JANUARY 25, 2005 PLANNING COMMISSION MINUTES JANUARY 25, 2005 PLANNING COMMISSION MINUTES

CITY OF RANCHO PALOS VERDES

PLANNING COMMISSION MINUTES

REGULAR MEETING

JANUARY 25, 2005

CALL TO ORDER

The meeting was called to order by Commissioner Tetreault at 7:08 p.m. at the Fred Hesse Community Room, 29301 Hawthorne Boulevard.

FLAG SALUTE

Commissioner Gerstner led the assembly in the Pledge of Allegiance.

ROLL CALL

Present: Commissioners Gerstner, Karp, Knight, Perestam, and Tetreault.

Absent: Chairman Mueller was excused.

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

APPROVAL OF AGENDA

The agenda was unanimously approved as presented.

COMMUNICATIONS

Director/Secretary Rojas distributed two items of correspondence for Agenda Item No. 3, one letter for Agenda Item No. 6, and one letter for Agenda Item No. 7. He also distributed a flyer for the upcoming Planers Institute conference.

Commissioner Tetreault reported on his attendance at the Mayor’s Breakfast.

COMMENTS FROM THE AUDIENCE (regarding non-agenda items):

None

CONSENT CALENDAR

1. Site Plan Review (Case No. ZON2004-00558): Sunnyside Ridge Road and Palos Verdes Drive East.

Director/Secretary Rojas explained that this item is a request from the Homeowners Association to place walls on private property at the intersection to identify the entrance to the community. He stated that the Development Code requires that any construction in the visibility triangle requires review by the Planning Commission as well as approval from the Public Works Department. He stated that Public Works staff has visited the site and determined there will be no traffic visibility issues, and staff is recommending the Planning Commission approve the request.

Commissioner Knight asked why a Variance is not required for the walls that are proposed over 52 inches.

Director/Secretary Rojas explained that because these proposed walls are in an intersection visibility triangle the Code gives the Planning Commission the authority to approve walls that are over 30 inches in height.

Commissioner Tetreault asked who owns the property the walls are proposed to be built on.

Director/Secretary Rojas answered that the walls will be placed on a resident’s property as opposed to property that is owned by the HOA.

Commissioner Tetreault asked who would be responsible for the walls.

Director/Secretary Rojas answered that the property owner would be responsible for the walls.

Commissioner Karp moved to approve the Site Plan Review and Sign Permit as presented by staff, seconded by Commissioner Perestam. Unanimously approved.

CONTINUED BUSINESS

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

Commissioner Knight recused himself because of the proximity of his home to the subject property.

Commissioner Karp stated that he has reviewed the tape and the minutes of the previous meeting and felt he could participate in the discussions for this item.

Assistant Planner Yu presented the staff report, explaining that at the last public hearing questions arose regarding the Planning Commission’s discretion to revoke the permit, and directed staff to discuss with the City Attorney the options available to the Planning Commission. She explained that staff consulted the City Attorney and discussed the alternatives, and based on those discussions concluded that the Planning Commission has two options: 1) to revoke the permit; and 2) to not revoke the permit and direct the applicant to submit a revised Landslide Moratorium Exception application for additions that do not exceed what is allowed under the current Moratorium Ordinance. She explained that the City Attorney determined the applicant will not be allowed to construct the 1,181 square feet of previously approved additions since the right to those non-conforming additions were lost when the project was changed from a residential addition to a complete tear down / rebuild project. She also explained that at the previous meeting the Planning Commission discussed the City’s position if the applicant had approached the City during the remodel when they discovered that more than 50 percent of the walls had been demolished. According to the City Attorney, if the applicants had approached the City with a revised application, the revised application would have been required to comply with the current code. With that, the City would have given the applicant the option to either proceed with the addition and repair, not replace, the damaged walls as best as possible or replace the pre-existing residence without the addition. She explained that staff was recommending the Planning Commission revoke the Height Variation and Site Plan Review.

Commissioner Tetreault asked staff to explain the difference between the two alternatives suggested by the City Attorney.

Director/Secretary Rojas began by stating that the City Attorney has asked him to strongly recommend that the Planning Commission revoke the permit, noting that if the permit is not revoked it would create an unclear legal record. He explained that if the permit is not revoked the permit will still be technically open. However, whether or not the permit is revoked, the applicant will have to submit a revised plan to the City. If the Planning Commission chooses not to revoke the permit the revised plan will be presented to the Planning Commission and if the permit is revoked the Director will approve the revised plan. He explained that either way the result is essentially the same, noting that the applicant cannot build a project that is in conflict with today’s Moratorium Ordinance.

Commissioner Tetreault asked if the revised plan were to be presented to the Planning Commission, would the Commission be limited to approving only the rebuilding of the existing structure and no further addition, since the existing house had a previously approved and built addition.

Director/Secretary Rojas explained that there is a distinction in the Moratorium Ordinance between habitable and non-habitable area ad there is the possibility to add approximately 250 square feet to the garage of the house, noting that area would have to be used as non-habitable area.

Commissioner Karp stated that he checked with the Title Company regarding this property and noted that the official records state the house was built in 1954 and was 2,869 square feet with the 800 square feet approved, made the house 3,669 square feet. He questioned the discrepancies in the square footage of the house.

Assistant Planner Yu explained the City does not have the original building permits and has relied on the information provided by the applicant.

Commissioner Gerstner asked staff to clarify whether or not the applicant would have to replace the house exactly as it was before or if they could redesign the house when rebuilding.

Director/Secretary Rojas explained that under the replacement category of the Ordinance the house has to be replaced in the same approximate location and the same size, however that does not mean that every wall has to be in the pre-existing location. He stated that the applicant can replace the house with a different floor plan, as long as it does not exceed the approved square footage.

Commissioner Gerstner referred to language in the Resolution which states the house is completely demolished. He questioned whether the house was completely demolished.

Director/Secretary Rojas stated that there is some existing foundations and a fireplace and the language can be changed to reflect more than 50 percent of the house has been demolished.

Commissioner Tetreault opened the public hearing.

Olympia Greer 267 Palos Verdes Drive West, Palos Verdes Estates stated she is the architect for the project. She explained that since this case is a violation of the demolition she has a proposal for a third option. She explained that her option would be to not revoke the permit and be allowed to proceed in two phases. She explained that the first phase would be to rebuild the portions of the walls that were demolished and have their locations certified by a surveyor, and only after that is done to build the new walls as proposed with the additions as approved. She felt this would ensure that the project would be built as originally approved and no modifications or alterations would be made. Furthermore, the proper fees and penalties would be imposed for the demolition and reconstruction of portions of the residence that were to remain.

Commissioner Tetreault closed the public hearing.

Commissioner Gerstner asked staff to comment on the viability of the option being proposed by the architect.

Director/Secretary Rojas explained that the proposal was not an option. He stated that he has discussed this project in great detail with the City Attorney and it was concluded that the previous additions were legal non-conforming, which gave the applicant the ability to have something that nobody else in the moratorium area can have at this point, and once the house was demolished the non-conformities were lost.

Commissioner Karp felt that this was truly an accident and did not feel it was intentional on the part of the owner. He felt that the Planning Commission should follow recommendation 1, thereby denying the applicant’s permits and allow them to rebuild what existed.

Commissioner Perestam stated that the purpose of continuing this item was to get clarifications and comments from the City Attorney to understand the boundaries of the Planning Commission in this situation. He felt that the comments from the City Attorney and staff has made the job of the Planning Commission a little easier, as the interpretation of the Code has been clarified. He very much agreed with the comment in the staff report that, although the Code may seem harsh, the Code is written in a manner to phase out non-conforming situations and bring properties into compliance with the most current code. He stated that he was therefore inclined to agree with the recommendation that the permit be revoked.

Commissioner Tetreault stated that in making his decision he tried to analyze the case by looking at the findings in favor of and the findings against the application. He discussed the findings in favor of the application, which included: 1) the applicant was honest and forthcoming in what had happened; 2) the applicant had traversed a difficult course to receive the permits necessary for the project; 3) if the applicant is allowed to build his home with the approved additions there would be no visible difference from the outside whether or not the interior walls had been removed; 4) If the variance is not revoked the applicant will not be gaining anything other than getting some modern walls in the same location as the old walls, no increased square footage, no view impact, no extra grading, and no additional watershed to affect the neighbors; 5) allowing the project to go forward should not encourage others to do the same, as it is unlikely that this will ever come up again because of the amendment. Further the risk of denial and revocation of the permits is too great for anyone to take a chance on. He discussed the findings against the application, which included: 1) The strict policy against new construction in the Landslide Moratorium area; 2) The Landslide Moratorium Ordinance’s purpose is to restrict construction in an area that is geologically unstable and the land movement can be exasperated by construction and the introduction of new homes in the area; 3) The Moratorium Ordinance is not to punish, but to protect those that live in that sensitive area, and further the Ordinance does give residents the opportunity to repair, remodel, and even make small additions to existing homes. He felt it was important to respect and affirm the intent of the ordinance and not carve out exceptions that may have the unwanted affect of opening up new challenges to the Moratorium Ordinance. He felt that it was difficult to call what the applicant wants to do anything other than construct a new house; 4) The City Attorney has given the opinion that the Planning Commission has only two options, neither of which allows the applicant to construct the approved additions; and 5) The Municipal Code allows only minor projects in the moratorium area, and he did not feel this was a minor project. Based upon these factors and findings he felt compelled to favor revocation, as what the applicant wants to do is contrary to the Municipal Code. He stated that he was very concerned that if the Planning Commission revokes the permit, the applicants will have to come back to the Department and seek permission to rebuild their house. He noted that under the Code the applicant will have to establish that the house was lost due to damage and if they cannot do that there is a possibility they will not be able to rebuild their existing home. He asked if it was possible to make the necessary finding that the house was lost or damaged as part of the motion so that the applicant will be allowed to rebuild.

Director/Secretary Rojas explained that is not part of the revocation and he did not recall any evidence being submitted during the public hearing regarding that. He noted, that as he stated to the applicant, after consulting with the City Attorney "other hazard" is not defined in the Code and staff has taken the position that it could mean anything such as dry rot, termite damage, or cracking foundation, and the applicants have informed staff they have photographs from before the house was demolished that could show some hazard.

Commissioner Gerstner asked staff if they have seen this evidence and know the house can be rebuilt.

Director/Secretary Rojas answered that staff has not yet seen the evidence. He added that the determination of whether something qualifies for an exception is done by the City Council or the Director.

Commissioner Karp moved to adopt P.C. Resolution No. 2005-03 thereby revoking the Height Variation and Site Plan Review, as recommended by staff, seconded by Commissioner Perestam.

Commissioner Gerstner suggested modifying the motion to change the words in the Resolution "completely demolished" to "demolished in excess of 50 percent" to clarify and be more specific.

Commissioner Karp accepted the amendment, seconded by Commissioner Perestam. Approved, (4-0-1) with Commissioner Knight recused.

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

Associate Planner Schonborn presented the staff report, explaining that the applicant is requesting dancing and live entertainment in conjunction with the restaurant. He stated that the applicant had requested that staff reconsider some of the conditions of approval, specifically those limiting the hours of operation. He explained that in coming up with the conditions of approval, it was staff’s intention to ensure the establishment not become a nightclub and therefore proposed a condition to limit the hours to no later than midnight. He stated that staff is recommending the approval of the Conditional Use Permit, with the recommended conditions of approval.

Commissioner Karp asked staff why it was recommended the permit be reviewed after three months rather than after six or nine months.

Associate Planner Schonborn explained that staff chose three months because if there are problems it is a short enough period that the surrounding residents will not have to be subject to the problem for a long period of time.

Commissioner Karp asked if the neighbors are being bothered by the operation six or nine months from now, what recourse would they have.

Associate Planner Schonborn stated that at the three-month review the Planning Commission can require another review so that the activity and function of the business can be monitored.

Director/Secretary Rojas added that if there are continual complaints from the neighbors it will become a code enforcement issue, and if necessary, the Conditional Use Permit can be brought back to the Planning Commission for possible revocation.

Commissioner Knight asked if the Conditional Use Permit is being granted to Rio Carnival or to the property.

Associate Planner Schonborn explained that the Conditional Use Permit is to allow for a use in the establishment, and if some time in the future Rio Carnival sells the business, the new owners inherit the Conditional Use Permit and all of the conditions associated with it.

Commissioner Knight asked staff if they were concerned there might be some type of entertainment at the business that may not be appropriate for families.

Associate Planner Schonborn stated there is a proposed condition of approval that addresses that issue.

Commissioner Knight stated that there is an outdoor patio at the site and the CUP addresses entertainment inside, and asked if there was something in the Resolution that includes outside entertainment.

Associate Planner Schonborn explained that in conversations with the applicant it was made clear that the applicant did not intend on having any entertainment outside, however if the Commission feels a condition is warranted, one could be added.

Commissioner Perestam noted that Director Rojas recently had a meeting with the applicants and asked what had changed in terms of the operation since the last Planning Commission hearing.

Director/Secretary Rojas answered that staff was initially processing this application as a permit to allow these functions to occur, however the applicant indicated that these functions were already occurring and now this is considered an after-the-fact application. He also explained that the applicant clarified their operating hours and the way the operation works. He noted that rather than make changes to the Resolution, staff is prepared to offer changes if the Commission wants to craft different conditions with different hours based on the new information supplied by the applicant.

Commissioner Karp asked if Alcohol and Beverage Control had been notified and had any comments on the project.

Associate Planner Schonborn answered that staff had been in contact with Alcohol and Beverage Control and they did not feel there was any problem with the operation.

Commissioner Knight asked what the total square footage of the dining room would be.

Associate Planner Schonborn replied the dining room area is approximately 3,500 square feet.

Commissioner Knight asked staff if they had checked for parking compliance with this use.

Associate Planner Schonborn explained that the parking would not be in compliance with current code, however it is an allowable use per the Code. Therefore, parking was not looked at as a main component of the application.

Commissioner Knight stated that Finding 6 requires the Planning Commission to determine this use is in conformity with Title 17.

Director/Secretary Rojas clarified that there are many restaurants on Western Avenue and a new restaurant can take over an old restaurant building without a CUP because a restaurant is an allowed use. Likewise, when Rio Carnival came in it did not have to go through any discretionary approval as it is an allowed use per the Code. He noted, however, that this type of entertainment and dancing requires a Conditional Use Permit. Therefore, the review and focus of discussion should be on the entertainment and dancing, not on the restaurant.

Commissioner Tetreault asked staff for clarification on how the Code defines nude, and would like a better understanding of what the extent of license is being given to the applicant regarding these shows.

Director/Secretary Rojas explained the Municipal Code has language which comes from the County Code regarding nudity and there is a complete definition included. Since there is a definition of nudity in the Code staff referred to that definition in the Resolution.

Commissioner Tetreault stated that his concern was that the definition of nude would be consistent with a family atmosphere and the type of dress or undress which would be prohibited would be appropriate for a family restaurant, since the Resolution states that children would not be prohibited from the restaurant.

Director/Secretary Rojas understood the concern, and explained that the intent is to have no nudity and be a family type of environment. He explained that there is no suggestion that it will be anything other than that.

Commissioner Tetreault opened the public hearing.

Robair Altounian 6262 Lemona Avenue stated that he has four Brazilian steakhouses and has been in the restaurant business for over 30 years. He stated that he knows all of the rules and respects the rules. He stated that he is very proud to be in the neighborhood and has spent quite a bit of money to upgrade the site for his restaurant. He stated that the restaurant and entertainment would be family oriented and the show would be for everyone to enjoy.

Commissioner Perestam asked Mr. Altounian what the hours of operation are for his other restaurants.

Mr. Altounian answered that the restaurants are opened from 5:00 p.m. to 2 a.m. He explained that families come to the restaurant for the food and the show.

Commissioner Perestam asked at what point food is no longer served.

Mr. Altounian answered that he serves appetizers until closing.

Commissioner Perestam asked how many days of the week the restaurant is open.

Mr. Altounian answered the restaurant is open 7 days a week.

Commissioner Gerstner asked how long most of the patrons stay when they come for dinner.

Mr. Altounian explained that most families leave by 11:00, however there are many couples who stay late to listen to the music and dance.

Commissioner Tetreault asked Mr. Altounian what it is he is asking the City.

Mr. Altounian stated that he would like to be able to stay open until 2:00 a.m., noting that his other restaurants have never had any problems with the City or the liquor board. He stated that he would like the opportunity to make the neighbors happy, which would include valet parking for his customers. He stated that at the review he will be happy to rectify the situation. He stated that he would like to eventually have a banquet hall at the site.

Albert Abgarian 425 E. Colorado Street, Glendale, stated he is the attorney representing the owners of the restaurant. He stated that there will be no nude dancing at the site, and explained the apparel that the dancers would be wearing. He stated that he does not have an issue with most of the conditions to the CUP, however he stated that he would like to have the hours as restricted by the alcohol and beverage license, which is until 2:00 a.m. He stated that he has no objection to not charging an entrance fee, as this is a family restaurant and not a nightclub. He agreed to a 90-day review, and felt staff and the Planning Commission will be extremely happy with what will be reviewed in 90 days. He felt the City should allow the restaurant to operate until 2:00 a.m. for the 90 days to show there will be no problems. He noted that the Sheriff’s Department is not objecting to the later hours. He stated that he understands the problems the neighbors had with the former business at the site, but asked that the City allow this new business to operate until 2:00 a.m. for 90 days to show that there will be no problems and if, at the end of 90 days there has been problems, restrict the hours at that time.

Commissioner Gerstner asked Mr. Abgarian to specifically address and discuss the issues that are of concern to him.

Mr. Abgarian stated the two main issues of concern are No. 4 and No. 9. He explained that the requested hours of operation complies with the Alcohol and Beverage Control hours of operation and will allow for the operation of a restaurant with dancing and entertainment. He also felt that the wording of Condition No. 12 was awkward.

Commissioner Gerstner asked if there was an issue with Condition No. 3 which states that there will only be 2 performances in the evening, and the last performance will be at 10:30.

Mr. Abgarian answered that there is no concern with Condition No. 3.

Commissioner Gerstner asked if he can go to the restaurant and not eat dinner.

Mr. Abgarian answered that he can, however it will still cost him the dinner fee of $22.

Commissioner Perestam asked what the length of the show is.

Mr. Abgarian stated that the show lasts 45 minutes.

Commissioner Perestam asked if there was an issue with Condition No. 5.

Mr. Abgarian stated that the only issue was, if there is a performance going on and someone stands up and starts dancing or clapping at their chair, the restaurant will then be in violation of the CUP. He stated that he understands the intent of Condition No. 5, but felt it would be very difficult to enforce. He stated that his understanding of Condition No. 5 was that staff did not want people to run out onto the floor during the performance and start dancing, which he does not object to, however he did not feel the language was clear on that point.

Associate Planner Schonborn explained that the intent of No. 5 was that if there is a live band providing the music for the samba dance shows, that the live band not perform before or after the show. He acknowledged there is some ambiguity in the way the condition is currently written.

Commissioner Tetreault asked, with that clarification, if there was any difficulty with that condition.

Mr. Abgarian stated that if the condition is reworded, they would not have a problem with that condition.

Commissioner Knight referred to Condition No. 12 and asked Mr. Abgarian why he felt the condition was worded awkwardly.

Mr. Abgarian felt that the condition should be reworded to simply state that minors are allowed in the restaurant but prohibited from entering the bar.

Mr. Altounian stated that he would like to have the opportunity to open a banquet hall in the future for weddings and parties.

Commissioner Tetreault closed the public hearing.

RECESS AND RECONVENE

At 8:35 p.m. the Planning Commission took a short recess until 8:45, at which time they reconvened.

CONTINUED BUSINESS (cont)

Commissioner Gerstner asked staff if they had any other suggestions or comments regarding the conditions of approval.

Associate Planner Schonborn stated that conditions 5 and 12 can be reworded for clarification and stated that staff still had the concern that the restaurant did not become a nightclub.

Commissioner Gerstner asked if there was a condition that specifically states the business shall not be a nightclub.

Associate Planner Schonborn stated there was no such condition.

Commissioner Tetreault asked if other restaurants in the City had Conditional Use Permits that required food stopped being served at 10:30.

Associate Planner Schonborn stated that most of the restaurants in the City have been grandfathered in and do not have the restriction on their hours.

Commissioner Tetreault asked if there are any restaurants in the City that are of a similar use where they serve food and have a dance show or area where patrons can dance in the dining room.

Associate Planner Schonborn answered that he could not think of another business in the City where food is served and dancing is allowed.

Commissioner Tetreault asked if there were other restaurants on Western Avenue that serve food after 10:30, specifically restaurants that are next to the Eastview residential area.

Director/Secretary Rojas felt that most restaurants in Rancho Palos Verdes on Western Avenue are closed by 10:30 with the possible exceptions of Marie Calendars and Cocos.

Commissioner Gerstner asked if the banquet hall would be covered under the CUP or if the applicant would have to come back to the Planning Commission with the request.

Associate Planner Schonborn answered that the Development Code would consider the banquet hall a use of the restaurant facility, however it would depend on what was being proposed for the banquet hall as to whether or not it would have to come back before the Planning Commission.

Commissioner Karp asked if the Conditional Use Permit applies to the property or to the restaurant.

Director/Secretary Rojas explained that the CUP runs with the land, but is specific to the type of use that is occurring in the restaurant. If the banquet hall that is above the restaurant is used for a different type of entertainment, it may trigger an additional CUP that will also run with the land.

Commissioner Karp suggested an additional condition that would state no exterior music or public address system, amplified or not, shall be permitted.

Commissioner Gerstner referred to condition no. 13 and agreed with the 3-month review, however because this is a unique use in the City, he suggested an additional review at one year. He felt that if this review process were in place he would not object to allowing the applicant to remain open until 2:00 a.m. He then referred to condition no. 9, and suggested rewording the condition so that the functioning dance floor closes at midnight. He explained that in this situation live music would end at 10:30, dancing would end at midnight, and the restaurant would close at 2:00.

Commissioner Knight was concerned about the late night closure and the impact to the surrounding neighborhood. He stated that he was more in favor of staff recommendation and the idea of a family oriented restaurant rather than a late night nightclub. He also agreed with Commissioner Karp’s suggestion that there be no exterior music or public address system and with Commissioner Gerstner’s suggestion that there be the additional one year review. He also felt that there be a review every five years to make sure the conditions of the CUP are being followed.

Director/Secretary Rojas explained that if the Planning Commission is looking at a three-month review and a subsequent one-year review then it might be best to establish the life of the CUP for one year and it can be extended at the end of the one-year period.

Commissioner Gerstner asked staff if this area was one of the most commercial areas in the City.

Director/Secretary Rojas stated that the restaurant is located in the Commercial/General District, which allows any type of commercial use and is a commercial corridor.

Commissioner Gerstner stated that if there were ever a place where the City was going to allow a business to operate later in the evening, it would be in this area, and if the use were to be prohibited here, the City would most likely not allow the use anywhere in the City.

Commissioner Knight felt that the decision would depend on what was in the immediate neighborhood of the particular establishment, and in this particular instance there is a condominium establishment next door and private residences above the business.

Commissioner Tetreault stated that the Planning Commission was trying to strike a balance between the commercial interests and the abutting neighborhood, noting that the applicant has to be aware that his business abuts a residential neighborhood and the residents bought their homes knowing that it was next to a commercial district. He felt that staff’s conditions are appropriate and he did not have a strong feeling as to when the business should close. He noted that the City would want the restaurant to succeed and make a profit, while being a good neighbor. He therefore felt that a three-month and subsequent one-year review was very important. He stated that he would like to hear from the applicant regarding Commissioner Gerstner’s proposal on the hours of operation.

Commissioner Tetreault re-opened the public hearing.

Mr. Altounian explained that his business is a restaurant and a bar and needs the longer hours for its customers. He stated that he has put a lot of money into the building and he needs to have the business. He also stated that he needs the music for the people in the restaurant later at night, however he stated he was not opening a nightclub. He asked the Planning Commission to allow the business 90 days to operate and then come back before the Planning Commission for a review.

Commissioner Perestam asked how much of the business occurs weekdays versus weekends.

Mr. Altounian answered that there is at least twice the business on weekends versus weekdays.

Commissioner Perestam asked what the source of the music is between 10:30 and 2:00 a.m.

Mr. Altounian answered that it would be a DJ playing Brazilian music.

Mr. Abgarian added that there would be no objection if there is a specific condition added which states this business cannot be a nightclub only.

Commissioner Gerstner stated that the concern of the Planning Commission was that the business operate as a restaurant until 10:30 p.m. and then as a nightclub until 2:00 a.m.

Mr. Abgarian stated that is how the Rio Carnival chain operates and restricting the hours may be interpreted as preventing the restaurant operation, noting that every restaurant in the chain is open until 2:00 a.m.

Commissioner Tetreault closed the public hearing.

Commissioner Perestam noted that this is a new and positive event occurring in the City which is different and unique to the City. He stated that he would not like to see the situation where the City grants to the maximum permitted use and then have to take away at the 3-month review. He felt that for this restaurant use to be viable the uses should be permitted and if these uses are permitted then the discussion should center on closing times. Therefore, he suggested having different hours for the weekdays and the weekends.

Commissioner Gerstner felt that erring on the side of being too liberal was the only way to test if this applicant can be true to their word and it is quiet in the later hours and it is easier to take away rather than grant more.

Commissioner Karp suggested going through each of the items in Exhibit A, approve them, not approve them, or modify them one by one and then make a motion.

Commissioner Tetreault felt that Commissioner Karp’s suggestion was a good one and began with Condition No. 1. The Planning Commission had no objections or changes to Conditions 1 through 3. Commissioner Tetreault moved to Condition No. 4.

Commissioner Perestam suggested that Condition No. 4 have a two-tiered closing time written into it where the restaurant can stay open until 2:00 a.m. on Thursday, Friday, and Saturday but close at midnight the rest of the week.

Commissioner Knight stated that he was reluctant to allow the restaurant to stay open until 2:00 a.m. because of its proximity to the residential neighborhood, however he would be willing to try a two-tiered closing time because of the three-month review period.

Commissioner Gerstner agreed with Commissioner Knight’s statement.

Commissioner Tetreault moved to Condition No. 5 and felt that the wording live entertainment be changed to live music in regards to the samba dance show.

Director/Secretary Rojas stated that staff’s intention was that the wording be live music rather than live entertainment in that condition.

Commissioner Gerstner felt this created conflict within the document, pointing out that Condition No. 2 states live entertainment is not allowed to occur when the restaurant is not serving food which implies that live entertainment can occur when food is being served, and Condition No. 5 restricts live entertainment to only the two 45 minute dance shows before 10:30. It was his opinion that if people were allowed to dance then live music would be allowed.

Commissioner Perestam felt that the intent was to allow music after the samba shows so that people could dance.

Commissioner Knight agreed, adding that whether the music is live or not the test will be if the neighbors hear it and are disturbed.

The Commission agreed that Condition No. 5 should be struck.

The Planning Commission had no objections with Conditions 6, 7, and 8.

Commissioner Tetreault asked for comments on Condition No. 9.

Commissioner Perestam felt that this condition should be in alignment with the new hours stated in Condition No. 4, and the Planning Commission agreed.

The Planning Commission had no changes to Conditions 10 and 11.

Regarding Condition No. 12, Commissioner Gerstner suggested rewording the condition to read, "With the exception of the bar, which serves alcohol, minors shall not be prohibited from entering the restaurant."

The Planning Commission agreed to the new wording of Condition No. 12.

Commissioner Tetreault moved to Condition No. 13 regarding the review of the restaurant in 3 months. He noted that staff had suggested allowing the Conditional Use Permit to be valid for a period of one year, with a three-month review, and at the end of one year it can be extended upon request of the applicant through the public hearing process.

Commissioner Knight asked if there would be a fee associated with extending the CUP.

Director/Secretary Rojas stated that a condition can be written in that no new fee shall be required.

The Planning Commission agreed, noting that the one-year period would begin from the date of approval.

Commissioner Tetreault then stated that Commissioner Karp had suggested adding a Condition No. 14, and asked him to restate that suggested condition.

Commissioner Karp suggested that exterior music, amplified or not, and an outside public address system shall be prohibited.

Commissioner Knight suggested adding outside performances shall be prohibited.

The Planning Commission agreed.

Commissioner Tetreault re-opened the public hearing.

Mr. Abgarian stated the he had no objection to Condition 14, noting however that in the mornings or afternoon there may be some music played through the speakers so that there is some background music for those sitting outside during the summertime.

Commissioner Gerstner suggested restricting the music to daylight hours only.

Mr. Abgarian agreed with the suggestion.

Commissioner Knight was concerned about the volume of the music.

Commissioner Perestam felt that could be addressed at the 3 month or 1 year review.

Commissioner Gerstner suggested wording it so that it is exterior background music only.

Commissioner Karp moved to adopt P.C. Resolution 2005-04 with the modifications discussed to Conditions 4, 9, 12, and 13; the addition of Condition No. 14 and the exclusion of Condition No. 5, seconded by Commissioner Knight. Approved, (5-0).

4. Amendment for Geologic Disclosure Ordinance (Case No. ZON2004-00530)

Commissioner Tetreault asked staff if there were any speakers for this item. Staff stated there were none.

Commissioner Tetreault felt that to accommodate as many people as possible, Agenda Item No. 6 will be heard first, followed by Agenda Item No. 7 and No. 5.

The Planning Commission agreed.

PUBLIC HEARINGS

6. Appeal of Site Plan Review Permit (Case No. ZON2004-00174): 6311 Tarragon Road

Associate Planner Schonborn presented the staff report, explaining it was an appeal of the Director’s denial of the Site Plan Review application to legalize an unpermitted 240 square foot patio enclosure on top of a balcony that was replaced without permits. He stated that staff conducted a neighborhood compatibility analysis which resulted in the Director denying the Site Plan Review application, as the Director found the unpermitted patio enclosure to not be compatible with the immediate neighborhood. He explained that the applicant submitted an appeal to the Director’s decision, and staff was recommending the Planning Commission deny the appeal and uphold the Director’s decision.

Commissioner Knight asked if the balcony was the same distance from the house before it was reconstructed.

Associate Planner Schonborn answered that there is a permit on file for the original balcony of 240 square feet. He explained that the applicant reconstructed this balcony without permits, then added the patio enclosure on top of the balcony.

Commissioner Knight asked if it was the enclosure that was before the Planning Commission or the balcony and enclosure.

Associate Planner Schonborn answered that it was the enclosure.

Commissioner Karp asked if the enclosure will have to be removed if the Planning Commission upholds the denial.

Associate Planner Schonborn answered that the enclosure would have to be removed.

Commissioner Gerstner asked if the applicant would have to get a permit for a handrail if the enclosure were to be removed.

Associate Planner Schonborn explained that the applicant would have to apply for an after-the-fact building permit to reconstruct the balcony.

Commissioner Tetreault asked if the applicant could keep the roof on the structure, take down the walls, and put up a handrail.

Associate Planner Schonborn answered that would be possible, but the applicant would have to apply for that.

Commissioner Gerstner asked staff if the Planning Commission, in denying the appeal, would be directing the applicant to remove the structure on the balcony, and if they want to add a roof structure, they would have to make a formal application to the City.

Commissioner Tetreault opened the public hearing.

Lois Hendricks-Klass 6320 Tarragon Road stated that she is a neighbor and she and other neighbors have written to the City in support of the project. She felt that there was only one complaint about the structure She felt that the structure is a benefit to the neighborhood and they should be allowed to keep it.

Bernard Klass 630 Tarragon Road felt it was unfair that an unsigned complaint should lead to misery for the owner and it would be a great hardship for the owner to tear the enclosed porch down. He felt that this was the nicest enclosed porch in the neighborhood.

Commissioner Tetreault closed the public hearing.

Commissioner Knight stated that he drove through the neighborhood and looked at the other homes. He noted that there are certain regulations that must be followed with the Neighborhood Compatibility Ordinance, independent of anyone writing a letter and complaining about a structure. He stated that in this situation he agreed with the Director that the structure was not compatible with the neighborhood, and was in favor of denying the appeal.

Commissioner Karp stated that once again an application was before the Planning Commission to approve after-the-fact construction. He felt that if taking down the enclosure was a hardship for the applicant, it should be an issue between her and the contractor. He was in favor of denying the appeal and upholding the Director’s decision.

Commissioner Tetreault stated that he looks at this addition as a room addition and therefore needs to meet neighborhood compatibility requirements. He stated that he could not make the necessary neighborhood compatibility findings and therefore he too would recommend upholding the Director’s decision.

Commissioner Perestam stated that regarding neighborhood compatibility, he felt there was quite a bit of variation in the houses in the neighborhood, and he felt that this addition was minor in the wide spectrum of variation in the neighborhood. Therefore, on that basis, he felt he could make the finding for neighborhood compatibility.

Commissioner Knight moved to adopt P.C. Resolution 2005-05 thereby denying the appeal and upholding the Director’s decision, seconded by Commissioner Karp. Approved, (4-1) with Commissioner Perestam dissenting.

7. Height Variation Permit and Grading Permit (Case No. ZON2004-00654: 3046 Crownview Drive

Associate Planner Schonborn presented the staff report, explaining that the Planning Commission heard a similar request in August 2004, which was denied without prejudice by the Planning Commission because of concerns with neighborhood compatibility. He explained that the denial without prejudice was to allow the applicant an opportunity to address the concerns raised by the Commission, redesign the project, and resubmit an application. He stated that this new application was submitted and includes a reduced structure size and additional articulation to the front and rear facades, which are the facades evident from the surrounding areas. Regarding the findings, he stated that staff continues to find that the proposed project will not result in a significant view impairment to other properties and will not infringe upon the privacy of abutting residences. In regards to neighborhood compatibility, the redesign incorporates a smaller second story and has pushed the second story farther back from the street. He displayed drawings of the original submittal and compared that to the present submittal. He stated that staff was now able to make all of the necessary findings and was recommending approval of the project.

Commissioner Knight noted that the staff report concluded that the size of the structure did not appear to be a point of contention with the Planning Commission, however he distinctly recalled that at least four Commissioners raised the scale of the project as an issue.

Associate Planner Schonborn agreed that there were comments made at the meeting regarding the size of the structure, however in reviewing the video of the meeting he noted that while the size of the structure was discussed, most of the discussion and comments heavily weighed in on the design and the appearance of the structure and how apparent that size was. He also stated there was a lot of discussion regarding the portions of the structure that were more visible, which drove the discussion in terms of bulk and mass.

Commissioner Knight asked if the crawl space was on the original plan and if that area was intended to be uninhabitable.

Associate Planner Schonborn answered that the crawl space was on the original plan and that no doors or windows would be allowed to the outside and must be uninhabitable.

Commissioner Perestam asked why 3045 Crownview Drive was not included in the view analysis done by staff.

Associate Planner Schonborn explained that 3045 Crownview Drive is located at approximately the same or slightly lower elevation than the applicant’s home. He explained that the orientation of the house and viewing area is not in the direction of the subject property, and therefore was found to not have any view impairment.

Commissioner Perestam referred to the August 24, 2004 staff report as well as the current staff report and asked if the trees referred to in the recent report are the same as those referred to in the previous report.

Associate Planner Schonborn explained that the trees on the subject property have been trimmed or removed and there is no foliage on the subject property that creates a view impairment. However the trees remaining are street trees and the applicant does not bear the brunt of having to trim the street trees.

Commissioner Tetreault opened the public hearing.

Jerry Rodin 29000 Western Avenue (architect) displayed a 3-D picture of the proposed residence, explaining the changes that have occurred since the original submittal in August, and how the square footage had been reduced as well as the bulk and mass. He did not think that the square footage of the project was the problem, as there are others in the neighborhood that are as big or bigger. Regarding the trees, he stated that he contacted and met with most of the neighbors affected and the applicants did their due diligence in trimming and/or removing trees that caused a view problem to the neighbors, noting that the trees remaining are city trees. He also explained that the applicant did pay the City a fee which allowed the applicant to trim some of the City trees. He stated that the overall height of the project is approximately 7 ½ inches under 26 feet, measured from a pre-established number determined by staff prior to the design of the project.

Commissioner Tetreault closed the public hearing.

Commissioner Perestam asked staff to clarify the status of the trimming of the City trees.

Associate Planner Schonborn explained that in late November the Public Works Department did allow the applicant to trim some of the City trees, however he noted that per the review process, when staff is looking at view impairment resulting from trees staff is limited to looking at trees located only on private property. Therefore, staff was satisfied that the trees initially determined to be a concern in terms of view impairment have been addressed, and the remaining trees are street trees which staff has no authority to require the property owner to trim or remove.

Commissioner Perestam felt that some of the neighbors’ concerns with view obstruction are the City trees rather than the proposed structure itself. He noted that it was difficult to make the distinction in that area between private property trees and City trees.

Commissioner Karp felt that this house will be much larger than any of the other houses in the neighborhood, almost 164 percent larger than the next largest house. He noted that the houses in that neighborhood were built in the 1950s and 1960s and are becoming functionally obsolete. He felt that the Planning Commission is setting the groundwork for ever larger homes, and should be mindful of what they are doing.

Commissioner Knight was appreciative of the applicant coming back and addressing some of the bulk and mass issues, however he still had an issue with the mass and scale of the structure, which he felt was properly raised at the previous meeting. He noted that out of the original 9,000 square foot proposal only 450 square feet have been reduced from the original application. He stated that he was very concerned with the massive size of the project relative to the compatibility of the neighborhood and felt it needed to be reduced much more to be compatible with the neighborhood.

Commissioner Gerstner felt the new design appeared much less massive than it was previously. He stated that his concern was not so much the square footage of the house but rather the appearance of the square footage. He felt this house significantly reduces the appearance of the square footage and appearance of mass. He felt that this was what the Planning Commission had asked the applicant to accomplish, and if the Planning Commission had wanted the applicant to build a smaller house they should have specifically stated that.

Commissioner Tetreault stated that at the original meeting he was very concerned about the bulk, mass, and size of the structure. He felt that the apparent bulk and mass of the house has been reduced in the re-design. However, in looking at the size of the other homes in the neighborhood, a house in excess of 8,600 square feet does not seem compatible with the surrounding neighborhood. He felt that if the Planning Commission approves this house at 8,600 square feet the next application may come in at 10,000 square feet, and the applicant can say it’s only 10 percent larger than the next largest home in the neighborhood. He noted that the trend in the community is forever larger homes, however he was concerned about how fast that will happen and felt this project pushes that process forward too rapidly.

Commissioner Perestam felt that this issue was an ongoing issue in the City and there currently is a sub-committee dealing with this issue. He noted that the issue varies in individual zoning districts. He stated that in this lower zoning district there is more flexibility to, by design, absorb the significant increase in square footage. He felt that in this case the design does seem to absorb the bulk, mass, and size of the structure. He stated that he understands the concerns regarding setting precedence, however it is something that the City must face and will be confronted with on an ongoing basis.

Commissioner Knight felt this house was very large and out of proportion with the neighborhood, and was so much more than the scale of the surrounding residences. He therefore could not make the finding for neighborhood compatibility.

Commissioner Tetreault re-opened the public hearing.

Charlotte Ginsburg 3046 Crownview Drive (applicant) felt that the architect has done a very good job on the redesign and has fulfilled all of the requirements of the Planning Commission at the last meeting.

Commissioner Tetreault closed the public hearing.

Commissioner Karp moved to adopt P.C. Resolution No. 2005-06 thereby approving the application as recommended by staff, seconded by Commissioner Gerstner.

Commissioner Gerstner agreed that this is going to be a very large house, larger than any in the neighborhood. However, during the period when most of these houses were built it was rare to build a house 4,000 square feet or larger. He stated that the Codes are written such that the size of the house is not only dependent on neighborhood compatibility but also dependent on the size of the lot. He questioned that if someone wanted to build an 8,000 square foot house how big would that lot have to be to allow that to happen. He noted that this lot is 23,000 square feet, which would still leave quite a bit of open space. He felt that in an area with larger lot sizes, there is a tendency for larger homes to be built in the areas where there are larger segments of property, and it would be the intention of the community, that if larger homes are going to be allowed they be built in areas with larger lots. He felt, therefore, that this would be one of the places where this would happen. Mr. Gerstner noted that he previously had a lot of objection to the house, however the new design is reasonable and reduces the sense of bulk and mass.

The Planning Commission approved the motion to approve the application as recommended by staff, (3-2) with Commissioners Knight and Tetreault dissenting.

CONTINUED BUSINESS

4. Amendment for Geologic Disclosure Ordinance (Case No. ZON2004-00530)

It being after 11:00 p.m. Commissioner Karp moved to suspend the Planning Commission rules to not hear any new items after 11:00, but spend no more than 30 minutes on the remaining items. The motion failed due to the lack of a second. Therefore the item was continued to the February 8, 2005 meeting.

APPROVAL OF MINUTES

It being after 11:00 p.m., Commissioner Karp moved to suspend the Planning Commission rules and review the minutes, seconded by Commissioner Knight. Approved, (5-0)

8. Minutes of January 11, 2005

Commissioner Knight moved to approve the minutes as presented, seconded by Commissioner Gerstner. Approved, (4-0-1) with Commissioner Karp abstaining since he was absent from that meeting.

ITEMS TO BE PLACED ON FUTURE AGENDAS

9. Pre-Agenda for the meeting of February 8, 2005

Director/Secretary Rojas noted that the Geologic Disclosure Ordinance will be placed third on the agenda under continued business.

ADJOURNMENT

The meeting was adjourned at 11:35 p.m.