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PC MINS 20090210 Approved March 24,2009 04-, CITY OF RANCHO PALOS VERDES PLANNING COMMISSION MINUTES REGULAR MEETING FEBRUARY 10, 2009 LLT ORDER The meeting was called to order by Chairman Perestarn at 7:12 p.m. at the Fred Hesse Community Room, 29301 Hawthorne Boulevard. FLAG SALUTE Commissioner Tomblin led the assembly in the Pledge of Allegiance. ATTENDANCE Present: Commissioners Gerstner, Knight, Ruttenberg, Tomblin, Vice Chairman Lewis, and Chairman Perestam. Absent: Commissioner Tetreault was excused. Also,present were Director of Planning, Building, and Code Enforcement Rojas, Deputy Director Pfost, and Senior Planner Alvarez. APPROVAL OF AGENDA The Agenda was approved without objection. COMMUNICATIONS Director Rojas reported that at the February 3, 2009 City Council meeting the Council remanded the appeal of the Planning Commission's denial of a new residence on Cayuse Lane back to the Planning Commission. At the same meeting they also denied the fee waiver related to a view restoration case previously heard by the Planning Commission. The Director also reported that at the upcoming February 17, 2009 the Council will adopt the Resolution finalizing the decision on the St. John Fisher project and will appoint a new Planning Commission chairman. He congratulated Chairman Perestarn on his tenure as Chairman. Director Rojas distributed two geologic reports from the City Geologist and 11 items of correspondence regarding agenda item No. 1, and one photo related to agenda item No. 2. COMMENTS FROM THE AUDIENCE (regarding non-agenda items)® None CONTINUED BUSINE 1. General Plan Amendment, Zone Change Text Amendment, Conditional Use Permit, Grading Permit, Variance, Tentative Parcel Map and Environmental Assessment (Case Nos. ZON2008-00649 and SUB2008-00008)® NW Corner of Crenshaw Blvd & Crestridge Road Before hearing the staff report, Chairman Perestam reminded the public that the only issues before the Planning Commission at this time involve land use and design of the project. There are a number of broader issues that are not in the Commission's scope and should be addressed before City Council. Deputy Director Pfost presented the staff report, giving a brief recap of the previous public hearing before the Commission. He explained the State Housing Law which establishes a need for each jurisdiction in the State to provide a Housing Element, and within that Housing Element every jurisdiction is required to identify locations where it can meet the regions housing needs, including affordable housing. It also requires the cities to identify goals, policies, and procedures in helping meet that need. He explained that the City Council has adopted policies for housing in the City, and any deviation to those policies does present some risk to the City. Additionally, the City Council looked at the risk associated with expenditure of funds that the Agency and City has accrued over the years that are ear marked specifically for affordable housing, and the risk associated with not spending those funds. Deputy Director Pfost stated that at the last meeting the Commission formed a sub- committee to look at various design issues and concerns the Commission made note of, and met with the applicant and staff to discuss the two options being presented to the Commission tonight. He discussed the original design and the two options being presented. In discussing option No. 1, he noted that this proposal significantly reduces the height of the retaining wall in the back area of the property to 71/2 feet as well as the total amount of grading. However, staff had concerns with the visual appearance of the building from Crenshaw Boulevard, as there would be more fagade visible from both Crenshaw Boulevard and Crestridge Road. He stated this option does not meet the parking space requirement, however it does not require a Variance as guest parking spaces are not required per State law. Discussing option No. 2, he noted it is similar to the original proposal but reduced in size. He stated that it does not require a Variance for building over an extreme slope and also reduces the height of the retaining wall to 161/2 feet and the total amount of grading. He explained that staff was concerned that with the fewer units proposed in option No. 2 the amount of public subsidy would need to be increased. He stated that in discussions with the City Attorney, it has been determined that the project can be restricted to persons 62 years of age and above, and in doing so will restrict all occupants of the units to 62 years of age and above. He also Planning Commission Minutes February 10,2008 Page 2 noted that traffic and geology have both been approved since the last public hearing. He ended by showing several photos taken near the site with the original design and both options displayed on the site. He stated that staff feels the option No. 2 is the better overall design for the property, however the Planning Commission can chose a different option. Commissioner Ruttenberg noted that at the previous meeting the applicant had stated he could not reduce the number of units to 34 and still have a financially viable project. He was concerned that now staff is recommending an option that proposes 34 units, which is something the applicant has said he cannot do. He asked why the option No. 1 proposal doesn't have a 34 unit proposal as well. Deputy Director Pfost answered that the Planning Commission can propose a 34 unit design for option No. 1. He noted that the staff report mentioned units can be removed from the far end to remove the extreme slope issues. Commissioner Ruttenberg asked staff if they can say that their recommendation for the project is not at all affected by all of the extraneous considerations that the Planning Commission is not supposed to consider. He asked if staff would have the same recommendations for the project it if were a private party coming to the City and proposing this project. Deputy Director Pfost answered that the project being proposed meets the findings of all of the entitlements being requested, and the project as conditioned can address issues identified by staff. Commissioner Ruttenberg asked staff if they have in any way tried to give more leeway to this project based on facts not to be considered by the Planning Commission. Director Rojas answered that there has been an affordable housing project of one type or another identified for this site for many years. He stated that staff has had concerns with previous proposals and had raised a number of issues with previous project designs over the years. He stated staff is not supporting the project merely because it is an affordable housing project, but because staff believes it is a project that has been designed to address previous concerns with development of the site and to meet the land use principles of the City. He stated that this is a project that staff can support because the necessary findings of approval can be made, while the record will show t I hat there have been previous affordable housing projects that staff has not supported at this site in the past. Commissioner Ruttenberg asked if staff supports all three of the proposals presented in the staff report. Deputy Director Pfost answered that staff has some concern with option No. 1 given the location to Crenshaw Boulevard and the bulk and mass issues. Planning Commission Minutes February 10,2008 Page 3 Commissioner Knight referred to option No. 2 and the guest parking. He noted that by State law the applicant is not required to have guest parking, but the applicant has included guest parking in the plan. He asked if this was to comply with Rancho Palos Verdes parking requirements. Deputy Director Pfost explained that staff has requested the applicant include guest parking in their plans, as any apartment building will have guests. He noted that option No. 2 exceeds the parking requirement by one space. Commissioner Knight asked why the Biol mitigation was eliminated. Director Rojas answered that the mitigation fee was eliminated because City owned land is being dedicated into the preserve as mitigation. Commissioner Knight noted that the RFP asked for 26 to 40 units, and the options before the Commission are from 34 to 40 units. He asked, if the City approves a project over 26 units, is there a possibility of crediting the City with additional units in the next period. Deputy Director Pfost explained that at this time there is not a way get credit for the additional units, however last year there was legislation proposed and adopted that would allow that to occur, however it was vetoed by the Governor. Commissioner Gerstner referred to staff's photo simulation of the original design and option No. 1 and noted that one design appears to be much taller than the other. He asked if that was a correct representation. Deputy Director Pfost agreed that on the simulation one does appear taller than the other, however the two projects are the same height. Commissioner Gerstner stated that staff made a comment regarding grading and the Variance, in which it was expressed that because most of the 50,000 cubic yards of dirt needs to be recompacted and engineered, that may be cause to help make findings for the Variance. He asked staff if it was typical, adding that he could not recall this being said on any other grading project before the Commission. Deputy Director Pfost explained that the uniqueness of this parcel is that to develop the vacant parcel it must be recompacted which would remove the extreme slope. Commissioner Tomblin noted that this parcel is zoned Institutional. He asked, if the City was not the owner, and another party wanted to build on the property, how many units would be allowed on the property. Deputy Director Pfost explained that there is not a density requirement in the Institutional zone, but there are requirements and building standards related to height and setbacks. Planning Commission Minutes February 10,2008 Page 4 Director Rojas added that absent a specific density requirement, the total number of units that would be allowed on the site is dependent on the CUP findings such as whether the site is adequate to support the project. Commissioner Tomblin asked, if this property were zoned high density residential, what the density per acre would be on the site. Director Rojas stated that if the site were zoned the same as the Highridge site recently before the Commission, he estimated that the zoning would allow for approximately 66 units on the property. Commissioner Knight referred to the proposed zone text amendment and the conditions and services that must be met for homes for the aged. He asked if all of these will be applied to this project. Deputy Director Pfost answered that some of the conditions will be applied to this project, subject to the Conditional Use Permit. David Yarden (representing the applicant) explained that after the last Planning Commission hearing he met with the sub-committee appointed by the Commission and at that meeting they were able to identify design alternatives and concepts. He felt the two alternatives presented fairly depict the boundaries of site planning and design for this particular site. Regarding the number of units, he explained that it was felt that the most effective and efficient use of this site from a cost effective point of view is 40 units. He felt that whether the site is feasible with fewer units remains to be determined by the City Council. Focusing on the two alternatives presented, he explained that one of the concerns raised by the Commission was the height of the retaining wall. He explained that in both options 1 and 2 the retaining wall height is reduced substantially, and showed site plans of both options with the retaining wall. He also explained that option No. 2 was prepared in response to the Commission's request to design a project with fewer units. Darin Hansen (representing the applicant) further discussed the two new options. He explained that the goal of option No. 1 was to reduce the height of the retaining wall, and in order to do that the building pad will be moved closer to Crenshaw Boulevard. He also noted a portion of the pad will be higher, thereby reducing the amount of export required. He discussed option No. 2, showing how the pad was moved out toward Crenshaw Boulevard. In doing so, however, some of the parking spaces were eliminated. He briefly discussed the types of services that will be available for the residents, including computer training and health and nutrition training. Commissioner Knight asked Mr. Hansen if he had read the proposed zone text change which includes various services the City would require, and asked if any of these elements are proposed with this project. Planning Commission Minutes February 10,2008 Page 5 Mr. Hansen answered that the shuttle system is not something being proposed for this particular development. Commissioner Tomblin asked if a material has been selected for the retaining wall or some type of landscaping in front of the retaining wall. Mr. Hansen answered that a material has not been selected, but once it is it will be shared with the City to get approval in regards to the materials being used. Commissioner Knight asked, in option No. 2, if there is enough space in front of the wall that vegetation can be planted to help soften the wall. Mr. Hansen stated that there is a 15 foot setback from the building to the face of the wall, and the intent is to plant vegetation in front of the wall. He stated that he has not done a landscape plan, but will work with staff in terms of plant selection. Perry Cockreham stated he is speaking as President of the Ridgecrest Homeowners Association and as a resident. He stated that a vast majority of the residents in his community are opposed to the project and are quite concerned about several companion issues that have surfaced. He stated that the Association and individuals have repeatedly offered to work with the City in a professional and proactive manner in resolving the issues pertinent to this piece of land and that all such efforts have been rebuffed in an often arrogant and insulting manner. Information that has piece-mewled out has often been untimely and minimal at best, and in some cases has constituted outright misdirection. He stated that his community is increasingly concerned that there is an agenda by some individuals that has little to do with the welfare of the residents of the City. He also stated that his HOA enthusiastically supported the last two senior low income housing projects proposed for this site, however many in the HOA feel this current project is misguided as it is not compatible with the neighborhood and may have a negative impact on surrounding property values. He also felt the project could threaten the fiscal viability of the City, due in part by the decision to circumvent the EIR and substitute it with a Mitigated Negative Declaration. He felt that the lack of true EIR compliance raises serious issues with respect to the safety of the children in the adjacent preschool as well as the seniors who will eventually reside on the property. He felt the project should be denied and the City should consider a more reasoned and proper course of action that is mutually beneficial to all. Commissioner Knight asked Mr. Cockreham to elaborate on the potential safety issues to the neighboring preschool he felt would occur with this proposed project. Mr. Cockreham did not think that the movement of the earth during the construction phase was adequately addressed in the Mitigated Negative Declaration and that there are issues with the land which a complete EIR should address. Sherry Skari explained that in order for AMCAL to get the needed tax credits to build the project they need to provide proper daily and consistent transportation for the residents. Planning Commission Minutes February 10,2008 Page 6 She acknowledged the two bus stops near the project, but noted that one bus line does not run on weekends, school holidays, and is intermittent throughout the day. There is no commuter bus to take residents into the Torrance area. She was concerned that AIVICAL has not put any money into this project and they are getting the land for free. She did not think AIVICAL had any incentive to keep the property in good shape and questioned who will keep the property maintained. She also questioned what will happen to the property if AIVICAL files for bankruptcy or goes out of business. John Polen felt that this proposed development would not be approved if it had been submitted by a private developer, as there are too many variances and too much grading associated with the project. He also felt that too many units were being proposed, and it would be a much better project with fewer units. He encouraged the Planning Commissioner to use the same diligence in reviewing this project that they would do for any other person that comes before the Commission. Howard Thrall stated that he is in favor of affordable housing assistance for seniors, but is against this extremely low income project being proposed at this location. He did not think the project would add any value to the existing neighborhood. He was concerned that an EIR was not prepared for the project, especially since one was required for the potential project on the neighboring lot. He was concerned with safety issues, traffic issues, and with the inconsistency of the City government. He felt the Commission should insist an EIR be prepared for this proposed project. Janet Harsrath Thrall felt that the City can do better for low-income senior citizens. She felt an EIR should be completed and reviewed before any construction is allowed on the property. She noted that the project is directly across the street from a major landslide that has been left in disrepair for over 30 years. She felt the City needs to protect any future tenants of the proposed development from possible instability or any further litigation against the City. She discussed the amount of dirt proposed to be removed, and questioned the haul route and how the trucks would get to Hawthorne Boulevard from the site. She asked if the City has the water supply to support not only the 40 new units, but the 89 proposed units in the next development. The EIR would clearly tell us if the drainage would be sufficient to not cause problems to the pre-school or landslide below. She stated she opposes the project and encouraged the Commission to consider the issues being raised. Aru Tamhane explained that she has met with City officials to inquire about remodeling her own residence, and knows how strict the rules of the City are. She assumed that the rules are the same for everyone. She felt that unfortunately the rules are being bent for this project. She questioned what the City will gain from this project. Shrikant Tamhane questioned if the income from the rental of the units on the property will come back to the City. Regarding neighborhood compatibility, he noted that the people in the room are the neighborhood, and the people in the room do not think the project is compatible with their neighborhood. Planning Commission Minutes February 10,2008 Page 7 Donna Hulbert stated one of her primary concerns with the project is what she perceives to be a fast tracking, which has precluded a lot of thoughtful evaluation that it requires due to its perceived need to apply for tax credits in April. She noted the schedule included in the staff report in order to begin construction of the project on time to meet the deadline. She was disturbed that the preparation of an EIR does not fit the schedule, and is not a viable option in this schedule. She stated that most of the parcel is zoned Open Space Hazard, and this designation is dismissed in the staff report and in the Mitigated Negative Declaration as having been placed without detailed study and therefore unimportant if a site specific geologic study supports the deviation. However, she felt the quality of the geologic study performed by an applicant cannot be neutral. She felt that the seniors should be treated better and not put into a development where all of the housing is know to be low, very low, or extremely low. She felt the affordable housing should be mixed with moderate and above moderate units. Faye Steiger strongly opposed the apartment project. She was concerned that an EIR was not prepared for this project and was concerned with the added traffic the project will add to the neighborhood. Graham Robertson stated he and his neighbors are opposed to this project, as proposed. He was also concerned that he wasn't receiving timely notices for these public meetings. He felt that the Planning Commission must use the same criteria in reviewing this project as they would for any development brought forward. He felt the Commission should tell the City Council that this project in its current form is too big, too dense, and does nothing to improve the City. Gene Steiger stated he was opposed to the decision to prepare a Mitigated Negative Declaration as opposed to an EIR, and read from a court decision which discussed the use of a Negative Declaration as opposed to an EIR. He stated that courts have held that a Negative Declaration is inappropriate if it can be fairly argued that the project will cause significant environmental impacts. He noted that the fairly argued standard review is much more stringent than the substantial evidence standard used to review the adequacy of the EIR. He also noted that even in cases where a Negative Declaration appears to be appropriate, but the project has resulted in significant public controversy, the court may find an EIR should have been prepared, and read from another court case. Dorthea Liebich stated she is pro senior and pro affordable housing, but against this project because of the reasons stated by the previous speakers. She did not think this particular location was advantageous to seniors, as there is no shopping nearby, no dining nearby, and no convenient bus lines. John Mumane stated he is opposed to the project, as it is not compatible with the neighborhood and area, as well as the reasons stated by previous speakers. He felt it was unfair that this project was getting, what he felt was preferential treatment from the City, and there should not be two sets of rules. He felt it made more sense to sell the property and move on, as there would be no penalty for not building this project. Planning Commission Minutes February 10,2008 Page 8 Ian Bisco stated he is strongly opposed to the project, explaining he moved to this area for the rural atmosphere. He stated that the Art Center recently had a function which filled all of the streets in the neighborhood with cars. He wondered if this is what the neighborhood has to look forward to in the future. He also discussed the increase in noise, pointing out that since more elderly living facilities have been built on Crestridge there has been quite an increase in the number of sirens from emergency vehicles in the area. He did not think this project belongs on this property, and suggested that it would be an ideal location for a park, as the view is unmatched by any other park in the City. Linda Puentes stated that even with the flags on the property it is very difficult to envision what the project will look like on the property. She felt it is difficult to get a feel for the project, however from the pictures shown at the meeting the project appears to be very massive and out of scale. She stated this is a beautiful area and opposed the location of this proposed building. Ronald Hall stated he is a former apartment owner and he knows what happens when a developer turns the keys over to the owners. He felt the developer will be more concerned about getting the building full rather than getting good tenants. His main concern was that no EIR was performed for the proposed project. He also did not want a 40 unit monstrosity across the street from his home. Fred Ash stated he is against the project for the reasons all of his neighbors have expressed. Kathleen Shaw stated she has been concerned about the accidents and near accidents at Crenshaw Blvd. and Crestridge Road since she has moved to the area. She explained how her husband was involved in an accident and that she doesn't want to see another family go through what her family has, and doesn't want to see the City face litigation over an accident that is just waiting to happen with the current conditions. The additional traffic created by these new units will only intensify that condition. She questioned the traffic study and pointed out that it is illogical to think that the addition of 40 units at this corner will not significantly increase the traffic and risks in this area. Commissioner Knight asked Ms. Shaw if she could point out specific areas of the traffic study she felt were flawed. Ms. Shaw did not think that the traffic in the area was adequately studied and observed before the traffic study was prepared. Jim Hathaway stated that the size and bulk of the project is too big, and suggested cutting the size in half with 17 to 20 units and limiting the project to a single story. He agreed that an EIR is needed, even for the 17 to 20 units suggested. He felt that mature landscaping is needed at the site that will block as much of the building as possible. He felt it was unacceptable that the developer be allowed to destroy gnat- Planning Commission Minutes February 10,2008 Page 9 catcher habitat and for every square foot bulldozed the developer should be required to replant and maintain two square feet. He suggested putting a landscaped median on Crestridge Road to help mitigate the traffic and prevent left turns out of the project, as well as left turns out of the Art Center. He felt that changing a portion of the land from Open Space Hazard to Institution is very risky and unnecessary, and felt that should be denied. Finally, he suggested embedding an aging public safety officer within the project who is employed by AMCAL as part of their staff. This person would be there to maintain safety as well as traffic situations and medical situations. Hefelt this would be giving back to the City and the neighborhood. Chuck Ta Igor stated that the proposed project is in violation of the City's guidelines regarding protection of public views, and quoted from page 12 of the guidelines which states that structures not be located on a ridge or promontory. He felt the staff report is biased and ignores this clause in the guidelines. He stated this proposed project will be an immense, looming structure when viewed when one enters Rancho Palos Verdes on Crenshaw Boulevard. He also stated that this project does not meet the neighborhood compatibility guidelines. He felt the negative affects to property values of homes on the hill would be substantial. He asked that the Planning Commission recommend denial of the proposed project. Mike Stallkamp explained his house looks down onto the property, and his concern is all of the concrete being placed for the driveway and parking spaces as well as all of the associated lighting on the property. Ann Taylor stated she sees many negatives for the local community and few, if any, benefits from the project. She stated the negatives include more traffic, poor design quality, a greater infrastructure burden, a potential negative impact on local property values, and a potential environmental impact. Roger Schamp stated that retaining walls serve a very important purpose and has no problem with the original proposed 25 foot retaining wall. He felt, however, that the original 40 unit proposal is too dense for the size of the lot, and the number of units should be reduced. David Yarden (in rebuttal) stated that there were many comments on the affordability of the project, which is a matter for the City Council. He did not feel there were many points raised regarding the specific entitlement requests or in terms of its design. He explained developer's financial stake in the project, noting that AMCAL would be an owner in a partnership with an investor, and these investors are typically Fortune 500 companies. He explained that the project will be affordable for a term of no less than 55 years, and the tax credit agency for the State conducts annual compliance reviews and site visits. Further, the development is subject to all of the City's development standards and regulations. Commissioner Knight noted that several speakers were concerned that there is not adequate transportation for seniors near the site, and asked Mr. Yarden to comment. Planning Commission Minutes February 10,2008 Page 10 Mr. Yarden explained that the company looked at the site when the Request for Proposal was presented to the public and it met the requirements set forth in the State's regulations to apply for tax credits. He said the State takes into consideration the proximity to a bus line and how often that bus runs. Commissioner Knight asked staff why a Mitigated Negative Declaration was prepared as opposed to an E I R. Director Rojas explained that staff prepared an Initial Study for the project, and as a result of that Initial Study it was determined that there may be potential significant impacts resulting from the project, but that such impacts could be mitigated to a level of insignificance with the appropriate mitigation. Therefore, a Mitigated Negative Declaration was the appropriate document to satisfy CEQA requirements. He added that this is the same process that was followed with other large projects recently before the Planning Commission. He also noted that staff came to the conclusion that potential significant impacts could be mitigated with the consent of the City Attorney's office. Commissioner Knight asked if the City Geologist has reviewed the geology reports and taken into consideration the pre-school and other neighboring properties and streets. Deputy Director Pfost answered that the City Geologist has reviewed the entire project and the approval letter was submitted with the late correspondence distributed at the beginning of the meeting. Commissioner Knight stated there was a comment that the project is on a ridge or promontory, and asked staff to comment. Deputy Director Pfost explained that the finding mentioned by the speaker is a finding to be made for a height variation, which is specifically for single family residential development and is not applicable to this project. Commissioner Gerstner explained that he has concerns regarding this project, most of which revolve around the appropriateness of the site for this type of development in this City. He felt there are more acceptable sites within the City to provide this function that satisfy many of the concerns brought up by the public, such as access to public transportation, proximity to retail and other types of shopping and the ability to enter and exit the property. However, this property may be the City's only choice for this type of function, which is why he is hoping to move this project to the City Council to let the Council members make this final decision. He felt that the City Council should be able to view both options in their review of the project. He agreed with staff that an EIR is not necessary for the project, and was comfortable with the Mitigated Negative Declaration. In regards to the geology of the site, he noted that all of the concerns and issues of the site will be addressed in a report that will be reviewed and approved by the City Geologist before any grading or construction can begin on the property. If there are issues in the geology that cannot be resolved, the project will not be built. Planning Commission Minutes February 10,2008 Page 11 Commissioner Knight felt that this is a difficult issue to address, especially given the time constraints of the project. In meeting with the developers, he felt the sub- committee was able to articulate the concerns the public and Commissioners had with the project, and the developer presented options that addressed a lot of the concerns. He stated that his review is strictly of the land use issues and not the economic issues. He stated that he would like to see an articulation of the support service program under the zone text amendment. He felt that transportation is one of the lacking factors of this project, and he would like the City Council to consider some type of shuttle service to mitigate this need. He recommended that the vegetation planted along the side, while restricted to 42 inches in height, be planted so that if fills in the spaces side to side. He also requested landscaping in front of the back wall. He also explained that he favors option No. 2 over the original plan, mainly because of the reduced height of the retaining wall. He also felt that the layout of the building and parking, with the parking in front, is consistent with the layout of the other developments in the Institutional Zoning District on Crestridge Road, noting in particular the Art Center located across the street. He was not in favor of option No. 1, as he felt it pushes the bulk and mass too far forward towards the street. Commissioner Gerstner stated that he prefers the structure more towards Crenshaw Boulevard, as seen in option No. 1. He explained that he is not in favor of the tall retaining wall and if there's another scheme that can be built without such a tall wall, that scheme should be seriously considered. He did not think the building in option No. 1 was too massive, explaining that with the steepness of Crenshaw Boulevard, one does not look up over the hill on the property, and therefore the mass of the building would not be too imposing coming up that hill. Coming down Crenshaw Boulevard, one will be above the building and will tend to look down over the top of the building. Further, with the vegetation planted on the property the building will be adequately screened and will provide for a better facility. Commissioner Ruttenberg discussed the zone text amendment change, explaining he has been told to consider whether or not he can find that the intent of the Institutional District's allowable use entitled Homes for the Aged may include certain residential type projects, such as the one being considered. He stated that when looking at the Institutional zoning and the language in Section E, it is clear this is an Institutional zone and what is allowed under Section E does not include residential housing uses or senior housing. He felt the language change suggested has been done so solely for this project and he did not think it was appropriate to be changing the zoning code simply to make it convenient for one particular project. With that, he stated he does not favor any of the development options presented to the Planning Commission, as they are not uses allowed within the Institutional zone. Vice Chairman Lewis agreed with Commissioner Ruttenberg with regards to the proposed zone text amendment. He also had concerns with respect to staff's findings that a Mitigated Negative Declaration rather than an EIR is appropriate for the proposed project. He questioned if a more focused EIR could be prepared that addresses the Planning Commission Minutes February 10,2008 Page 12 traffic and geology issues, rather than a full EIR. He therefore could not support the proposed project. Commissioner Tomblin read from Section D of the staff report on how the proposed use is not contrary to the goals and policies of the General Plan. He explained that his concern is that he knows the cost to provide shuttle services and other services may make the project uneconomical, and referenced the staff reports statement regarding preserving and enhancing the quality of living. He felt that without seeing the economic models in terms of reserves to care for parking lots, buildings, and property in general, he felt the costs involved in providing the,conditions on the property needed to meet the requirements of an Institutional zone. He did not think the proposed project would enhance or preserve the surrounding community and did not think this was the right project for the property. Chairman Perestarn did not think that this project could fit into an Institutional zone, but rather there has to be some sort of multi-family zone created or modified to fit this proposed project. He agreed with Commissioner Gerstner that the City Council should be able to review both options presented. Commissioner Knight noted that even though he prefers option No. 2, he also wants the City Council to have the full opportunity to see all options presented. Chairman Perestarn reviewed what he thought were the issues to discuss regarding the project, which included whether or not the project is too dense, if there should be fewer units, if an EIR should have been prepared, is the zoning correct, and are there traffic related concerns that are not easily reconcilable in the mitigation. Deputy Director Pfost agreed that focusing on those specific areas would be beneficial, and suggested that the Commission could also focus on a specific option or preference for an option. Commissioner Ruttenberg moved that the Planning Commission recommend to the City Council that the proposed project be rejected on the grounds that it does not qualify under the Institutional zoning; that the proposed text amendment is inappropriate, as it does not reflect the intent of the section it seeks to amend; all of the options are too dense; there is no need for an EIR; there is no need for a further traffic study, seconded by Commissioner Tomblin® Vice Chairman Lewis stated that he will vote against the motion, explaining the public has been unanimous in their perception that the City is rushing this project through the approval process and is acting with favoritism because it happens to have a stake in the outcome. He stated he could support the motion, with the exception of the need for the EIR. Commissioner Ruttenberg moved to withdraw from his motion the statement that there is no need for an EIR, seconded by Commissioner Tomblin. Planning Commission Minutes February 10,2008 Page 13 With that, Vice Chairman Lewis stated he could now support the motion. Commissioner Knight felt that staff gave a very good explanation as to why an EIR was not necessary and the Mitigated Negative Declaration is sufficient, and this decision is consistent with what he has seen in regards to other projects in the City. Commissioner Gerstner stated that he can support the motion, however he does not believe the project is too dense. Therefore, in voting for the motion he is supporting his belief that the institutional use is proper. , Commissioner Knight stated he cannot support the motion as he feels the options are adequately designed for the property in terms of the Institutional zoning. He understood the concerns regarding the proposed text amendment, as it appears the wording has been designed specifically for this project. Director Rojas stated that whatever the motion is, in order to give meaningful feedback to the City council, there should be a basis for the motion. For example, if the Commission thinks the project is too dense, it should be noted as to why it is too dense. If the Commission feels an EIR is needed, it should be explained why an EIR is needed or what impact is not being mitigated to an insignificant level. Vice Chairman Lewis understood that an EIR is a device for issue spotting and public input to make sure all issues are addressed and all impacts are fully explored. He was concerned that this particular project, with a City owner and the perception of a rushed project, the City may only be getting a small fraction of public input that what would be received with an EIR, and thus it would be more appropriate to have an EIR or a focused EIR. Commissioner Ruttenberg stated that staff has been telling the Planning Commission that this project is to be handled like every other project before the Commission. That being the case, his motion would simply be that the zoning is improper and therefore the project should be denied. Commissioner Ruttenberg moved to amend the motion to state that the proposed project is inconsistent with the Institutional zoning, and the proposed text amendment is not proper, seconded by Commissioner Tomblin. Chairman Perestam asked the Commissioners if they had a preference as to the age restriction required for the property. He noted that both 55 and 62 have been discussed. Commissioner Gerstner preferred that the housing be made available to the greatest number of people possible. Planning Commission Minutes February 10,2008 Page 14 Commissioner Tomblin supported the 62 age requirement, as he felt it would have the lesser amount of impact on the surrounding neighborhoods. He felt that with the 55 age requirement there are some loopholes that could create a different environment. Commissioner Ruttenberg did not think that was a question that could be answered with the information that has been presented, as it is tied into issues of transportation and shopping. Commissioner Knight also preferred the 62 and above age restriction, as it better addresses many of the concerns expressed by the community. He felt that the intent of this project was to provide affordable senior housing, and the 62 limit is closer to achieving that intent. Vice Chairman Lewis and Chairman Perestarn both favored the 62 age restriction. Before taking the vote, Director Rojas noted that Vice Chairman Lewis was absent from the first public hearing for this project and asked if he had read the minutes or watched the tape from that meeting. Vice Chairman Lewis stated that he had watched the tape of the meeting. The motion to recommend that the project is inconsistent with the Institutional zoning district and to not support the proposed zone text amendment was approved, (5-1) with Commissioner Knight dissenting® PUBLIC HEARINGS 2® View Preservation Permit No. 2008-00036: 31021 Ganado Drive Senior Planner Alvarez presented the staff report, explained this is an appeal by the foliage owners of the Director's decision regarding a View Preservation Permit. He briefly reviewed the permit application and showed several photos of the applicant's view and how the subject pine tree impairs the view. He explained that in approving the View Preservation Permit application, the Director instructed the foliage owners to trim the pine tree crown approximately three feet, or to the dashed red line shown on the photographs displayed, so that the 2004 view of the ocean would be protected and preserved. He noted that the City Arborist believes that the amount of trimming necessary to preserve the view is well within the tolerable levels of trimming. He reviewed the five criteria necessary to approve a View Preservation application, noting the Director determined all five findings could be made, and therefore the application was subsequently approved. He explained that, as noted in the foliage owner's appeal letter, they have raised three issues in their appeal: the improper reliance on post- trimming photo which resulted from the appellants' good faith efforts; potential privacy impacts; and alleged improper procedures and due process violations. He stated that staff addressed each argument in the staff report and found that none of the points have merit and warrant any change to the Director's decision. He concluded by stating that Planning Commission Minutes February 10,2008 Page 15 staff is recommending the Commission adopt the draft Resolution denying the appeal and upholding the Director's approval of the View Preservation Permit upon finding that all of the required findings have been correctly made and all provisions of the applicable sections of the Municipal Code have been complied with. Vice Chairman Lewis explained that one of the issues raised by the appellant was that there will be a loss of privacy if some or all of the trimming was ordered. He did not think the staff report was adequate in depicting the potential privacy impact, so he went to the foliage owner's deck, stood in the middle of the deck, and took a picture looking up at the house above. He submitted that picture for the Commission to consider. Commissioner Knight asked if the February 2004 photos (Figures 1A and 1 B) were submitted to the City for documentation of existing view or foliage in June 2004, and if staff then performed a site visit to verify the documentation before putting the photos in the file. Senior Planner Alvarez answered that the applicant had taken these photographs after trimming had occurred in 2004 and submitted these photographs to the City. He explained that for documenting the view, the City Guidelines allow for resident to document their own view and submit that documentation to the City. When the resident then wants to exercise the View Preservation application, staff will then visit the property and review the submitted photographs on file. Commissioner Knight stated that the foliage owners have claimed they did not receive the letters sent by the City, and noted in the staff report a statement that a letter mailed to the foliage owner was returned unclaimed. He questioned if that meant the applicant didn't receive the letter or if that meant the applicant refused to sign for the letter. Senior Planner Alvarez explained that the returned letter did not have details on why it was returned. He stated that it was his understanding that if there is nobody at home the postman will leave a notice that they have a letter that must be signed for. A certain number of days will go by with several attempts at delivery before the letter is returned to the sender, in this case the City. Commissioner Knight asked if staff's trimming recommendation for the tree was based on a photograph or if it was based on the 16 foot or ridge height level. Senior Planner Alvarez answered that it was based on the height of the pine tree shown in the photograph taken in 2004. Commissioner Knight asked if the height of the pine tree shown in the 2004 photograph is 16 feet or less. Senior Planner Alvarez explained that staff recommended the tree be trimmed to a height shown in the photograph, which is above the ridge line. Planning Commission Minutes February 10,2008 Page 16 Director Rojas stated that the Guidelines require the Commissioners to visit the applicant's property to participate in the public hearing. He asked if any Commissioners had not visited the applicant's property. All Commissioners indicated that they had visited the applicant's property. Vice Chairman Lewis asked if both the foliage owner and view applicant informed staff that, historically the foliage had been trimmed, and there was no photograph, would that verbal evidence is sufficient to grant a View Preservation application. Senior Planner Alvarez explained that a photograph allows staff to establish the height of a tree at a given point in time. Without a photograph it is difficult for staff to determine to what height the tree should be brought back to. He could not recall ever approving a View Preservation Permit without a view documentation photograph on file. Chairman Perestarn opened the public hearing. Hong Fang (appellant) explained that she has always allowed, and will continue to allow, the applicant to enter her property to trim the tree at her own expense. She stated she is also open to any discussion on cost sharing. She explained that in 2004 the applicant had explained to her that the tree had grown into her view, and that there had been an agreement with the previous owner to allow her to trim the tree at her own expense. Because her circumstances had changed, she asked Ms. Fang and her husband to share the cost of trimming the tree, to which they agreed. She was very upset to learn that right after the tree was trimmed the applicant took a picture of the tree that she would then use against her for future tree trimming. She explained that the view seen in the picture exists because she and her husband agreed to share in the cost to trim the tree, and the view would not exist if she had not generously agreed to help her with the costs. She stated that during entire process, despite their repeated requests, they were never given a fair chance to speak. She stated that city staff visited Ms. Curtis' property several times but never went to her property to view the tree, and staff has denied all her requests to visit the property. Commissioner Knight asked Ms. Fang if she was in town and received the certified letter sent by staff. Ms. Fang answered she was in town but did not receive the letter. Jim Fang (appellant) felt the issue is whether this should be a view restoration or a view preservation case. He felt this should be a view restoration case rather than view preservation because the view photo is not qualified. Secondly, even assuming the view photos are qualified, when he received the letter from city staff on September 4th Ms. Curtis did not have a view preservation case. He explained that in the letter two photos were attached, and one was taken from the second floor of the residence. He also did not think the photo was submitted by Ms. Curtis and the photograph was never verified by city staff. He did not think the second photograph was qualifying either, as Planning Commission Minutes February 10,2008 Page 17 the photo was not taken from a qualified view spot. He stated the photo was taken by city staff. Josephine Curtis stated she moved into her in 1968 because of the ocean view, and she wants to preserve that ocean view. She explained that when she asked her neighbors to top their tree they refused her request. She contacted the City and has complied with City guidelines for view preservation. She felt that staff has done a very good job and was thankful for their help. Commissioner Ruttenberg asked Ms. Curtis if she had an arrangement with the prior owners of the neighboring property regarding the tree trimming. Ms. Curtis explained that she did not have any agreement or arrangement with the former neighbors. She had asked them to trim the tree and they had given her permission to have it done at her expense, which at the time was only $40. She stated that she did that twice over the years with her former neighbors. Greg Curtis explained that while growing up at this residence there was always an inherent understanding between all of the neighbors that the homeowner would take care of any vegetation blocking a neighbor's view. He stated that from the kitchen, living room, family room, and dining room of his mother's home one cannot look down into the Fang's yard, only out to the ocean. Therefore, he did not think there were any view issues. Rather, he felt this is a quality of life issue for his mother to preserve a view of the ocean that was part of the household when she moved into the house in 1968. He stated that his mother has adhered to the procedures set out by the City. He felt that the facts laid out in the staff report which support his mother's application, and urged the Planning Commission to support this View Preservation Permit application. Commissioner Ruttenberg asked Mr. Curtis if he had information on the tree trimming done prior to 2004. Mr. Curtis answered that he did not live at the residence in 2004, but has talked to his mother about the trimming over the years. Chairman Perestam noted that the Fang's had stated they allowed Mrs. Curtis to come on the property and trim the tree, and asked why this can't be resolved by Mrs. Curtis trimming the tree out of her view. Mr. Curtis explained that it was his understanding that his mother agreed to trim the tree herself on one occasion in 2004, however she believes that under the law it is not her responsibility to continue to cut the tree. Mr. Fang (in rebuttal) felt that because there is a difference between view restoration and view preservation, there was not a concurrent proceeding when doing the mediation. He explained that during mediation for view preservation, he felt that one party is 100 percent right and the other party has no leverage. He asked how that can Planning Commission Minutes February 10,2008 Page 18 be considered early neighborhood consultation. Therefore, he felt the City fails to make the first finding of early neighborhood consultation. Commissioner Tomblin asked Mr. Fang what he would like to see happen with this process. Mr. Fang stated that the neighbor started with the view restoration process to restore her view, and that should be what is being determined, not view preservation. He was felt that the applicant should pay the view restoration application fee to the City as well, as this would force the applicant back to the negotiation table to reach a beneficially economical decision. He added that part of his appeal is that the City should encourage a nice community and should be based on people respecting each other, and a City code should not encourage people to act in bad faith. Commissioner Ruttenberg asked staff if there is any basis for a view restoration permit rather than view preservation permit. Senior Planner Alvarez answered there is not. Commissioner Ruttenberg felt this issue is solely about who will pay for the trimming of this tree. He did not think there was any violation of due process with this case, and all arguments have been made to staff and the Planning Commission. He felt that under any circumstances, the most Mrs. Curtis would have had to pay was to trim this tree once, which she has already done. He therefore agreed with staff's recommendation. Vice Chairman Lewis felt that the foliage owners acted out of sympathy and good faith in cutting their trees. In cutting the tree they did create a view, and once that view is documented the view owner has certain rights. He stated that he supports staff recommendation. Vice Chairman Lewis moved to uphold the Director's approval of the View Preservation Permit, seconded by Commissioner Knight® Commissioner Knight explained he supports the motion, as the applicant has followed the guidelines set forth by the City. He empathized with the foliage owner, however he felt all proper procedures were followed. He also agreed with the arborist's report that the required amount of trimming will not kill the tree. Commissioner Tomblin agreed with the comments made by the Commissioners. He asked staff if the procedure will be that, if the Commission denies the appeal and approves the View Restoration Permit, the foliage owner will trim the tree to the level specified by staff, and maintain the tree at that level. Senior Planner Alvarez explained that if the appeal is denied, the foliage owner will be given 90 days to trim the tree to the level recommended by staff, and maintain it to that Planning Commission Minutes February 10,2008 Page 19 3 level on the anniversary of the original trimming. He stated that staff will also document the trimming. The motion to adopt P.C. Resolution 2009-05 thereby upholding the Director's approval of View Preservation Permit 2006-00036 was approved, (6-0) APPROVAL OF MINUTE 3. Minutes of December 11, 2006 Commissioner Ruttenberg moved to approve the minutes as presented, seconded by Commissioner Tomblin. Approved, (4-0-2) with Commissioner Gerstner and Vice Chairman Lewis abstaining since they were absent from that meeting. ITEMS TO BE PLACED ON FUTURE AGENDA 4. re-Agenda for the meeting of February 24, 2009 The Planning Commission unanimously approved the pre-agenda for February 24, 2009. ADJOURNMENT The meeting was adjourned at 12:09 a.m. Planning Commission Minutes February 10,2008 Page 20