AUGUST 10, 2004


The meeting was called to order by Chairman Mueller at 7:03 P.M. at the Fred Hesse Community Room, 29301 Hawthorne Boulevard.


Commissioner Knight led the assembly in the Pledge of Allegiance.


Present: Commissioners Karp, Knight, Tetreault, and Chairman Chairman Mueller. Commissioner Gerstner arrived after roll call.

Absent: Commissioner Van Wagner and Vice Chair Cote were excused.

Also present were Director of Planning, Building, and Code Enforcement Rojas, Senior Planner Mihranian and Associate Planner Blumenthal.


The Agenda was approved without objection.


Director/Secretary Rojas distributed one item of correspondence for Agenda Item 1, one item of correspondence for Agenda Item 4, and informed the Commission that the planned September 25, 2004 workshop with the City council has been postponed.

Chairman Mueller reported on the recent Mayor’s breakfast meeting. He noted that Mayor Pro Tem Clark requested that thanks be relayed on behalf of the City Council to all Commissioners for serving on the Planning Commission, acknowledging that it is a difficult job.

Chairman Mueller reported on the General Plan Steering Committee’s progress and will be having another meeting near the end of the month. Chairman Mueller also reported on the Residential Development Standards Committee’s 8/9/04 meeting that considered setbacks and other ongoing issues.

COMMENTS FROM THE AUDIENCE (regarding non-agenda items)



1. HEIGHT VARIATION PERMIT (Case No. ZON2004-00087): 28129 Ella Road/ Anderson

Associate Planner Blumenthal presented the staff report, noting that the applicant has requested a continuance to allow additional time to consider all redesign options. Therefore, staff is recommending that the Commission continue the item until October 12, 2004.

Commissioner Karp commented that when the applicant requests a delay, does that change the Streamlining Act.

Associate Planner Blumenthal stated that the 90-day extension does not change the permit streamlining requirements.

Commissioner Karp inquired that if the City does not approve it on October 12, 2004, the project is accepted as first proposed by the applicant.

Associate Planner Blumenthal stated that it will be an approved project in accordance with State law.

Chairman Mueller asked when the applicant would be ready to submit plans.

Associate Planner Blumenthal responded it is possible that the applicant may be ready for one of the September meetings.

Commissioner Tetreault commented that if there is not a quorum on October 12, 2004 there might be a problem meeting the deadline.

Chairman Mueller suggested that a special meeting could be called if this happens, and asked that staff outline the options if this item cannot be considered on October 12, 2004 but shortly thereafter, possibly having a short meeting focused on one item.

Commissioner Knight commented that this would be preferable to having the application go forward by default.

Commissioner Knight moved to continue the Height Variation (Case No. ZON2004-00087) to the meeting of October 12, 2004, seconded by Commissioner Tetreault. Approved, (5-0).

2. HEIGHT VARIATION PERMIT/GRADING PERMIT (CASE NO. ZON2002-00507):-----------------------------

Director/Secretary Rojas introduced the item with the comment that City has been granted a 90-day extension to November 11, 2004. He then presented the staff report, explaining that the applicant is requesting a continuance to the September 28, 2004 Planning Commission meeting to continue to work with staff to redesign the project and has agreed to a 90-day extension to the Permit Streamling Act.

Commissioner Tetreault moved to continue the item to September 28, 2004, seconded by Commissioner Knight. Approved, (5-0).


Senior Planner Mihranian noted that on July 13, 2004, the Planning Commission opened the public hearing to review proposed code amendment language to the City’s Neighborhood Compatibility requirements that would set specific exemptions to the Neighborhood Compatibility requirement for minor projects. After reviewing the proposed language at the July 13 meeting, the Commission directed Staff to explore redefining and expanding the proposed exemptions and to consult with the City Attorney. The Commission then continued the public hearing to this evening.

He stated that pursuant to Commission direction at the July 13 meeting, Staff consulted with the City Attorney regarding language that would exempt certain minor additions, whether attached or detached from the primary residence, from the Neighborhood Compatibility requirement. As a result, staff proposed specific Code amendment language to Section 17.02.030(B), as well as minor editorial changes to clarify the existing text for the Commission’s consideration. He requested the Commission’s direction on the proposed Code Amendment language.

Commissioner Karp had a question regarding 17.02.30(B), Item 1, Subsection d, the word "original structures"; what does that really mean and how far back does that go before the incorporation of the City.

Senior Planner Mihranian explained that would apply to a structure that was built per permit on file with the City at the time after the lot was developed whether pre-Cityhood or post-Cityhood.

Commissioner Karp referenced page 3 of the staff report, 17.02.30(B), paragraph 2 and asked for an explanation of "any two-year period".

Senior Planner Mihranian explained that from the date a permit has been issued for an exempted addition, two years from that date no other projects could trigger this exemption.

Commissioner Knight asked how do you determine what the original structure is without a permit on file.

Chairman Mueller stated that relying on the original structure is not a new concept; it is a policy that the Council adopted as a result of the Neighborhood Compatibility finding on how to compare square footage.

Senior Planner Mihranian explained that when determining the original structure, although plans may not exist since the City typically does not keep plans beyond two years from when a structure is completed, the permits do indicate what the square footage is, and they can rely on that number. When someone is proposing plans usually they identify where the existing footprint is; and then they delineate what is new, and there is usually some distinction between what is new and what is proposed; additionally, if there is ever a discrepancy between what the permits say and what the applicant says, they can also can rely on the tax roll. Occasionally they may run into a situation where they have a discrepancy, and they try to work with the applicant to address that area, using available information, to determine the original square footage.

Commissioner Knight asked for clarification of information on page 3 of the staff report, 17.02.30(B), Item 1, Subsection h, "other than except for", suggesting that it should be one or the other.

Senior Planner Mihranian explained that "except for" should be displayed as an editorial strikeout and will be corrected.

Commissioner Gerstner asked for an explanation of the difference between this document and the last one presented.

Senior Planner Mihranian explained that they are essentially the same; what is added is the 250 square footage limitation; he indicated that in the original version there was an item about visibility from the public right of way and it was eliminated, and they put in a square footage cap since it is easier to enforce and apply to projects.

Chairman Mueller referenced page 3 of the staff report, 17.02.30(B), item 2, Subsection d, regarding "roofed breezeway or patio cover", commenting that there is no size limit in square footage in that one and he is wondering how that plays with the other exceptions; that both Item 2, Subsections a and c have 250 square foot limitations.

Senior Planner Mihranian explained there is no square footage cap on this item as it involves an existing roof structure. He explained that the most common scenario would be a covered breezeway between a detached garage and the primary structure and someone requests to enclose this space by erecting two walls; regardless of the size, it is not going to make a visual impact in the neighborhood since it is within the existing building footprint.

Commissioner Tetreault referenced the same section, 17.02.30(B), Item 2, Subsection d, asking if someone were to build a patio cover which did not trigger Neighborhood Compatibility and later decided to turn it into a permanent structure, could someone do that as a way of avoiding Neighborhood Compatibility.

Senior Planner Mihranian commented that it is a conceivable loophole, but there is also the two-year period that would have to be adhered to before a project qualifies for this exemption.

Chairman Mueller commented that he needed to better understand from staff how the exemption would work. He questioned if someone comes in and gets a Neighborhood Compatibility review of their project, is there a two-year wait, or could they do what Commissioner Tetreault was saying which is basically build the patio cover, get permits for that, and then come in after two years and enclose it. He continued with the previous scenario where a project triggers Neighborhood Compatibility and they went through the analysis and one year later they wanted to enclose a patio; under these rules they would be exempt; so someone would enclose a patio and, although the total square footage should trigger Neighborhood Compatibility, because it is written in as an exemption, they would get to do that without having to go through the whole process; so they get that approval for the enclosure of their patio and a year later they want to add 250 square foot to their house; they don’t qualify for an exemption because it is less than two years; you have to go through Neighborhood Compatibility for that 250 square footage expansion; but if they wait that two years then they could do another 250 square footage expansion. He commented that it is possible that someone will try it.

Commissioner Gerstner commented on the two-year period, questioning the interpretation of the exemption process, as he interpreted it to say one can only exercise this exemption every two years, not that there is a two-year period after getting some other permit. He gave an example of getting a permit to build a 2,000 square foot patio that is below 16 feet or 12 feet and does not trigger Neighborhood Compatibility. He stated that as soon as he gets that permit he comes in and wants to enclose the patio which would essentially add 2,000 square feet to his house without triggering Neighborhood Compatibility.

Chairman Mueller stated that these are extreme examples, but they do happen.

Commissioner Gerstner suggested that it might be solved by putting a square footage number in; or by requiring a wait of two years before putting in a 250 square footage addition.

Commissioner Knight asked about the elimination of the visibility language regarding a corner lot and asked if there is a problem with a corner lot with the current wording or is it strictly a problem of square footage.

Senior Planner Mihranian explained that with the addition of square footage on the street side it would not qualify for an exemption because it has to be located in the rear or interior side of the property.

Chairman Mueller asked for more discussion or suggestions from staff on how to handle Item 2, Subsection d, with a possible limit on square footage.

Senior Planner Mihranian suggested adding language that states "a legally permitted roof breezeway and a 250 square footage or less patio cover"; or add a 250 square footage as the maximum for both the breezeway and patio cover. He stated that if you decide to enclose anything beyond 250 square feet that would prevent an exemption and would trigger Neighborhood compatibility and require analysis.

Commissioner Knight questioned the staff hesitation to put a limit on the breezeway.

Senior Planner Mihranian explained that enclosing the area below an existing roof structure does not typically result in adverse impacts to a neighborhood. This area is usually more than 250 square feet and does not trigger Neighborhood Compatibility because the original house is a square footage that, when they enclose it, is not more than 25% of the original structure or 750 square feet. It is those rare occasions when someone has made additions to the back of the house and now wants to enclose the breezeway that they become subject to Neighborhood Compatibility because of the combined additions.

Chairman Mueller commented that even if they enclosed it they would have to meet the lot coverage requirements, so at least the lot coverage requirement would hold.

Commissioner Gerstner stated that this is only relative to the cumulative issue because if this is the first time they are going in for a change and it is under 750 square feet, it never triggers Neighborhood Compatibility in the first place; this is only for the person who has reached his cumulative number and gone through the process and now wants to do something else. He asked if this excludes legal non-conforming breezeways or patio covers.

Chairman Mueller responded that if it is legal non-conforming, it is legal.

Senior Planner Mihranian gave examples of exceptions that would have to comply with the new code.

Commissioner Gerstner concluded that this really deals with the cumulative issue.

Commissioner Knight asked about existing non-conforming structure where it has not been determined if they are legal or not.

Chairman Mueller stated that a determination must be made whether it is legal or illegal and how it was approved, if at all.

Commissioner Knight moved to approve the staff recommendation with the changes to paragraph 1, subsection h, crossing out "except for"; and moved per discussion that language be added to paragraph 2, subsection d, or "250 square feet or less limitation on the patio covers", seconded by Commissioner Tetreault.

Chairman Mueller commented that given what staff discussed, he is being cautious because he is trying to preserve one of the items regarding the legally permitted breezeway and is wondering if 250 square feet is the number that the Commission should choose, and would be in favor of increasing that slightly. He asked for input from staff on what they think is a reasonable size limit for breezeways.

Senior Planner Mihranian responded that if Chairman Mueller is referring to patio covers, he thinks that 250 square feet is a reasonable limit for an exemption and it is consistent with the other exemptions.

Commissioner Knight commented that the 250 square feet refers to the patio cover, as previously stated in his motion, and not the breezeway.

Commissioner Gerstner asked if breezeways and patio covers are defined terms in the Code.

Director/Secretary Rojas stated that they are not defined terms in the Code; if the Commission wants to add that, staff would have to prepare language to amend the Code.

Commissioner Gerstner asked if that would be necessary or is it clear in all instances that they have come across.

Director/Secretary Rojas said that they have not had a problem in the past; there is no strong inclination among staff that this would be necessary; however, it may be helpful.

Commissioner Gerstner commented that it would provide a basis for staff to respond to an applicant as to whether they are talking about a breezeway or a patio cover.

Director/Secretary Rojas suggested an amendment to the motion to state "roof breezeway between two existing structures".

Commissioner Knight accepted the amendment, seconded by Commissioner Gerstner and repeated the motion to forward a recommendation to the City Council to establish specific exemptions to the Neighborhood Compatibility requirement as presented by staff with the following amendments: 1) Amendment to paragraph 1, subsection h, crossing out "except for"; and move per discussion that language be added to paragraph 2, subsection d, or "250 square feet or less limitation on the patio covers" 2) Amendment to the motion to state, "roof breezeway between two existing structures". Approved, (5-0).


4. REVISION TO CONDITIONAL USE PERMIT NO. 23 AND GRADING PERMIT (CASE NO. ZON2004-00215); 2930 Vista Del Mar / Obelisk Architects (DB)

Associate Planner Blumenthal presented the staff report and noted that the request is to amend the Conditional Use Permit and Grading Permit, thus allowing the lot coverage to increase from 37% to 50% and the grading to increase from 561 cubic yards to 761 cubic yards. He further noted that staff was of the opinion that all of the findings could be made in a positive manner. As such, staff is recommending that the Commission deny, with prejudice, the revision to Conditional Use Permit No. 23 and Grading Permit.

Commissioner Karp referenced a portion of the report that stated some of this work was done without a permit.

Associate Planner Blumenthal responded that the driveway was built inconsistent with the approved plan.

Commissioner Karp asked how this was brought to the attention of the City.

Associate Planner Blumenthal explained that a resident noted to staff that the driveway appeared to be built to what was proposed and not what was approved.

Commissioner Knight stated that if the Commission denies this request, would that driveway have to go back to the approved plans.

Associate Planner Blumenthal answered that if the request was denied, the applicant would have to tear out the driveway and construct it according to the approved plans.

Commissioner Gerstner asked for information on the Seacliff Hills Development.

Associate Planner Blumenthal explained that the guidelines, which cover Vista Del Mar, Palo Vista, and Seacliff Drive, were adopted to obtain consistency among the development within the tract.

Commissioner Gerstner commented that it is unique that changing the grading is considered lot coverage.

Director/Secretary Rojas commented that because of the visibility of this tract with respect to Palos Verdes Drive South and to maintain slopes in their natural condition, the Commission adopted strict guidelines in 1980 that only apply to this tract.

Commissioner Tetreault asked if the applicant offered any explanation or reason why it was desirable to construct the driveway as presently built and not as previously approved.

Associate Planner Blumenthal reported that the applicant noted that the driveway provides easier access.

Commissioner Knight commented that Seacliff Hills Development Standard RS-1 has a maximum 25% lot coverage and it was allowed to increase to 30%, and asked if that was by special permission.

Associate Planner Blumenthal responded that it was allowed to increase as part of the CUP.

Commissioner Knight asked if the driveway, as it is built, exceeds the maximum slope in the Development Code or is there a reason why the driveway was built that way.

Associate Planner Blumenthal stated that they have not actually measured to see if the driveway exceeds the 20% slope, but portions may be approaching that limit.

Commissioner Gerstner commented that it is steeper than it would have been had it been constructed per the plans.

Chairman Mueller asked if the driveway that was approved by the Commission in 2003 meets the development standards of the City.

Associate Planner Blumenthal explained that because of the need for a guardrail on top of the wall, the total height was allowed to be six feet tall.

Chairman Mueller asked if that was proposed by the applicant and accepted by the Commission at that time.

Associate Planner Blumenthal explained that he believes that the driveway that was approved was the original request.

Chairman Mueller asked if the driveway that was built was an alternative to the driveway that was proposed to the Planning Commission.

Associate Planner Blumenthal responded that it was not built as an alternative.

Chairman Mueller commented that the applicant built a driveway without showing plans to the City or the Planning Commission.

Commissioner Knight asked for clarification regarding a walkway that does not appear to be part of the original plan either, and asked if there was a retaining wall.

Associate Planner Blumenthal confirmed that the walkway was not in the original plan.

Chairman Mueller opened the public hearing.

Nagy Bakhoum, 3800 Pacific Coast Highway, Torrance, Obelisk Architects, the applicant, stated that the primary concerns were wall height, the terraced effect on the rear of the proposed building, and lot coverage. Regarding the height of the wall, he explained that the difference between the first design and the second design was to take away some of the specific extreme right and left turns that were occurring in the driveway. As the home was being built and as people began driving up and down the road, it created a natural, much more comfortable driveway than the original proposed driveway. Therefore, the driveway was being built to that condition. He explained that the higher wall was built as a safety issue. If a car were to hit the rail it could in no way hold it and the car would go right down; whereas the wall that was built is a concrete wall which would do damage to the car but there would be no life safety concerns. He explained that the proposal to mitigate the height of the wall was to: (1) bring the grade up; (2) provide proper planting and screening with Ivy on the wall and plant material in front of it and minimizing the impact of that wall by maintaining the safety aspect which is the concern of the owner. He discussed the terracing and noted that they have created a wall that is actually three walls, three feet high; they are not geometric in the sense that they are fluid to blend with the natural contours of the topography of the site, whereby mitigating their impact. They are not straight line as geometric; they are trying to create a softened effect; along those terraces a landscaper would come in and buffer all of those and create a natural area with a screened effect and give the owners a little room at the base of this hill to utilize some garden which is what they are losing. Finally, coverage is increased, but is deceiving because any time they move the dirt around they have to count that as coverage, so that as a result it comes out to 50%; but when you look at the overall impact between the original plan that was approved and the new plan that is under review today, you will see that it is not a significant difference in aesthetics; in fact what it ends up doing is creating much more landscape areas that can cancel the areas that we are discussing. In addition, with the landscape plan that they have proposed it would create a significant impact in terms of mitigating any of the issues that are being discussed today.

In conclusion, Mr. Bakhoum stated that there is the wall height which is really a life safety issue more than anything else; there is a terrace which he tried to create with an organic terrace rather than geometric terrace; and then finally, coverage with the proper landscaping is going to create a significant improvement on the project as proposed.

Commissioner Knight said he is curious as to why they would go ahead and build a driveway that was not approved and asked why they not go to the City first.

Mr. Bakhoum responded that he did not have a good excuse, as the contractor built the wall before it could be heard by the Planning Commission, knowing that the original driveway design would not work.

Commissioner Knight asked if they had intended to build the driveway that was approved in the original plans.

Mr. Bakhoum stated that when they began to build the home and the natural driving up and down the site to deliver supplies, it was obvious at that point that it was a more natural driveway design and much better and a much safer design than the original design. The fact that it was built before they came to the Planning Commission is simply someone jumping the gun.

Chairman Mueller asked when, if ever, did he apply for a revision to the CUP.

Mr. Bakhoum stated that they applied before the neighbor came in, and staff can verify that with the date they applied and the date the neighbor came in to report the wall had been built. After the architect realized that it was built they did as-built-measurements and presented it to Associate Planner Blumenthal to tell him what was out there, and was informed that it would have to be torn down and rebuilt. Mr. Bakhoum told Associate Planner Blumenthal that it was not the driveway that was significantly increasing coverage or increasing any other issues; that the wall they originally submitted was about 2 ½’ tall and had a 3’ ornamental rail on the top of it, putting it at about 5 ½ feet; this wall would be about 6 feet with a 3 foot high wall and a 3 foot high freeboard.

Chairman Mueller asked if he is comparing a residential driveway to a driveway that would be constructed for construction on the property; that it would be much larger than would be needed for the average residential vehicle.

Mr. Bakhoum stated that the owner owns a trailer manufacturing company and drives an Excursion, which is as big as any other vehicle that goes up and down that driveway.

Chairman Mueller asked if the owner knew of the driveway that was being proposed.

Mr. Bakhoum responded that the owner did know.

Chairman Mueller asked if the applicant is suggesting that foliage could make up for the softening affect that was the intention when the original driveway was approved.

Mr. Bakhoum responded that this is what he is suggesting.

Chairman Mueller asked if they are asking for special consideration regarding the driveway because of the steep slope when neighbors have to deal with the same slope and have improvements that follow the contours of the slope.

Mr. Bakhoum stated that they are not asking for special consideration; that they are not the landscape architects that designed the improvements, but simply the architects of record; this is the vision of the landscape architects and he is here to hear what the Planning Commission concerns and issues are and then modify if necessary or deny if necessary what it is they are proposing. They are architects that were hired to design the building. He stated that he knows there are neighbors who are above the 20% driveway slope and does not think the request is out of line.

Dwight Hanger, 2938 Vista Del Mar stated that he and his wife think the driveway is ugly; they see it every time they go in and out of the garage; visitors will see it as they enter the front of their house; they see it from inside their house. He was also very concerned about more walls and digging in the back as they already have had damage to their house from the digging and construction that is taking place. He stated that there are several problems with the wall and the driveway as it is not approved, it does not follow the contour of the property, the widening of this driveway also increased the height of the wall, the stairs on the other side of the wall may have pushed the driveway further out into the slope, the original grade from that house came down and was actually below their wall while the new grade will be possibly 10" above according to his measurements, and the wall is 18" higher than the driveway. In summary, Mr. Hanger stated that it is the Planning Commission’s responsibility to protect the homeowners and to follow these guidelines. He stated that he considers this beyond a normal annoyance, and they do not think that the Planning Commission should support bad behavior, and they recommend that the request not be approved.

Commissioner Gerstner asked to see the driveway plans and asked if the approved driveway would have come closer to Mr. Hanger’s property than the constructed driveway.

Mr. Hanger said that they both start in the same place, but the approved driveway would have turned away and followed the slope and would be lower in the middle so that the wall would be lower.

Commissioner Knight asked if the wall is approximately where the property line is or does the property line of the neighbor go more toward your property (in respect to the picture presented by Mr. Hanger).

Mr. Hanger described the property line using the picture as a reference.

Chairman Mueller commented that Mr. Hanger appears to be satisfied with the approved driveway; he asked if Mr. Hanger had any comments regarding the terracing in the back of the home facing Palos Verdes Drive South, as to what is being proposed by the applicant.

Mr. Hanger stated that he thinks they need to follow the guidelines which all of the others have had to follow, adding that if they built too big a house, they have to have less yard space; he stated that the hill is very steep in the back and is not particularly super stable; that they (the Hangers) had to put a 44’ caisson in the ground and change their whole structure. He is concerned with three terraces because it is a very short distance from the back of their house to the top of the hill, and putting three terraces there is a lot of additional concrete and terracing.

Chairman Mueller asked if he agreed with staff about the driveway and the terracing.

Mr. Hanger said that he agrees with the staff.

Commissioner Karp asked if Mr. Hanger participated in the hearings on the first proposal.

Mr. Hanger stated that he does not believe that they were informed where it was going to be placed; that none of them were notified; that the property has been bought and sold several times and plans proposed; that they were not notified when the first modifications were proposed.

Associate Planner Blumenthal reported that the most recent notice was sent out to the neighbors on March 6, 2003; according to the Minutes of that hearing there were no public speakers.

Chairman Mueller added that if it is a public hearing it must be published in a local newspaper in addition to the notice being sent out.

Dorian Dunlavey, 3255 Parkhurst Drive, Rancho Palos Verdes, is the owner of Lots 10 and 11 on Vista Del Mar and after receiving notice on July 24, 2004 she looked at this site because she was concerned about the increase of lot coverage from 37% to 50% and the grading by 200 cubic yards. there is very little lot area between the house and the property’s southern boundary; it is set far back from the street; she observed a large high rounded retaining wall starting near Vista Del Mar street level, curving and sloping down to the house level. She stated that this retaining wall supports a wide concrete driveway and a concrete stairway, which also leads down to the house level; the driveway extends between the east wing and the west wing of the residence to the front of the house.

Ms. Dunlavey stated that her question to the Planning Commission was, have they viewed the driveway, and if not, it will be impossible to fully appreciate or comprehend the magnitude of the Modisette’s (owners) contemptuous actions. She felt that the request should be denied, the unapproved driveway and stairway should not stand, and the back hillside should conform to the Permit 23 requirements.

Commissioner Knight asked how Ms. Dunlavey knows that the driveway was built during the time period that she mentioned during her presentation.

Ms. Dunlavey stated that the Hanger’s were going away on June 2, 2004 and it was not started yet; Mrs. Hanger had told the contractor that they would be gone from June 2 to July 29, 2004. Ms. Dunlavey does not know when it was constructed but she knows it was concluded by July 24, 2004.

Mr. Bakhoum (in rebuttal) referred to questions regarding the nearness of the walls to the neighbor’s property stating that this driveway is much further in from the neighbor’s property—not closer to it. Regarding the question of bad behavior, he said it is not their intention to behave badly; they are here to rectify the problem and try to make the neighbors happy. He stated that he believes that mitigating the wall height and not sacrificing life safety is the ultimate goal and if that means conditions of approval that would allow that wall to continue to be there that would be fantastic; if it could be mitigated by landscape significantly it would entirely mitigate the impact of that wall and could be contained on the owner’s property. They are concerned about the visibility of the wall from the neighbor’s home and that is why they have hired a landscape architect to do the job.

With respect to visibility from the Modisette’s home, he referred to the picture showing the view from their home, and said that both the owner and the neighbors want the wall to go away and with the Ivy on it and the hedge material, it will not be a wall; it would be two layers of screening in front of this that will mitigate the impact.

Mr. Bakhoum stated that this area is absolute fill, there is no good soil in that area; it was extremely difficult to get the driveway solid and to keep it from moving and that is what it is; it is solid and should never slide anywhere; that construction is done; proposing to tear it down and build it new aggravates the construction issues such as vibration, etc., and he does not think that is the right answer.

Commissioner Gerstner summarized what has been done so far regarding the permit and approval process, and the questions of the contractor in building the driveway and the wall on his own; and asked if there were drawings by a civil and structural engineer that designed and defined that wall in that location that the contractor used to build that wall.

Mr. Bakhoum said that the geologist came out and reviewed the trench; the retaining walls are designed by a civil engineer, and the contractor would have built the wall in accordance with the civil engineer’s drawing in terms of strength and height, etc.; before the concrete would be poured, the building officials would come out and review it and verify that this is built per the drawings and the code. He stated that somehow that is where the breakdown occurs.

Commissioner Gerstner asked how the civil engineer knew how high that wall was at what point.

Mr. Bakhoum responded that essentially, you know where the grade elevation is and then it is the delta between the two.

Commissioner Gerstner asked if anyone did a drawing of anything.

Mr. Bakhoum responded "not from our office".

Commissioner Knight asked if the window of time when the construction was done, as referred to by Ms. Dunlavey as between June 2 and July 24, 2004, is correct.

Mr. Bakhoum stated that he does not know; that he has notes on his plans of "June 11, 2004-landscape field revision", and he is presuming that is when they went out and measured it, but he would have to ask the contractor when the driveway was built.

Commissioner Knight asked if he said that a City building inspector inspected the placement of the rebar before the concrete was poured.

Mr. Bakhoum stated that it was inspected.

Commissioner Knight asked if he had a copy of that inspection report.

Mr. Bakhoum said that he does not, but he is sure it is on file with the City.

Commissioner Knight asked if the inspector checked the plans there against the original plans.

Director Rojas stated that typically building inspectors get called out for a footing inspection and they go out and look at it to make sure it is per the specifications. He explained that they don’t get into how high the wall will be because they deal with this at a subsequent inspection. However, if the inspector sees something that does not appear to be per the approved plan, they will flag it to the contractor and to the Planning staff.

Commissioner Knight asked Mr. Bakhoum if he is reasonably sure that the existing wall was built to current engineering standards.

Mr. Bakhoum said he would have to see the inspection records; if the building official signed off on the footings, then it tells him that it is being built per the building code.

Commissioner Knight asked if the City did review the engineer’s calculations as to the right size rebar, the spacing, the concrete mix.

Director Rojas answered that would be done through the plan check process by the Building and Safety Division.

Commissioner Knight asked if it is considered safe as it is built now in its present condition according to code and engineering.

Director Rojas stated that if the City signed off on that footing then yes, so that the issue is that the wall is structurally safe per UBC, but is not consistent with the approved plan.

Chairman Mueller asked about the timeline. He stated that applications were submitted prior to June 12 and June 15 according to the stamp on the plans (referencing the staff report); that it appears that somehow between June 15 or so somebody executed the plans; that Ms. Dunlavey is not saying that he did not plan to apply to build this driveway and he is coming before the Planning Commission to try to prove something after the fact; what he does not understand is that Mr. Bakhoum says there was no direction given to the contractor and asked if the owner is directing the contractor.

Mr. Bakhoum said that according to the staff report the applicant submitted an application for revision to the Conditional Use Permit on April 27, 2004, and it is possible that they may have done the measuring and layout prior to that, but stated that he is guessing again. Mr. Bakhoum stated that this is a possibility; as soon as they became aware of the condition they submitted the application, but knowing that it would be an issue with respect to having to come back a second time with their proposed increase in coverage, they piggybacked the issue so they could discuss both at the same time; there may be a gray area here in clarity of date as a result of that piggybacking.

Commissioner Tetreault asked if, when the driveway was designed, it was felt that it was a good and functional driveway; if it had appropriate limits of life safety; that the way the applicant submitted it to the City at that time, he and his company felt that it was an appropriate design for the site and provided the owners of the property with what they needed for ingress and egress of their vehicles.

Mr. Bakhoum stated that he would agree with that.

Commissioner Tetreault asked if the applicant now thinks that what has been built presently is better.

Mr. Bakhoum stated that he believes that it is a more efficient entrance and egress through the property; he thinks that increasing the concrete wall creates a much safer environment; could that 3’ be chopped off and turned into a wrought iron wall—absolutely, without any great difficulty; it would mitigate some of the height, but it would not prevent a car from coming over the edge of it and that is a legitimate safety concern.

Commissioner Tetreault stated that it was a legitimate concern when they submitted the original plans.

Mr. Bakhoum responded that it was.

Commissioner Tetreault asked if the applicant felt satisfied submitting the design to both the owners and the City that safety had been addressed in the original design.

Mr. Bakhoum stated that he would agree with that.

Chairman Mueller closed the public hearing.


At 10:30 P.M., the Planning Commission took a ten-minute recess until 10:40 P.M., at which time they reconvened.


Commissioner Knight said he was confused regarding which part of the driveway was done without City approval; he asked if the City inspectors were basing their inspection on the approved plans or revised plans and asked for clarification on these issues.

Director/Secretary Rojas explained that the inspectors went out for an inspection of the wall as is typically done and they only go out when they are called for an inspection; there could be a lot of progress that they are not aware of between inspections. His understanding is that they were sent to inspect the wall and the footings and determine that they are meeting the building code; what he thinks occurred is that they did not get into whether the driveway was in the exact configuration as the approved plan or the height of the wall, because it was not finished. Based upon discussion with the building official, he believed that what happened is that the retaining wall passed the inspection to make sure that it was structurally safe, but it never got to the point that the inspectors were called to inspect the final of that wall and that is the point where they would notice something wrong.

Commissioner Knight commented that there is no part of the existing built driveway that the applicant is proposing tonight that has gone through the City for approval yet.

Director/Secretary Rojas stated that it has not been checked yet.

Commissioner Knight asked Associate Planner Blumenthal what is the difference in the height of what is built now and what the Planning Commission approved.

Associate Planner Blumenthal responded that what is built now is 9’ and when grading is completed it will be an approximately 7½’ wall.

Commissioner Knight asked if this house was set back more than the minimum requirements.

Associate Planner Blumenthal responded that because the front part of this lot had an extreme slope the house was set back farther than the minimum to maintain the driveway slope.

Commissioner Knight commented that by putting it back further you are able to have a longer driveway to have a more gradual slope.

Chairman Mueller felt that there are two parts to this issue; (1) an application for the driveway, and (2) another having to do with the terracing and making more usable space at the back of the home. He suggested dealing with one issue at a time.

Commissioner Gerstner wanted to talk about the driveway and in that regard it was his opinion that this wall is significantly imposing on the adjacent property, because the grade was changed from what was originally approved; it would have sloped down first and would have been lower at the point where the gentleman is standing in the picture being used for reference. In his opinion the wall that is built is now not consistent with what was originally proposed and has an adverse visual affect.

Commissioner Karp stated that it disturbs him greatly that things are built not according to permits; that it is a terrible precedent to set in the City when someone says they will go ahead and do it and the Planning Commission will approve it afterward, and that is the message the Planning Commission would be giving if they did not follow staff’s recommendation. He felt that this is a backdoor approach by the applicant. He agreed with staff that the request should be denied and should be brought back to the original specifications; if the driveway has to be torn out then it is just too bad.

Commissioner Knight stated that he also has problems with construction projects that are implemented and are not according to plan. He commented that this is a very complex application because it also involves revisions to a conditional use permit; he feels that the issue of the driveway is being slipped under all these other issues that have not even been discussed tonight; there was a risk taken here; he cannot see how the Planning Commission can allow this kind of thing to go on in the City, coming back after you build something and trying to put it under some kind of conditional use permit.

Commissioner Tetreault stated that he agrees with the Commissioners who have spoken so far. He has two concerns: (1) after-the-fact approval, even with good reason, his inclination would be to deny it because they did not follow the process; rather than being concerned with the cost and the investment necessary to build, he is concerned with the precedent that encourages people to do that. For whatever reason, it appears that those involved disregarded all the appropriate procedures and regulatory processes that are in place. In addition, he thinks it is a very imposing wall and is not aesthetically pleasing; he feels that the home was designed for view purposes deep into the lot. He cannot, in good conscience, approve this even though it will require a lot of demolition.

Chairman Mueller commented on the aesthetics and his feeling about the impact on the neighbors and his disapproval of the wall; he also confirms that the house may have been placed to accommodate the driveway; that the applicant requests that the Planning Commission should change all that. He commented that it is directly adjacent to Palos Verdes Drive South and is directly visible from Palos Verdes Drive South, and if they are allowed to go ahead with this project that this house would begin to stand out as something different than the adjacent homes. He does not see that they are following the natural contours of that particular slope. He is convinced that the original plan met the approval, provided a driveway that minimized the impact to the surrounding neighbors, and is something that is doable; and the terracing really does not fit into the neighborhood character. He is convinced that staff is correct. He is inclined to go along with a suggestion that the Planning Commission should deny this application with prejudice as recommended by staff.

Commissioner Gerstner stated that he agreed and that the original plan should stand and the applicant should make whatever alterations necessary to accommodate that. Regarding the grading at the bottom of the property, it would be his opinion to deny that without prejudice. Although he believes that what is there and being proposed is not something that he could approve, he does not want to tell the applicant that there is nothing that they can do down there that would not be acceptable to him.

Chairman Mueller asked staff about separating the recommendation on the two parts of the project and if it is possible to separate it how can this be done.

Director Rojas stated that it cannot be separate because all aspects are under one application, so it is necessary to take consistent action on the application. He said that if the Commission wants to leave a portion of the application open for future application, then they would have to deny the entire application without prejudice.

Commissioner Knight stated that he thinks that by allowing even the other aspects on the grading, the Commission is exceeding quite far beyond what the original conditional use permit has allowed; the RS-1 zoning allows 25% coverage; this permit raised that an additional 5% for a particular reason such as the slope, etc; this applicant, in addition to increasing that lot coverage, asked for an additional 7%. He stated that other homes in the area have not deviated from the original conditional use permit, and this opens up the issue of the standards set for the entire Seacliff Hills area. He stated that he sees nothing in the current revision that makes the lot un-developable; he is inclined to deny the entire revision with prejudice.

Commissioner Tetreault agreed with Commissioner Knight, stating that the community has somewhat peculiar lot coverage definitions and requirements, but it is what it is and everyone is subject to it including the applicant. The rules and regulations are for the benefit of everyone there and everyone who has developable land who may propose homes on these lots. Commissioner Tetreault sees no reason to deviate from it.

Commissioner Knight moved to deny per staff recommendation the proposed revision to the Conditional Use Permit and the Grading Permit application, seconded by Commissioner Karp.

Chairman Mueller commented that by denying this project with prejudice they are not denying that the lot be developed; there was an approved plan on that lot that was approved by a prior Planning Commission to develop and finish that lot. He was is comfortable with the motion since the applicant has the opportunity to build the project that he originally presented to the Planning Commission and was approved by the Planning Commission.

Commissioner Gerstner stated that it is his opinion to deny it without prejudice to give the applicant every opportunity, adding that he would advise the applicant that under no circumstances would he ever be voting in favor of a driveway in the configuration as it is built here.

Chairman Mueller commented that, if they are to deny without prejudice, he assumes that the applicant could come in at any time and submit a revision to the plan that may include the driveway that is before the Commission tonight, and there may be some other revision on top of that; that it might be a different plan but it might not change the part that Commissioner Gerstner is worried about.

Director Rojas stated that this is correct.

Commissioner Knight asked if the Commission were to deny with prejudice, could they come back with an application for the driveway.

Associate Planner Blumenthal stated that to deny with prejudice, the applicant would not be allowed to reapply for one year.

Commissioner Karp pointed out that those involved have not lost anything. They are in the same place that they were when the Planning Commission granted the original approval. They are not being denied the right to improve their property or build a house.

The motion to approved the staff recommendation to adopt Planning Commission Resolution No. 2004-32; thereby denying, with prejudice the revision to Conditional Use Permit No. 23 and Grading Permit (Case No. ZON2004-00215), was approved, (4-1) with Commissioner Gerstner dissenting.



  1. Planning Commission policy on accepting late correspondence

Director/Secretary Rojas presented the staff report, reviewing the current policy regarding late correspondence and asking the Planning Commission for direction as to what, if any, modifications should be made to the Planning Commission’s Rules and Procedures regarding late correspondence.

Commissioner Karp stated that the rules are accurate and should remain in place; that according to Roberts Rules of Order, by a vote of 2/3 of the body the rules can be suspended. He commented that the Commissioners often visit project sites on their own time to gather information and he finds it very difficult to receive information at the last minute to make an informed decision. If they cannot get it in on time, he thinks it is not important enough to be considered.

Commissioner Knight referred to the policy deadline and stated that it was his understanding from Chairman Mueller that this is at the discretion of the Chairman, and asked if that is the case.

Director/Secretary Rojas stated that there are no exceptions written into the rules; however the rules do allow to suspend its rules at any time with a 2/3 vote; in the past, correspondence would be given to the Commission and identified as before or after the Noon deadline. Now, based on the current rules, staff has not been presenting correspondence that is late.

Commissioner Knight stated that what he is saying is that it is not at the discretion of the Chairman, but is by a 2/3 vote and asked if that is correct.

Director/Secretary Rojas stated that this is correct and is the same rule if the Commission wants to go past midnight.

Chairman Mueller commented that in most cases the speakers do not abuse this situation but just want to present copies of their presentation. Regarding the e-mails he referenced, the City Council has a policy of receiving correspondence at their meeting, which is similar to the staff suggestion to distribute late items at the meeting.

Director/Secretary Rojas noted that the City Council does not have the Planning Commission noon deadline.

Chairman Mueller stated that he feels that it is better to bring correspondence to the meeting rather than forward e-mails. He stated that he tries to allow some latitude with this at the meeting so that all their information is received. He suggested that the rules as they exist are a safeguard and sees no reason to change them.

Commissioner Tetreault stated that, as a lawyer, he is very aware of timeliness of paperwork, whereas the public may not understand all the procedures and are not accustomed to coming to the City. He stated that it is reasonable for the public to expect that before the meeting convenes the Commissioners have read and considered everything in the packets given to them and all the materials given to them that was submitted by the deadline before the Planning Commission votes. He does not believe it is reasonable for them to expect that they have read everything given to the Commission up to 7 P.M. on the evening of the meeting or read correspondence they just received, and he will just not read it. He stated that there is a difference between correspondence that is submitted on a timely basis and that just submitted late, and that late correspondence can be disregarded.

Chairman Mueller commented that at the beginning of the meeting Commissioners bring up items that were received by the deadline, and it is difficult to review items and listen to the meeting at the same time; so he shares Commissioners Tetreault’s and Knight’s concerns about reviewing things at the meeting. Regarding the speakers bringing in items, he asked for more comments.

Commissioner Gerstner feels that the public needs to comply with the rules, but if he can find a way to consider them, he will be happy to do so but does not want to be obligated to consider something that is received at the last minute. He does not want to consider spending ten minutes voting on something that can be resolved in one or two minutes, but does not want all the Commissioners to feel obligated just because he feels like looking at a picture that someone brought in.

Commissioner Karp addressed Commissioner Gerstner and said that the motion to suspend rules is not debatable; further, if the Chairman says he thinks we should review this, I think we should suspend the rules, saying that it is a quick 1-2-3 vote and if 2/3 say yes, fine; if 2/3 say no, we go on, so it is not a ten-minute vote or 20-minute debating session. He emphasized that the staff should urge in the strongest language, that if their appeals or petitions are not submitted on time there is a very strong likelihood that it will not be considered.

Commissioner Knight agrees with Commissioner Gerstner that the Planning Commission is here to help the public who may not be aware of all the procedures, but when someone comes to the meeting with the material, he says it is a problem to sift through the information. He suggested a disclaimer that, if something is presented at a meeting it may or may not be considered because it is late, or as Commissioner Knight suggested, vote on the issue as to whether to accept it or not. He agrees with the staff suggestion regarding e-mails because if he does not get a chance to check e-mail before the meeting he will not have the information. He feels those who do not have the e-mails are at a disadvantage.

Commissioner Tetreault responded to Commissioner Knight, referencing correspondence that was date-stamped, and suggested that anything received late be stamped "late" and anything stamped "late" is to be reviewed at the Planning Commission’s option. He suggested that at the beginning of the meeting, late correspondence be identified to the audience and informed that this information may not be considered by the Commission. They can assume that the Commission has seen everything else.

Director/Secretary Rojas explained that if Commissioner Tetreault’s suggestion were accepted, the rules would have to be amended. In response to Commissioner Tetreault, he stated that at the present time, nothing that is received after the Monday Noon deadline is given to the Commissioners.

Commissioner Tetreault explained that he misunderstood and thought the Commission was getting late correspondence.

Commissioner Knight asked that the term "discretion" be clarified.

Commissioner Karp again referenced Roberts Rules regarding suspending the rules in his previous comment.

Commissioner Gerstner referred to a picture that was brought in this evening and gave the example of suspending the rules.

Commissioner Karp said this issue bothers him because a picture does not require a lot of consideration or reading, and he is not sure if he has resolved that in his own mind.

Commissioner Gerstner gave an example of a picture with some words on it, saying, "the wall is too high", and commented that it is going to put the Commission in a bind.

Chairman Mueller gave an example of receiving a stack of pictures that are not multiple copies, and how distracting that is; he also referred to a story board that is passed around; he would be inclined to accept a document that has multiple copies.

Commissioner Knight stated that he is leaning toward not having an absolute accept or reject, and just having a disclaimer.

Chairman Mueller stated that he favors not changing the rules.

Commissioner Knight asked if there is anything in the rules that contain a disclaimer.

Director/Secretary Rojas stated that the rules state anything received after the deadline will not be considered at the meeting.

Commissioner Knight repeated that he favors a disclaimer at the beginning of the meeting so that people know it may or may not be considered at the meeting.

Chairman Mueller pointed out that it is already stated on the blue cover page of each staff report.

Commissioner Gerstner suggested that on the speaker slip it be noted and an explanation can be given when it is submitted to staff.

Director/Secretary Rojas stated that speakers are told that late correspondence will not be accepted. He stated that by keeping it straightforward and not accepting late correspondence, it forces the applicant to use it in their presentation and the Commission can then decide what to do.

Commissioner Karp stated that in the bid process, it is either timely or late. He suggested a house rule that nobody hands anything to a Commissioner at any time during the meeting or leaves anything on the desk.

Commissioner Gerstner stated that he is fine with the rules as they stand regarding late items; when people come up to speak and they want to give the Commission something, he doesn’t have an objection to seeing it if it goes through a procedure of some sort. He suggested that it go through staff by advising staff when they fill out the speaker form that they have something for the Commissioners, and when the person comes up to speak the staff asks the Commission if they want to suspend the rules to accept these documents that the speaker has brought; the Commission can accept or reject the information as long as it is a short vote.

Chairman Mueller commented that it is a more formal procedure and is used by the Council; that it is probably not necessary to change the rules to do it.

Director/Secretary Rojas stated that what Commissioner Gerstner suggests is just a housekeeping issue that does not require that the rules to be changed.

Commissioner Tetreault asked if the Chairman always would be asked if the Commission wanted to accept. He summarized his understanding of the new procedure as the speaker giving the information to the Director or a staff person, it would be announced that the speaker has materials, and then would ask the Chairman if it was to be received, and then we would not have to vote.

Commissioner Knight stated that the Chairman can say "the Chair believes it is to the Commission’s advantage to suspend the rules; is there any disagreement". If no one disagrees, we suspend; if someone disagrees then we call a vote, all in 60 seconds.

Director/Secretary Rojas summarized the proposed announcement that "the next speaker is X and they have asked to distribute some information; does the Commission want to suspend the rules".

Commissioner Tetreault asked when the Commission would ever say no, without knowing what it is.

Commissioner Karp stated that he would say no because he does not want to be put in the position of having to make a decision about things being put on his desk; if it cannot be on time, we are not going to consider it.

Chairman Mueller stated that the Commission does not have good criteria to judge whether to receive information.

Director/Secretary Rojas referred to the previous Commission and said that he would ask if they want to receive the information, and sometimes they would ask what it is—a letter, a petition, a photo—and he would described it and the Commission could then decide.

Chairman Mueller stated that if it worked before he has no objection to trying it out. He would be inclined to give the benefit of the doubt to the public and get the benefit of all their input.

Commissioner Knight pointed out that if material is rejected, that person still has an opportunity to speak and tell the Commission what is in the material.

Commissioner Gerstner stated that the Commission could always change their mind if they decided during the presentation that they needed to see the information.

Chairman Mueller asked if someone would describe or summarize a plan.

Commissioner Gerstner offered to draft the motion, and suggested that it could be tried for a couple of meetings.

Commissioner Gerstner moved adoption of the following procedure:

  • Have a note on the speaker slip;
  • Have the speaker give the materials to the staff and clip them to the speaker form;
  • Before calling the speaker’s name, ask the Chair if he would like to consider suspending the rules to accept those materials;
  • Chairman asks for any objections;
  • Either the Commission accept the materials or not, depending on the objections or lack thereof;
  • After listening to the speaker, if the Commissioners decide to see the materials after all, the Chairman can be asked to reconsider.

The motion was seconded by Commissioner Karp and approved without objection (5-0).


  1. MINUTES OF JULY 27, 2004

Commissioner Gerstner had a correction to Item 6, page 18, line 3, second word, "that", and asked that it be replaced with "than what".

Commissioner Knight referred to Item 4, page 7, paragraph 6. He stated that he had requested that he would like to see an explanation in the staff report and some analysis about the specific trails plan and some other aspects of the General Plan Amendment. He remembers that at that meeting Deputy Director Greg Pfost agreed that he would include that in future reports.

Director Rojas will add to Commissioner Knight’s statement some language that "staff member, Deputy Director Greg Pfost agreed that those things should be included in the staff report".

Commissioner Knight referred to Item 4, page 11, paragraph 7, first sentence, and stated that it should read " Commissioner Knight pointed out the fence was existing non-conforming and we can’t require its removal, but if staff believes it can be done, then in terms of the existing fence it was appropriate to ask it be removed at the appropriate time during construction".

The Minutes were approved as amended without objection, on motion by Commissioner Knight, seconded by Commissioner Tetreault (5-0).



Chairman Mueller commented that the Commission has looked at Item 4 before and that it is a minor exception.

Commissioner Knight commented that the Commission will not be discussing the Neighborhood Compatibility Code Amendment beyond those exceptions the Commission just discussed tonight, is that correct.

Director Rojas said, referring to Item 1 on the Pre-Agenda, that that is correct and staff will probably move that to the Consent Calendar since it is just adoption of the Resolution.

Commissioner Knight understood that Item 1 would just be limited to the Amendment, which they discussed tonight, which was just the exceptions.

Chairman Mueller asked if there are enough Commissioners and no one will be absent at the next meeting as of this date.

Director Rojas stated that he does not have any information as far as anybody being absent so there should be a quorum.


Commissioner Knight moved, seconded by Commissioner Karp that the meeting be adjourned at 12:18 a.m., approved without objection 5-0.

The next meeting is scheduled for Tuesday, August 24, 2004, 7:00 P.M. at Hesse Park.