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PC MINS 20080422 AprMay 13, �_ CITY OF RANCHO PALOS VERDES PLANING COMMIISSION MINUTES REGULAR MEETING APRIL 22, 2008 CALL TO ORDER The meeting was called to order by Chairman Perestam at 7:05 p.m. at the Fred Hesse Community Room, 29301 Hawthorne Boulevard. FLAG SALUTE Vice Chairman Lewis led the assembly in the Pledge of Allegiance. ROLL CALL Present: Commissioners Gerstner, Lewis, Knight, Ruttenberg, Tetreault, Tomblin, and Chairman Perestam. Absent: None Also present were Director of Planning, Building, and Code Enforcement Rojas, City Attorney Lynch, Principal Planner Mihranian, and Assistant Planner Kim. APPROVAL OF AGENDA The Planning Commission unanimously agreed to move Agenda Item No. 1 after Agenda Item No. 3. COMMUNICATIONS Director Rojas distributed one letter for Agenda Item No. 2 and several letters for Agenda Item No. 3. Vice Chairman Lewis stated that he had met with Dr. Brophy and some residents to discuss issues related to Agenda Item No. 3 Commissioners Knight and Tetreault also reported that they had met with Dr. Brophy to discuss issues related to Agenda Item No. 3. COMMENTS FROM THE AUDIENCE (regarding non-agenda items) None PUBLIC HEARINGS 2. Variance & Site Plan Review (Case No. ZON2008-00095): 75 Narcissa Dr. Director Rojas reported that there have been issues that have come up with this project related to the moratorium ordinance and allowance of dwelling units. Therefore, staff is recommending this item be continued to an unspecified future date to see if the issues can be resolved. Commissioner Tetreault moved to continue this item to an unspecified future meeting, seconded by Commissioner Ruttenberg. Approved without objection. 3. Appeal of City Staff's determination that the FLS summer program violates Condition No. 9 of Conditional Use Permit No. 9 Revision C: 30800 Palos Verdes Drive East Director Rojas began by explaining that staff has made an interpretation regarding a program at the college and the existing Conditional Use Permit. He stated that staff has not said the program cannot occur, but rather it can occur if there is an amendment to the Conditional Use Permit. City Attorney Lynch added that this item is not the result of any code enforcement action and this is not a Conditional Use Permit revocation proceeding. Commissioner Ruttenberg stated that in the past he has recused himself from hearings regarding the Marymount expansion request, however he does not think this current matter is in any way related to the expansion and therefore he does not intend to recuse himself from hearing this item. Chairman Perestam stated that he is the same situation as Commissioner Ruttenberg, and he too feels that this is a separate issue from the proposed expansion project and does not feel he needs to recuse himself from hearing this item. Principal Planner Mihranian presented the staff report, explaining that Marymount College has appealed the Director's decision on an interpretation of a condition of the Conditional Use Permit. He read the condition, and explained that the condition does not say that commercial uses on the campus are prohibited, only that an amendment to the existing Conditional Use Permit will be required. He explained that because FLS is a private for profit corporation running this program at the college, city staff determined that FLS is a separate entity and enterprise and therefore it constitutes a commercial use. He gave a brief history of the Conditional Use Permit for the facility and how it relates to the different uses at the college. He concluded by stating that in order to approve the use, staff has recommended that the Planning Commission either amend the Conditional Use Permit, or as an alternative, the college can apply for a Special Use Permit for staff's review. Planning Commission Minutes April 22, 2008 Page 2 Commissioner Ruttenberg reviewed the conditions regarding commercial use on the property, and did not understand how the City distinguishes commercial use with Marymount running a program on the campus versus a third party running a program on the campus. He questioned why the condition is interpreted by the City to distinguish between a direct program operated by Marymount College versus licensing it to a third party, as opposed to a distinction between commercial use and non-profit educational use. City Attorney Lynch felt that either interpretation could be valid, which is one reason this item is before the Planning Commission.. She stated that staff was looking for direction and guidance from the Planning Commission on this issue. Commissioner Ruttenberg asked the City Attorney if the interpretation he suggested is a valid interpretation. City Attorney Lynch answered that the suggested interpretation is a valid one. Commissioner Ruttenberg stated that one of the issues being raised is whether or not this particular condition is ambiguous, and if the condition is subject to two interpretations, why it isn't ambiguous. City Attorney Lynch explained that she and staff felt it was clear that commercial use is not allowed on the campus without an amendment to the Conditional Use Permit, whether it be commercial use by the college or commercial use by someone else. Commissioner Ruttenberg questioned if"commercial" in this condition should be interpreted in contrast to non-profit educational, or should it be interpreted as whether or not Marymount is doing it or if another agency is doing it. He asked which distinction makes more sense in this case, a distinction between profit and non-profit educational or a distinction between who is doing the same thing. He felt that an interpretation that is focusing on the educational aspect of the program might be considered a more valid distinction than a distinction between who is running the program. City Attorney Lynch felt this was a very valid point. Commissioner Tetreault asked staff if the issue was who was controlling or running the ,program, or was there also an issue of the actual program itself, regardless of who is operating it. Principal Planner Mihranian answered that it is not so much the program itself, as it is a summer learning program, but more an issue that this is the separate, outside entity that is running the program on the campus. He explained that since students will be coming on the campus, the condition would allow staff the opportunity to evaluate the potential impacts through the Conditional Use Permit. He felt that if there are impacts identified, they can be appropriately conditioned so that this use can be operated with minimal impact to the neighbors. Planning Commission Minutes April 22, 2008 Page 3 Commissioner Tetreault asked if Marymount College has approached the City to discuss amending the Conditional Use Permit or to apply for a Special Use Permit. Principal Planner Mihranian answered that a Special Use Permit has been submitted for this program. He stated that a request has not be submitted to specifically amend condition No. 9, although a request has been submitted with added language to address these types of added uses at the college for consideration as part of the current campus expansion project. Vice Chairman Lewis asked staff what opportunity the public has to voice their opinions and concerns if the Planning Commission decides no amendment to the CUP is necessary for this use. City Attorney Lynch answered that the decision can be appealed to the City Council, however that appeal would be for whether or not an amendment to the CUP would be required, and not the merits of the program. She also noted that this issue can be raised during the hearings for the overall application for Marymount College. Commissioner Knight noted a comment made in a memo from the City Attorney in which it is stated that the ESL program at Marymount is in coordination with the FLS program, however in looking at the Marymount curriculum he did not see any mention of FLS being jointly involved with the ESL program. Principal Planner Mihranian felt that was a good point, and perhaps the college would be able to clarify. He added that from looking at the Marymount College website, it appears FLS runs the year round program on the campus. Commissioner Knight asked if the FLS students are part of the enrollment cap at Marymount. Principal Planner Mihranian answered that the FLS students are part of the cap placed on the number of students. Commissioner Tomblin explained that he was looking at this from a different perspective, as he at one time was on the school board for the Palos Verdes Unified School District. He explained that this type of arrangement is very similar to the one that Marymount has with the school district for their summer school program. He therefore looked at this program not as a commercial use, but rather part of a natural summer program offered by the campus. Chairman Perestam opened the public hearing. Don Davis (representing Marymount College) stated that Marymount College is in the process of amending their CUP, and this situation points out the lack of understanding and the lack of clarity in what can be done if you don't understand what you're entitled Planning Commission Minutes April 22,2008 Page 4 to do under the CUP. He suggested that if the Planning Commission were to deny the appeal and uphold staff's decision, then the Special Use Permit would be the appropriate avenue for the college and the City until the Conditional Use Permit has been amended and this condition "fixed". He explained that once Marymount was issued a Conditional Use Permit in 1975, that created a right and use that runs with the land. He stated that whether this use is for profit or non-profit doesn't matter, and felt that an erroneous legal interpretation has been made is this instance. He stated that the permit has always been interpreted more on educational and community uses. Jim Reeves (Marymount College) stated that he has worked at the college since 1978 and is very familiar with FLS and with the ESL program at the college. He felt that staff has a misunderstanding and misinterpretation of the relationship between Marymount and FLS. He gave a brief history of the ESL summer program on the campus and how the classes are operated, and the decision to contract out this service to FLS. He explained that the ESL agreement does not grant FLS any rights to conduct ESL programs at the campus independent of Marymount, and Marymount does not sublease any portion of the campus to FLS. Looking at the bigger picture, he stated that Marymount feels that the time and energy of all interested parties should be directed towards establishing general parameters for the future educational, recreational, and community use of the college. Commissioner Tetreault reviewed some of the materials presented to the Planning Commission, and stated that he understood some of staff's concerns. He noted that the school is constantly referring to this as an ESL program, yet it appears some of the programs contain no ESL components. Mr. Reeves stated that his understanding of these programs is that they all have a language component. Commissioner Knight asked, previous to FLS, if Marymount provided the faculty and materials for all of the classes for their summer ESL courses. He also asked if non- degree seeking students in the ESL classes were registered for these classes through the college. Mr. Reeves answered that prior to FLS, Marymount college provided the faculty and materials for the summer ESL classes. He stated that non-degree seeking students in the ESL classes did not sign up for the classes through the registrar, but did sign up through the college. Mr. Davis added that in the past some of the students enrolled through the college but there were students from other countries who registered through their school in their home country and that program contracted with Marymount to provide the ESL services. Vice Chairman Lewis asked Mr. Reeves if it was the school's intent to house the summer ESL students on the campus if and when dorms are approved and built on the campus. Planning Commission Minutes April 22,2008 Page 5 Mr. Reeves felt this was a premature question which hasn't been fully explored. Mr. Davis continued, explaining there are rules for interpreting statutes, including intent. He did not feel that the issue of who is providing the service was relevant, as the key issue is the use of the land, which is educational. He felt that the Planning Commission should uphold the appeal, and added that staff's interpretation raises significant questions about many community programs that are held on the campus. He disagreed with staff's comment that the summer school enrollment is part of the student enrollment cap, noting it has never been an issue in the past. He questioned why this has become an issue at this point in time, noting that the summer program has never caused an impact to the neighborhood in the past, and the college has received no complaints. Commissioner Tomblin asked staff to clarify if the student cap includes the summer school students. Principal Planner Mihranian clarified that the condition in the existing CUP specifically states an enrollment cap for Fall and Spring semesters. Commissioner Tomblin asked staff if the Planning Commission can consider a summer school enrollment cap. City Attorney Lynch answered that the issue of enrollment caps is not before the Planning Commission at this time and that is something that should be addressed as part of the Conditional Use Process. Chairman Perestam asked staff if the Planning Commission can put a student enrollment cap on the Special Use Permit. City Attorney Lynch answered that could be done. Dr. Brophy (President of Marymount College) stated that Marymount College works in close partnership with the Palos Verdes Unified School District throughout the year, and touched on a few of the summer programs offered on the Marymount Campus during the summer for these students as well as others from various organizations. He stated that he has received no complaints regarding the past ESL summer programs, nor has the City. Sister Thu y (Marymount College) explained she left Viet Nam in January to become involved with Marymount College because of its excellent reputation as a catholic college and its international student body. She stated that she is anticipating participating in the summer ESL program and will be very disappointed if the City does not allow Marymount to have the program. Rick Licciardello stated he is a counselor at Palos Verdes High School and has taught Marymount summer programs for the past eight years, and discussed how he felt Planning commission Minutes April 22,2008 Page 6 Marymount summer programs provide a valuable service to the Palos Verdes Unified School District students. Tom Redfield (CCCME Member) stated that Marymount College has violated conditions of their Conditional Use Permit several times over the years, and has been before staff, the Planning Commission, or City Council to gain after-the-fact approvals. He felt that staff did a very good job preparing the staff report and identifying the major points of concern. He felt that the college should follow established procedures for the CUP and not continually ask for forgiveness for something they have already done. He made it very clear that he was not before the Planning Commission to discuss the values of the program, only that the proper procedures be followed. George Zugsmith (CCCME Member) felt that every time Marymount moves away or departs from their mission statement, there are problems. He stated that their mission statement is to educate their two year students to prepare them for entry into a four year college. He questioned how bringing in 12 to 15 year old students has anything to do with the college's mission statement. He stated that Marymount has known about this program with FLS since October 2007, and Marymount could easily have come to the City to apply for an amendment to the Conditional Use Permit at that time. He disagreed with the statements made that there are historical ambiguities with the Conditional Use Permit. He felt it was disingenuous to everyone, including the Planning Commission and City Council, that Mr. Davis asserts a veiled threat of litigation. He stated that yoga, cinema, and seeing the sites cannot be the purpose that Marymount is before the Planning Commission, and that cannot fit within their mission statement. If it doesn't fit within their mission statement, he felt then perhaps there is a commercial use involved. He questioned the statement that the cap on students applies only to the Fall and Spring. He stated that the question is whether or not Marymount is operating within the constraints of their Conditional Use Permit, and he did not think they are. Craig Mueller stated that this is the first he had heard that summer students were not included in the discussion of the student cap. He felt that the staff report was very complete and thorough, and the City Attorney has given the Planning Commission guidance in making a land use decision. He felt that the Planning Commission has a little discretion in making the decision as to what is the land use for this property. He felt that the CUP is clear on the issue of commercial use of the property, therefore the question is whether or not this is a commercial use of the property. He felt that when the college chose to hire an agency to run a program on the campus, that could be considered a commercial use of the property. He asked that the Planning Commission consider those residents who live near the college and their concerns. Mr. Davis (in rebuttal) disagreed with the comments that Marymount doesn't follow the rules, noting several instances where the City challenged programs on campus, and Marymount immediately stopped the programs. He again stated that Marymount and the City need clarification on the Conditional Use Permit, as he felt there was ambiguity in the language. Planning Commission Minutes April 22,2008 Page 7 Commissioner Knight asked the City Attorney to clarify if the Conditional Use Permit runs with the land or with the permitee. City Attorney Lynch stated that it is her view that the Conditional Use Permit runs with the land, however questions have been raised as to whether this is an educational related program being run in conjunction with the college. She stated that if the Planning Commission thinks it is, then it is appropriate to uphold the appeal. If the Planning Commission feels that because a separate entity is conducting the enterprise, the Planning Commission may come up with a different decision. Commissioner Tomblin asked the City Attorney if the Planning Commission should be considering the ambiguity of the language in regards to the student cap for the summer program. City Attorney Lynch answered that this is not part of the Planning Commission's decision at this time, and will be addressed with the actual Conditional Use Permit or if a Special Use Permit is issued for this particular program. Commissioner Tetreault discussed commercial use, and felt that if this use is considered commercial use, then there are most likely several other activities going on at the school that should be considered commercial use and would be impacted by this decision and interpretation of condition No. 9. He felt that more than anything else, something must be done to clarify condition No. 9. He stated that this is a city of laws and ordinances, and we are nothing unless we follow them, and everyone has to follow them, and they have to be fairly applied. Or, if we don't like the laws there are processes to change these laws. He did not think the impact to the neighborhood would be any different if this were a commercial use run by FLS or if it were run totally by Marymount. Therefore, he was focused more on the ambiguity of the condition that needs to be clarified. Commissioner Ruttenberg felt that the issue before the Planning Commission is whether or not Marymount is operating within the existing Conditional Use Permit, which requires an interpretation of condition No. 9. He didn't feel he has much discretion in this decision, as his job is to interpret the condition. He also stated that it really doesn't matter whether or not he favors the FLS program. He explained that he looked at and evaluated this through the rules of contract construction. He looked at the surrounding circumstances that led to this condition, and stated that this condition came about in 1990 in response to an application to expand certain of the college's facilities. He stated that the condition refers to the college's educational use. In looking at the wording, he felt that the phrase "including sub-leasing" shows that this condition is designed to apply both to Marymount and to third parties, and therefore a distinction between the two is not supported by the language in the condition. He stated that Marymount has said they have been running a similar program on the campus for the past 20 years, and noted that the City has not objected to these programs which had no more or less impact on the neighbors than the program being suggested now. He therefore felt the proper interpretation of this condition is non-profit educational versus Planning Commission Minutes April 22, 2008 Page 8 commercial as opposed to Marymount versus a third party. He also noted that the added activities such as surfing do not occur on the campus, and it is the educational portion that occurs on the campus. With that, he felt that the program qualifies as educational. He therefore felt that for this one particular program only, he did not feel that Marymount needs to apply for a Special Use Permit. He stressed that there may be other outstanding issues with Marymount and the Conditional Use Permit, however that is not what is before the Planning Commission. Commissioner Perestam moved to uphold the appeal filed by Marymount College, seconded by Vice Chairman Lewis. , Vice Chairman Lewis stated that he agreed with many of the comments made by Commissioner Ruttenberg. He noted that he spent time meeting with Mr. Redfield to hear and understand his concerns. He felt these concerns should be addressed, however he did not feel this was the proper forum to do so. He agreed that the issue before the Planning Commission is very narrow, whether or not the summer program is considered a commercial use. From the testimony he heard as well as the written submissions and emails, he felt the most convincing was that submitted by the attorney for Marymount and read from that legal brief. He therefore felt that this use qualifies as an educational use rather than a commercial use. Commissioner Gerstner felt that this Conditional Use Permit is primarily institutional and is there for the use, which is to educate. He felt that the FLS is on the campus to educate, and is therefore consistent with the CUP. He did not think a Special Use Permit is necessary. He did not think that outsourcing or using other people to provide services was relevant, as it is not part of what defines "commercial", which is primarily the sale of goods and services. He agreed that this is a very narrow issue before the Planning Commission at this time, and other issues will be dealt with in a more appropriate forum. Commissioner Tomblin stated that he looks at this as a matter of precedent and that precedent was set in 2006 when the City agreed to the Palos Verdes Unified School District program. He stated that outsourcing is a major component of business, and Marymount looked at how to best deliver a program in the most cost effective manner. He agreed that there are other issues, not currently before the Planning Commission, that need to be addressed in regards to the CUP. However, for the narrow question .before the Planning Commission, he stated that he supports the appeal. Commissioner Knight felt that the staff report was very thorough and convincing that FLS hires the instructors and provides the materials for the classes that are held at Marymount College. He also looked at the history of condition No. 9 of the CUP, and felt that it was added because the community was concerned about utilizing the facilities on the college for independent contractors to come in and teach their own programs. He felt that this particular arrangement with FLS falls into this category. He noted that there are other options available to Marymount to continue the program, such as a Special Use Permit, and eventually applying to change the Conditional Use Permit. He Planning Commission Minutes April 22,2008 Page 9 therefore did not feel he could support the motion, based upon what he felt the intent was with the revision to the Conditional Use Permit. He added that this does not prevent Marymount from other options available to them to continue the program, including the Special Use Permit. Chairman Perestam stated that his decision pivots on the land use issue of institutional versus commercial, and not at all on who is providing the services. He too was very concerned about the issue of the cap on summer students, and felt it should be addressed as soon as possible. He stated that he was able to support the appeal. Commissioner Tetreault stated that he liked the educational versus commercial interpretation presented by several of the Commissioners, however he noted that it doesn't say educational in condition No. 9, only commercial. He felt that too much was being read into the condition. He acknowledged that there is quite a bit of ambiguity, however he stated that he was going to vote against the appeal. He explained that it appeared that the appeal was going to be supported by the Commission and he wanted to have a few votes against this on record to show that there are some very real difficulties with the condition as written. He stated that this is a very problematic situation for the school and the community. Chairman Perestam closed the public hearing. Director Rojas noted that if the appeal is upheld, a Resolution will be drafted reflecting the decision and brought to the next meeting on the Consent Calendar. The motion to uphold the appeal was approved, (5-2) with Commissioners Tetreault and Knight dissenting. CONTINUED BUSINESS 1. Height Variation Permit & Site Plan Review (Case No. ZON2006-00563): 6930 Hedgewood Drive Assistant Planner Kim presented the staff report, explaining the scope of the project and the need for the Height Variation. She explained that at the previous hearing for this project the Planning Commission had expressed concerns regarding the bulk and mass and the size of the proposed residence. She explained how the project has been redesigned to attempt to address these concerns. She stated that if the Planning Commission feels the concerns have been addressed, then staff was recommending approval of the project as conditioned in the staff report. Chairman Perestam opened the public hearing. Jenny Fernandez (applicant) stated that she had the home redesigned as suggested by the Planning Commission at the last meeting. Planning Commission Minutes April 22,2008 Page 10 Chairman Perestam closed the public hearing. Commissioner Tomblin moved to adopt P.C. Resolution 2008-16 thereby approving the height variation and site plan review as conditioned in the staff report, seconded by Commissioner Knight. Commissioner Ruttenberg stated that at the last meeting he had expressed a concern about the size of the proposed house. He noted that the last proposal showed a house of 4,005 square feet, while the current proposal shows a house of 4,155 square feet, and therefore still feels that the house is-too large for the lot. He stated that this proposed residence will be 60 percent larger than the average size of the homes in the neighborhood and 40 percent greater than 19 of the 20 closest homes. He therefore could not support the motion. Vice Chairman Lewis agreed with Commissioner Ruttenberg's comments. Commissioner Tetreault understood the concern regarding the size of the residence, however he also felt that some consideration should be given to how the house looks on the lot, especially from the street. He felt that much of this proposed addition would be hidden from view. He also noted that there are other homes in the neighborhood that look like this one will. He felt that if other residents want to add the same square footage, they will have to be able to address the bulk and mass as this resident did. Commissioner Tomblin stated that he agreed with Commissioner Ruttenberg's comments, but explained that he could rationalize the extra square footage, as he felt it was necessary to articulate and accommodate the side yard setback on the other side of the lot. Commissioner Knight also thought Commissioner Ruttenberg brought up a good point, but agreed that the addition is well concealed. Chairman Perestam stated that he was comfortable with the size of the house because of the neighborhood compatibility guidelines that the City follows. He did not think that allowing this size house would set any precedent because of how it looks from the street and because it is a corner lot. .The motion to adopt P.C. Resolution 2008-16 thereby adopting the height variation and site plan review was approved, (5-2) with Commissioner Ruttenberg and Vice Chairman Lewis dissenting. APPROVAL OF MINUTES 4. Minutes of March 25, 2008 Commissioner Tetreault moved to approve the minutes as presented, seconded by Vice Chairman Lewis. Approved, (6-0-1) with Commissioner Tomblin recused Planning Commission Minutes April 22,2008 Page 11 and Commissioner Ruttenberg and Chairman Perestam recused from the vote on Agenda Items 3 and 4. ITEMS TO BE PLACED ON FUTURE AGENDAS S. Pre-agenda for the meeting of May 13, 2008 The pre-agenda was unanimously approved with the addition of the Marymount resolution to the consent calendar. ADJOURNMENT The meeting was adjourned at 10:50 p.m. Planning Commission Minutes April 22,2008 Page 12