JANUARY 11, 2005




The meeting was called to order by Chairman Mueller at 7:12 p.m. at the Fred Hesse Community Room, 29301 Hawthorne Boulevard.


Commissioner Gerstner led the assembly in the Pledge of Allegiance.


Present: Commissioners Gerstner, Knight, Perestam, Tetreault, and Chairman Mueller. Commissioner Karp arrived at 10:00 p.m.

Absent: None

Also present were Director of Planning, Building and Code Enforcement Rojas, Senior Planner Fox, Associate Planner Schonborn, and Assistant Planner Yu.


Chairman Mueller suggested moving Agenda Item No. 5 ahead of Agenda Item No.1. Unanimously approved.


Director/Secretary Rojas distributed one item of correspondence regarding Agenda Item No. 1 and two items for Agenda Item No. 5. He also reported that at the last City Council meeting the City Council approval a General Plan Amendment Initiation request that would be heard by the Planning Commission at a future meeting and approved a General Plan update review process that includes the Planning Commission. He also noted that the City Council will be interviewing candidates for the position of Planning Commission Chairman on February 1st.

COMMENTS FROM THE AUDIENCE (regarding non-agenda items)



5. Conditional Use Permit (Case No. ZON2004-00613: 29601 Western Ave

Director/Secretary Rojas explained that the applicant submitted a letter earlier in the day requesting a continuance of the public hearing, and noted that staff was recommending it be continued to the January 25th meeting.

The Planning Commissioners agreed that they would be in favor of continuing the public hearing to allow everyone who wanted to speak at the public hearing to be present at the meeting.

Commissioner Gerstner moved to continue the public hearing to January 25, 2005, seconded by Commissioner Knight. Approved, (5-0).


  1. Code Amendment (Case No. ZON2004-00265

Director/Secretary Rojas presented the staff report, explaining that staff was requesting the item be continued to February 8th to allow more time for staff and the City Attorney to draft specific language requested by the Planning Commission at the last hearing.

Commissioner Knight moved to continue the public hearing to February 8, 2005, seconded by Commissioner Gerstner. Approved, (5-0).


2. Extension of Conditional Use Permit No. 171 (Case No. ZON2004-00590): 30057 Matisse Drive

Senior Planner Fox presented the staff report explaining there is a condition on the Conditional Use Permit that requires the Planning Commission review the permit if there was a change in ownership. He noted that staff became aware of a change in ownership in September 2004. He explained the layout of the existing antenna, noting that it was very difficult to see from neighboring properties or rights-of-way. He stated the extension request involves no changes to the use or configuration of the antenna and staff has received no comments in response to the public notification. He stated that staff has determined that all necessary findings can be made to approve the Conditional Use Permit and therefore staff was recommending approval of the extension of the Conditional Use Permit as requested.

Commissioner Knight asked staff to clarify who actually owns the antenna on the property.

Senior Planner Fox felt that was a question that the Planning Commission should ask the applicant, as staff was not sure who owns the antenna that is attached to the house.

Commissioner Knight asked staff if there would be any way to know if the antenna was being used for purposes other than for what is approved.

Senior Planner Fox explained that there is really no way for staff to know, other than if they found out accidentally.

Commissioner Tetreault asked if there was any mechanism available for the Planning Commission to review the use of the antenna.

Senior Planner Fox stated there wasn’t, other than to direct staff to periodically review and verify the entities that have the authorization to use the antenna are licensed to do so.

Chairman Mueller opened the public hearing.

Heather Warmington 1527 Monrovia Ave, representing the applicant (Boat US), explained that in regards as to who is able to use the antenna, there are two control points, one at the residence and one at Boat US offices. She explained that the FCC has authorized their use of the antenna and they have between five and eight frequencies they are allowed to use.

Commissioner Perestam asked how many antenna sites Boat US had on the peninsula.

Ms. Warmington explained that Boat US has VHS dispatch for the entire west coast, and there is only one antenna in Palos Verdes.

Chairman Mueller closed the public hearing.

Commissioner Tetreault stated that he was able to make all of the necessary findings and was in favor of granting the extension.

Commissioner Knight agreed, noting that the antenna was very well hidden and innocuous.

Chairman Mueller also agreed, adding that in addition to being able to make the necessary findings he was pleased that there had been no negative comments from the neighbors.

Commissioner Tetreault moved to adopt P.C. Resolution 2005-01 thereby approving a 10-year extension of Conditional Use Permit No. 171, as recommended by staff, seconded by Commissioner Knight. Approved, (5-0).

3. Variance, Minor Exception Permit and Site Plan Review (Case No. ZON2003-00126): 1 Narcissa Drive

Senior Planner Fox presented the staff report, explaining the application was a result of a complaint regarding construction of walls and pilasters on the property. He explained that some over-height portions of the partially constructed improvements have been removed and the property owners then applied for the Variance, Minor Exception Permit, and Site Plan Review. He explained the scope of the project and the need for each of the permit applications. He discussed the Variance and the need for the Variance and noted that staff was able to make all of the necessary findings in order to recommend approval of the Variance. Discussing the Minor Exception Permit, Mr. Fox explained that staff felt the Minor Exception Permit was warranted by an unnecessary hardship, specifically the physical constraints of the property and the past history of trespassing and other activities on the property. Staff also felt that granting the Minor Exception Permit was warranted in order to be consistent with the general provision of the City’s fence and wall regulations to allow residents to secure their property. He explained that staff requested the Public Works Department to make an inspection of the property in regards to the proposed height of the walls and the visibility triangle, and Public Works staff determined that there would not be a public safety hazard. He explained that the City Geologist had visited the site, as required by the Landslide Moratorium Exception Permit, and determined that no soils or geology report would be necessary for the proposed work. Lastly, he noted that only one written response was received as a result of the public notice, and that was a letter in favor of the project. Therefore, staff was recommending approval of the project, as conditioned by staff.

Commissioner Knight referred to page 8 of the draft Resolution and asked staff why the statement that a hedge or the use of screening fabric is not permitted on or adjacent to the fence was included in the Resolution.

Senior Planner Fox explained that the fence is being approved through a Minor Exception Permit process and adding a hedge either in front of or behind the fence, or placing an opaque covering on the fence, would make the fence a wall, and a wall cannot be approved through a Minor Exception Permit.

Chairman Mueller opened the public hearing.

Dan and Vicki Pinkham 1 Narcissa Drive (applicants) stated that they were available to answer any questions the Planning Commissioners may have. Mrs. Pinkham stated that her main concern was their security, as well as the preservation and enjoyment of their home. She felt that with this in mind, their solution is in keeping with the historical integrity of the building as well as well as the security of the neighborhood.

Commissioner Perestam asked the Pinkhams, if security was such a major issue, why they didn’t request building a slightly taller wall.

Mr. Pinkham answered that he has measured several times the difference between a five-foot fence and a six-foot fence, and felt that visually the five-foot fence looked so much better and looked much less like a prison than a six-foot fence would. He also felt that planting appropriate vegetation would help take the place of the extra foot. He stated that if the five-foot fence does not work, he will consider approaching the City at a later date with a Variance requesting a six-foot wall of some type.

Commissioner Tetreault noted that he had not realized that the residence was being lived in, and asked the Pinkhams if the purpose of the wall was to try to keep people off of their property or was it to help finish the property from the outside to help make it look like a house that people live in.

Mr. Pinkham answered that the purpose of the wall was to keep people off of the property as well as to make it look more lived in, while keeping the integrity of the original gatehouse.

In reviewing the plans, Chairman Mueller asked the Pinkhams if the iron fence was planned to be placed on top of the proposed wall, thereby making the strucuture over 6 feet in height.

Mr. Pinkham answered that was correct.

Chairman Mueller asked staff if they had taken that height into account.

Senior Planner Fox explained that the wall shown on the plan will have backfill placed behind it and therefore from Palos Verdes Drive South the wall will not be visible. He stated that all that would be visually apparent would be the 5 to 6 foot portion above the wall.

Yvonne Yamashita 5521 Palos Verdes Drive South stated that she lives across the street from the Pinkhams and fully supports their proposed project.

Jack Downhill 20 Vanderlip Drive felt the Pinkhams are doing a great job and are improving the entire community and fully supported the project.

Chairman Mueller closed the public hearing.

Commissioner Knight noted that the Pinkhams had mentioned they might plant some vegetation as a deterrent, and asked staff if they could plant in the berm area behind the wall as long as it is below the railing.

Senior Planner Fox answered that they could plant in the berm area and that the vegetation could possibly go a little higher than the railing, as long as they maintained the 80 percent light and air requirement.

Commissioner Tetreault felt this was one of the most unique properties on the peninsula that presents many challenges. He felt that the Pinkhams are doing a remarkable job on restoring the property and that what they are requesting in this application is appropriate. Therefore, he was recommending approval of the application.

Commissioner Perestam agreed, adding that he would normally be reluctant to approve a wall such as this that is over 42 inches, however in this situation he was pleased that the Pinkhams have chosen a minimalist approach and would also recommend approval of the application.

Commissioner Knight also felt that the Pinkhams had done a good job in trying to balance their needs for security with a project that appears to create an additional attribute to the Italian look of the homes in the immediate area. He stated that he is usually very hard on Variances, as variances should only be granted if there are exceptional or extraordinary circumstances. He felt that in this case there are truly exceptional and extraordinary circumstances and he was able to make all of the necessary findings to approve the Variance.

Chairman Mueller stated that he agreed with all of the comments made by the Commissioners. He stated that he was not always in favor of creating fences however in this particular area an open-air fence was a very interesting approach and he was in favor of the application.

Commissioner Knight moved to adopt P.C. Resolution No. 2005-02 thereby conditionally approving the requested Variance, Minor Exception Permit and Site Plan Review (Case No. ZON2003-00126) as recommended by staff, seconded by Commissioner Perestam. Approved, (5-0).


At 8:20 p.m. the Planning Commission took a short recess until 8:30 p.m. at which time they reconvened.


4. Height Variation, Site Plan Review (Case No. ZON2003-00059): 38 Cinnamon Lane

Commissioner Knight recused himself from this application.

Assistant Planner Yu presented the staff report, explaining that the case was to consider the revocation of the height variation and site plan review previously approved by the Planning Commission to allow the first and second story additions to a single family residence existing on the subject property. She explained that according to the Development Code the Planning Commission may revoke or suspend the permit if the permit has been used contrary to the terms and conditions of the permit. She explained that the permit has been used contrary to the conditions of approval, as the residence has been completely demolished, which is contrary to condition of approval no. 12 of the Resolution. She explained that the property is located in the Landslide Moratorium area where new residential structures are not allowed. She also explained that condition no. 12 was to ensure that the project remained as an addition to the existing residence as opposed to a tear down/rebuild project which would constitute a new structure. She stated that since the permit was used contrary to the conditions of approval, staff was recommending the Planning Commission revoke the Height Variation and Site Plan Review.

Commissioner Tetreault asked staff to explain, if the Planning Commission follows the recommendation of staff and the permits are revoked, where would it leave the property owner and what alternatives would the property owner have.

Assistant Planner Yu explained that the property owners would not be allowed to request a Landslide Moratorium Permit to attempt to reapprove the additions previously approved, as the Municipal Code has changed since the approvals were originally given. She explained that the Municipal Code now allows a cumulative addition of 600 square feet on each property and this property already had an 800 square foot addition. She explained there is another section in the Moratorium Exception portion of the Code that exempts structures that have been damaged by a hazard and if the property owner provides staff with information that this structure was damaged, staff can allow them to rebuild the same size structure in the same location of the pre-existing residence.

Commissioner Tetreault did not think a bulldozer would be considered a hazard and the house is completely demolished, and asked what can be done with this property.

Director/Secretary Rojas stated that the property owners can rebuild their home as long as two things happen. He noted that the Moratorium Ordinance allows for replacement of damaged portions of structures and does not define damage or hazard. Therefore, if the applicant is able to submit documentation of the pre-existing house showing how it was damaged by some type of condition, staff would allow them to rebuild the house provided it is in the same location and the same square footage.

Commissioner Tetreault discussed "damage" and asked if damage to the house could be considered the damage that the bulldozer did to the walls of the house.

Director/Secretary Rojas responded that, in discussing the issue with the City Attorney, staff would accept documentation of damage to the house in its pre-existing condition, prior to being torn down.

Commissioner Tetreault asked, if the permits are revoked and the owners cannot prove that the walls were taken down because of the damaged condition they were in, what will be the next step for the property owners.

Director/Secretary Rojas explained that if the permits are revoked and the applicants have no evidence of any damage to the pre-existing house, such as water damage, termites, mold, cracking, etc., then the house with cannot be rebuilt per the Code.

Commissioner Perestam asked in the case where the owner could prove there was damage to the house before it was demolished, could the applicant then come back with a project that includes the improvements that were previously granted.

Director/Secretary Rojas answered that they would not have the ability to come back for the improvements that were granted, only the pre-existing structure.

Commissioner Tetreault asked staff to explain the rationale behind the no building restrictions in the moratorium area, and what is trying to be accomplished by this and what is trying to be avoided.

Director/Secretary Rojas explained that when the moratorium was established in 1978 it said that the City could not issue permits for any new construction. It did recognize, however that there were already homes in the area and that those homes should be given some ability to expand, improve or replace damaged portions of their property. Therefore, there are a series of exceptions in the Moratorium Ordinance. He explained that in terms of structural additions to homes they have always been worded as an addition to an existing residence, primarily because new residences were seen as a detriment to the landslide.

Commissioner Tetreault asked how that would affect this particular property, as there were plans that were approved for the expansion to an existing residence. Unfortunately they took all of the walls down, but if they were to re-build to the same size and same scope, what detriment, if any, would there be to the area.

Director/Secretary Rojas explained that three things would have to occur in order for the applicant to be able to re-build the pre-existing house: 1) It would have to be the same square footage; 2) It would have to be in the same general location; and 3) There would have to be geologic studies submitted and approved showing that building in the same location would not be detrimental to the landslide.

Chairman Mueller opened the public hearing.

Neil Seigel 38 Cinnamon Lane (applicant) stated that he is here because he allowed the contractor to demolish his house, even though condition no. 12 of Conditions Approval stated that no more than 50 percent of the walls could be demolished. He stated that he submitted a letter to the Planning Commission and staff which attempted to explain the sequence of events that led to the mistake. He explained that during the beginning phases of construction the contractor began finding a lot of wood rot and other structural damage in the house and suggested taking down all of the walls. He admitted that he forgot about condition no. 12. He explained that when the contractor had informed him that the structural engineer had approved the tear down, he mistakenly thought the structural engineer was a city employee. H stated that he believed, in good faith, that the demolition had been cleared with the City. He stated that the mistake was caused by miscommunications and misunderstandings and was not, in any way, an attempt to manipulate the City process. He explained that there have been some negative letters submitted to the City, and felt that these people may have interpreted his actions as manipulative, rather than a mistake, and that conclusions of apparent manipulation may have influenced their positions. He responded to a statement in one of the letters that he expected only a slap on the wrist, noting that it was not until December 9th that he was informed that the Planning Commission would decide the matter, and even then he was told staff would be recommending revocation of the permit. He stated that nothing he said to anyone during this period could reasonably be construed as anything other than he was in trouble and at risk. He respectfully asked that the Planning Commission select an action that does not include revocation of his permit. He stated that a former Planning Commissioner had told him that there was a similar situation in the Sea View tract and that the Planning Commission did not revoke that permit. Unfortunately, he was not able to find the records of that case on the City web page. Finally, he stated that if the Planning Commission would allow them to continue and finish the project, the result will be exactly what was approved by the Planning Commission in 2003 in terms of layout, plan, and size.

Commissioner Tetreault asked Mr. Siegel if he and his wife lived at the residence and if they had planned to continue to live at the residence after the additions were made.

Mr. Siegel answered that they have lived at their residence for 11 years and had planned to live their for the rest of their lives.

Olympia Greer stated she was the architect for the project and displayed a diagram showing the extent of the project and the end result. She noted that the house was designed to maintain at least 50 percent of the existing walls. She also noted that the foundations of the house are still in place and have not been torn out, and will be reused. She stated that as far as a penalty, the Siegels will be penalized considerably by the tax assessment and property taxes they will now have to pay.

Commissioner Gerstner asked staff if it was their understanding that the existing foundation will be reused if they are allowed to rebuild.

Director/Secretary Rojas replied that it would be the owner’s option to use the existing foundation or a new foundation, depending on the recommendations of the geologist.

Commissioner Gerstner asked Ms. Greer if she was unaware of the condition that only 50 percent of the walls could be torn down, and if she had been consulted by the contractor or the owner.

Ms. Greer answered that she was aware of the condition, and noted that she had not been consulted specifically on how many of the walls were going to be demolished and the magnitude of the demolition.

Chairman Mueller asked Ms. Greer who, in her opinion, discovered the error that the house should not have been torn down.

Ms. Greer responded that it was her understanding that there were people walking in the neighborhood and saw that the house had been demolished and called the City, which initiated an investigation by the City.

Commissioner Tetreault asked Ms. Greer if she had been asked, at any time, to draw revised plans for walls that had been demolished.

Ms. Greer answered that she had not been asked to do so.

Leven Leatherbury 3420 Palos Verdes Drive West (contractor) stated that, aside from condition no. 12, everything at the site was being done exactly as per plan. He stated that the walls were intended to be constructed exactly as per plan.

Commissioner Gerstner asked Mr. Leatherbury to describe the scope of demolition that happened that was not originally contemplated.

Mr. Leatherbury explained that initially the owners had wanted to put stone over an existing deck, which he took to the building department and received approval. It was his understanding at that time that as long as the footprint did not change or the height of the structure did not change, that there was not a problem. He explained that the floors in the house had rotted areas, the roof was leaking, the earthwork and grading around the perimeter was above the sill plate. He felt that areas above the foundation needed to be rebuilt. He stated that he is a builder and he has to make sure the foundation he is building on is safe, therefore his recommendation was that it was not smart to build on a foundation that he could not be liable for and it was his recommendation to take down the walls of the house. He explained that the only deviation from the original plans was that the structural walls were removed.

Commissioner Tetreault asked Mr. Leatherbury if he was overseeing the project from a construction standpoint.

Mr. Leatherbury answered that he was overseeing the project from a construction standpoint.

Commissioner Tetreault asked Mr. Leatherbury if he authorized the demolition of the walls of the residence.

Mr. Leatherbury answered that when he signed the contract with the demolition company his intention was to remove the walls with the exception of the walls that had the electrical panels and the walls that were necessary. Unfortunately, the demo contractor managed to take down the power lines going to the house, took out the electrical panels, and demolished all of the walls.

Commissioner Tetreault questioned Mr. Leatherbury as to why he was unaware of condition no. 12, noting that his office is located in Rancho Palos Verdes and he must be aware of the requirements and restrictions in this City.

Mr. Leatherbury explained that he was not familiar with the special rules for the Portuguese Bend areas, as he has never done work there before. He explained that it is not uncommon to take down the walls of an existing structure to rebuild them during a remodel.

Jack Downhill 20 Vanderlip Drive stated that he supports the project going forward, as he felt that the final project will be an attractive home, will be more fire safe than most of the existing homes, and will be a valuable asset to the community. He stated that he was living in the area when the moratorium restrictions were designed and felt that they were designed in a panic when the land was moving. He felt that the City Council at the time was ultra-conservative and did not even explore some of the options. He felt it would be grossly unfair to not allow the Siegels to rebuild their residence with the approved additions.

Mr. Siegel (in rebuttal) stated that this is the first time he has undertaken any type of major remodeling such as this, and he would take full responsibility for anything that happened out there, as he is the one who signed the document in 2003 which included condition no. 12 that no more than 50 percent of the walls would be removed.

Chairman Mueller closed the public hearing.

Commissioner Perestam noted that the original addition to this home was in 1977, which was before the Moratorium Ordinance, and asked if there was any type of grandfathering that took place.

Director/Secretary Rojas explained that recently the City Council tightened the moratorium exceptions, and when they established the maximum addition cap of 600 square feet they specified that was counted from anything above the original residence. Therefore, any additions from the original residence count towards that cap.

Commissioner Perestam asked about the permit in the Sea View area that was not revoked, as mentioned in the letter to the Planning Commission, and asked staff if they had been able to identify the circumstances surrounding that.

Director/Secretary Rojas replied that staff was aware of one house on Admirable Drive that had demolished more than fifty percent of the walls. However, he explained that the Sea View portion of the moratorium area is unique in that they are allowed to build new homes in that portion of the moratorium.

Commissioner Perestam asked how this application was originally approved, as they were approved to add more than 600 square feet.

Director/Secretary Rojas explained that this application was originally received by the City at about the same time the City Council was reviewing the moratorium area. He stated that the applicant went before the City Council to request they be processed under the pre-existing rules.

Chairman Mueller asked if this was the only application that went before the City Council to request it be heard under the old rules before the City Council changed the Moratorium Exception cap.

Director/Secretary Rojas stated this application was deemed complete prior to the Moratorium Ordinance being modified by the City Council. As such, the City could process the application under the old Ordinance, which allowed the City Council to approve an exception permit over 600 square feet.

Chairman Mueller asked if the 50 percent demolition rule was in place when the applicant originally applied for the permit, or if it was added after the City Council changed the Ordinance.

Assistant Planner Yu answered that the 50 percent demolition was in place when the applicant first applied for the Moratorium Exception Permit.

Chairman Mueller asked if there had ever been a home in the Portuguese Bend Club that had been demolished without approvals and allowed to rebuild.

Director/Secretary Rojas answered that staff was aware of one home in the Portuguese Bend Club where the applicant had an approval for an addition and demolished the entire structure. He explained that in this situation the applicant was able to show documentation of damage to the pre-existing home, and were allowed to rebuild.

Commissioner Tetreault asked staff this prior applicant had been allowed to re-build with the addition or had to rebuild only the original structure.

Director/Secretary Rojas explained that at that time there was no 600 square foot cap and the applicant had to go through a process which allowed them to re-build the structure with the addition. He further explained that this current application is the first one before the City under the new Moratorium Exception rules.

Commissioner Karp arrived at 10:00 p.m. and was instructed that because he had not been present for the public testimony during the public hearing he was not able to take action on this application. However, if the item were to be continued and if he reviews the minutes or the tape of the meeting, he can participate in future meetings on this item.

Chairman Mueller referred to the staff recommendation and one alternative in the staff report and felt there was another alternative which would be not to revoke the permit. He asked staff if this was a possibility or was the Planning Commission bound by the Ordinance that they could only recommend that to the City Council.

Director/Secretary Rojas explained that the Ordinance states that the City may revoke the permit, not that the City must revoke the permit. He explained however, that if the Planning Commission opts not to revoke the permit and allow construction to proceed, staff and the City Attorney had the concern that other residents in the Portuguese Bend area recognize that this may be a way to get around the established Landslide Moratorium Exception process.

Commissioner Perestam asked, if the permit were revoked and the applicant can prove there was some type of structural damage to the original residence, would the applicant then be restricted to rebuilding the house to the original size, excluding the addition done in the 1970’s and the one proposed today.

Director/Secretary Rojas stated that if the Planning Commission voids this permit the applicant will lose his right to build the addition and can rebuild what was pre-existing, which was 3,130 square feet.

Commissioner Tetreault asked if the Planning Commission could not revoke the permit and impose additional conditions to the permit.

Director/Secretary Rojas explained that this is specifically a revocation hearing and not a hearing to discuss revisions to the approval.

Commissioner Tetreault asked if a new public hearing would have to be noticed and held to add conditions to the project and not revoke the permit.

Director/Director Rojas answered that was correct.

Commissioner Gerstner stated that he felt that this situation was an accident. He felt that if the demolition had progressed as shown on the plans, and the applicant had approached the City to say that the remaining walls have dry rot and other damage and should come down, that the City would have approved that removal. He repeated that he truly felt that a mistake had been made and given a choice, he would rather not revoke the permit. He stated that the house and the addition had calculations and geology done and approved, and if it was acceptable to have that structure on that type of land at that time, then he felt it was acceptable now. He stated that his inclination would be to not revoke the permit, because in the end there would be a structure that is not any different than the one previously approved. He stated that his biggest concern was that other people in the community might see this as a way to tear down their whole house and rebuilding it. He felt that this would be a huge risk to proceed down that road to find the Planning Commission might say that they could not rebuild their home. He noted that with any less of a clear-cut case of an error being made he would not take the position he is taking on this case.

Commissioner Perestam asked if there was some method where the permit is revoked, but with a condition to tie this back to the prior code that it was originally approved under.

Director/Secretary Rojas explained that the Planning Commission cannot revoke the permit and then process the application under the previous Moratorium Ordinance, explaining that the Moratorium Ordinance administered by the City Council and was amended by the City Council, and the Planning Commission makes no decisions with regards to moratorium exceptions.

Chairman Mueller asked staff, if the Planning Commission revokes the permit, could the applicant then appeal the decision to the City Council.

Director/Secretary Rojas answered that the applicant can appeal any decision made by the Planning Commission to the City Council.

Commissioner Gerstner explained that the condition he would suggest would be that the walls removed that were not supposed to be removed be re-built in the same place and same manner as they were before. He felt that in doing so, the applicant would not be able to come to the building department during construction and ask to move walls to make a room bigger or rearrange the interior of the house. He felt this would help stem the possibility that someone may think they can do this intentionally and reap some benefit.

Director/Secretary Rojas explained that the only way to add or change conditions of approval is to not revoke the permit and ask for an interpretation hearing. He explained that this is a part of the Code that allows the Planning Commission to call up an approved application where there have been new issues stemming from the construction of the approved project that were not considered as part of the original project. He stated that this hearing would be re-noticed to the public.

Commissioner Tetreault stated that he believe this situation was truly a mistake. He did not think that the City’s laws, ordinances, and building codes have to be so rigid that no exceptions can be allowed under any circumstances. He felt that the Planning Commission does have some discretion and are charged with the responsibility to review projects and to see where fairness would dictate in areas that may differ from the Code. However, he was also very concerned about sending a signal to the community that this is a way around the City codes that are in place for a good reason for the benefit of the community. He stated that he and other Commissioners have made a very large point of that in rejecting people’s attempts to get something they are not allowed to have. He felt that this case differs somewhat from that. He explained that in other cases people have built something they are not supposed to have or built it in the wrong location and the community has been impacted by that mistake. He did not think this was the situation in this case, as the house will look and function the same and will look no different had the mistake never occurred. He too was concerned about giving someone in the community the incentive to try this tactic in their remodeling, however he felt that the risks were far too great for someone else to attempt this. He noted that the applicants are not going to benefit from this, and are not going to get anything better than they had originally planned for. Therefore, he did not feel the Planning Commission was establishing a precedent by not revoking the permit and trying to find a way to restore the property.

Commissioner Tetreault asked staff, if the applicant were to request minor changes to the approved plans, would that request come before the Planning Commission.

Director/Secretary Rojas answered that, as with every project, there is a condition that minor modifications are at the discretion of the Director. However, given this circumstance, the requested change would have to be extremely minor for him to approve it.

For clarification, Commissioner Gerstner asked staff, if he owned a house in the Landslide Moratorium area and he demolished the house and then came to the City to apply for a permit to rebuild a structure identical to the one he just demolished, could he get a permit to do so.

Director/Secretary Rojas explained that he would first ask if the demolished house had any damage to it from a hazard or if he had documentation to show there was a hazard, and he did not have any, then per the Moratorium he could not rebuild.

Commissioner Gerstner asked if he could only rebuild and reuse the land if he could prove it fell down, burned down, or had some structural damage that it needed to be replaced.

Director/Secretary Rojas clarified that the Ordinance says destroyed or damaged.

Chairman Mueller stated that his concern was that there was a fundamental issue in that violating Condition No. 12 was violating the Moratorium Ordinance. He felt that this was so fundamental that the message being sent to the residents in the area is that if you violate a condition of approval, the Planning Commission will interpret that condition for you through an Interpretation Hearing. He did not think this was the intention of that type of hearing, but rather to interpret minor conditions that are added to permits.

Director/Secretary Rojas stated that in listening to the comments of the Planning Commissioners he realized that if the Planning Commission was to not revoke the permit and allow a new house to be re-built, then it is in conflict with the Moratorium Ordinance which is a City Council issue. He stated that the City Council issued the Moratorium Exception Permit with the understanding that an addition would be added to an existing residence. Therefore, he felt a legal issue would be raised as the Planning Commission cannot override a City Council decision on the moratorium issues. He stated that he needed to discuss the issues further with the City Attorney. He explained that the City Council approved the Moratorium Exception for an addition of approximately 1,200 square feet to an existing structure. He felt that if the Planning Commission does not revoke the permit and allows construction to go forward, it would not be an addition to an existing structure but rather a tear down and rebuild.

Commissioner Gerstner did not think that was necessarily true, as it will not be an entirely new structure as the existing foundations and floorboards will be used.

Chairman Mueller noted, however, that per the Development Code it would be a new house, as the Development Code only deals with walls.

Chairman Mueller asked staff if the City Council could allow the applicant’s to build the new structure if they hear the item on an appeal.

Director/Secretary Rojas explained that the problem is that the Code has changed since this project was approved and there is really no path for the City Council to follow in allowing the project to be built under the original approvals.

Commissioner Tetreault asked staff if there was a process for one to follow in the Moratorium area if they wanted to remove more than 50 percent of their walls or add more than 600 square feet of addition.

Director/Secretary Rojas answered that there is no process and they cannot apply for such an application, or they would have to ask the City Council to change the Ordinance.

Director/Secretary Rojas stated that he had many discussions with the City Attorney on this case and when he stated that the Planning Commission had the option not to revoke the permit, he realized that could not be done because it would be contrary to the City Council decision on the Exception Permit.

Commissioner Tetreault stated that the Planning Commission then does not have the discretion to do anything one way or the other, and felt that it was necessary to get further direction from the City Attorney before proceeding any further.

Commissioner Gerstner stated that he was leaning towards trying not to revoke the permit and would like to discuss questions that he felt staff should bring to the City Attorney. He stated that a major issue has to do with 50 percent of the walls remaining and he would like the City Attorney to further clarify the definition of a wall, primarily how it relates to the foundation, noting that a wall cannot stand without a foundation under it.

Director/Secretary Rojas stated that was a building and safety issue, however he would come back with the answer to that question.

Commissioner Tetreault asked what would have happened if the contractor had left the exact walls he was supposed to leave, but submitted evidence to the City that the remaining walls had some sort of damage and should be taken down. Would the City then have allowed them to take down the remaining walls and re-build the residence with the additional square footage approved for the addition.

Director/Secretary Rojas explained that the City most likely would have asked for the documentation and allowed the pre-existing walls to be re-built in the same location and to go ahead with the addition.

Commissioner Gerstner felt that this was a reasonable course of action to take in this situation, even though there may not be the required documentation regarding the damage to the walls that should have remained.

Chairman Mueller felt that the Planning Commissioners should remember there are other people in the Moratorium area have not added on to their houses because of these new restrictions, and should they be allowed to tear down their houses and add additions.

Commissioner Gerstner questioned if the goal of the Ordinance was to have no houses left in the Moratorium area in 50 years, because he felt that was what could happen.

Chairman Mueller stated that there was nothing in the Ordinance that prevents one from maintaining their homes or making additions up to 600 square feet.

Director/Secretary Rojas explained that was why there was the Moratorium Exemption Permit, which will allow for the replacement of an aging or damaged home.

Commissioner Tetreault asked that the City Attorney clarify the power of the Planning Commission in this type of situation and the scope of the City Council so that the applicant’s will know where to go with this application. He added that he did not think the Planning Commission had any discretion to make any decision on this project until there was clarification from the City Attorney.

Commissioner Tetreault moved to continue the item to the next Planning Commission meeting to allow staff to consult with the City Attorney the decision options that are available to the Planning Commission, seconded by Commissioner Perestam. Continued, (4-0-2) with Commissioners Knight and Karp recused.


6. Minutes of December 14, 2004

Chairman Mueller noted a clarification to page 5 of the minutes.

Commissioner Gerstner noted a typo on page 10 of the minutes.

Commissioner Knight moved to approve the minutes as amended, seconded by Commissioner Karp. Approved, (6-0).


7. Pre-Agenda for the meeting of January 25, 2005

Director/Secretary Rojas noted that he would move the item regarding the Geologic Disclosures to another agenda to allow for the two items on tonight’s agenda that were continued.

The Pre-agenda was unanimously approved as amended.


The meeting was adjourned at 11:20 p.m.