would be opposed to.
Chairman Long arrived at 9:20 p.m.
Chairman Long stated that he understood the concept that if there is a portion of the addition that could be applied for as an entirely separate project that is entirely below 16 feet, then view issues are not considered. He did not think that the proposed language in the staff report adequately explained that concept.
Commissioner Duran Reed suggested wording for finding no. 4 indicating that the finding shall also apply to the proposed portions of the new structure or the proposed additions to an existing structure that are below 16 feet in height. She felt that the City Council had made it very clear that one has a right to build up to 16 feet in height for a single family home, however when building a second story the entire structure can then be looked at as to whether it blocks a view or not.
Commissioner Cartwright disagreed, saying that he did not believe the City Council intended for a portion of an addition that is not connected to a second story, which is under 16 feet in height, be included in the view analysis.
Chairman Long agreed with Commissioner Duran Reed, as he felt this approach would cause less confusion in the future, anticipating discussions on what is considered directly below and what is considered attached to a structure.
Commissioner Tomblin was concerned that the City Attorney changed the language of what was clearly reflected in the City Council minutes by changing "may" to "shall", and then bringing this change back to the Planning Commission rather than directly to the City Council, and did not feel comfortable making this change.
Commissioner Cartwright stated that the City Council had quite a discussion as to whether it was appropriate to say "shall" or "may", and that they had decided that "may" was the more appropriate term. He felt that by the City Attorney changing the word to "shall", the motion has been changed.
Vice Chairman Mueller asked staff to clarify the procedure if an applicant had a height variation approved by the Planning Commission and then came back later with a Site Plan Review application, would that then come before the Planning Commission.
Director/Secretary Rojas answered that it would most likely be a staff level decision, however depending on the size, it might trigger the neighborhood compatibility review.
Vice Chairman Mueller stated that he preferred the word "may" as that is what the City Council said in their motion.
Chairman Long stated that if the word "may", as suggested by the City Council, doesn’t endanger the ordinance and it continues to be their preference, then the Planning Commission should not suggest changing it. However, he felt the City Attorney’s concern was that adopting the word "may" was discretionary and is unlike anything else in the Development Code, as there were no other findings that he could think of that had the word "may". He felt that this ambiguity would endanger the validity of the Code itself and he did not think the majority of the City Council wants to endanger the validity of the Ordinance by using the wrong language by not having the benefit of the advice of the City Attorney.
Commissioner Lyon moved to amend the motion to change the word "shall" to "may", in order to emulate exactly what the City Council said at the meeting, seconded by Commissioner Tomblin.
Commissioner Duran Reed felt that it was obvious that the Planning Commissioners clearly interpret the City Council direction in different ways, and therefore felt that the Commissioners should state their positions for the record and let the City Council make the final decision.
Commissioner Cartwright stated that there has been an assertion that the options before the Planning Commission are "may" or "shall" and he did not think that was true. He felt that if the City Council understood that "shall" was the only viable way to put this into the Code, they very well may say that the Planning Commission will not consider the portion under 16 feet. He stated it was not just "may" and "shall", but the entire concept if the height variation that is under discussion. He supported the language proposed by staff.
Commissioner Duran Reed asked staff, if there is a recommendation to the City Council by the Planning Commission regarding particular language, and the City Council decides against that recommendation, does that then need to come back to the Planning Commission.
Director/Secretary Rojas explained that the way the code amendment process works is that the City Council gives direction in terms of what should happen, staff and the City Attorney work out the mechanics of the wording, and per the Code the draft language must come before the Planning Commission for a recommendation before it goes back to the City Council. Therefore, the Planning Commission serves in the capacity as an advisory role and can make any suggestion to the City Council regarding this subject.
Chairman Long stated that he supports the word "shall" as opposed to "may", and explained that the task that the City Attorney and staff undertook was, with the direction of the City Council, based on the assumption that what the City Council wants is an Ordinance that will be effective and valid rather than one that will be unenforceable because it is vague. The assumption is that what the City Council wanted to say was that the height variation permit process will consider portions below 16 feet and that there will be a valid way of doing that. He felt that when language is suggested by the City Council and brought to the Planning Commission, the Planning Commission should not just accept that language, but should try to make sure the language is effective and valid. Then, if the City Council does not accept the recommendations of the Planning Commission, that is their prerogative. He added that he has never had the experience anywhere else in the Development Code of having a finding that was optional, which would be the case if the word "may" were used, and the City Council should be alerted of that.
Commissioner Tomblin stated that the City Council minutes reflect the decision of the City Council, and felt that the intent of the City Council was not to circumvent any view situations, but to reinforce the 16-foot by right issue. He felt that to try to go back through and put staff and the Planning Commission in the situation where residents come in and file for two or three permits to get around the view issues is clearly not the intent of the City Council.
Commissioner Lyon stated that the staff report clearly states what the City Council directed, which was to document past practices with regards to view. The City Council also directed the staff and Planning Commission to guarantee the right to build to 16 feet. Given the two facts, he felt that the language in the staff report correctly reflects the direction of the City Council. Regarding "shall" and "may", his inclination was to use "shall" and let the City Council hear from the City Attorney as to why it is important to use "shall" and let them decide to change the wording.
Commissioner Lyon stated that he would like to revert back to the original motion, which was to accept the language in the staff report concerning all code amendments as stated in the staff report.
Chairman Long acknowledged that staff’s proposed language was formalizing a departure from past practice, and he felt that was a good thing. He stated that past practice was that the only portion of the view that was ever protected or considered was the portion above 16 feet and everything else was ignored. He stated that the question now is, having won the battle that something below 16 feet will finally be considered, which is what the Ordinance always plainly called for but was ignored in past practice, now the question is whether we get half a loaf or a full loaf, and he was going to hold out for a full loaf.
Commissioner Lyon repeated his motion to accept the staff’s recommended changes to the code as stated in the staff report. Approved, (4-3) with Commissioners Cote, Duran Reed, and Chairman Long dissenting.
Vice Chairman Mueller suggested the Planning Commission now discuss the issue of grading.
Commissioner Duran Reed stated that on September 9th she distributed suggested changes to the code regarding grading. She explained that the Planning Commission’s past practice has been to look at whether the related construction or the grading affects the views from the neighboring properties. She used her property as an example, explaining that the neighbor was going to build a home up to 16 feet, which would have completely blocked her view. Now, however, this neighbor may redesign and grade down and lower the height of the home. She stated that the staff report indicates that people are more likely to build a 16 foot home if there is no view analysis involved, versus grading down to accommodate a larger structure. She disagreed with this statement, explaining that most of the time people want a larger home and in many cases a 16 foot structure will not accommodate what their ideas are, and they will either build up or they will go down. She stated that the City Council clearly stated that the 16 foot by right height limit is applicable Citywide provided that there is no associated grading and all applicable residential development standards have been met. Therefore, in looking at grading, she did not think it was necessary to change any language regarding the grading permit. She felt that the City should encourage the residents to grade down if necessary to accommodate their needs and the views of the neighbors. She felt that if the grading application language is changed to what is proposed in the staff report, it would not encourage residents to grade down when possible.
Commissioner Cartwright stated that the City Council gave the direction that one can build to 16 feet by right. He felt that the City Council intended that to be carried out in all of the related permits so that there is some internal system of consistency from one to the other. He felt that if one has the right to build to 16 feet and if it is on a descending slope, the Planning Commission should not be discouraging people from grading down. If the City says that if one grades down they will be subject to a discretionary view analysis but if they build at 16 feet with no grading they will not be subject to the view analysis, he felt this was incompatible with what the City Council was trying to say. He therefore supported the language in the staff report. He felt this language would discourage unnatural grading that spoils the natural contour and makes certain that anyone who is grading up and impacting a view can be subject to a discretionary review. He did not think the City should penalize anyone who was proposing to grade down.
Commissioner Lyon agreed with Commissioner Cartwright’s comments. He noted that staff was looking for guidance, and the guidance he would provide as a Commissioner concerning the questions as to whether the City has the ability to deny the permit if someone is constructing a new structure where grading is proposed, and the height of the resulting structure will be lower than 16 feet, but will impair a view, is that the City does not have a right to deny that permit. Secondly, he felt that the language should be changed to say that the view finding should only apply to construction that exceeds the 16-foot height limit as measured on a pad lot, as suggested by staff.
Chairman Long agreed with much of what Commissioners Cartwright and Lyon stated, but had one overriding concern. He stated that he had no idea how the language in finding no. 2, as written in the staff report, stating that view impairment analysis will only apply on grading permits in situations where construction that exceeds the 16 foot height limit, as measured on pad lots would be interpreted in the future. He stated that he would not support the staff language unless the intent, as phrased by Commissioners Cartwright and Lyon, appears with a much greater degree of clarity in the actual language. He stated that as clarification it should be worded that the construction does not exceed the original grade by more than 16 feet, and the original grade will have to be defined in some manner to make it very clear that there can be no increase in the original grade by any minimal amount of movement of soil. He stated that conceptually he agrees that the right has been established to build up to 16 feet, and a logical extension of that is that grading down should not trigger a view analysis.
He stated that it should be made very clear that the finding for a view analysis is only removed when the grading is completely and entirely in a downward direction.
Director/Secretary Rojas explained that staff was seeking direction and would taken Chairman Long’s suggestions, speak with the City Attorney, and present to the Planning Commission language reflecting those ideas.
Commissioner Cote agreed with Chairman Long’s comments and she too would support the staff suggestions as long as they are clarified, as suggested by Chairman Long. She felt that through this ability to grade down the applicant can, in many situations, allow for minimal view impairment to neighboring properties. She felt that allowing to grade down and not triggering an overall view assessment would be in line with the direction of the City Council.
Commissioner Duran Reed stated that she had heard a number of comments that the reason the Planning Commission does not want to look a the first 16 feet in a view analysis is because the City Council has stated there is an absolute right to build to 16 feet. She felt that if that is the case, then that is contrary to the motion which says that the Planning Commission can look at that portion of the structure that is below 16 feet in a height variation. She felt this was contradictory and made no sense, and was opposed to this type of flip-flopping, and that if the Planning Commission was going to look at a portion of the structure regarding view, it should be in all cases, not just when there is a particular type of application. She stated that if the City wants to encourage residents to not block their neighbor’s view, then not having a view analysis when there is a grading application would not accomplish this.
Commissioner Lyon moved to change the proposed code language to encourage applicants to grade down on a pad lot to build a structure that will result in less view impairment than a structure built in the same location at grade up to 16 feet. Secondly, that the City should have the ability to deny any grading application that results in a structure on a developable pad that exceeds the 16-foot height limit as measured from previous grade, seconded by Commissioner Cartwright. Approved, (7-0).
In discussing findings 4 and 6, Commissioner Cote stated that she supported many of the points made by Chairman Long in his memo and felt that the two findings do need to stand independently and not be combined into one finding.
Chairman Long stated that his perception in reading the findings is that the findings were intended to set different thresholds. Finding no. 6 states that if the view being looked at is from the viewing area then a height variation permit cannot be granted if a view is being impaired from the viewing area. He noted that this is a very strong protection of views but is limited to a narrow scope of views that are almost always on the first floor of a house. Finding no. 4 states that one must design the project so as to minimize the impairment of a view. He noted that it does say one cannot do the project if a view is impaired, only that one must reasonably try to design the project so as to minimize the view impairment. He explained that this lower degree of protection in finding no. 4 applies to views without regard to whether it is from a viewing area and can take into account second story views. He stated that staff was effectively collapsing the two findings into one finding, which he disagreed with.
Director/Secretary Rojas agreed that if the view is taken from the viewing area for both findings, then staff is collapsing the findings for the purposes of determining significant view impairment from the viewing area. However, he felt that the distinction that staff has made historically is that finding no. 4 is applied to situations where there is not significant view impairment but rather just some view impairment. The question then becomes, notwithstanding that the view impairment is not significant, has the structure been designed to minimize that impairment.
Commissioner Cartwright explained that he interpreted finding no. 4 to mean that the applicant has made some effort to minimize the view impairment from the neighbor’s properties and looked at how the structure is situated on the lot to minimize overall view impairment. He interpreted finding no. 6 to mean that if there is significant view impairment from a particular structure. He therefore felt the two findings should be separate.
Commissioner Duran Reed agreed with Commissioner Cartwright and added that the language is very separate and distinct. She stated that finding 4 and finding 6 are different, the language is different, the definitions are different, and the Planning Commission should continue to keep them separate.
Commissioner Lyon agreed with Commissioners Cartwright and Duran Reed and suggested that in finding no. 4 adding the word "reasonably" in front of minimize for clarification.
Commissioner Lyon moved to keep finding 4 and finding 6 separate but to add the word "reasonably" in front of minimize in finding no. 4 for clarification, seconded by Chairman Long. Approved, (7-0).
Director/Secretary Rojas stated that there are two additional items to address. He stated that there were some suggested changes to the Height Variation Guidelines Handbook that went along with the previous code amendments, and asked if the Planning Commission has also approved the changes to the handbook.
Commissioner Lyon stated that if the guidelines were changed then the handbook should reflect the changes.
Chairman Long stated that staff will be bring back to the Planning Commission specific code language and felt it would be appropriate for staff to bring back the precise revisions to the Guidelines and the Handbook that are consistent with the proposed code language at that time.
Director/Secretary Rojas felt that was a good suggestion and that staff would bring back the new code language and all related changes to the Guidelines and Handbook that are needed to make the Guidelines and Handbook consistent with the code language at the same time.
Commissioner Duran Reed felt that any changes to the Neighborhood Compatibility Handbook, which took a sub-committee one year to draft, should be referred back to the sub-committee with any changes. Secondly, she felt that because changes to the Neighborhood Compatibility Handbook was not listed as an agenda item, nor publicly noticed, it might be inappropriate to make the changes. She felt this should be listed as an agenda item with a public notice before the Planning Commission could discuss it.
Director/Secretary Rojas stated that since the handbook is not the Code but merely suggestions, there is no legal requirement to provide public notice of any change to the handbook, but noted that it could be included in any of the future notices, since this item would eventually be discussed at a City Council meeting.
Commissioner Cartwright explained that the sub-committee that dealt with neighborhood compatibility was an ad-hoc committee. That committee was disbanded, and since neighborhood compatibility is an issue for the Planning Commission, the Planning Commission must now make the appropriate decisions regarding the code. Furthermore, all changes to the handbook will have to be approved by the City Council.
APPROVAL OF MINUTES
7. Minutes of August 26, 2003
Pursuant to the City Attorney’s advice, Commissioner Duran Reed recused herself from the discussion of the minutes and left the room.
Chairman Long noted a clarification on page 8 and a clarification of a statement on page 12 of the minutes.
Commissioner Cartwright noted clarifications on pages 3, 8 and page 12 of the minutes.
Commissioner Lyon noted a typo on page 11 of the minutes.
Commissioner Lyon moved to approve the minutes as amended, seconded by Commissioner Cartwright. Approved, (4-0-3) with Commissioners Duran Reed, Tomblin, and Chairman Long abstaining.
8. Minutes of September 9, 2003
Commissioner Tomblin noted a clarification on page 22 of the minutes.
Commissioner Lyon noted a clarification on page 9 of the minutes.
Commissioner Cartwright noted a typo on page 6 of the minutes
Commissioner Lyon moved to approve the minutes as amended, seconded by Commissioner Cote. Approved, (5-0-2) with Commissioner Duran Reed and Chairman Long abstaining since they were absent from that meeting.
ITEMS TO BE PLACED ON FUTURE AGENDAS
9. Pre-Agenda for the meeting of October 14, 2003
Vice Chairman Mueller asked that a report be given to the Planning Commission at the next meeting regarding the possibility of receiving packets earlier.
Commissioner Cote stated that she would not be at the October 14 meeting.
Commissioner Cote and Chairman Long noted that they would both be absent from the November 25 meeting.
The meeting was adjourned at 11:10 p.m.