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PC MINS 20100928 Approved November A3, 2010 CITY OF RANCHO PALOS VERDES PLANNING COMMISSION MINUTES Al REGULAR MEETING SEPTEMBER 28, 2010 CALL TO ORDER The meeting was called to order by Vice Chairman Tomblin at 7:04 p.m. at the Fred Hesse Community Room, 29301 Hawthorne Boulevard. FLAG SALUTE Commissioner Lewis led the assembly in the Pledge of Allegiance. ATTENDANCE Present: Commissioners Emenhiser, Knight, Leon, Lewis, and Vice Chairman Tomblin. Absent: Commissioner Tetreault and Chairman Gerstner were excused. Also present were Community Development Director Rojas, Deputy Director Pfost, Associate Planner Mikhail, Associate Planner Trester, and Assistant Planner Kim. APPROVAL OF AGENDA The agenda was unanimously approved as presented. COMMUNICATIONS Director Rojas reported that at their September 21St meeting the City Council adopted the Planning Commission's recommended Specific Plan clean-up amendment and accepted the Coastal Commission's recommended changes to the Nantasket project. He also reported that at their upcoming meeting on October 5th the City Council will consider a Code Initiation Request involving hedge heights in the front yard setback which, if initiated, will come before the Planning Commission. Director Rojas distributed two items of correspondence for agenda item No. 1, one item of correspondence for agenda item No. 3, and one item of correspondence for agenda item No. 4. Commissioner Knight reported that he received an email from a resident and spoke to a neighbor during a site visit related to agenda item No. 1. COMMENTS FROM THE AUDIENCE (regarding non-agenda items): Dr. Michael Brophy spoke on the topic of residence halls at Marymount College and comments that were made by a member of the Planning Commission at last week's City Council meeting. PUBLIC HEARING 1. Coastal Permit, Variance, Height Variation, Grading Permit and Site Plan Review (Case No. ZON2009-00403): 86 Yacht Harbor Drive Commissioner Lewis recused himself from this hearing and left the dais. Associate Planner Mikhail presented the staff report, explaining the scope of the project and the need for the various applications. She noted that staff was able to make the findings for the Variance to support the addition above the garage, but staff did not support the proposed roof deck. Staff also noted other neighboring properties where the City has approved a Variance for setbacks and lot coverage. Commissioner Knight referred to the existing garage, and asked if it was a legal structure, as it is not set back off the street similar to other garages in the neighborhood. Associate Planner Mikhail answered that the existing garage is a legal non-conforming garage. Commissioner Emenhiser asked staff to explain how the lot coverage percentage is being reduced with this proposed addition. Associate Planner Mikhail explained that the applicant has reduced total lot coverage from 63 percent to 57 percent by adding landscaping in various areas where there is current hardscape and parking areas. Vice Chairman Tomblin opened the public hearing. Ed Beall (architect) presented several photographs to show the new proposed residence. He noted that there had been comments that the window in the guest house be opaque and fixed, which the applicant would like not to have happen. He stated that the window is 23 feet from the nearest neighbor and that the applicant has agreed to have the window opaque if necessary, but she wanted to be able to open the window for ventilation purposes. He explained that the living room at the house to the west sits six inches above the applicant's upstairs deck, and therefore there is no view impairment to this house. On the east, the house sits 10 feet lower and therefore there is no view impairment. He discussed the pitch roof, and showed several pictures of homes in the neighborhood that have a pitched or sloped roof. He also noted that there are several styles of homes in the neighborhood. He felt that while the proposed house may not match another style of home in the neighborhood it certainly has a nice style of Planning Commission Minutes September 28,2010 Page 2 its own in a neighborhood that has many styles. He stated that he would also very much like to have the deck, as it enhances the view from the property. Commissioner Knight asked if there were other options for the roof deck that would achieve the same goal, such as extending off of the main structure. Mr. Beall explained that 10 feet is needed between the main structure and the garage, so extending it off of the main structure would be difficult. He noted that he could pull the roof deck back 5 to 8 feet and still give his client a view, or he could add a glass rail. Vice Chairman Tomblin asked Mr. Beall if he had agreed to lower the currently proposed pitch of the roof. Mr. Beall answered that he would rather not lower the pitch, however it could be lowered to 2:12 if necessary. Michael Gonzales discussed the amount of work that has gone into this project, noting that this has been an eight year process. He felt this design alternative is compatible with the surrounding neighborhood and achieves the owner's goals of having a livable home. He reiterated that everyone has worked very hard to try to satisfy everyone's concerns. He also stated that it would be preferable to have the windows non-opaque and openable, but would agree to make the windows opaque if necessary. He asked that the windows be openable. He also stated he would be happy with a 2:12 pitch roof but would prefer 3:12. Regarding the roof deck, he asked that it be allowed as it captures some amazing views. Commissioner Leon asked Mr. Gonzales if it was his intention to remove the garage and build a new structure, or to build over the garage. Mr. Gonzales answered that it was his intention to build over the existing garage by reinforcing the existing footings. Dennis Jaconi stated he lives down the street on Sea Urchin Lane and that he has a 650 square foot roof deck attached over an existing car port. He encouraged the Planning Commission to approve the project, as he felt it was compatible with the neighborhood and blocked no views from neighboring homes. Commissioner Knight asked Mr. Jaconi if his car port was attached to the main house. Mr. Jaconi answered that the car port is attached to his residence. Commissioner Leon asked if the Portuguese Bend Club has an architectural review committee. Mr. Jaconi answered that there is an architectural review committee. Planning Commission Minutes September 28,2010 Page 3 Douq Hinchliffe stated he is representing the architectural committee of the Portuguese Bend Club HOA. He explained that his objection was regarding staff's identification of an over height accessory structure. He explained that nowhere in the staff report did he find a discussion on the view impact the auxiliary structure will have on 85 and 87 Yacht Harbor Drive. He felt that the structure will cause a significant view impairment to 85 Yacht Harbor Drive, as it is clearly right in front of their south view of the ocean. In regards to 87 Yacht Harbor Drive, he explained that this residence has a setback in excess of 15 feet, as opposed to the requested 5 foot setback for the proposed project. He felt that the proposed structure will also cause a significant view impact to 87 Yacht Harbor Drive. Therefore, he questioned the Planning Commission's ability to make the findings necessary to approve this structure at a height greater than 12 feet based on view impacts and setbacks. He noted that the addition over the garage was opposed by the architectural committee. Commissioner Knight asked if there were other residences in the Portuguese Bend community that have a habitable structure above a detached garage. Mr. Hinchliffe answered there is no other structure, to his knowledge, that has a habitable structure above a detached structure. Commissioner Leon asked, if the second story above the garage were set back similar to the house next door, would the architectural committee still have a problem with the addition. Mr. Hinchliffe answered that the architectural committee would not have a problem with the structure if it were set back similar to the house at 87 Yacht Harbor Drive. Commissioner Leon asked, if the habitable space of the garage were set back similar to the house at 87 Yacht Harbor, would the architectural committee object to the placement of a deck above the structure. Mr. Hinchliffe answered that the architectural committee would then not object to the roof deck. Commissioner Leon asked if the architectural committee had an opinion on the pitch of the roof, be it 2:12, 3:12, or a flat roof. Mr. Hinchliffe explained that the architectural committee did not opine on the issue of a 2:12 or a 3:12 pitch roof. He noted that there is no other house in the Portuguese Bend Club that has a tile roof, and he did not think that if the pitch is lowered to 2:12 that they could put tile on the roof. Vice Chairman Tomblin asked Mr. Hinchliffe if he was speaking on behalf of the architectural committee or on behalf of the Board. Planning Commission Minutes September 28,2010 Page 4 Mr. Hinchliffe responded that he was speaking on behalf of both the architectural committee and the Board. Mr. Dahlberg stated he resides at 85 Yacht Harbor Drive and was primarily speaking against the proposed deck on top of the garage. He felt that this deck would destroy his privacy as anyone standing on the deck could look directly into his home. Regarding the view impairment, given the existence of his trees on his property he did not think the deck would cause much more of a view impairment. Michael Gonzales (in rebuttal) noted that the staff report concludes that there are no view impairments caused by this project. He also noted that if he were to push to setback for the structure over the garage back, it would erase the room. He explained that there are some slope issues behind the garage that would make it difficult to build on. He felt that he has designed a project that will minimize the impact to the natural environment, that will decrease the amount of lot coverage, and increase the amount of landscaping. He stated that the owner would be willing to consider giving up the roof deck if she is allowed to have the addition in its current configuration. Vice Chairman Tomblin closed the public hearing. Commissioner Knight asked staff to clarify the setback for the house next door to the project. Associate Planner Mikhail answered that she did not have the exact setback measurement in front of her, but she believed that the setback was less than 15 feet to the fagade, and even less to the deck. Commissioner Knight explained that he was concerned that this is a very narrow street and there is very little, if any, room to park cars. He felt that some space is needed to allow at least one car to park off of the street, and wanted to ensure this was being provided for on this property. Associate Planner Mikhail explained that this property has an existing legal non- conforming garage with two conforming parking spaces inside the garage as well as a small space in front of the garage to park a third small car. Commissioner Emenhiser asked staff to give a brief explanation regarding the prohibition of roof decks and Director Rojas explained a code amendment was adopted approximately eight years ago prohibiting roof decks. Vice Chairman Tomblin asked staff if they did a view analysis from the neighboring properties. Associate Planner Mikhail answered that she did go to 85 Yacht Harbor, noting their main concern was the roof deck and privacy issues. View impacts would not be significant if the roof deck were removed from the garage. She stated that she did not Planning Commission Minutes September 28,2010 Page 5 visit 87 Yacht Harbor, as staff did not feel there would be a view issue since the view is to the south and the subject property is located west of the neighboring property. She also noted that staff did not receive any correspondence from the property owners at 87 Yacht Harbor regarding view impacts. Vice Chairman Tomblin commented that this was the first time he could remember an architectural review committee member speaking to the Planning Commission and stating a position on a proposed structure. He noted that the architectural committee seemed to be concerned with the neighborhood compatibility issues in regards to this proposal. Director Rojas explained that the Code says the Planning Commission is to make the findings in terms of neighborhood compatibility, and sets the standard in terms of how to make the findings. The Code does not require the Planning Commission to get any type of concurrence from an architectural committee in order to make its findings. Commissioner Knight questioned if there was a possibility to extend the garage in the direction of the house to create the space the owners need. He asked why staff didn't think they could make the necessary findings to support such a Variance request. Associate Planner Mikhail noted that moving the addition would create the need for .multiple variances related to extreme slopes, lot coverage and building heights. She also noted that in looking at the twenty closest homes in the neighborhood she was able to find Variances for setbacks and additions within the Coastal Setback Zone, but she was not able to find any Variances for construction over an extreme slope. She explained that the Development Code strictly prohibits residential additions on extreme slopes. Further, moving the addition would create the need for too many variances and felt the current design was the best alternative. For discussion purposes only, Commissioner Emenhiser moved to approve the project as recommended in the staff report, seconded by Commissioner Knight. Commissioner Knight explained that he would prefer to see this project revised rather than approved as presented. He was concerned about the setback being in compliance with the other properties. Commissioner Emenhiser acknowledged this is a very complex case. He appreciated the comments made by the representative of the architectural committee, but was also sensitive to the work the applicant has put into this design. He felt that if the roof deck were eliminated and other modifications were made as recommended by staff, he may be able to make the findings and approve the project. Commissioner Leon stated that he puts a lot of weight on the opinions of the architectural committee in terms of neighborhood compatibility. He also stated that he cannot approve a Variance for a structure that does not meet the inherent setbacks of Planning commission Minutes September 28,2010 Page 6 the neighboring houses. He felt that there could be a redesign that would be more compatible with the neighborhood, and would therefore support a continuance. Director Rojas pointed out that if the project is redesigned so that the garage and the structure above the garage is attached to the residence, the height will then be measured from the highest point to the lowest point. This will then require an additional Variance request for height as well as the Variance request for a structure over an extreme slope and a Variance request for additional lot coverage. Vice Chairman Tomblin stated that he would support a continuance to allow the applicant the opportunity to redesign the proposed project. He felt that pushing the structure back, while adding some Variance requests, would most likely solve many of the problems the Commission is facing. Commissioner Emenhiser withdrew his motion and Commissioner Knight withdrew his second to the motion. Vice Chairman Tomblin reopened the public hearing to ask the applicant if they would entertain the idea of a redesign, and if so, will they grant a one time 90 day extension. Michael Gonzales stated that the applicant will grant the 90 day extension and will explore a redesign that will show a setback that is consistent with the house to the east, and exploring a different alternative to the roof deck. Commissioner Knight moved to continue the public hearing to the meeting of November 23, 2010 to allow the applicant the opportunity to explore redesign options, seconded by Commissioner Emenhiser. The motion was approved, (4-0) with Commissioner Lewis recused. Commissioner Lewis returned to the dais. 2. Grading Permit and Site Plan Review (Case No. ZON2010-00172): 30156 Cartier Drive Assistant Planner Kim presented the staff report, explaining the scope of the project and the need for the Grading Permit and Site Plan Review. She noted that because of the topography on Cartier Drive, and because these lots do not typically have a building pad, it is typical to see large amounts of grading, consisting mostly of export. She also noted that grading is required in order to comply with the City's requirement for driveway slopes. She showed several photographs of existing homes along Cartier Drive, noting how they are similar in design and style. She stated that staff was able to make the necessary findings to recommend approval of the proposed project as conditioned in the staff report. Commissioner Knight asked if there are any privacy issues with regards to the proposed balcony. Planning Commission Minutes September 28,2010 Page 7 Assistant Planner Kim answered that the balcony will be located in a manner that the residents will not be able to look into the rear yard of the neighboring home. She noted that they will be able to look into the side yard and front, however staff does not feel there would be any privacy impacts. Commissioner Knight asked about the photovoltaic panels on the rear slope and how high they will be off the ground. Assistant Planner Kim explained that the Code allows photovoltaic panels to be installed on top of extreme slopes provided they do not exceed twelve feet in height as measured from existing grade. Commissioner Knight asked staff if these photovoltaic panels will cause any visual impacts to surrounding properties. Assistant Planner Kim explained that staff felt the panels may be visible to some of the residents on the street above, however there is nothing in the Code that addresses aesthetic or view impacts. Director Rojas added that the State has a law that tries to make it very simple to get approvals for photovoltaic panels, and thus the City's discretion is limited. This is reflected in the Municipal Code. Commissioner Leon stated that photovoltaic panels have been in the news recently, and the issue is not whether the panels are unsightly but rather if the panels reflect the sun directly into neighboring houses. He asked staff if this kind of analysis was done for these panels. Assistant Planner Kim answered that staff does not do this type of analysis for photovoltaic panels as it is not required by the Code. Commissioner Leon felt that staff should start doing this type of analysis for photovoltaic panels. Commissioner Emenhiser asked staff to explain how this house is compatible with the neighborhood in terms of size. Assistant Planner Kim explained that the average size of homes in the neighborhood is 4,000 square feet, however the range goes up to 6,700 square feet. Further, staff noted that with this proposal most of the structure will be built into the slope and not readily seen from the public right-of-way. Vice Chairman Tomblin referred to the aerial photograph of the neighborhood and pointed out a large area on the slope of a neighboring property that appeared to lack landscaping. He asked staff if there would be a way to add a condition of approval to Planning Commission Minutes September 28,2010 Page 8 this project regarding landscaping so that the situation that is apparent on the neighboring property doesn't happen on this property. Director Rojas answered that a condition can be added. Vice Chairman Tomblin opened the public hearing. Sid Khajavi (architect) felt that staff thoroughly covered the project, and that he was available for questions. Commissioner Lewis asked Mr. Khajavi if he would be agreeable to a condition of approval regarding landscaping. Mr. Khajavi answered that he would be agreeable to such a condition. Commissioner Knight asked Mr. Khajavi how high off the ground the solar panels are proposed to be. Mr. Khajavi estimated the solar panels would be approximately 42 inches off of the ground. He added that they will do everything possible to avoid any glare into neighboring houses, and are very sensitive to that issue. Vice Chairman Tomblin closed the public hearing. Commissioner Leon moved to approve the proposed project as recommended and conditioned by staff, seconded by Commissioner Lewis. Commissioner Knight stated that he would like to add a condition regarding the landscaping. Commissioner Leon modified his motion to add a condition of approval that would require the landscaping of any areas of slope left barren by the project grading, seconded by Commissioner Lewis. The motion to adopt PC Resolution 2010-30 thereby approving the Grading Permit and Site Plan Review, as amended, was approved (5-0). 3. Amendment to Conditional Use Permit-- Tract 40640 Associate Planner Trester presented the staff report explaining staff is seeking direction from the Planning Commission regarding the proposed amendments to Conditional Use Permit No. 68. She explained that the proposed amendment would modify the existing conditions in the Conditional Use Permit regarding foliage height to be consistent with the provisions of the City's view restoration requirements. She gave a brief background on how the discrepancies came to staff's attention and noted the City Attorney's Planning Commission Minutes September 28,2010 Page 9 concerns with the discrepancies. She explained that staff is proposing amendments as outlined in the staff report. Commissioner Knight asked if there was something unusual or extraordinary about this Conditional Use Permit that no other Conditional Use Permit in the City has that requires it be amended to be consistent with the City's view restoration ordinance. Director Rojas answered that staff was not aware there was an issue with the tract conditions of approval until the parties came to staff with a view restoration problem. After several meetings with the parties involved and discussions with the City Attorney, the conclusion was that because the tract was approved before Prop M the attempt to deal with view restoration in the original conditions of approval has led to inconsistencies between the conditions and the tract CC&Rs, which has led to confusion in terms of how to deal with foliage in this tract. Staff does not know whether or not there are other tracts in the City that have the same situation, but staff is prepared to look at other tracts that were approved pre Prop M, depending on the outcome of this proposed amendment. Commissioner Leon asked if the Conditional Use Permit supersedes the view ordinance. Director Rojas answered that a new project with a Conditional Use Permit could not supersede the view ordinance, as the Commission would not be able to find that the project is consistent with the City's Zoning Code. However, since this tract was approved prior to the View Ordinance, the conditions can supersede the View Ordinance if they are more stringent. Commissioner Leon strongly recommended that the Commission and staff do not try to take portions of the View Ordinance and insert them into the existing Conditional Use Permit. Rather, he felt that it should be stated in the Conditional Use Permit that the neighborhood be compliance with the View Ordinance. Director Rojas agreed, noting that is what staff is attempting to do. Vice Chairman Tomblin opened the public hearing. Jamie Lewis stated he is a homeowner in Lunada Point and is a member of the HOA Board. He explained that when he bought his home he went through the City process of submitted plans and getting approvals for his palm trees to be planted, and specifically got letters from the HOA confirming it was o.k. to plant these trees. He explained that the conflict came when newer homeowners moved into the neighborhood and decided they didn't like the palm trees. He noted that many of the original homeowners had gone through this approval project, but several did not. Therefore, you will find that they planted palm trees on their property, just like the ones who had the proper approvals. He noted that the house next door to him has palm trees but they were not approved. Therefore, some residents decided to go the route of code Planning Commission Minutes September 28,2010 Page 10 enforcement to have these trees removed. He felt that the only way to fairly deal with the trees is through the view restoration process. He did question what would happen to palm trees that homeowners planted, with City approvals, that are now over the ridge line of their homes, and if these would now be subject to view restoration. Director Rojas explained that if the amendment goes forward any applicant has the ability to come forward and get a decision by this Commission on trees blocking views, regardless of what decisions have been made in the past. Mr. Lewis explained that he wanted to make sure that a tree may be over 16 feet in height or over the ridgeline of a home, however if the tree does not significantly obstruct a person's protected view, it will be allowed to grow and not be restricted in height. His understanding was that the concern was with the tree that obstructs a view of the ocean or Catalina Island, not the sky above. Director Rojas explained that residents in Lunada Pointe are all under Prop M now, this amendment is to eliminate language in their current Conditional Use Permit that seems to complicate how to deal with foliage on different lots, as the language is different than Prop M. The intent of this change is to make the language consistent with the language in Prop M. Vice Chairman Tomblin asked Mr. Lewis if he was speaking as an individual homeowner or as a representative of the HOA. Mr. Lewis answered that he is speaking as a homeowner and as a representative of the Board of Directors of the HOA. Dr. Jerome Unatin stated he is here to support staff's recommendations, also noting that he is president of the Lunada Pointe HOA. He stated there are 26 homes in Lunada Pointe and the overwhelming majority of the members of the Lunada Pointe HOA would like some resolution and welcome the staff's recommendations. He pointed out the memorandum of September 28th that is in the staff report is well written and clearly details the history of this problem. He explained that only two residents on Laurel Drive have filed an Intent to File a View Preservation Permit and three of the other residents on Laurel Drive support staff's recommendation. He noted that the issue is supported by the City Attorney, the City Council, Staff, the Board of the Lunada Pointe HOA, and a vast majority of the members of the Lunada Pointe HOA. He urged the Planning Commission to accept the recommendations made by staff. Vice Chairman Tomblin asked Dr. Unatin if he was speaking on behalf of the Lunada Pointe HOA. Dr. Unatin answered that he was speaking on behalf of the Lunada Pointe Board as well as on his own behalf. Planning Commission Minutes September 28,2010 Page 11 Mina Dahya stated that she submitted a package to be included in the staff report and asked the Commissioners if they had any questions. She noted that she too is on the Lunada Pointe HOA Board as well as being a past member of the Landscape Committee. She stated that this issue goes back more than 12 years and the Board has been notified many times of the issue of the trees growing into views. She noted that CUP 68 has stringent conditions regarding landscaping and that one of the reasons she bought her home in this area was with the idea that her view would be protected by these conditions. She felt that many of the Board members have broken the rules in regards to their landscaping and she felt it was time for this to be considered. Vice Chairman Tomblin asked Ms. Dahya if she was in support of staff's recommended change. Ms. Dahya answered that she was not in support of changing the language, and felt that the area should stay with the language in their Conditional Use Permit. Chris Ballinger felt the issue is simple. It's not about the ability of the City to enforce CC&Rs, but rather the ability of the City Council and the City to enforce CUP 68. He explained that on the three houses in front of his there are 35 trees growing above the ridge line. He therefore felt there is a significant threat to his view. He felt that the CUP tries to protect the views of the minority of residents who live on Laurel Drive. He felt the proposed changes have the effect of gutting the protection that comes from the CUP, substituting a much lower protection standard of the city's view restoration process. He asked that the Planning Commission reject staff's proposed amendments. Commissioner Knight asked Mr. Ballinger how the view restoration process has a lower standard that that of the current CUP. Mr. Ballinger answered that the CUP and the CC&Rs and the original exhibit to the Resolution limited the height of any tree to 16 feet or the ridgeline. The change the staff wants to make adds language that the tree must also significantly impair a view. It also establishes a viewing area and only the trees seen from this viewing area can be considered. Secondly, the proposed language shifts the burden of proof to the person making the complaint, while right now the burden of proof is with the tree owners. It also puts the burden of cost on the complaining party rather than the tree owner. Finally, the language in the view ordinance restricts the party that can complain to a lot that is adjacent to the property with the trees. He did not think this protects those who are walking by or using the hiking trails. He stated that an enormous people walk along Marguerite Drive and the hiking trails above on a daily basis. Commissioner Leon asked if this area has both a Conditional Use Permit and CC&Rs that are separate and distinct. Mr. Ballinger answered that the Lunada Pointe tract has both a Conditional Use Permit and CC&Rs. He noted that the CC&Rs also has language written in it to protect views, however the Board has chosen not to enforce this language. He stated that the Planning Commission Minutes September 28,2010 Page 12 Conditional Use Permit and the CC&Rs are more restrictive than Prop M and are being relaxed by the proposal before the Commission. Commissioner Leon commented to staff that the proposed Resolution states that the recommendation is to modify the conditions regarding the foliage height. He suggested that language be changed to eliminate or supersede the conditions regarding foliage height. Director Rojas noted that staff recommends the word modify because condition No. 3 will be kept, with only the change of a few words. Commissioner Leon questioned why the City wouldn't modify the Conditional Use Permit only, and allow the HOA to modify their CC&Rs the way they see fit. Director Rojas explained that staff started with that viewpoint, however ultimately the City Attorney advised staff that if this issue truly wants to be clarified and be consistent then staff should require the CC&Rs also be modified. However, this is a decision that can be made by the Planning Commission. Commissioner Leon stated that he would not support a recommendation that requires an HOA to change their CC&Rs. Commissioner Emenhiser shared some of Commissioner Leon's concerns, and noted that he understood the frustration that the minority of the homeowners live on Laurel Drive. He would have hoped that the neighbors below on Marguerite Drive would have been good neighbors and trimmed their trees. He stated that he looks forward to seeing staff's recommendations. Commissioner Lewis also shared some of Commissioner Leon's concerns. He noted that the view owners in this neighborhood had certain rights before the passage of the view ordinance, and the view ordinance was intended to strengthen view and the rights of view owners. What is being proposed here, is that for the sake of consistency and expediency, making the view owners have less rights, and using Prop M as a justification for that he felt was truly ironic. He explained that the portion of the staff report he has the most trouble with is on the top of page 6 where there is a discussion of putting in the view ordinance language which references tree height and significant view impairment. He stated he does not support consistency over view rights in this context. Commissioner Knight asked staff if there is a problem if a community's CC&Rs are more restrictive than Prop M. Director Rojas answered that CC&Rs can be more restrictive than Prop M. Commissioner Knight stated his concern had to do with amendment 3(G), and quoted the amendment. He very much objected to language that states that the City shall Planning commission Minutes September 28,2010 Page 13 supersede anything the HOA decides to do. He stated he was concerned because there may be other provisions in the CC&Rs that may have to deal with foliage that have nothing to do with views. He stated that he would be more supportive of something that has a finding that states if the CUP conflicts with the Code, the more restrictive shall apply. Vice Chairman Tomblin was concerned over the process and the precedent. He felt that the Conditional Use Permit was established, and just because Prop M has been put into place doesn't mean the Conditional Use Permit automatically gets changed. He felt the Conditional Use Permit was put into place, the homeowners bought into the neighborhood with the understanding of the rules and that they would have to abide by the rules in the Conditional Use Permit. He noted that the Conditional Use Permit has a more restrictive threshold than Prop M and he could not see changing the Conditional Use Permit to lessen the current threshold. Director Rojas clarified that the Conditional Use Permit is really not more restrictive, explaining that the Conditional Use Permit does not have conditions that address views and view restoration. He explained that the Conditional Use Permit dictates how the CC&Rs are to address these issues. Therefore the City has no authority to enforce the Conditional Use Permit. He explained that the CC&Rs then tie back to the Planning Commission to allow vegetation to exceed the more restrictive limit of the ridgeline. He explained that if a resident in the neighborhood wanted to grow a tree beyond the height of the ridgeline of their residence they could go to the Planning Commission to seek approval, however staff is questioning what test the Commission would use to allow that. He explained that from staff perspective the only test available is "significant view impairment". Therefore, staff is trying to clarify that if this request were to come before the City, Prop M rules would be applied. If Prop M rules do not apply he questioned by what standard the Commission would review the request to make their decision. Commissioner Leon stated that any HOA should be allowed to set standards in their community that are more restrictive than City standards. However, city staff or the Planning Commission should not have several different standards to try to enforce. He felt there should be one standard that the City enforces, and if there is a stricter standard in a given community then the HOA should enforce that standard. With that being said, he felt that the City could, in this case, change the Conditional Use Permit for the tract but not require that the more restrictive CC&Rs be changed. Commissioner Lewis stated he would be in support of language that made it very clear the more restrictive standard applies, as opposed to the less stringent language of Prop M. He felt that the residents in this neighborhood had these rights before Prop M and he was not sure that Prop M intended to diminish anyone's right. He noted that the Director has indicated that if an application were to come before the Planning Commission that the Commission would have to apply some type of standard to determine whether or not the tree can grow above the ridgeline. He indicated that he may look at the tree and determine whether or not if was reasonable to expect the tree to grow above the ridgeline, and if so, the tree should be removed. Planning commission Minutes September 28,2010 Page 14 Director Rojas explained that if the Commission is leaning toward keeping the more restrictive standards from the CC&Rs then it should remove the section of condition No. 3 that allows the Commission to allow trees to grow higher than the ridgeline. In this manner, the very strict standard is maintained and left completely with the CC&Rs to be privately enforced. However, this doesn't mean that a resident cannot file for view restoration or preservation that will allow the City to make a decision that trees can be allowed over the ridgeline of a residence because they do not cause a significant view impairment. Commissioner Lewis indicated he would be more in support of that type of approach. Mr. Ballenger questioned why this particular case was not enforced by code enforcement, since the tree owners are in violation of the Conditional Use Permit. Director Rojas explained that condition No. 3 requires that the tree height language be included in the CC&Rs, which it is. Therefore the condition of the Conditional Use Permit has been complied with and there is no enforcement issue. However, there is also a condition of approval that a landscape plan be submitted to the City. However, some properties in the tract submitted landscape plans that were approved with conditions by the City, and other properties did not. When this issue went to the City Attorney, she opined that because of the confusion between some properties having landscape plans and others not, the conditions of approval, and the CC&Rs, she felt that legal enforcement would be difficult. Commissioner Knight supported removing the language that presently regulates foliage owners to come before the Planning Commission to request their foliage be higher than the ridgeline. The Commission agreed. Director Rojas stated, though he didn't hear a motion, that there was a Commission consensus that he discuss the Commission's concerns with the City Attorney and continue the public hearing to November 9, 2010. The Commission agreed. 4. Genera_I Plan Update — "Draft Visual Resources Element and "Draft" Circulation Element Deputy Director Pfost presented the staff report, noting that he had not received comments from the Circulation Element subcommittee. He suggested that the Circulation Element be continued to the November 9, 2010 meeting. Focusing on the draft Visual Resources Element, he noted that the Commission has given their input and the subcommittee has reviewed the draft, incorporating some text changes. He reviewed the changes and comments of the draft Visual Resources Element. He noted that staff was suggesting eliminating goals two through four, since goal number one is very comprehensive and takes into consideration everything in goals two, three, and four. Planning commission Minutes September 28,2010 Page 15 Commissioner Emenhiser felt goal four contradicts goals one, two, and three, and therefore agreed with the Deputy Director's suggestion. The Commission agreed. Deputy Director Pfost continued with his review of the draft Visual Resources Element, reviewing the revisions and changes that were made by staff and explaining the comments in the comment boxes added by staff. The Commission approved the draft Visual Resources Element with its revisions. APPROVAL OF MINUTES 5. Minutes of August 10, 2010 Commissioner Lewis moved to approve the minutes as presented, seconded by Commissioner Knight. Approved, (4-0-1) with Vice Chairman Tomblin abstaining since he was absent from the meeting. 6. Minutes of August 24, 2010 Commissioner Knight noted a revision on page 3 of the minutes. Commissioner Emenhiser moved to approve the minutes as revised, seconded by Commissioner Leon. Approved, (4-0-1) with Commissioner Lewis abstaining since he was absent from the meeting. 7. Minutes of September 14, 2010 Commissioner Knight noted revisions to page 10 of the minutes. Commissioner Emenhiser moved to approve the minutes as revised,seconded by Commissioner Knight. Approved, (3-0-2) with Commissioners Lewis and Leon abstaining since they were absent from that meeting. ITEMS TO BE PLACED ON FUTURE AGENDAS 8. Pre-Agenda for the meeting on October 12, 2010 After a brief discussion on whether or not to move the Annenberg project to be the first public hearing, the Commission agreed to keep the order of the agenda as presented. Commissioner Leon requested that there be an item on a future agenda to discuss photovoltaic panels and what types of conditions of approval should be put on these types of applications. Director Rojas noted that the Planning Commission agendas are very full from now until the end of the year, therefore this item most likely will not be agendized until January. Planning commission Minutes September 28,2010 Page 16 ADJOURNMENT The meeting was adjourned at 11:30 p.m. Planning Commission Minutes September 28,2010 Page 17