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PC MINS 20090728 Approved September CITY OF RANCHO PALOS VERDES PLANNING COMMISSION MINUTES REGULAR MEETING JULY 28, 2009 CALL TO ORDER The meeting was called to order by Chairman Lewis at 7:08 p.m. at the Fred Hesse Community Room, 29301 Hawthorne Boulevard. FLAG SALUTE Commissioner Tetreault led the assembly in the Pledge of Allegiance. ATTENDANCE Present: Commissioners Perestam, Ruttenberg, Tetreault, Tomblin, Vice Chairman Gerstner, and Chairman Lewis. Absent: Commissioner Knight was excused, Commissioner Tomblin arrived at 8:25 p.m. during agenda item No. 1 Also present were Director of Planning, Building, and Code Enforcement Rojas, City Attorney Carol Lynch, and Associate Planner Fox. APPROVAL OF AGENDA The Agenda was unanimously approved as presented. COMMUNICATIONS Director Rojas reported that at the July 21st meeting, the City Council agreed to adopt a policy that staff present its best independent judgment as the recommendation on all items presented to the City Council, notwithstanding the Commission's recommendation. He also noted that the Commission's clean-up zone change recommendation related to Tract 16540 is to be heard by the City Council at its upcoming August 4th meeting. Finally, he noted that the Planning Commission's decision on the Marymount College project has been appealed to the City Council and is scheduled to be heard at the August 18th meeting. Director Rojas distributed six items of correspondence related to agenda item No. 1. COMMENTS FROM THE AUDIENCE fregar fing non-agenda items): Jody Rice apologized to the Commission for comments made at a previous public hearing. CONTINUED BUSINESS 1. Appeal of Coastal Permit& Lot Line Adjustment (Case No. ZON2008-00326 & SUB2008-00004): 3 Yacht Harbor Drive & 4194 Maritime Road Associate Planner Fox presented the staff report, giving a brief background of the project and a brief scope of the project. He noted the appellant's argument that this is not a proper lot line adjustment, and the Commission's request that the City Attorney be present to answer the Commission's questions. He noted that the court decision which resulted in the applicable Government Code section states that a parcel is within the statute even though it does not consist of any land that is added from another parcel, but merely is a reduced version of an existing parcel. Therefore, the fact that Parcel C is a remainder of Parcel 1, and includes no portions of Parcels 2, 3, or 4 does not make it an invalid parcel or trigger review under the Subdivision Map Act. In conclusion, he stated that staff continues to believe the appeal of the Hearings Officer's approval is without merit and should be denied. Commissioner Ruttenberg began by clarifying that he felt the formation of Parcel D is truly a lot line adjustment. City Attorney Lynch felt the formation of Parcel D is through a clear lot line adjustment. Commissioner Ruttenberg went through the portions of the proposed lot line adjustment step by step, concluding that the basis for the argument that a lot line adjustment is the correct application is because Parcel C is what is left of Parcel 1 after a portion of Parcel 1 is added to Parcels D, A, and B. City Attorney Lynch agreed, however she noted her opinion that this is a lot line adjustment that is not free from doubt, as the statute is not a model of clarity and one can reach another result. She also explained that her interpretation of"adjoining" means that all the parcels have to adjoin one of the common lots, which is the case here. However, this has not been decided by the courts. Commissioner Ruttenberg asked if the intent of the legislature was that a lot line adjustment can be used because one is not creating more parcels, and a subdivision generally creates more parcels. City Attorney Lynch answered that is correct. Commissioner Perestarn asked if combining two lots into one lot is considered a lot line adjustment. Planning Commission Minutes July 28,2008 Page 2 City Attorney Lynch answered that would typically be considered a merger, but a lot line adjustment does say that lot lines can be moved provided that no more lots are created. Commissioner Tetreault asked the City Attorney if she felt the emphasis of the legislature with 66412(D) is that they did not want to see an additional parcel created by some type of lot line adjustment. City Attorney Lynch answered that is very clear. Commissioner Tetreault asked the City Attorney, if this case where there are four parcels going in and four parcels going out, even though these parcels have been merged and new ones have been created, if this is meets the spirit of 66412(D). City Attorney Lynch felt this is questionable, noting that she looked at all of the cases which cite this code and all are inapplicable. Joe Lindorfer (appellant) stated that staff has changed the parcel definitions, which they received last week, and presented the definitions from the July 14th and July 28th staff reports. He asked that the Planning Commission reject this request as a nonconforming lot line adjustment. He explained that the Planning Commission has the authority to review and approve whether or not these parcels, resulting from the adjustment, will conform to the local codes. He also noted that the proposed lots B and C land is governed by the building code, which restricts development to accessory structures twelve feet in height. He felt that the lot line adjustment would not conform by allowing application for a single family residence. Commissioner Ruttenberg asked Mr. Lindorfer, given the step by step process to create these lots, if he agreed that this is a lot line adjustment. Mr. Lindorfer agreed this is a lot line adjustment to make a subdivision out of this piece of property. Debbie Hansen (appellant) agreed with Mr. Lindorfer that the information received from staff in the July 28 h staff report was new information to them. Therefore, in regards to this case she felt there were either major revisions done to an appeal case, which she felt was highly inappropriate, or the appellants have been deceived. She questioned 'where in the code there is a reference to buildable lots when referring to a lot line adjustment. She also questioned where it states that conditions of approval would no longer be applicable. She also noted that a residential unit is being deeded and felt that there is a specific process to do so per California law. She stated there are many unanswered questions and she did not think this application was following the true spirit of the law. She therefore asked the Planning Commission uphold the appeal. Steve Hansen (appellant) referred to a slide of the proposed lot line adjustment, and felt that when Parcel B is created, the remaining strip of land is a fifth parcel. He stated that this strip of land only becomes assumed at the very end of the process when it goes Planning Commission Minutes July 28,2008 Page 3 back to Parcel 4. He noted that the reason for this lot line adjustment is to allow Portuguese Bend Club ownership of this section of the road and to adjust the Stewart's parcel. He felt that both of these goals can be accomplished and still put some restrictions on the additional parcel that will alleviate the appellants concerns. He suggested putting a covenant on the deed which states the owners will not build on the parcel, or a deed that restricts the building will be within the restrictions already in place on the parcel. He stated these parcels are not changing, so why would the laws and guidance change. He felt that this is a compromise which should satisfy both parties needs. Commissioner Ruttenberg asked Mr. Hansen if he agreed, given the step by step process he went through earlier, that each if these steps is a lot line adjustment. Mr. Hansen answered that he agreed that what Commissioner Ruttenberg described would technically be a lot line adjustment, however he did not think this meets the spirit of a lot line adjustment. Lenee Bilski (appellant) stated she was also disturbed when she realized the staffs latest memo does not match the facts presented in all of the previous staff memos. She stated it wasn't until Ms. Weinberger presented her explanation at the end of the July 14th meeting that the appellants understood anything different from what they had been presented previously. She discussed the General Plan and the various view corridors that are defined by the General Plan and referred to in the Coastal Specific Plan. She noted that in the approval for the Johnson's residence, garage, guest house, and accessory structures the Planning Commission imposed very specific restrictions on the allowable height. She questioned why these height restriction conditions cannot be carried over, and also questioned if these conditions run with the land. She discussed the foliage on the property and the foliage restrictions that were put in place by the Planning Commission. She asked how anyone could not understand that if the views across the rock mesa will be significantly impaired by foliage over six inches in height, then nothing should be built on that land at its current elevation. She referred to Parcel B which has the potential for development and which could also destroy the views for the public along Palos Verdes Drive South and neighboring properties. She felt that, if for no other reason, the Planning Commission should reject this project with its potential to request building heights on the land at its current elevation that could wipe out views from the public right-of-way and from surrounding private properties. She noted that in a subdivision process there is an opportunity for mitigating problems and imposing conditions. Commissioner Tetreault asked Ms. Bilski if she would agree that the lot line adjustment application does not inherently cause any view impairment, but rather it is the potential for developing the parcels created. Ms. Bilski answered that was correct. Planning Commission Minutes July 28,2008 Page 4 Commissioner Tetreault explained that if and when an application comes before the Planning Commission for development on the land, that would be the proper time to debate as to whether or not the proposal would be violating the view corridor protections within the City. Ms. Bilski agreed, however she felt that was discounting the fact that there are already building restrictions on this property. She felt that this lot line adjustment would remove these restrictions and give the owners more rights than they currently have. Vice Chairman Gerstner noted that if there is a covenant attached to one of the parcels, and through the lot line adjustment process these parcels are adjusted and renamed, how is it determined what parcel this original covenant is now attached to. He noted that currently there are restrictions associated with Parcel 1 and would those same restrictions continue with what will be Parcel C. City Attorney Lynch answered that the covenants should run with the land, however it depends on how the covenants are addressed. Associate Planner Fox added that it was staff's intent in the conditions of approval that the covenants run with the land. He explained there are specific conditions of approval that apply to the Johnson property related to the landscaping on the rock mesa and the perimeter fencing, which affect parcels B and C. Staff wanted to ensure those conditions were memorialized in these new conditions. With respect to the building height, those conditions relate to the specific buildings in their current locations, and those height limits do not apply to other parts of the property that are not within the footprints of the existing buildings. Chairman Lewis questioned if all of the applicable conditions of approval from the original development of the property have been applied and added as conditions of approval to these new parcels. City Attorney Lynch explained that, to answer Mr. Hansen's question, that the Subdivision Map Act is very clear in that no new additional conditions can be imposed, other than to comply with existing zoning and building regulations. Sunshine asked if any consideration is given, when reviewing a simple individual lot line .adjustment, if the lot line adjustment changes the entitlements for lot coverage. She also requested the Commission uphold this appeal as there are so many consequences and issues involved in this application that are also related to the zone change that is currently before the City Council. She distributed a handout to the Commission, explaining it contains a list of conditions that should be considered if the Commission decides to deny the appeal. Lisa Weinberger stated that she still believes this proposed lot line adjustment is legal and that adjoining is consistent with the memo she had earlier submitted. She explained that she distributed her step by step approach on this lot line adjustment, and Planning Commission Minutes July 28,2008 Page 5 felt that it may have differed from what staff put together. She felt this may be because all of the appellants had brought up many interesting questions, and she had to rely on her engineer to concisely explain the process. She stated that there was no bad intent involved as to why this wasn't presented in this way from the beginning. With respect to the land development, she stated that even though Lot C is very heavily restricted due to the view corridors and the easements, if development is ever proposed she was sure it would come before the Commission for discussion. With respect to the conditions of approval, she noted that the conditions that applied to Mr. Johnson's house have already vested when he built the house and that the applicant has ever intention of carrying those forward and will work with the city to draft recordable covenants for the additional conditions that apply to the other new lots. She also stated that the applicants agree to all of the conditions of approval that staff has imposed. Commissioner Ruttenberg noted that there has been some complaint by the appellants with regard to changing or shifting the description of the project. He asked if the description of the parcels that will result has changed at all. Ms. Weinberger answered that the only change was the additional property added to Lot D, as a result of a request by the City. Commissioner Ruttenberg asked Ms. Weinberger why she has requested a continuance and if there is more information for her to research that will help clarify this matter. Ms. Weinberger explained that she had requested a continuance so that if there was additional information needed her office would be able to do more research and continue to work with staff and the City Attorney to clarify this application. She noted however, that there is very little case law available on this subject. Commissioner Perestam asked why Mr. Johnson doesn't just dedicate the portion of the road in question to the Portuguese Bend Club and transfer part of Parcel 1 to Parcel 4. Ms. Weinberger explained that the agreement states that the land shall be deeded through a lot line adjustment, and the intent is to transfer actual ownership. City Attorney Lynch added that the road is not a legal lot, hence the need for the lot line adjustments. Joe Lindorfer (in rebuttal) reiterated his belief that the Planning Commission has the authority to resolve the issues between the City's building code and the lot line adjustment and insure that conditions are added to Lots B and C. Steve Hansen (in rebuttal) stated there is an alternative, which is to take Parcel 3 and combine it with Parcel 2 and give Mr. Stewart his portion of Parcel 1 and nothing else would have to be done. Planning Commission Minutes July 28,2008 Page 6 Lenee Bilski (in rebuttal) stated that although the letter of the law on the four parcels may be legally correct, that is no the entire statute. It continues to say that if the lot line adjustment is approved by the local agency and the determination is based upon the General Plan, the Coastal Specific Plan, building codes, and zoning codes. Therefore the Planning Commission has the power to make the decision and to make the choice. She noted that the application was filed in June 2008 and felt that was more than enough time for the applicant to present this lot line adjustment clearly and concisely. She asked why the staff report was written as it has been. She stated the road is currently part of Parcel 1, which has an easement for the road. She questioned how changing ownership to the Portuguese Bend Club make things any different. She asked why Parcel 1 can't remain Parcel 1 with the deeding of the road to the Portuguese Bend Club. Commissioner Ruttenberg asked staff to respond to the comment made by one of the speakers that a residential unit was being deeded. Associate Planner Fox explained that staff was assuming the reference was to the Portuguese Bend Club's maintenance building. He explained that this structure is not used as a residence, though it may have originally been constructed for that purpose. Commissioner Ruttenberg referred to a comment in a letter regarding the spacing between the coastal access points, and asked staff to comment. Associate Planner Fox answered that there is nothing in the Coastal Specific Plan that establishes minimum spacing requirements for access to the coast. He added that the Portuguese Bend Club is a private community that was established prior to City incorporation. Therefore, there could be no loss of public access and no nexus between the approval of this lot line adjustment and the requirement to acquire public coastal access. Commissioner Perestam asked the City Attorney what alternatives are available to the lot line adjustment. City Attorney Lynch answered that an option would be a parcel map or a combination of a lot line adjustment and a parcel map. .Commissioner Tetreault asked if approving this application will be contrary to or cause any problems with respect to the General Plan, the Coastal Specific Plan or the zoning or building codes. Associate Planner Fox answered that approving this application will not be contrary to the General Plan, Coastal Specific Plan or other City codes. He explained that part of this application is a Coastal Permit with specific required findings that the Hearings Officer made that there was consistency of this action with the Coastal Specific Plan and with the public action and recreation policies of the State Coastal Act. Further, the Planning Commission Minutes July 28,2008 Page 7 lots meet the minimum size and dimensions needed to meet the zoning regulations and land use regulations that apply. Commissioner Ruttenberg moved to deny the request for a continuance, seconded by Vice Chairman Gerstner. Commissioner Tetreault asked staff if the request for a continuance had been published for the public before this evenings meeting. Associate Planner Fox answered that the request was part of late correspondence and was distributed to the Commissioners at the beginning of this meeting. He stated that it was received by staff via FAX and email late this afternoon. The motion to deny the request for a continuance was unanimously approved, with Commissioner Tomblin abstaining. In discussing the merits of the project, Commissioner Ruttenberg stated that logically this is a subdivision and did not think the only purpose was for Mr. Johnson to fulfill his obligation to the Portuguese Bend Club. He felt that Mr. Johnson wants to create a parcel that he can potentially build on. However, he has to follow the law when making his decision. Mr. Johnson has submitted an application to the City and this application is one in which he is entitled to under the law. He also explained that in reading the case law presented to the Commission, the court of appeals made several findings that answered many of his questions. He noted that these findings indicated that his concerns were not legally valid. He explained that he did not think there was a reason to put the applicant through a process of modifying this application in order to go through three or four steps that will result in a lot line adjustment where he ends up with exactly what the applicant has presented. Therefore, though he was not happy about the decision, he felt that Mr. Johnson was entitled to the approval that he is seeking. Vice Chairman Gerstner felt that this application complies with the law. He acknowledged the discussions regarding the intention of the application, however intention is not something for the Planning Commission to judge. He added that he has no reason to require that the intention is anything other that what was stated by the applicant. He also understood the reason for the appeal, as the end result of this lot line adjustment does create a situation that may allow something more to happen than can happen today. However, that is also not something that the Planning Commission can judge. Commissioner Perestarn also felt that Mr. Johnson may not be forthcoming in his intentions regarding this lot line adjustment. He noted that the applicants and the City Attorney do not have much of an expectation to finding an alternative proposal to the lot line adjustment. He hoped that the City has the proper restriction in place so that if a proposed development on the lot comes before the Planning Commission in the future, that it gets a thorough hearing. However, he agreed with Commissioner Ruttenberg Planning Commission Minutes July 28,2008 Page 8 and the Vice Chairman that he must follow the law, and he therefore will have to vote in favor of the proposed lot line adjustment. Chairman Lewis stated he would vote to support the appeal, as he has a more restrictive view of the statute in terms of whether or not all of the parcels have to be adjoining. He stated that if the Planning Commission votes to uphold the appeal and deny the application it is quite possible the applicant will come back to the City with an alternate proposal. However if the Planning Commission votes to deny the appeal and approve the application, he felt that there will be zero chance that the applicant will deviate from his current application. He felt that if the Commission has some doubt regarding the findings or any doubt as to whether the Commission should consider a hypothetical application to bring sequential lot line adjustments, this would be the opportunity to send a message to the applicant to try to convince him to change his application. Commissioner Tetreault stated that everyone has property rights, and in this case he was finding it very difficult to determine where one property owner's right stopped and another's started. He noted that the language in the statute is very ambiguous and difficult to interpret. In reading the case law, he felt the opinion was most concerned that there were the same number of parcels going in as were coming out of the lot line adjustment, and that no new parcels were created. He also did not think that it should matter to the Commission what the final intention of the applicant is in terms of whether or not he wants to build on the lot. He noted that an application for development will be required to be submitted to the City, and the City will judge the merits of the proposal at that time. He therefore stated he will have to vote staffs recommendation. Vice Chairman Gerstner moved to deny the appeal and uphold the Hearings Officer's conditional approval of the requested Coastal Permit and Lot Line Adjustment, seconded by Commissioner Ruttenberg. Approved, (4-1-1) with Chairman Lewis dissenting and Commissioner Tomblin abstaining. NEW BUSINESS 2. Re-ordering of the Planning Commission Agenda Director Rojas presented a brief staff report, stating that staff is seeking direction from the Commission as to whether or not the Commission would like to address the issue of moving the Comments From the Audience section of the agenda from the beginning of the agenda to the end. He noted that it is very infrequent that there are speakers on non-agenda items. Commissioner Ruttenberg felt that the intent of having speakers for non-agenda items is that there are times that speakers want to bring issues to the Commission's attention that the Commission will possibly want added to a future agenda. He noted that the City Attorney has interpreted the law that a speaker can speak on an item as long as it is not on the agenda, even if it is on a future agenda. These speakers are given priority Planning Commission Minutes July 28,2008 Page 9 to speak before all of the audience members in attendance for items that are on the current agenda, which he did not think was fair. He suggested ordering the agenda so that this item is near the end, however at any given meeting the agenda can be reordered to allow for speakers to speak earlier in the meeting. After a short discussion the Commission unanimously agreed to make no changes to the order of the agenda. APPROVAL OF MINUTES 3. Minutes of March 31, 2009 Vice Chairman Gerstner moved to approve the minutes as presented, seconded by Commissioner Tomblin. Approved, (4-0-2) with Commissioner Ruttenberg abstaining from its No. I and Commissioners Peres tam and Tetreault abstaining since they were absent from the meeting. 4. Minutes of April 14, 2009 _ The minutes were approved as presented, (4-0-2) with Commissioner utters erg abstaining from item No. I and Commissioners Perestam and Tetreault abstaining since they were absent from the meeting. 6. Minutes of April 28, 200 Vice Chairman Gerstner moved to approve the minutes as presented, seconded by Commissioner Ruttenberg. Approved, (6-0). 6. Minutes of May 12, 2009 Vice Chairman Gerstner moved to approve the minutes as presented, seconded by Commissioner Ruttenberg. Approved, (5-0-1) with Commissioner Tomblin abstaining since he was absent from the meeting. 7. Minutes of May 26, 2009 Vice Chairman Gerstner moved to approve the minutes as presented, seconded by Commissioner Tomblin. Approved, (6-0) with Commissioners Ruttenberg, Tetreault and Perecta m abstaining from its No. 2. 8. Minutes of June 9, 2009 Vice Chairman Gerstner moved to approve the minutes as presented, seconded by Commissioner Tomblin. Approved, (6-0). Planning Commission Minutes July 28,2008 Page 10 ITEMS TO BE PLACED ON FUTURE AGENDAS 9. Pro-Agenda forte meeting of August 119 2009 The Commissioner reviewed and approved the pre-agenda. ADJOURNMENT The meeting was adjourned at 9:35 p.m. Planning Commission Minutes July 28,2008 Page 11