Loading...
PC MINS 20050412CITY OF RANCHO PALOS VERDES PLANNING COMMISSION MINUTES REGULAR MEETING APRIL 12, 2005 CALL TO ORDER Appreved May 11, 20 0 The meeting was called to order by Chairman Tetreault at 7:05 p.m. at the Fred Hesse Community Room, 29301 Hawthorne Boulevard. FLAG SALUTE Commissioner Golida led the assembly in the Pledge of Allegiance. ROLL CALL Present: Commissioners Gerstner, Golida, Karp, Mueller, Perestam, Vice Chairman Knight and Chairman Tetreault Absent: None Also present were Director of Planning, Building, and Code Enforcement Rojas, City Attorney Lynch, Associate Planner Schonborn, and Associate Planner Blumenthal. APPROVAL OF AGENDA Chairman Tetreault suggested hearing items 3 and 7 before item 2, as the City Attorney was present for the discussion of those two items. The Planning Commission unanimously agreed. COMMUNICATIONS Director/Secretary Rojas welcomed the new Planning Commissioner as well as the City Attorney. He also distributed 3 items of correspondence for Agenda Item No. 3 and 2 items of correspondence for Agenda Item No. 7. Director/Secretary Rojas explained that at a previous Commission meeting a request was made that staff report back to the Commission on what projects had come before the Planning Commission, where a decision had been rendered, and the project was built. He stated that he consulted with the City Attorney, and she clarified that should only be done with projects that have been finaled by the Building and Safety Department. He explained that in looking through all of the applications that this Planning Commission has made decisions on, none of them have been finaled. City Attorney Lynch reported that she had received an item of late correspondence regarding Agenda Item No. 7, which was not distributed to the Planning Commission as it was received after the Monday noon deadline. Commissioner Mueller reported on the progress of the Residential Development Standards Committee. COMMENTS FROM THE AUDIENCE (regarding non -Agenda Items). None CONSENT CALENDAR 1. Swearing in of new PC member Golida Commissioner Golida was sworn in by the City Clerk prior to the meeting. CONTINUED BUSINESS 3 Code Amendment (Case No. ZON2004-00265) Associate Planner Blumenthal presented the staff report, explaining that based on the Planning Commission's discussion at the February 8th meeting, staff has revised the proposed Code language. He explained the revisions included adding language in the definition of a cargo container to say that a cargo container shall be considered a structure for the purposes of the Uniform Building Code and added language to include development standards for equestrian uses. He explained that the final issue was the permanent use of cargo containers on residentially developed properties, explaining the Planning Commission directed staff to write language that allowed the use of cargo containers within the Portuguese Bend area only. He stated that the City Attorney had said if staff could find a unique circumstance that would warrant a separate regulation for this area, then staff could include that language. He explained that the area is within the landslide moratorium, along with the western portion of the Seaview Tract and the Portuguese Bend Club, which do not allow new structures to be built on the property and limits the size of additions to 600 square feet. He explained that staff felt that these areas are unique to the City, and with that staff has revised the proposed draft language to allow the use of cargo containers for permanent storage in residentially developed lots within this area, and was accomplished by listing the streets that would apply. He concluded by stating that staff felt amending the Municipal Code to regulate the use of cargo containers is still a prudent measure. Vice Chairman Knight asked if a storage container placed on a contiguous vacant lot was no longer allowed under this rewritten Ordinance. Planning Commission Minutes April 12, 2005 Page 2 Associate Planner Blumenthal answered that the storage container would not be allowed on a contiguous vacant lot, as the moratorium itself would prohibit that from happening. Vice Chairman Knight asked if the Uniform Building Code requires a structure to have a foundation to be considered a structure. Associate Planner Blumenthal referred to a memo from the Building Official, which states that the Uniform Building Code requires a structure have some type of foundation system. Director/Secretary Rojas clarified that the position the Building Official has taken in not so much that the cargo container must have a foundation, but rather that one would have to demonstrate that the structural integrity of the container can withstand lateral movements. Vice Chairman Knight suggested adding language to the beginning of Finding No. 4, which states that due to the unique circumstances in the city's landslide moratorium area, which he felt would add clarification. City Attorney Lynch felt that language would be appropriate. Commissioner Mueller asked if there was any urgency in the Planning Commission approving this suggested amendment. Associate Planner Blumenthal answered there was no urgency, as this was brought before the Planning Commission as a result of inquiries to staff regarding the use of cargo containers. Chairman Tetreault noted that there is no provision included for the grandfathering of existing containers, and asked staff how those containers that are currently existing in the moratorium area that do not have permits would be handled. Associate Planner Blumenthal explained that staff was aware of one cargo container at the Pony Club site that has Planning Department approval, and the remainder of the containers in the moratorium area do not have permits. He explained that these residents would be required to come into compliance with the Ordinance. City Attorney Lynch added that these existing cargo containers would not be considered legal non -conforming. Chairman Tetreault opened the public hearing, and there being no speakers, he closed the public hearing. Commissioner Mueller began the discussion by noting his concern that this type of Ordinance would be one of the first of it's type in the United States, and questioned if Planning Commission Minutes April 12, 2005 Page 3 this Ordinance was attempting to solve a problem that may not exist. He was concerned that the City would be allowing cargo containers that are found on ships be placed on lots and noted that there is still discussion and controversy over what should be underneath those containers. He suggested the Planning Commission stop and consider whether or not these cargo containers should be permanently placed in the City, or if there might be a better approach, such as a temporary permit system to allow residents to use the containers on a temporary basis. He felt that the Planning Commission may be advocating something to the City Council that is not only difficult to enact but also leaves the City Council the difficult task to try to figure out how to place the storage container on a lot without some type of foundation system under it. Vice Chairman Knight felt that these shipping containers are extremely strong, as they are built to travel on ships, and the reason they have been brought into the Portuguese Bend area was to allow for some storage that people in other parts of the City can use garages and other types of facilities for. Commissioner Mueller stated that portions of the General Plan discusses preserving and enhancing open space within the City, and that this Ordinance advocates more building in the City. He sympathized with the fact that people would like low-cost storage, however noted that recently the City approved a public storage facility on Western Avenue. Commissioner Gerstner understood Commissioner Mueller's concerned, however noted that the Portuguese Bend area is unique in that people are allowed to live in an area where there is significant ground movement. He stated that the moratorium restricts what the residents can do on their property, and this Ordinance may provide a little relief in that it allows the residents to have some structure on their property for storage. He felt that the idea of having these structures considered temporary as opposed to permanent was an idea to explore. Chairman Tetreault agreed that most communities are not benefited by allowing storage containers on residential lots, however he felt that the area of Portuguese Bend is quite unique and there were many speakers before the Planning Commission who explained their need for these containers. He felt that if this is something which would benefit that particular community and gives them the opportunity to do something that is needed, that with proper screening and review, the chance should be given. He was also encouraged by the fact that there is a HOA that will further review these matters, and if the community decides they do not want to allow the containers they can decide that themselves. City Attorney Lynch noted that this current draft Ordinance specifically lists streets that would be affected, and since one of the streets is the street that Vice Chairman Knight lives on, he should recuse himself from the public hearing. Vice Chairman Knight recused himself from the hearing. Planning Commission Minutes April 12, 2005 Page 4 Commissioner Perestam noted from previous meeting minutes that one of the speakers, speaking on behalf of the HOA, had asked that the HOA be allowed to regulate the screening of the cargo containers, that no more cargo containers be allowed in the community, that the cargo containers not be required to be strapped down to some type of foundation system, and that existing cargo containers be grandfathered in. He asked the City Attorney if it would be possible to allow the approximately 33 existing cargo containers to remain and not permit any new containers on residential properties. City Attorney Lynch was uncomfortable with that approach, as the existing containers are currently not legal. She explained that in order to legalize the ones that are existing and then prohibit the use of any new ones the City would have to have a reasonable basis for doing that. She explained that if a new container were to be brought into the area that complies with all of the requirements set down for the exiting containers, she would be concerned as to why the Planning Commission would not want to allow that container to be placed on the property. She stated that she would much prefer to have all of the properties treated the same, and she personally liked the notion of going with a larger lot size as being the trigger as opposed to a particular area. She did feel, however, that the Planning Commission had developed findings which would allow permanent use of these containers in this area of the City because of the unique topography and geologic conditions of the area. Commissioner Gerstner objected to lot size as the trigger for the use of storage containers, and noted that in his neighborhood the lots are technically large enough to trigger the use of the containers, however there are no restrictions in his neighborhood in allowing building of a larger garage or storage shed with the proper permits. He felt that the residents in the Portuguese Bend area cannot get a permit to build a garage or storage shed and cargo containers are an alternative being offered to them. He asked staff if the cargo containers were classified as temporary structures, if the Uniform Building Code would then treat them differently in terms of foundations. Director/Secretary Rojas responded that Commissioner Gerstner had raised this point previously, and the Building Official has stated that the Building Code does treat temporary structures differently than permanent structures. Commissioner Mueller felt that making the use of the storage containers temporary would allow the City the ability to change the Ordinance in the future if it was not working properly, however he noted that if the existing containers were approved as permanent storage containers then the owners of these containers may have the right, in the future, to come before the City Council and claim their containers have to be grandfathered because the City gave them a permit for a permanent storage container. City Attorney Lynch answered that was correct, that these residents would have the right to continue to keep that structure if it was permitted as a permanent structure. Commissioner Mueller felt that it would be prudent to allow permits for temporary storage containers with the ability to renew these permits on a yearly basis. He felt that Planning Commission Minutes April 12, 2005 Page 5 the idea was to make sure the residents need the storage container as opposed to thinking it is replacing a shed or more permanent structure. Commissioner Golida asked if having a foundation would make the cargo container a safer structure as opposed to not having a foundation. City Attorney Lynch felt that an engineer would have to give a conclusive answer to that question, as there are several ways to create a foundation for these cargo containers. Commissioner Gerstner discussed the Equestrian Districts and the use of the cargo containers, and noted that there are some areas in the equestrian overlay they don't have any horses in them, and asked how the equestrian uses should be handled. City Attorney Lynch noted that the Guidelines stated that the cargo container in an Equestrian Overlay District would have to be approved in conjunction with a Large Domestic Animal Permit or a Conditional Large Animal Permit. Chairman Tetreault felt that the use of cargo containers would be appropriate in the Portuguese Bend area because of its geologic instability, however he did not think using them for horse keeping enhances the semi -rural nature of Rancho Palos Verdes. He felt that if one wanted to keep horses on their property they should build a proper barn. Commissioner Gerstner moved to adopt the Resolution as presented with the following change: Change the language relating to permanent storage to temporary storage and add any associated language that would make these containers temporary for a period of 2 years, at which point in time the permit would have to be renewed, seconded by Commissioner Karp. Commissioner Mueller asked staff to review what staff originally recommended on this issue when it first came forward. Director/Secretary Rojas explained that the original recommendation by staff was to prohibit the use of cargo containers for permanent storage on residential properties, as well as codify what the City is doing by practice today, which is approval by the Building Official on properties where there is current construction, use on City properties when needed, use on commercial properties through a Conditional Use Permit, and use in equestrian areas and regulated through the Equestrian Committee. Commissioner Mueller asked if the original intent was to prohibit the permanent use of storage containers for commercial use. Director/Secretary Rojas answered that staff had felt that there are other ways to control the commercial uses, such as through the City Manager's office or the Equestrian Committee. Planning Commission Minutes April 12, 2005 Page 6 Commissioner Mueller noted that the Ordinance should be revised to prohibit the permanent use of cargo containers on residential property and as an alternate building foundation. However, he felt they should be allowed for temporary use. City Attorney Lynch noted that the language for the alternate building foundation is already part of the Moratorium Ordinance that was adopted by the City Council several years ago, and did not feel that language should be changed. Commissioner Mueller offered a substitute motion as part of E to strike sections 1, 2, and 3, and turn section 4 around to prohibit the permanent placement of storage containers in residential properties within the City and in doing that there would be no use for a, b, c, and d within that paragraph. There was no second to the motion. Commissioner Perestam referred to the original motion and asked if that would apply to or how that would affect the use of storage containers that are currently in place in most schools for soccer or softball equipment. Commissioner Gerstner explained that this would create an Ordinance that would say how these containers can and cannot be used. He felt that these types of containers would fall into the category of temporary long-term storage category and would require a permit from the City which would be renewable every two years. He felt that this would allow the City, at the time of renewal, to review the container to make sure it has not come under disrepair and was still properly screened. Commissioner Mueller did not think the intent was to regulate these types of containers, as they are considered temporary structures rather than permanent structures. He also noted that some of the conditions that are mentioned will require these containers be screened, and did not know how this would be accomplished in a public park. City Attorney Lynch suggested that commercial/institutional, city owned property, and the first 3 under "E" stay the same, as there will be permits in place to regulate the use of these containers. She felt that the moratorium section can be rewritten to classify the containers as temporary with a maximum 2 -year period and subject to screening. Commissioner Gerstner requested to withdraw his motion, and there being no objection, the motion was withdrawn. Chairman Tetreault explained that he was in favor of allowing the temporary use of the storage containers in the Portuguese Bend area to allow those residents some flexibility, but was not in favor of allowing their use anywhere else in the City. In looking at the language he asked if any of the Planning Commissioners had comments regarding Sections A through D, defining temporary storage. The Commissioners had no comments on the definitions contained in A through D. Planning Commission Minutes April 12, 2005 Page 7 Regarding Section E, permanent storage, Commissioner Gerstner recommended not allowing any permanent storage containers in the City, and that all containers allowed be considered temporary or temporary long term storage. There was no objection from the Planning Commission. Chairman Tetreault noted the next section was Commercial/Institutional was the next section to discuss. Commissioner Gerstner asked staff if they had any idea how many containers currently exist in the Commercial/Institutional Zone. Associate Planner Blumenthal answered that staff was not aware of any containers on Commercial/Institutional or non -City owned properties, with the exception of those within the schools. He explained that the schools within the school district are not subject to the city zoning ordinances, but rather are subject to the rules and restrictions of the State Architectural Board. Commissioner Gerstner felt that since there are currently no cargo containers in the Commercial/Institutional or non -city owned property, that if they are allowed the City have some sort of control over them, and would be satisfied with a temporary long-term status. There was no disagreement from the Planning Commission. Chairman Tetreault then moved to City owned property, and asked staff if they were aware of any containers currently on City owned property. Associate Planner Blumenthal answered there is one storage container at Hesse Park. Commissioner Gerstner felt that the City should abide by the same standards as everyone else in the City and containers placed on City property should come under the same review process. Commissioner Mueller opposed the requirement for screening and did not think the containers placed on City properties would be treated the same as other containers, as permit fees would most likely not be required for these containers. Commissioner Golida commented that cargo containers placed on City property would most likely be used for community organizations, and he would view that a little differently than containers placed on private residential property. He did not feel these containers in the park areas necessarily needed to be screened, noting that the ones currently in place are not screened. Commissioner Mueller stated that his advice to staff would be to go through the amendment and strike all of the language that has to do with permanent storage. Planning Commission Minutes April 12, 2005 Page 8 The Planning Commission agreed. Chairman Tetreault discussed the next section, properties located in the Equestrian Overlay District. He stated that he was not in favor of allow this as an exception, as those who have horses can build a barn or a tack room, and would like to see this section removed. Commissioner Gerstner stated that much of the public testimony heard at previous meetings was from the equestrian community talking about their tack rooms and the need for the containers for this use. He stated, however, that he agreed with Chairman Tetreault and would much prefer that permanent structures be built to accommodate this need. Commissioner Karp stated that he was of the belief that if the container is used for storage and is not visible from the public right-of-way, then why should it be addressed. Commissioner Mueller questioned if it would be acceptable if a neighbor put a storage container in their back yard that was right next to the property line or the setback line. Chairman Tetreault felt that the consensus was to be more restrictive or eliminate the section regarding the use of cargo containers for equestrian use, however there may be some discussion about this when the item comes back to the Planning Commission. He then asked for discussion on number 4, which are lots that are developed with a single- family residence. Commissioner Gerstner felt that to the extent that it is defined under 4A, the containers should be allowed to give relief to the people in the moratorium area to give them some structure that gives them some storage, as they cannot build anything else in the area, and would be in favor in allowing them in those situations. Commissioner Mueller clarified that they would be considered long term temporary storage. Commissioner Gerstner agreed. Director/Secretary Rojas asked the Commission who they felt should be issuing these permits, the Planning Commission or the Director. Chairman Tetreault felt this would be something the Director would issue, with the right of appeal to the Planning Commission. Commissioner Mueller requested that staff add language that galvanized surfaces shall not be allowed on these containers. Planning Commission Minutes April 12, 2005 Page 9 At the request of staff, the public hearing on this item was continued to June 28th to allow staff to revise the language and receive public comments. RECESS AND RECONVENE At 8:50 p.m. the Planning Commission took a short recess until 9:05 p.m. at which time they reconvened. PUBLIC HEARINGS 7. Code Amendment (Case No. ZON2004-00294) Director/Secretary Rojas presented the staff report, explaining there was an Urgency Ordinance adopted by the City Council that regulates weed abatement on large properties in order to preserve coastal sage scrub. He explained that the City Council adopted the Urgency Ordinance with the understanding that a non -urgency version would follow. He stated that staff has processed one weed abatement request and staff has attempted to incorporate into the Ordinance all of the things staff learned and encountered when process that request. He stated that staff recommendation was to review the Ordinance and forward it to the City Council. He also noted that late correspondence had been received, as noted by the City Attorney, and had not been distributed per the Planning Commission rules. He noted, however, that the City Council would receive this correspondence when the item comes before them. Commissioner Karp read from the Ordinance and asked staff how protecting birds protects the general welfare of the City. Director/Secretary Rojas stated that the Ordinance was about more than protecting birds, explaining that for many years the City has spent time and money preparing a habitat conservation plan that encompasses the entire City. He explained that the plan protects habit, birds, vegetation, and sensitive plants and as a result of the plan which the City Council approved in August, the City has benefits in that it allows the City to carry on projects because of the mitigation affects of the plan. He stated that there are City projects that impact those protected species if the City wants to do its infrastructure repair. Commissioner Karp felt that this was akin to being held hostage by government agencies to pass ordinances that they want, otherwise they will not allow the City to do projects within the City. Commissioner Mueller stated that he would like to at least have the chance to look at the late correspondence, since the City Council will have the opportunity to review that correspondence. Planning Commission Minutes April 12, 2005 Page 10 Commissioner Mueller moved to suspend the rules to receive and consider the late correspondence, seconded by Commissioner Gerstner. Approved, (6-1) with Commissioner Karp dissenting. The late correspondence was distributed, however Chairman Tetreault noted that it would be difficult to read this correspondence and fully have the time to understand and consider it. Commissioner Perestam asked staff if the passage of this Ordinance would affect other uses of the property, such as mountain biking or hiking. City Attorney Lynch answered that passage of this Ordinance would not affect any other uses of the property, including the residential or commercial use of a property. Vice Chairman Knight asked if there was anything about this Ordinance that would interfere in any way with any Fire Department mandate for brush clearance. Director/Secretary Rojas answered that brush clearance is a high priority and there is nothing in this Ordinance that will interfere with any Fire Department mandates for brush clearance. Commissioner Karp referred to the section of prohibitive conduct on page 4 and asked what constitutes prohibitive conduct and what the criteria is for determining prohibitive conduct. He gave the example of hiring a surveyor to survey his property, and in doing so puts a survey stake in a plant and destroys it. He asked if that is considered prohibitive conduct. Director/Secretary Rojas answered that technically that would be considered prohibitive conduct. Commissioner Karp continued, stating that inadvertently, following normal survey procedures, the surveyor is committing a crime and could be subject to a fine and time in jail. Director/Secretary Rojas answered that was correct, however it was questionable as to whether the City would prosecute the surveyor for inadvertently driving a stake through a plant. Commissioner Gerstner suggested adding language that says any form of habitat modification, since there is a clear definition of habitat modification in the Ordinance. City Attorney Lynch agreed with the suggestion. Commissioner Gerstner noted this Ordinance applies to properties of 2 acres or more, and asked staff how many properties this Ordinance would affect. Planning Commission Minutes April 12, 2005 Page 11 Director/Secretary Rojas answered that it would affect approximately 30 to 40 properties. Commissioner Golida asked how a property owner would know they have coastal sage scrub habitat. Director/Secretary Rojas explained that the property owners would have to contact the City or do a survey. Commissioner Golida suggested the City might want to send some type of notification to these property owners informing them they have coastal sage scrub on the property and will be affected by this Ordinance. Director/Secretary Rojas explained that all property owners of over two acres have received notification about this Ordinance. Chairman Tetreault noted that in one of the letters the attorney felt that this Ordinance would constitute an unconstitutional taking, and asked the City Attorney for her opinion. City Attorney Lynch answered that she did not feel it would be considered unconstitutional taking because it is not preventing otherwise lawful use of the property and is not preventing weed abatement from occurring, only that the owner has to go through the process to make sure that coastal sage scrub habitat is not being adversely impacted. Chairman Tetreault opened the public hearing. Sam Shadab stated that he has recently purchased property in the City that he would like to build a house on and make it his home. He stated that he is very familiar with the environmental process, as he has been involved with CEQA and environmental impact reports. He questioned if he can build on his property or if he bought a piece of property that will become a resort for gnatcatchers. He felt there were several issues that need to be considered, including the percentage of the property that will need to be cleared for the construction and timing of the clearance. He felt that certain consideration should be given to properties that can clear certain areas and create more habitat in the future. He concluded by stating he has read Chapter 17 regarding the gnatcatchers and coastal sage scrub, and finds that section nebulous. Commissioner Gerstner asked Mr. Shadab if he felt there was something in this Ordinance that was more restrictive to him than what already exists in Federal protective laws. Mr. Shadab felt the Ordinance is more restricting, as it is nebulous and does not specify and determine the extent of the conservation plan. Planning Commission Minutes April 12, 2005 Page 12 Jack Downhill stated that he owns 6.2 acres and is therefore one of the residents affected by the Ordinance. He stated that he never received notification from the City regarding this meeting, and questioned why that notification did not occur. He felt that it was difficult to determine what is being defined as coastal sage scrub on his property without very expensive surveys and producing some type of plan, and that this would have to be done before doing any brush clearance. He noted that he does brush clearance every two to three months on his property and is sensitive to the coastal sage scrub as well as other species of plants on his property. He felt that setting the standard for properties at 2 acres was off base and should be for properties of much higher acreage. He felt this plan was unenforceable except by a whistle blower, noting that the urgency ordinance came about because of a whistle blower. Barbara Satter stated she is the president of the local chapter of the California Native Plant Society. She explained that she previously spoke to the Planning Commission regarding concerns with the draft Ordinance, and since that time staff has re -drafted the Ordinance and address some, but not all, of her concerns. She stated that she has submitted a comment letter to the Commission along with a copy of the draft Ordinance where she has inserted comments and suggestions she would like to see included. She stated that one of the primary concerns was that sensitive species are clearly a very important part of the NCCP and CEQA, and do not restrict protection to only coastal sage scrub or to endangered or threatened species. She suggested including in Section 1B the following language: "The NCCP provides for the comprehensive management and conservation of multiple species including but not limited to species under the State or Federal Endangered Species Act. The Natural Communities Conservation Act calls for habit conservation and management on an ecosystem basis rather than one species or habitat at a time." She felt this was a very important concept and noted that in the NCCP there is a definition of sensitive species and a specific list of sensitive species that plan is designed to protect. She was concerned that this Ordinance limits its protection only to the areas that are mapped as coastal sage scrub on the NCCP map. She was concerned about the quality and inaccuracy of the current maps. She felt the biological surveys are very important, however did not concur with the recommendation that implies that a specialist who is an expert in gnatcatchers is necessarily qualified to evaluate plant species. She also felt it is a conflict of interest for the property owner to hire and direct the biological survey when his interest is not in preserving the species, but in developing the land. Further, she felt that public notice and review is an essential part of the plan in order to comply with CEQA. Commissioner Gerstner asked Ms. Sattler what her response would be to Mr. Dunhill, who has a little over 6 acres of land which he has been taking care of and maintaining over many years, and his concerns are that he will now have to pay for analysis of the species on his property. Ms. Sattler stated there are a number of sensitive plant species that deserve to be protected, and felt that the Ordinance is helpful in protecting the plants. She noted that the Ordinance does provide for repetitive routine maintenance on a property. Planning Commission Minutes April 12, 2005 Page 13 Vice Chairman Knight noted Ms. Sattler's concern regarding who can perform a biological survey, and asked if her concerns would be satisfied if the City provided a list of qualified biologist who could perform this survey. Ms. Sattler answered that she was concerned in a situation where a private party who has a direct impact on the results hires someone to do this survey, and felt this was a conflict of interest. She felt that a list provided by the City might be useful but did not think it would solve the problem. Vice Chairman Knight asked Ms. Sattler to explain her request in her letter that, in terms of the biological survey, the gnatcatcher and sensitive plant surveys may have to be separated. Ms. Sattler explained that someone who is a specialist in birds may or may not be qualified to identify native plant species, especially the more rare species. She stated that California Fish and Game have published guidelines which are very specific on what constitutes an adequate plant survey and who is qualified to perform the survey, and she was recommending they be incorporated into the Ordinance. Referring to Ms. Sattler's letter, Vice Chairman Knight noted Ms. Sattler removed the word "regulation" from the Fire Department exemptions, and asked why she felt that should be removed. Ms. Sattler answered the present language is a little open-ended or a generic loophole, and noted that the Fire Department recognizes the values of habitat and sensitive species, and have exceptions for some of their more general regulations in areas that are valuable to habitat. Commissioner Karp asked Ms. Sattler if she had ever done a cost/benefit study for the landowner to determine the cost the landowner may incur to follow all of these recommendations. Ms. Sattier answered that she had not done such a study, and only focuses on the plant issues involved. Vice Chairman Knight asked Ms. Sattler why she feels this Ordinance does not comply with CEQA. Ms. Sattler explained that the Ordinance allows for appeal, however there is nothing in the Ordinance that includes notification of the public, and therefore an appeal is moot if the public doesn't know the application exists. Furthermore, her attorney has advised her that CEQA compliance not only requires public notice, but also notice to the California Fish and Game and the State Clearinghouse. She felt these things need to be addressed in the Ordinance in order to be compliant with CEQA. Planning Commission Minutes April 12, 2005 Page 14 Commissioner Golida clarified that CEQA is not triggered unless there is a project, as defined under CEQA, and therefore clearing of shrubs would not be considered a project and CEQA would not be come into play in that instance. Lori Kessler stated she has been designated by the Palos Verdes South Bay Sierra Club to encourage the Planning Commission to recommend the adoption of the permanent Ordinance governing impacts to coastal sage scrub and other natural vegetation which may provide habitat for sensitive species. She explained that her group has found that, despite laws in the current coastal sage scrub Urgency Ordinance, it has proven to be an important regulatory protection. The group felt that there is room for improvement in the draft Ordinance and explained that the Ordinance should not bypass a normal CEQA review process, noting that elements required by CEQA law are not part of the Ordinance as currently drafted. She felt that using this Ordinance as a substitute for the CEQA review process would constitute the weakening of CEQA's environmental process. She was also concerned for the potential for conflict of interest if biological studies are provided only by the property owner whose interest is in clearing vegetation, and requested a more objective biological study be required having the biologist hired and directed by the City, with the study funded by the property owner. She felt that in order to be consistent with the goals of the NCCP, this Ordinance would provide recognition and protection to the complete range of sensitive species and should not be solely limited to areas that are mapped as CSS. Gary Weber representing York Long Point Associates stated that this is a very complicated issue, and that some of the points brought up by the Commissioners are very important. He felt this Ordinance is seriously flawed, and that this proposed Ordinance constitutes an illegal interference with property rights and the use and maintenance of the property and the necessity to maintain the property so there will not be a fire on the property. He felt that this Ordinance singles out the York Long Point property, noting that the Urgency Ordinance even mentions York Long Point in its preface. He felt the Urgency Ordinance has been enacted and enforced inadequately, and has witnessed several cases where property owners and the City have undertaken weed abatement in areas that are immediately adjacent to coastal sage scrub during the gnatcatcher breeding season. His basic concerns were that the City's actions represent a significant violation to the equal protection clause of the State and U.S. Constitution and the use of this zoning and police power is a maneuver by the City to take their property without just compensation. He stated that coastal sage scrub in itself is not protected, however gnatcatchers and occupied coastal sage scrub. He discussed the costs of doing a biological study, noting the study can range from $2,00 to $10,000. Vice Chairman Knight asked Mr. Weber if he believed this Ordinance would interfere with any fire protection of his property, and if so, how. Mr. Weber answered that this Ordinance would interfere with their fire protection of the property, explaining that the Fire Department standards are written down and distributed and there is quite a bit of land on the York Long Point property needs to be cleared. He stated that he has assessments on what is considered a fire hazard on the property that Planning Commission Minutes April 12, 2005 Page 15 disagrees with what the mandate from the Fire Department is. He stated that the Fire Department has a narrow set of standards that they impose on everyone, and those standards are not site specific. Commissioner Knight asked Mr. Weber if he has submitted his assessments to the Fire Department for their review. Mr. Weber replied no, that he has only submitted them to the City. Chairman Tetreault noted that York Long Point Associates had submitted an application to the City to clear more land than was mandated by the Fire Department, and asked Mr. Weber how much more land was that request. Mr. Weber believed the request was for 30 to 40 additional acres, situated throughout the interior of the property. Chairman Tetreault asked what the purpose was for clearing those additional 30 to 40 acres. Mr. Weber answered that it was for fire prevention and maintenance purposes. Chairman Tetreault closed the public hearing. Commissioner Karp asked staff if it would be possible to have a representative speak to the Planning Commission at a future meeting regarding what is important in regards to brush clearance. Director/Secretary Rojas answered that if the Planning Commission requests this he can try to make arrangements with the Fire Department. Vice Chairman Knight asked the City Attorney if vegetation clearance would constitute a project under CEQA. City Attorney Lynch answered that vegetation clearance could be considered a project under CEQA. She noted that, in response to comments submitted by the attorney representing the Native Plant Society, she did not object to adding language to the Ordinance that clarifies that the City will comply with CEQA, noting that it was never contemplated that the City wouldn't comply. Vice Chairman Knight asked the City Attorney to comment on the discussion regarding the selection of biologists. City Attorney Lynch explained that the City can contract with a biologist or EIR consultant and direct the work, and ask the applicant to place money in a trust deposit to cover the cost of the study. Planning Commission Minutes April 12, 2005 Page 16 Commissioner Karp discussed the violations and penalties and asked the City Attorney how a person is found guilty, who bring the charges, and if there would be a trial by jury. City Attorney Lynch answered that charges are brought by the City Attorney's office as well as the District Attorney's office. She stated that it is a misdemeanor violation that can be prosecuted by trial by jury. Commissioner Karp asked the City Attorney if is she has prosecutor immunity. City Attorney Lynch answered that she does. Chairman Tetreault stated this was the first time he had seen a criminal provision in an Ordinance, and asked how the criminality provisions of the Ordinance works. City Attorney Lynch explained this Ordinance is like any other Ordinance in that the Municipal Code in Article One states that any violation of the Code may be prosecuted as a misdemeanor. Chairman Tetreault asked how long the Urgency Ordinance has been in affect and if there have been any prosecutions or citations. Director/Secretary Rojas answered the Urgency Ordinance has been in place for two years and there have been no citations or prosecutions. City Attorney Lynch added that the City does not prosecute unless someone is flagrantly violating and/or there is a health and safety danger. Commissioner Karp felt that the Ordinance is somewhat flawed. He explained that there are really two issues at hand, the ordinary homeowner who wishes to maintain his property and a developer who wishes to develop his property. He stated that he does not like indefinite Ordinances in how much brush is destroyed and what constitutes damage. He felt the City was making a big effort to protect a bunch of birds at the rights of people who own their property. He sympathized with York properties, noting that brush clearance is important and property owners should have the right to keep their property cleared. He did not feel the Planning Commission has enough input and he would like more time to read the correspondence that was distributed at the meeting, therefore he felt that the item should be continued in order for staff to do a major rewrite. Vice Chairman Knight stated he was quite proud of the City for getting involved and leading the way in recognizing the natural habitat and protecting it, as exemplified in the NCCP and this Ordinance. He suggested adding language to the Ordinance which would include emergency access protocol for the utility companies. City Attorney Lynch respectfully disagreed, explaining that if the utility companies are trying to respond to an emergency situation, she felt it would be very unfortunate if they Planning Commission Minutes April 12, 2005 Page 17 could not properly access the utility lines because of the City procedures getting in the way. Vice Chairman Knight agreed, but suggested some type of map that indicated the preferred road or access that would not interfere with them responding to an emergency. City Attorney Lynch did not think there would be a viable way of enforcing such a thing against the utility company and the City would end up having a rule that is unenforceable. Vice Chairman Knight asked if the Ordinance complies with the General Plan discussion of maintain wildlife flowers, low coastal sage scrub, chaparral, and grassland communities. Director/Secretary Rojas explained that it what the Ordinance is trying to do, if those plants are federally protected. Vice Chairman Knight noted that there are plants listed in the sub -area plan that are not listed in the Ordinance and was concerned with compliance. He felt that it was important to make sure this Ordinance complies with the NCCP. Director/Secretary Rojas noted that the language was taken from the NCCP in terms of coastal sage scrub. He also noted that the Ordinance states that brush clearance shall not have an adverse impact on threatened or endangered species located elsewhere on the property. He stated that the biological survey shall demonstrate that the vegetation is not occupied and that the proposed weed abatement will not have an adverse impact on threatened or endangered species elsewhere on the property. Vice Chairman Knight stated that his concern was that is only part of what needs to be protected under the NCCP, and some of the concerns raised by the public involves species that are beyond just the coastal sage scrub. He noted that this Ordinance is limited to the one category of plant community and the one species, and he was concerned that does not comply with the NCCP. He also commented that under CEQA he would like to see some type of public review policy with the Ordinance. He discussed the Class 4 exemption and felt it would be best to determine if a Class 4 exemption applies and have the survey before the Class 4 exemption is issued. Chairman Tetreault noted a reference in the Ordinance to threatened or endangered species, but there is no definition. He felt there should be a definition of threatened and endangered species in the Ordinance. He also referred to purpose and intent, and felt the language was a little difficult, specifically language that refers to occupied habitat and potential habitat. He stated that he is very confused by this Ordinance and it is much more complex than he originally thought it would be, and in terms of voting on anything at this meeting, he did not feel comfortable voting on anything but a continuance. Planning Commission Minutes April 12, 2005 Page 18 Commissioner Gerstner asked if there was a reason the Urgency Ordinance could not continue for a period of time until the NCCP plan can be used, City Attorney Lynch explained the Urgency Ordinance is good for a specified period of time and cannot be renewed, noting the Urgency Ordinance expires next month. Commissioner Gerstner asked if an Ordinance could be adopted that has the exact same language as the Urgency Ordinance, as the Urgency Ordinance seems to have been sufficient. City Attorney Lynch answered that could be done. Commissioner Gerstner asked if the adopted Ordinance could have a specified time limit attached to it. City Attorney Lynch explained that her preference would be to not put a time limitation on the Ordinance, but rather adopt an Ordinance and when the City prepares the next version, a provision will be included that will repeal the previous Ordinance. Vice Chairman Knight asked if the Planning Commission could then recommend this Ordinance go before the City Council with the idea that some of the concerns raised about compliance with the NCCP sub -area plan can be addressed in an amendment or a different Ordinance. City Attorney Lynch agreed that the concerns could be addressed in a different Ordinance. She noted that the NCCP sub -area plan covers the NCCP area, while this Ordinance goes beyond the NCCP area, which is one of the reasons the Ordinance stays so carefully focused on coastal sage scrub and threatened and endangered species. Commissioner Gerstner asked if this Ordinance goes beyond the Urgency Ordinance. City Attorney Lynch felt that this Ordinance is consistent with the Urgency Ordinance. Director/Secretary Rojas explained that the concerns raised by the speakers will be addressed' when the NCCP Ordinance is adopted. He stated that, based on his meeting with the resource agencies, that process may happen sooner than expected. City Attorney Lynch recommended the Planning Commission consider forwarding the Ordinance to the City Council with the language regarding CEQA compliance added to paragraph 17.41.070 b2, and make the clarification in 17.41.050 to say "It shall be unlawful for any person, firm, business corporation, or any other entity to perform habitat modification work on an coastal sage scrub." Planning Commission Minutes April 12, 2005 Page 19 Vice Chairman Knight moved to approve the Coastal Sage Scrub Ordinance as amended to add language regarding CEQA compliance and the clarification to Section 17.41.050 as suggested by the City Attorney, seconded by Commissioner Gerstner. Commissioner Karp stated that he understood from staff and the City Attorney that the NCCP will soon be adopted and will deal with the issues in the Ordinance, and asked why there was such a rush for the Planning Commission to forward this Ordinance to the City Council. City Attorney Lynch explained that an Ordinance will be before the City Council possibly in May and that it was possible to not take action on this current Ordinance, with the hopes that the timing will work out correctly. She recommended, however, that the Planning Commission forward this current Ordinance to the City Council, and if the City Council is not happy with the NCCP Ordinance, this Ordinance will remain in place until the NCCP Ordinance supercedes it. Chairman Tetreault stated that he has difficulties with this Ordinance, as a number of questions have been raised to where he feels this Ordinance can be greatly improved upon. He therefore felt he was being placed in an uncomfortable position of voting for something he finds to be flawed only to keep it going long enough until something better comes. He felt that the opposite could happen where something better does not come soon and this Ordinance could be the law for quite some time. He felt it was his duty to vote in favor of this Ordinance, even though he feels the Ordinance is flawed, and urge the City Council to take a look at the Ordinance and cure a number of problems, and take to heart the comments made by the speakers and the Planning Commission. Commissioner Karp felt that by not passing this Ordinance the pressure will be on the City Council to do their job and do it quickly. However, if the Ordinance is passed the City Council will have the chance to possible delay the process and do nothing. Commissioner Perestam asked the City Attorney what the exposure to the City will be if the Urgency Ordinance lapses. City Attorney Lynch explained that the City will have no liability exposure, however there will be the issue of whether or not there will be a gap period where weed abatement and other activities can occur without going through any process, with the exception of occupied habitat. Vice Chairman Knight felt that the City was at a critical point with the resource agencies and it is important to not have that gap, and the risk of having the gap is greater than the risk of the City Council not making a decision on the Ordinance. City Attorney Lynch added that the Chairman had noted there is no definition in the Ordinance for endangered and threatened, explaining that a cross reference to the Federal Act can be added. Planning Commission Minutes April 12, 2005 Page 20 Chairman Tetreault felt that addition would be beneficial. Vice Chairman Knight accepted that additional language into his motion. The motion to send the proposed Ordinance, as amended, passed with a vote of 6-1 with Commissioner Karp dissenting. Vice Chairman Knight suggested that staff look into who should hire the biologist, as he was concerned with this aspect of the process to ensure that the biologists when conducting theft studies would use sound science. CONTINUED BUSINESS Chairman Tetreault noted that it was after 11:00 and the Planning Commission rules state that no new business be started after 11:00 unless the rules are suspended. Vice Chairman Knight noted that Item No. 5 is simply to accept the withdrawal of an application. Commissioner Karp moved to suspend the rules to hear Items No. 2 and 5 only, seconded by Commissioner Gerstner. Unanimously approved. 2. Variance, Height Variation and Grading Permit (Case No. ZON2003-00465): 4348 Via Frascati Associate Planner Schonborn presented the staff report, explaining the applicant has submitted revised plan and showed plans of the current and former plans. He explained the scope of the newly proposed project and stated that with the new revisions staff feels that the addition has been redesigned to address the Commissions' and staffs concerns and recommends approval of the project as redesigned. Vice Chairman Knight asked if the current project complies with the HOA setback requirements. Associate Planner Schonborn answered that the project complies with the HOA setback requirements. Vice Chairman Knight stated that he still has a problem with the encroachment of the garage into the setback and could not see why the applicant could not have the garage and the second floor within the required setback. Associate Planner Schonborn explained that to move the garage back would affect the required garage dimensions, which is currently designed to meet the minimum garage size requirements of the City. Planning Commission Minutes April 12, 2005 Page 21 Commissioner Karp asked if there was any provision to require the applicant hook up to the sewer. Associate Planner Schonborn answered that the Building Department would require sewer hook-up if the residence is located within a certain distance from a lateral, which will be looked at as part of the building and safety plan check process. Chairman Tetreault opened the public hearing. Louis Skelton (architect) stated that he appreciated the staffs and Commission's comments at the last meeting and felt he had redesigned the project to address those concerns. He noted that the Art Jury requires a front yard setback of 15 feet on this lot. He stated that he agrees with the recommendations of the staff report and asked that the Planning Commission approve the project. Darnell Johnson (applicant) stated that he is very happy with the revised plans, noting that this design makes a much softer and appealing home. Chairman Tetreault closed the public hearing. Chairman Tetreault commented that he felt the applicant has made every effort to move the garage back as far as possible from the street. He noted that even though the Planning Commission asked for information regarding the HOA setback requirements, the Planning Commission is not advocating it's authority to establish setbacks based upon another body, such as the Art Jury. Commissioner Gerstner moved to adopt P.C. Resolution 2005-16 thereby approving the Variance, Height Variation, and Grading Permit as recommended by staff, seconded by Commissioner Karp. Approved, (7-0). PUBLIC HEARINGS 5. View Restoration Permit No. 191: 40 Mustang Road Director/Secretary Rojas presented the staff report, explaining that the applicant was satisfied with the trimming that has occurred, and has withdrawn the application. Vice Chairman Knight moved to accept the withdrawal of the application, seconded by Commissioner Gerstner. Approved, (7-0) 4. Variance, Height Variation and Grading Permit (Case No. ZON2004-004511i 48 Rockinghorse Drive Continued to the April 26, 2005 Planning Commission meeting. 6. Conditional Use Permit (Case No. ZON2004-00320)j 30940 Hawthorne Blvd. Planning Commission Minutes April 12, 2005 Page 22 Continued to the April 26, 2005 Planning Commission meeting. NEW BUSINESS 8. General Plan consistency finding Continued to the April 26, 2005 Planning Commission meeting. APPROVAL OF MINUTES 9. Minutes of March 8, 2005 Continued to the April 26, 2005 Planning Commission meeting. 10. Minutes of March 22, 2005 Continued to the April 26, 2005 Planning Commission meeting. ITEMS TO PLACED ON FUTURE AGENDAS 11. Pre -Agenda for the meeting of April 26, 2005 Commissioner Karp stated that he would not be at the next two Planning Commission meetings. Commissioner Mueller stated that he would not be at the April 26th Planning Commission meeting. Commissioner Perestam stated that there was a possibility he would not be at the April 26th Planning Commission meeting. ADJOURNMENT The meeting was adjourned at 12:00 midnight. Planning Commission Minutes April 12, 2005 Page 23