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PC MINS 20140826 Approved October 14, 2 CITY OF RANCHO PALOS VERDES PLANNING COMMISSION MINUTES REGULAR MEETING AUGUST 26, 2014 CALL TO ORDER The meeting was called to order by Chairman Leon at 7:04 p.m. at the Fred Hesse Community Room, 29301 Hawthorne Boulevard. FLAG SALUTE Commissioner Emenhiser led the assembly in the Pledge of Allegiance. ATTENDANCE Present: Commissioners Cruikshank, Emenhiser, Gerstner, James, Tomblin, Vice Chairman Nelson, and Chairman Leon. Absent: None Also present were Community Development Director Rojas, Senior Planner Schonborn, Associate Planner Mikhail, Acting City Manager Petru, and City Attorney Lynch, APPROVAL OF AGENDA The Agenda was unanimously approved as presented, COMMUNICATIONS Director Rojas reported that at the upcoming September 2, 2014 City Council meeting the Council will hear a proposed General Plan Amendment and Zone Change application on Chaparral Lane that the Planning Commission recommended approval on in 2012. Director Rojas distributed ten items of late correspondence for agenda item No. I and six items of late correspondence for agenda item No. 2. Commissioner Tomblin reported he had conversations with Green Hills and city staff regarding agenda item No. 1, as did Vice Chairman Nelson. COMMENTS FROM THE AUDIENCE (re-garding non-agenda items): None CONSENT CALENDAR 1. Green Hills Memorial Park Annual Review Director Rojas noted that because there are speakers for this item and staff has some comments regarding the Resolution, it is staff's recommendation that this item be pulled from the Consent Calendar for discussion. Commissioner Tomblin moved to remove item No. I from the Consent Calendar, seconded by Commissioner Cruikshank. Director Rojas clarified that removing the item from the Consent Calendar means there will be discussion on the item. Since the public hearing was closed at the last Planning Commission meeting there can be no new testimony given and no new issues raised. The discussion must be limited to the language in the draft Resolution and whether it accurately reflects the motion passed at the last meeting. If any member of the Commission wishes to have additional discussion or hear additional testimony from the public, a new public notice must be sent out, and the public hearing would be re-opened at a future date. The motion was approved without objection. Director Rojas stated that before the Commission is a resolution which staff believes memorializes the decision made at the last meeting by the Planning Commission regarding the Green Hills annual review. He stated that today staff received correspondence from the Green Hills attorney seeking clarification on some of the conditions. With that, staff and the city attorney reviewed these conditions and now have some minor clarifications to add to the conditions of approval before the Commission. He also explained that there has been some correspondence stating that the Commission should not take any action on adopting the resolution because of code violations on the property. He reminded the Commission that what is before them is an annual review and not a permit request from Green Hills, so action can be taken despite confirmed code violations. City Attorney Lynch reviewed the changes made, to the conditions of approval. She referred to page 8 of the staff report, the second bullet point from the bottom. She noted that the word "services" was being construed with anything having to do with activities prior to the actual internment. She stated that what was meant, instead of `"services" was "ceremonies". With that change, the other condition regarding the placement of the screening walls and tents could occur two hours before that. She referred to the fourth bullet point on page 9 of the Resolution. She stated that after reviewing the tape of the August 12th meeting, staff added leaf blowers to be allowed once a week. She stated the last suggestion was also on page 9, and referred to placing flags on plots scheduled for a burial. She noted that staff suggested adding Planning Commission Minutes August 26,2014 Page 2 language that the flags be placed at the site seven days in advance, and in any event, not less than 24 hours prior to the scheduled internment. Sharon Yarber strongly suggested the Commission reopen the public hearing, and that the public hearing be postponed to an indefinite date until a third party independent investigation into this situation has been conducted. She understood there may be one currently underway and she asked the acting City Manager who had been selected to conduct that investigation. In regards to the Resolution, she felt the Resolution encompassed a couple of things that could be segregated. She explained one is the after-the-fact Variance application versus some conditions. She felt that if may be beneficial to impose some conditions on a temporary basis until some other things can be figured out. She did not think that should be combined with encouraging the submission of a Variance until we find out whether any kind of relief is awardable to Green Hills because she feels the situation is so egregious that it smacks of impropriety. She felt that since there are known violations of the CUP, and staff was directed to do a line by line investigation of the CUP, that the City should leave open the possibility of a revocation of the CUP. Scott Gaver stated he is from Rolling Hills Town Club No. 1, which is the community that is in between Vista Verde and Peninsula Verde. He stated he sympathizes with the homeowners who lost any portion of a view they may have had from the time they purchased their unit. He stated he watched the tapes of the August 12th meeting, as well as the April 2007 Planning Commission meetings and was left confused by the last few minutes of the 2007 meeting. He wondered if that wasn't the beginning of the problems with the approval of the mausoleum. He hoped that having a Lomita address does not make him any less valuable a person than an adjacent neighbor that has a Rancho Palos Verdes address. He stated he will be paying close attention to Area 4 of the Master Plan which hopefully one day will only enhance the view he currently has. He added that he currently was not a board member of his HOA, nor was he speaking on behalf of the HOA. He hoped that his speaking at the meeting would help to strengthen the communication between his HOA, the Rancho Palos Verdes Planning Commission, and management from Green Hills in the foreseeable future, Paul Tetreault felt it was wise for the Planning Commission to do whatever they could at this point to mitigate the impacts to the Vista Verde residents, however he questioned if acting upon this now in Section 6 of the Resolution would preclude future changes to the Conditional Use Permit following the city's investigation into what happened. In referring to Section 6 of the Resolution and the request a Variance be submitted to the City within 90 days, he felt this was something that staff may want to reconsider as part of the Resolution. He referred to Municipal Code Section 17.64.050 which discusses the findings necessary to grant a Variance. In Section B there is a discussion about how a Variance can be granted in the event of an error that is committed by staff or the City and the applicant, in reliance on that error, conducts substantial construction. He felt it was possible that during the investigation it may be found that perhaps there may be something on the part of the applicant which may make Section B not applicable. He therefore felt it may be wise for the Commission to wait on demanding a Variance until Planning Commission Minutes August 26,2014 Page 3 all the facts are known. Finally, he questioned the title of the Resolution and if the mausoleum was identified under the correct name. Jeff Lewis suggested the Planning Commission ask staff if, in the event the Commission decides not to vote in favor of this Resolution, what is the consequence to the Vista Verde residents in terms of rooftop burials. Secondly, he stated the conditions of approval suggest the cemetery file for a Variance. He noted the cemetery has taken the position that they don't need to file for a Variance. He stated the conditions do not have a date certain for the cemetery to file for a Variance and he questioned what happens six months down the line when no Variance application is filed. Lori Brown stated recently there was an article in the LA Times where Target was ordered to stop building a building because it was too tall. She questioned why the City can't just stop the rooftop burials. Debbie Landis referred to page 9 of the Resolution and the discussion of a minimum six-foot tall temporary wall system or screening, noting this was something discussed quite some time ago and the Vista Verde homeowners had decided they didn't want to have that done, and she thought Green Hills had agreed. Commissioner Emenhiser asked staff to clarify the correct name of the mausoleum in question, whether or not there is a date certain in the Resolution for submittal of the Variance, and asked staff for an update on the internal investigation. Director Rojas clarified the Memorial Terrace Mausoleum name comes from the approved Master Plan submitted by Green Hills and approved by the City. As such, staff continues to use that name. He stated staff was aware that Green Hills has newer material that refers to the same mausoleum by a different name, but staff feels it should be referred to by the name on the approved Master Plan. He stated the Resolution does have a time limit for submittal of the Variance, referring to Section 4 which says that within 90 days of the adoption of the Resolution an application for an after-the-fact Variance shall be submitted to the City. Chairman Leon asked staff what happens if the applicant does not submit the Variance application within the 90-day period. City Attorney Lynch answered that at that point the City would look into getting some type of restraining order with respect to what can occur at the mausoleum and the rooftop area of the mausoleum, as well as the northwest corner in which internments may have been taking place within the 16-foot setback. Commissioner Gerstner asked if there were a way for the City to consider a Variance without an application having been submitted. Planning Commission Minutes August 26,2014 Page 4 City Attorney Lynch stated she would need to review the Municipal Code before answering that question, noting there are times when the Commission can initiate this type of review. In responding to the question asked by Ms. Yarber, Acting City Manager Petru stated that the third party independent investigation being conducted is an internal investigation and would not have any bearing on the processes that are occurring with this body in the future. She stated an outside firm will perform the investigation, but did not know the name of the firm, as the City is in the process of selecting the firm. Commissioner Tomblin stated he just read the late correspondence from Green Hills attorney, Ms. Berkowitz, and her comments that if any person who has purchased a plot in the area within the required setback passes away before the Conditional Use Permit is modified, Green Hills will honor that individual's contract for internment. He stated that he reads this to say that no matter what this Commission passes, Green Hills is not going to abide by the City's setback conditions on ground internments. He asked staff if they have certified whether or not there are internments being performed in violation of the sixteen foot required setback. Director Rojas answered that staff has verified that Green Hills is not in compliance with the CUP in regards to the condition that requires below ground internments to be a minimum of sixteen feet from the property line. Commissioner Tomblin asked what the City will do when someone purposely violates the City's code. City Attorney Lynch answered there are a number of different remedies, including judicial remedies, which is where the City will most likely go with this. In regards to whether Green Hills was saying they would not comply with the condition in regards to refraining from interring someone who had already purchased a plot in that area, she agreed that appears to be Green Hills intent. Commissioner Tomblin asked if the Commission is authorized to revoke the entire Conditional Use Permit for Green Hills. City Attorney Lynch explained revocation proceedings are complicated proceedings, and can occur when there has been fraud perpetrated by an applicant. Depending upon the findings that are made in that regard, whether there has been fraudulent conduct on the part of the applicant, revocation is a possibility. She felt that intentionally proceeding to not comply with conditions of approval could be another ground for revocation. Commissioner Tomblin asked if it was possible for the Commission to set a date for a public hearing for revocation of the Conditional Use Permit based on the internal investigation as well as the written testimony of Ms. Berkowitz that Green Hills will not abide by the conditions of approval. Planning Commission Minutes August 26,2014 Page 5 City Attorney Lynch explained the investigation is an internal investigation and that issue does not bear upon the Commission's determination about whether to conduct further revocation proceedings. She suggested the Commission wait until staff finishes the review of all of the conditions of approval so that if there is more than one violation it could all be addressed at the same time as part of the same hearing. City Attorney Lynch addressed the previous question asked by Commissioner Gerstner regarding whether the City had to have a Variance application to discuss the after-the- fact Variance. She stated that the Code says that the Planning Commission, upon verified application of any interested person, shall initiate proceedings for consideration of a Variance, She interpreted this to be broad enough to give the Commission the authority to go forward with the Variance process themselves. Commissioner Gerstner asked if the Commission itself can satisfy the role as an interested party. City Attorney Lynch answered that was correct. Commissioner Tomblin stated that some of the public comments received have indicated fraud on behalf of Green Hills, as well as accusations of unclean hands or payoffs that may have taken place, and asked if that would be part of the investigation. City Attorney Lynch explained that the internal investigation into what occurred will focus on the internal workings of the City and what occurred with respect to staff. She clarified that unclean hands could have a variety of meanings, but typically means there is knowledge on the part of the applicant that the application was not appropriate or they were not conducting themselves in accordance with the Conditional Use Permit, or that the applicant was not relying on staff's or the City's actions in approving the CUP because they were aware of other facts that would cause them to understand this was a process that should have gone forward. Commissioner Tomblin stated he had the utmost respect for staff and staff's integrity, but unfortunately this was brought up and the record should be cleared up. Commissioner Tomblin asked the Commission if Ms. Berkowitz could be allowed to speak to acknowledge that Green Hills is not going to follow the conditions set by this Commission. Chairman Leon felt that would be acceptable. Commissioner Gerstner pointed out that the sixteen-foot setback is not part of the new resolution before the Commission, but rather it is part of the existing CUP. Therefore, the way he read Ms. Berkowitz's correspondence is that Green Hills intends not to comply with the existing CUP relative to internments not being allowed within the sixteen-foot setback in the area of the northwest corner. Planning Commission Minutes August 26,2014 Page 6 City Attorney Lynch agreed with Commissioner Gerstner's comments. Ms. Berkowitz came to the podium. Commissioner Tomblin stated that it was his understanding by the written submission, as a representative of Green Hills, that she has stated for the record that Green Hills will not comply with the existing CUP and will violate the existing CUP and that if the Resolution before the Commission is approved, Green Hills will not follow that Resolution. Ms. Berkowitz answered that was not correct, She explained that what she put in writing has to do with the internments in the northwest corner that are ground burials. She stated Green Hills has already sold all of those plots within that setback area. She explained that if there is a person who passes away who has purchased a plot in that area, Green Hills will see if it is amenable to relocate that person. However, if there is a burial permit for that person, if that person already has a spouse interred at that area and their contract requires them to be buried there with their spouse, Green Hills is in a very difficult spot to promise that they will not inter somebody. She very much hoped this issue will be resolved and that nobody who is not amenable to being relocated will pass away during this period, but if they do Green Hills may have to inter them where they are legally obligated to do so. Commissioner Tomblin asked Ms, Berkowitz if she was saying Green Hills may bury someone in this area, even though it is in direct violation of the CUP. Ms. Berkowitz answered that each situation will have to be analyzed, but it may be that if there is someone who passes away who has a spouse that is already interred there and they have a contract to be buried there, Green Hills would be in a very difficult to tell them they cannot be buried where they legally purchased a plot. Commissioner Tomblin stated that at the last meeting he asked Ms. Berkowitz if Green Hills was in compliance with the CUP. He asked her again if Green Hills is in compliance with the CUP, Ms. Berkowitz stated that at the last meeting she said that she believed that Green Hills was in compliance with the CUP. She stated that Green Hills has since done their own investigation and learned that there are burial plots within that corner that are within the sixteen foot setback. Commissioner Tomblin asked her about the rooftop. Ms. Berkowitz answered there are no burial plots within the sixteen foot setback on the rooftop, nor have any been sold on the rooftop. Planning Commission Minutes August 26,2014 Page 7 Chairman Leon referred to the northwest corner and asked how many of the plots have an existing contract, Ms. Berkowitz answered that there are forty four plots within the northwest corner. Currently there are eleven people interred there and the remaining spots have all been sold, Chairman Leon stated that presumably all forty-four plots are not within the sixteen foot setback. Ms. Berkowitz stated all forty-four are within the sixteen foot setback. Commissioner Gerstner asked if there were an individual who did not have a spouse or other relative interred in this area and still chose to be interred there because they have a legal contract with Green Hills, is Green Hills going to honor that contract, Ms. Berkowitz answered that Green Hills will try to entice them to relocate, but will be in a very difficult spot if they are forced to choose between not honoring their contract with their customer who has an expectation and this situation. She hoped this situation will not occur. Chairman Leon asked if notices within 500 feet included owners of burial plots. Director Rojas stated that staff has not included owners of burial plots in their notices. Commissioner Tomblin stated that while Green Hills feels they have to violate the law because they are in a very bad situation, it has also put the City in a very bad situation by having the Commission sit here and not take any action in regards to Green Hills breaking the law. If they want to continue to break the law, he asked if Green Hills was ready to indemnify the City on all counts of any legal action or court costs. He asked Ms. Berkowitz to state, for the record, that Green Hills will choose to violate the law. Ms. Berkowitz stated that she will not state that Green Hills will violate the law. She stated that this is not a black or white situation with a black or white answer. Commissioner Tomblin disagreed, stating there is a condition in the CUP that says a person cannot be buried within sixteen feet of the property line, and Ms. Berkowitz has stated that Green Hills they will bury people in violation of this condition. Ms. Berkowitz stated Green Hills is going to try to get that fixed as expeditiously as possible and it is not Green Hills goal to violate the law. However, there are contracts and obligations with people that they will be in a very difficult position with them and the City, and they are trying to accommodate all parties. Commissioner Tomblin asked Ms. Berkowitz about providing an indemnification. Planning Commission Minutes August 26,2014 Page 8 She stated she will discuss this with her client, but did not know if she will have an answer this evening. Commissioner James stated he is also troubled by Ms. Berkowitz's position that Green Hills will do their best to try to decide whether to comply with their contracts or to comply with the law. He compared this to a drug dealer who has a contract to sell someone drugs, even though it is against the law. He didn't think this situation is really much different. Ms. Berkowitz did not think that someone who wants to be buried with their spouse is akin to selling drugs. Commissioner James disagreed. He asked Ms. Berkowitz if she was willing to state that, other than the spouse situation, Green Hills will definitely not comply with the contract. Ms,. Berkowitz stated she has to speak to her client before answering that question. Vice Chairman Nelson stated that staff has indicated in their report that no further sales or internments shall occur in this area without further modification to the CUP. He asked Ms. Berkowitz if she felt that was a moratorium. Ms. Berkowitz felt that was a moratorium. Vice Chairman Nelson continued reading from the staff report that the City will be advising Green Hills that future internments cannot occur in, the last row of internment spaces in the mausoleum without approval to an amendment. He asked Ms. Berkowitz if she felt that was a moratorium. Ms. Berkowitz answered that she felt this was a moratorium. Vice Chairman Nelson noted that at the last meeting this Commission voted that there would be no moratorium put in place at this time. Commissioner Tomblin commented that whether there is a moratorium or not, the situation is there are violations in the setback, and he did not think this mistake should be al,lowed to continue over and over. Commissioner James referred to the staff report and a letter from Ms. Berkowitz pointing out that the Municipal Code says the Planning Commission has the power to create conditions as part of a CUP, and once that is done that overrides any zoning restrictions that may have existed before that. He noted staff's position and response was that such conditions can only be stricter than the minimum required standards in the code. He asked the City Attorney her view on staff's response to Ms. Berkowitz. Planning Commission Minutes August 26,2014 Page 9 City Attorney Lynch explained that a Variance is required to establish deviations from the setback minimums. The CUP language to which Ms. Berkowitz refers talks about creating setbacks that are greater than the minimum allowed. In addition, a CUP could supersede all of the Variance findings and the requirements the Commission usually makes in connection with approving a Variance. She noted that with respect to one of the other mausoleums on the western side of the property, a Variance was approved for the setback modification that occurred. Commissioner James understood what the City Attorney was saying, however he did not think that was what the Municipal Code says. City Attorney Lynch understood why Commissioner James may be reading it differently, however under the principal of statutory construction one must try to read the code in ways that give meaning to all of its provisions. In her opinion, if you read it to allow for additional intrusions into required setback areas through a Conditional Use Permit process, you are thereby negating the whole Variance process. Commissioner James stated the statement of the rule is if something is ambiguous, and he did not feel this was ambiguous. Commissioner Cruikshank asked the City Attorney if the City would be violating the law if a condition were added that burials are no longer allowed, regardless of whether or not the plot had sold. City Attorney Lynch did not think the City would be violating the law in this situation, as she felt this was a problem of their own making. Commissioner Gerstner felt that the Commission reaffirming, as part of a Resolution, existing requirements of the CUP such as no burials within 16 feet of the property line, is not a new item. He felt that contract law should not trump the CUP, and the Commission reaffirming Green Hills cannot do something that is in violation of the CUP is not a moratorium. In regards to the Variance, he stated he made the motion at the previous meeting to require the Variance and felt he was clear in the way he was asking for it, however he did not think that was reflected in the current staff report. He stated he never used the words after-the-fact or referred to it as an after-the-fact Variance. He specifically didn't say the Variance was to seek approval to allow the existing Memorial Terrace Mausoleum Building to remain encroaching. He stated he was suggesting the Commission consider a Variance on the merits of the Variance to determine if a setback variance would be allowed in that area of the cemetery, irrespective if there is a mausoleum building there or not. He stated his motion was to analyze the variance on the merits of the findings to determine whether or not it should exist. Therefore, he would not be able to support the Resolution before the Commission because he did not feel it was correct. City Attorney Lynch asked Commissioner Gerstner to clarify in the Resolution where he felt changes should be made. Planning Commission Minutes August 26,2014 Page 10 Commissioner Gerstner referred to page 7 of the Resolution, the second Wheras, he suggested striking "after-the-fact", he struck "application", and after the word "approval" in the third sentence he struck from the words "to allow the existing" down to fourth line including the word "setback". He read the change should read, "the Planning Commission directed Green Hills Cemetery to apply for a Variance to seek approval of a reduced setback for a structure within the required 40 foot property setback line to reduce the setback to 8 feet." He stated this language also appears on page 9 of the Resolution Commissioner James referred to an earlier discussion in which the City Attorney stated any interested person could seek this Variance. Assuming the Commission were to go with that language and the Planning Commission would be that interested person, he asked if this is that something the Commission should be considering doing now or is a further noticed hearing required. He asked if there were other options available that would segregate the Variance issue from the restrictions of the CUP. City Attorney Lynch answered the Variance could certainly be severed out from the operational conditions. She noted that this current meeting is to discuss the Resolution and the conditions of approval, therefore the issue of the Variance can be brought separately. Commissioner James asked if the Planning Commission is suggesting the Variance, would a noticed public hearing be required. City Attorney Lynch stated that if the Planning Commission wishes to have an item at a meeting to discuss whether or not the Planning Commission wishes to initiate the process, it should be a noticed public hearing item. Commissioner Gerstner commented that he thought Green Hills would see this Variance as an opportunity to clear this issue up and submit the application very quickly. However, as this may not be the case, the Commission should act quickly. Commissioner Tomblin supported this discussion, however noted his concern that Green Hills has gone on record that they will continue to violate the CUP. He stated that he would like see as part of the upcoming motion that the Commission direct staff to issue a public hearing for the revocation of the CUP if necessary, if Green Hills continues to violate the CUP. Commissioner Gerstner pointed out that there is the issue of the sixteen-foot setback in the ground internments in the northwest setback, which is clearly not allowed in the CUP. Then there is the sixteen-foot setback in the area of the existing mausoleum building, and one might argue the eight-foot building setback in a building that can have internments in it all the way up to the edge, trumps the sixteen-foot setback. Therefore, he wouldn't want to combine these two issues together as if they are the same issue when they're not. He would rather limit this Variance to only the area where the building Planning Commission Minutes August 26,2014 Page 11 is located. He stated he was not ready to consider a variance for the ground internments in the northwest corner or reducing that setback at this point. City Attorney Lynch suggested, given the direction the discussion seems to be taking, that it might be useful to focus solely on the operational conditions this evening and bring the rest of the issues back at a future meeting in order to provide public notice. Commissioner James suggested asking the applicant if they have any intention of submitting a Variance application. Ms. Berkowitz apologized for not being able to answer the question, as there is only one Board Member from Green Hills present at this meeting. In regards to the Variance, she explained Green Hills is still evaluating its options. She stated that if the City is so inclined to take it upon itself to seek a Variance that would be acceptable to Green Hills, Commissioner Tomblin asked Ms. Berkowitz if she was saying that she and the Board had two weeks to consider a very important item that was coming before the Commission, and they had no discussion on this item and she came unprepared to address this issue of the Variance. Ms. Berkowitz answered that Green Hills is still evaluating what they want to do with respect to the Variance. Commissioner Tomblin stated that in the meantime Green Hills continues to break the current CUP and have burials within that setback. Ms. Berkowitz stated that Green Hills does not think they are breaking the current CUP. She acknowledged there are problems with the ground burials within the sixteen-foot setback, but in connection with the mausoleum she did not believe they were breaking the condition of the CUP. She stated Green Hills is continuing to consider whether or not to apply for a Variance, noting that as stated in her letter they do not think the Variance is necessary. Commissioner Gerstner suggested that if the Commission continues with its position that a Variance application be submitted, ninety days be changed to something significantly less. City Attorney Lynch noted that when the motion was made before it was to establish a time limit in which Green Hills could apply and staff suggested 90 days. However, if the Commission doesn't think that's appropriate and wants to come up with another time period they can always give staff that direction. Commissioner Tomblin suggested language that if Green Hills fails to apply for the Variance in the allotted time period and the Commission has to make the application, that at that time the Commission direct staff to set a public hearing for the revocation of the CUP. Planning Commission Minutes August 26,2014 Page 12 Commissioner Gerstner agreed there needs to be a consequence, however he felt this suggestion might be good someplace else. He suggested that if Green Hills inters someone in an area that they now know is not allowed by the CUP, that would trigger revocation of the CUP, Commissioner Tomblin supported that suggestion. Chairman Leon felt that staff should be working with Green Hills on a plot by plot basis to remedy this situation as opposed to looking at this as an overall picture. He encouraged the applicant to work with staff on this and come back with a very precise Variance application for individual plots. Commissioner James felt that some of the confusion may be that what was before the Commission previously was discussion regarding the need for a variance application with respect to the mausoleum. However, tonight's discussion has also included the new issue with respect to the northwest area. He recalled that when the motion was made at the last meeting it did not include the northwest area, and it was not anticipated that would be included in the current Resolution before the Commission. He felt that since the Commission is conducting an operational review, this issue is appropriately before the Commission, however he was not sure that the Commission has received public testimony on this subject. While he agreed with Commissioner Tomblin that it was unacceptable for Green Hills to state they will violate their CUP, he did not think this has anything to do with the Resolution that is currently before the Commission that should be the topic of discussion. Commissioner Gerstner suggested one of two things can happen, he can make a motion to strip everything out of the current Resolution except for the Variance discussion, or he can make a motion to create a new Resolution for the Commission to consider at the next meeting that addresses the Variance. Chairman Leon stated that he would like to see the items together on one Resolution, noting he will not be at the next Planning Commission meeting. Commissioner Tomblin noted that he will not be at the next meeting, and he would like to be a part of this decision. Commissioner Gerstner felt that modifying the existing Resolution may be extensive enough that staff will have to rewrite the Resolution and bring it back to the Commission on the Consent Calendar. Commissioner James asked if it would be acceptable to hear the variance item in four weeks when all the Commissioners are present, rather than, two weeks, and pass some of the items tonight at this meeting. Planning Commission Minutes August 26,2014 Page 13 City Attorney Lynch replied that the variance issue could be heard in four weeks, which would give staff time to send out the public notice. She reminded the Commission that tonight's discussion is to be limited to the conditions in the current Resolution. Commissioner Gerstner felt that, based on tonight's discussion, the modifications the Commission has talked about making to the Resolution may go beyond what was specifically discussed in the last meeting. He felt that including the possibility of the Commission initiating the Variance, as well as a trigger to invalidate the CUP if Green Hills were to intentionally violate the CUP in regards to the sixteen foot internments in the northwest corner may not be proper to include in this Resolution since it was not discussed at the previous meeting. City Attorney Lynch agreed. Acting City Manager Petru noted that two meetings from tonight's meeting would be September 23ro, Ms. Berkowitz noted that neither she nor her client will be available on September 23rd Commissioner James stated the meeting after September 23rd would be October 14th. Commissioner Tomblin stated he supports the extension, but asked the City Attorney what the City will do if Green Hills buries a person in violation of the Conditional Use Permit. City Attorney Lynch answered the City can then consider revocation proceedings or going to court to get an injunction to prevent Green Hills from continuing to inter people in violation of the CUP. Ms. Berkowitz stated, in response to Chairman Leon's request, that Green Hills will be happy to come back with a plot by plot analysis of who is buried at the site and whether there are double plots. Commissioner Gerstner suggested that the Commission could also have a special meeting to hear just the Green Hills item. He explained that he doesn't want to wait too long because he wants to have these items and issues addressed before more families and more people are potentially harmed by these actions. City Attorney Lynch did not think that would be a problem, but reminded the Commission that it has to be at least fifteen days out in order to properly notice the meeting. A discussion followed on what date the meeting could be held, as various Commissioners and members of the Green Hills Board will be out of town. Planning Commission Minutes August 26,2014 Page 14 John Resich explained that he will be out of town from September 21st through October 6th or 7th. Commissioner Tomblin asked Mr. Resich, as a member of the Green Hills Board, if Green Hills will or will not comply to the direction of the CUP as it currently stands, and will they continue to violate the conditions of the CUP by burying people in those spots, Mr. Resich answered that Green Hills will comply with all Federal and State Laws that are applicable to Green Hills. He stated Green Hills will not knowingly violate any laws. He stated there are many issues that the Commission is not aware of that Green Hills will comply with and have complied with. Commissioner Tomblin stated that with that, Mr. Resich has said as a member of the Board, Green Hills will continue to violate their CUP. Mr. Resich stated that is not what he said. He repeated that Green Hills will not knowingly violate any rules or regulations. Ms. Berkowitz noted that she does not have a majority of the Board present, however she stated she has a proposal she would like to put forward. She noted that she would have to get concurrence with the majority of the Board first, but thought it was worth bringing up now. She stated that Green Hills recognizes there are internments in the setback in the northwest corner, She stated Green Hills did not knowingly or intentionally place them there in violation of the setbacks. However, so that there is not a problem in the future, she suggested that Green Hills be allowed to do an inventory as the Chairman suggested to see how many people are family members, how many are spouses, and who might have a particular situation that Green Hills may need to request permission to bury there. Green Hills will also evaluate who else has purchased plots in this area and see if they can be persuaded to be moved. She did not think it would take much time to do this inventory and inform the city of the results. Commissioner Tomblin appreciated the offer, however he felt that the Board of Directors of Green Hills have unfortunately directed Ms. Berkowitz to put in writing to violate the code. Ms. Berkowitz understood and clarified that Green Hills was asking to do the inventory and to come back to the City seeking permission for those family members who already have family interred in this area, that other people in the family be allowed to be buried there with their family members. She stated Green Hills would not intentionally inter people in this area without getting approval. Commissioner Gerstner reviewed that this item was pulled off of the Consent Calendar to only discuss the Resolution and its consistency with the Commission's previous motion and direction to staff. He felt the Resolution was lacking in several places relative to that. Specifically, he noted the Variance process and what he thought he had said in the motion was reflected a bit differently in the Resolution. Second, he noted the Planning Commission Minutes August 26,2014 Page 15 language in the Resolution which said to allow below ground internments in the northwest corner of the cemetery encroach into the sixteen-foot setback. He did not think that was ever part of the previous motion and this Resolution should not contain such language. Third, he recalled the Commission had discussed operational issues and had directed staff to analyze the operational issues and report back to the Commission. However, what is in the Resolution is that if there are any violations of operational issues they will be dealt with through code enforcement. Given these three deviations, Commissioner Gerstner moved to continue this item to the September 23, 2014 meeting. In addition, given the discussions held this evening and in recent letters it is apparent there is new information that should be considered relative to these issues and a new public hearing should be noticed and opened to have these discussions, seconded by Vice Chairman Nelson. Commissioner Tomblin stated he supported the September 23rd date and felt it was unfortunate that the Green Hills Board may be on vacation on September 231d , but they are Board members and have a fiduciary responsibility to Green Hills to handle business. He felt that if the Board members felt the issue was that important, they may have to make some changes in their schedules. Commissioner James disagreed, noting this is a matter that may have originated over seven years ago. He did not think it was necessary to find a resolution in two weeks as opposed to three weeks. However, he would be uncomfortable with just continuing the entire matter with no conditions put in place. He noted that in the discussions there are things Green Hills is willing to do with respect to burials in this area. He stated that he supported the continuance to October 14th to allow the City's internal investigation to conclude and to give Green Hills time to consider whether or not they will submit the Variance application. In addition, it will give ample time to notice the public hearing. Commissioner James made a friendly amendment to the motion to continue the hearing to October 14, 2014 and to approve some of the conditions to be put into place before the October 14th hearing. Commissioner Gerstner accepted the friendly amendment to continue the hearing to October 14, 2014. However, he did not think the Commission could consider new items and new information relative to the Commission's review of the Resolution. He felt all the Commission could do at this meeting in regards to the Resolution was to either,say the Resolution was correct or it is not correct and how is not correct. Chairman Leon suggested there are conditions within this Resolution that could be reviewed and adopted at this meeting, Director Rojas reviewed that this Resolution was supposed to be a reflection of the motion made at the Commission's previous meeting. The question is whether the Commission can bifurcate the motions made at the last meeting into two items where Planning Commission Minutes August 26,2014 Page 15 the Commission deals with the operational aspects of the Resolution at tonight's meeting while directing staff to renotice a public hearing to October 14th to continue the discussion of the Variance and other issues that been brought forward. He asked the City Attorney for her opinion, City Attorney Lynch suggested this item be put on the Consent Calendar at the next meeting to focus on the operating conditions and have the remaining discussion noticed for the October 14th meeting. Commissioner James explained that what he envisioned was keeping in Section 3 with the four amendments suggested by staff. He suggested taking out Sections 4, 5, and 6. He added that the only condition that might bear some discussion in Section 3 was the third bullet point on page 9. He noted a speaker tonight had stated Vista Verde residents do not want a six-foot tall temporary wall at the site. Vice Chairman Nelson felt there was a minor conflict in the language in that the language on page 17 says pre-service burial and plot preparation and post-service plot backfilling to take place between 10:00 and 3:00 and burials are to take place between 10:00 and 3:00. He felt the pre-service preparation should take place two hours before the actual service. He then discussed Condition K on page 17 regarding the minimum six-foot tall temporary fence. He noted that there may be instances where the wall is put up at 8:00 a.m. for a 10:00 service and stays up for an upcoming service at 2:00. The wall is not removed until 4.00. Now the residents have had a six-foot wall erected in front of their homes for the entire day, which is not what he thought the Commission had intended. He stated he would vote to remove Condition K. Commissioner Gerstner did not disagree, however he did not think that was part of the discussion that the Commission could have this evening regarding the Resolution. City Attorney Lynch suggested that this is a good reason to continue the entire issue to the public hearing on October 14th. She noted the Commission has heard from one resident and didn't know if other residents may feel differently or not. Commissioner James withdrew is friendly amendment and made a new friendly amendment to continue the public hearing to October 14, 2014. Commissioner Gerstner accepted the friendly amendment. Chairman Leon made a friendly amendment to continue the public hearing to October 28th rather than October 14th. Commissioner Gerstner accepted the friendly amendment to continue the public hearing to October 28th. Commissioner Tomblin was in favor of continuing the public hearing to October 281h. Planning Commission Minutes August 26,2014 Page 17 Commissioner Gerstner asked the City Attorney if she intended to send any correspondence to Green Hills relative to the comments submitted by Green Hills in the past week. City Attorney Lynch stated that she will be sending a letter to Green Hills admonishing them in regards to their obligations to comply with their existing Conditional Use Permit, Commissioner Tomblin asked the City Attorney what type of code enforcement actions will be taken in Green Hills fails to comply. City Attorney Lynch stated there are various options that could occur, one being civil injunction proceedings or possible criminal proceedings, another being the commencement of revocation proceedings. Commissioner Tomblin asked if there are provisions to corrections once they have been put on notice they are in violation. City Attorney Lynch answered that Green Hills would have the opportunity to correct the violations. The motion to continue the public hearing to October 28, 2014 was approved, (7- 0). Commissioner James commented that the Commission has heard extensive testimony from residents who are opposed to what has happened at Green Hills. He did not think those people will be very happy if they felt the Commission had just continued the public hearing for months with absolutely no restrictions on Green Hills. He therefore encouraged Green Hills to do their absolute best to comply with their operational conditions. Commissioner Gerstner hoped Green Hills would also apply for the Variance during this time. PUBLIC HEARINGS 2. Height Variation, Grading Permit & Site Plan Review (Case No,. ZON2014- 00064): 6321 Villa Rosa Drive Associate Planner Mikhail presented the staff report, noting this case has been before the Commission several times, noting the last public hearing was August 12th. She stated no changes have been made to the project since that time. She briefly discussed the background of the project and the changes that have been made. These changes include the reduction of the square footage, reduction in height, increased setbacks, reduction of privacy impacts, and reduction in individual and cumulative view impairment to a less than significant level. She pointed out corrections to the Resolution, which were included in the late correspondence. She stated that staff is Planning Commission Minutes August 25,2014 Page 18 recommending the Commission review the project, and if it addresses the Commission's concerns relayed at the previous public hearing, to adopt the Resolution thereby approving the project, Sam Hassan stated this project was modified several times in order to meet all of the neighbors' concerns and the Planning Commission's comments. He stated he has done everything that staff and the Commission have asked him to do. He felt the proposed addition causes no, significant view impacts and no unreasonable privacy impacts. He asked that the Commission approve his project. Arlen Osborne (6343 Villa Rosa) stated he supports the project, and was in favor of the revisions. William Sheh (6315 Villa Rosa) stated the City was founded on the principle of preserving the semi-rural character of the peninsula. As such, the residents try to enjoy the light, air, and open spaces. He stated the Los Verdes Hills neighborhood is a made up of predominately single story ranch homes of approximately 1,900 square feet, built in the early 1960s. He stated that over time there have been a few second story homes that have popped up, but not many. He noted these two-story additions were built before the passage of Measure M, which was voted on to stop such developments. He appreciated the efforts of Mr. Hassan in reducing the size of the home, however he felt the home will still be out of character with the single-story ranch home neighborhood. He felt the bulk and mass will make the house stick out, as it is at the apex of the curve of the street, on the high side of the street. He felt there still remains cumulative view issues and some privacy issues to be concerned with. He asked the Commission listen to the neighbor's concerns and take these concerns into consideration. Evelyn Kohler 07925 Alvarez Drive) stated her house is at a higher elevation and she has enjoyed panoramic views of the ocean and the mountains. However, she felt the applicant's project infringers upon those views. She realized this is in conflict with the staff report, however she noted if the houses directly below her on Villa Rosa were also permitted to have a second story addition that would take away her view. She stated she bought a home with a panoramic view, and Measure M should protect that view. Jim Kohler stated he shared the neighborhood concerns with this project's bulk and mass, view impairments, and privacy issues. He was most concerned with the cumulative impacts if projects such as this are approved. He noted the applicant is not just asking the Commission to approve a remodel, he is asking the Commission to approve exceptions to the Code. He felt that every time an exception is granted it makes it that much more difficult to deny the next request. He felt that approval of this project and subsequent projects will enable the creation of the very environment that Measure M was voted in to prevent. He asked the Commission deny this request. Julie Rice stated there is one full two-story home in the neighborhood and the others are garage pop-ups. She felt that if this project is approved as staff recommends, the ramifications are unmistakable for the community. She felt it will be an open invitation Planning Commission Minutes August 26,2014 Page 19 to mansionize the community. She felt this was the reason Proposition M was passed. She questioned why someone would build a five bedroom, multi-bathroom, walk-in closets, two-story home on such a small lot. She asked the Commission to consider what the community will look like in five years if this project is approved. She asked the Commission to deny the project. Adele Fortune (6334 Rio Linda) stated when looking for her home her number one requirement was an ocean view. Her home has a view of the Santa Monica Bay, Malibu, and out to Santa Cruz Island, If the proposed remodel is approved, she felt it will impair the view of several houses and will set a precedent to make it much easier for future applicants to be approved, even if they impair ocean views. She requested the Commission deny the project and ask Mr. Hassan to respect his neighbors' views. Steve Nash (6334 Rio Linda) stated he wants to preserve the character of the neighborhood, and Measure M attempted to do this. He read sections from Measure M discussing the purpose of the Measure and the overwhelming support it received. He asked the Commission save the neighborhood views, reject mansionization, and protect the characteristics of the neighborhood. Akemich! Yamada (6320 Rio Linda) showed a photo that was taken from his property showing the location of three proposed windows that will look directly into his property. He stated the loss of privacy will make his house less attractive and will reduce the value. He noted that any two-story design will have upper floor windows that will look onto his property, creating privacy problems. He suggested a single-story home or a split-level design, which would eliminate the privacy concerns. He stated the sloped Villa Rosa street seems ideal for digging from the lower side of the street. He noted a split-level will eliminate problems of bulky appearance, blocking views, and infringing on privacy. He asked the Commission to encourage the applicant to use a split-level approach. Mary Beth Corrado (6309 Villa Rosa) stated she still has significant concerns with neighborhood compatibility, reminding the Commission this will still be the second largest home on the street and on the smallest lot. She did not think the home will be compatible with any home on the street. She noted the two pop-ups are still predominately a ranch style home with a pop-up over the garage. She felt this proposed home will set precedence and will end twenty-five years of neighborhood stability. She felt this will open the flood gates for all kinds of additional, similar applications. She noted that 47 citizens have signed a petition identifying their concerns with compatibility size, privacy, and views, and over 68 letters have been submitted to the City voicing these concerns. She noted 14 citizens have spoken against the project at both the May 27th and July 8th Planning Commission meetings. She stated the residents of the area are committed to maintaining their open single story ranch environment while supporting compatible modernization and improvement efforts of new and current residents, Planning Commission Minutes August 26,2014 Page 20 Jeff Lewis stated his law firm is representing several of the homeowners opposing this project. He handed out a version of staff's neighborhood compatibility analysis, explaining the original analysis shows the smallest lot size at 7,015 square feet. He noted the proposal is to build the '19th biggest structure, which exceeds the average by 1,400 square feet and also exceeds the size of two of the three existing two-story homes. He felt what the Commission is deciding is whether or not this entire street will now be comprised of two-story structures. He felt this is why Prop M was passed and why there is neighborhood compatibility. He stated this City does not approve or reject projects based on a popular vote or lynch mob mentality. Rather, the Commission is supposed to use their experience to decide whether or not this project is in scale or in step with the preexisting houses. He felt this project is too massive, too intrusive, and results in serious privacy and view impacts. He stated that in dealing with neighborhood compatibility scale, square footage, and two-story homes are all explicitly listed as factors in the Municipal Code. Lastly, he noted the applicant's discussion on the big reduction he has made in the square footage of the home. He felt this big reduction speaks more about the unreasonableness of the first proposal than any true concession that has been made. He stated there is nothing in the findings that says when the applicant proposes something outrageous and then proposes concessions, that the Commission should take that into account as part of the neighborhood compatibility process. He asked the Commission to deny the application. Commissioner Emenhiser asked Mr. Lewis what he felt the solution to this problem was. Mr. Lewis answered that there are many areas in the City where a five bedroom massive residence would be welcome. He also felt the split-level approach would work. Lastly, he noted that he did not think it was the Commission's job to tinker with or suggest to an applicant what he can do to change his application. He noted most of the Commissioners are not design professionals and should not be advising an applicant on how best to present their project. He stated the Commission should be determining whether or not a project presented to the Commission is compatible or not. Vice Chairman Nelson noted that this neighborhood is made up of homes built in the 1960s and many desperately call for modernization. He asked why he would not call this a project to modernize a home. Mr. Lewis answered that this is a proposed two-story home and in this particular neighborhood it's too much too fast. He noted that no Commissioner was appointed to put too big of a house on too small of a lot. Commissioner Tomblin asked Mr. Lewis if he has had any discussion with his clients in regards to a split-level home design rather than a two-story home, Mr. Lewis stated he was only recently retained and has not had the opportunity to fully reach out to the applicant on this project. Planning Commission Minutes August 26,2014 Page 21 Chairman Leon felt neighborhood compatibility is an interesting concept, stating that neighborhoods often wish to upgrade and have larger houses. He asked Mr. Lewis how the Planning Commission can be arbiters of a neighborhood that wants to upgrade versus maintaining a status quo where a significant number of neighbors want to improve the neighborhood. Mr. Lewis understood, however he noted in this instance a split-level design, a single story design, or even a more modest second floor design would still achieve the objective of modernization without going to the extreme that is currently proposed. Kevin Hamilton (6309 Villa Rosa) stated he disagrees with staff finding Nos. 6 and 8 and therefore recommended denial of the project. He stated the size of the structure is still grossly too large, the style of the structure is not in character with a neighborhood dominated by single story ranch homes, the structure limits the openness from neighboring properties and the neighborhood streetscape, the structure still invades the privacy of neighbors, and there will be significant cumulative view impairment. He stated this decision will set a precedence not only for this neighborhood, but for Rancho Palos Verdes. He felt that allowing this structure will open the floodgates to a non-conforming mishmash of one and two-story homes. Vincent Liu (6320 Villa Rosa) stated he was opposed to the revised remodel. He stated there is an old saying that says don't do to others what you don't want done to you. He showed a photo of the silhouette and how there will be a direct view from three windows looking down onto his property. With that he urged the Commissioners, before they make their decision, to look at the pictures taken from his property and assume they are the owner. They should ask themselves how much privacy and money it would take away from them if the Planning Commission approved this project. Sam Glenn (6308 Rio Linda) stated modernization, by definition, does not mean building a two-story home. Modernization can be adding square footage to a single- story residence. He noted homes in the neighborhood that have done just that, He stated this is a single-story neighborhood and this is really the first time a two-story addition has been applied for under the criteria that is in place today. He agreed that if this were the only two-story home going into the neighborhood it probably wouldn't make a difference, however this will set the precedence for other two-story homes to be built. He did not think this proposed addition meets the criteria for neighborhood compatibility and urged the Commission to deny the project. Ray Nuber (27919 Alvarez Dr) felt the modifications the applicant has made are moving the project in the right direction. However, he did not agree with staffs recommendation to approve the project. He particularly did not agree with staff's conclusion that there will not be a significant cumulative view impact. He showed several photos taken from his rear yard demonstrating how, if the single story homes behind his house were to add a second story, his ocean view would be obliterated. He also did not agree with staffs conclusion that these plans are acceptable in terms of neighborhood compatibility. He questioned why staffs position had changed relative to the previous report, given the Planning Commission Minutes August 26,2014 Page 22 significant change in the plans is that the height has been reduced by one foot. He asked the Planning Commission if they felt this change addresses the concerns that motivated the Commission to not approve the version shown in the previous plans. He recommended the applicant build out rather than up, as he felt this would address the neighbor's concerns with compatibility, bulk and mass, privacy, and view impacts. At the same time it would give the applicant the square footage they have said is the objective of the project. He reiterated that no multi-story modification has been approved in this neighborhood since Proposition M was adopted. He recommended the Planning Commission reject this application. Sam Hassan (in rebuttal) stated he has respect for all of his neighbors and he has followed all of the City guidelines in everything he has done. He disagreed with the comments regarding cumulative view impacts. In regards to privacy and the window, noting the window was 60x6O and has been reduced to 48x48. If this is the only privacy issue, he stated he would put in a tree in front of the window so that he could not see anything. In regards to a split level, he stated he would not demolish his house, and did not have the budget to do a split level. He did not think a split level would help him and would not work. He stated he is not blocking anybody's view and he is not intruding on anyone's privacy. Commissioner Tomblin referred to the rear elevation and asked Mr. Hassan to clarify what rooms the three upper floor windows were located in. Mr. Hassan noted one window will be in a closet, one in a bathroom, and the other is a 48x48 window, He noted he wanted to plant trees along the rear of the house. Commissioner Tomblin asked if any of the windows were opaque. Mr. Hassan answered that the windows can be opaque. Chairman Leon closed the public hearing. Vice Chairman Nelson moved to approve staffs recommendation, seconded by Commissioner Cruikshank. Commissioner Tomblin asked staff to address cumulative view, noting that each application is looked at individually and that a view obstruction on the higher pad could be a reason to deny the proposed project. Associate Planner Mikhail explained that because of the changes in elevation along the street, if there is a property that is built at sixteen feet it could potentially obstruct views even though it is at the by-right height of sixteen feet. She briefly explained how staff performs a cumulative view analysis. She showed the original design of this project, which appeared to be a large mass in its elevations. She noted the current design, pointing out how the mass has been reduced. Planning Commission Minutes August 26,2014 Page 23 Commissioner Gerstner looked at a photo taken from 27925 Alvarez Drive, and noted that if the neighbor of the applicant were to build a second story addition at the same height as the one proposed on the applicant's property, because of the elevation changes on the street it would appear five feet higher from the home on Alvarez Drive and put it into the horizon line. He asked staff if this is not cumulative view impairment. Associate Planner Mikhail stated that, as the applicant's addition is currently designed, staff feels the cumulative view impact has been reduced to a less than significant level. Commissioner Emenhiser asked staff if they had an example of a neighborhood where several homes in a row have added a second story addition and caused a cumulative view impact. Associate Planner Mikhail answered that all homes constructing a second story addition at one time does not typically occur. Director Rojas added that this is a unique finding, as it is based on something that may or may not happen in the future. Commissioner Emenhiser commented that he has had mixed feelings about this project for awhile, and he has not been sold on the argument this application will set a second story precedence in the neighborhood. He also has not been sold on the cumulative view impact because it may or may not happen at some point in the future. He stated that what he has been sold on is the fact that, even with the redesign, this will be the second largest home on the second smallest lot. That, combined with the fact that there has been opposition to the proposed project from the majority of the neighborhood is leading him to oppose the project. Vice Chairman Nelson explained the reason he put out the motion to approve this project is because the homeowner has done everything that this Commission has asked. He stated that all the owner has to do to eliminate the privacy concern is plant sixteen foot high trees in the backyard, and the neighbor will not be able to look at his house. He also doubted that approving this project will then prompt a flood of two-story additions in the neighborhood. He respected this neighborhood and its ranch style homes, however he felt a homeowner has the right to develop his property for his family. Chairman Leon felt there is another way to look at neighborhood compatibility, and what it comes down to is if everybody puts up a 3,800 square foot house in this neighborhood, would it change the character of the neighborhood. He stated the character of the neighborhood in this case is relatively modest, ranch style houses. If they all get remodeled and look like this house, is the neighborhood going to be the same neighborhood. He felt that it will not be the same neighborhood if it is developed to that degree of intensity. He referred to Manhattan Beach and Redondo Beach where they have done exactly that, and it didn't take very long. He appreciated what the applicant has done with the design, as the design is significantly better than it was when Planning Commission Minutes August 26,2014 Page 24 it was first submitted. However, he still did not believe this design to be compatible with this particular neighborhood, and this design alters the sense of this neighborhood. Commissioner Emenhiser asked staff, if the Commission were to deny the project and it was appealed to the City Council, could the Commission include in the motion that the appeal fees will be reduced or waived. Director Rojas answered that only the City Council can waive fees. Therefore, whoever appeals the decision must pay the appeal fee, however they can submit a fee waiver request to the City Council and there are specific findings the City Council must make in order to grant that fee waiver. He noted that if they prevail in their appeal their fee is refunded. In regards to privacy, Commissioner Cruikshank asked staff if there is a way in which windows overlooking a rear property can be conditioned so that some vegetation must be planted for privacy concerns. Director Rojas explained privacy is one of the easier impacts to mitigate, however using vegetation is usually a last resort, as it has to be maintained at a certain height and can be changed or removed. Staff prefers to mitigate privacy concerns with window design using opaque windows or some other similar method, Commissioner Cruikshank explained that in looking at the redesigned project he did not see an issue in regards to views or bulk and mass, however he was concerned with the privacy issue. He was very concerned that these second story windows look directly into the house and yard of the neighbor. However, if conditions were added to address the issue he may then be able to support the project. The motion to approve the project as recommended by staff failed, (3-4) with Commissioners James, Emenhiser, Gerstner, and Chairman Leon dissenting. Commissioner Emenhiser moved to deny the project without prejudice, seconded by Commissioner Tomblin. Director Rojas clarified that if the motion to deny the project passes, staff will prepare the Resolution for the next meeting's Consent Calendar. The motion to deny the project without prejudice was approved, (6-1) with Vice Chairman Nelson dissenting. Commissioner Emenhiser moved to recommend to the City Council, assuming the applicant appeals this decision, that the appeal fees be waived, seconded by Chairman Leon. Commissioner James commented that the applicant has done everything that the Commission has asked him to do at the last several hearings, and it certainly wasn't for Planning Commission Minutes August 26,2014 Page 25 want of trying on the applicant's part that this project is being denied by the Commission. Therefore, he would vote in favor of the motion. Director Rojas noted that, notwithstanding the Planning Commission's recommendation, this is not one of the findings indicated in the Code that the City Council has to make in order to grant a fee waiver. The motion was approved, (6-1) with Commissioner Gerstner dissenting. I The Terraces Master Sign Program Amendment(Case No. ZON2014-00144I:. 28901 Western Avenue Director Rojas presented the staff report, noting how the new owners of the Terraces Shopping Center are proposing changes to the Center's approved sign program. He summarized the proposed changes, as noted in the staff report. Commissioner Emenhiser noted the applicant is proposing sixty seconds on the LED lights, while staff is proposing that the LED images not change for five minutes. He asked staff what the middle ground might be. He explained that he would like to be sympathetic to an important business in the City and to allow as much as possible without bending the current rules. Director Rojas agreed, explaining staff's approach was to not completely deny the proposed LED signs, but try to make them work with the current code. He explained that staff recognized some of these signs might create a negative reaction from residents because of the flashing. Staff felt that it's open as to what the Commission might feel is an appropriate duration of an image before it changes and that would not be considered a moving sign or have an adverse impact to homes that may see the flashing, Commissioner Emenhiser asked if there were any homes in this area, as he thought it was commercial on both sides of the street. Director Rojas answered there are condominiums just north of the Center. Commissioner Cruikshank stated he frequently drives on Western Avenue and did not think having something that is distracting or changing is a good idea. However, he noted that sometimes you really have to watch these signs to see them change, as they could be quite subtle. He asked staff to clarify the LED signs. Director Rojas felt the applicant could better clarify the location of the signs, however he explained staff's approach was that whatever image was on the sign not change and stay in place for at least five minutes before it changes. Commissioner Tomblin stated he agreed with the staff's recommendations with the exception of the LED signs. He explained that there tend to be a lot of issues with LED Planning Cornmisslon Minutes August 26,2014 Page 26 signs. In addition, he did not want to set precedence with allowing LED signs at this shopping center. He suggested withdrawing this part of the application so that the Commission could approve the remainder of the application, and bring the LED section back at a later meeting. In regards to the LED signs, Chairman Leon asked staff if there were any type of restrictions in terms of lumens or light associated with these signs, such as how bright the sign may be. Director Rojas answered that staff did not do research on this, adding that other cities have added brightness limits to signs, and that may be something staff can explore. Chairman Leon felt it was important to know how often and how quickly the sign changes so that it does not appear to be a bright blinking sign. Chairman Leon opened the public hearing. Scott Kend (applicant) explained Combined Properties is an institutional owner of retail shopping centers throughout the County and in addition to this shopping center they own forty two other shopping centers. With respect to the LED sign, he clarified this is not definitely something they wished to pursue, but rather to have the option to do so. He explained that if they were to proceed in that direction, it would not be full motion video, but rather more like a slide show. He stated that if the Commission would like to propose a condition that the actual transition needs to be delayed over a five second period, he would be amenable to that. He stated he was available to answer any questions. Commissioner Tomblin referred to Mr. Kend's options on the cinema signs, explaining he would opt to approve everything including option 8 and not approve option A, with the idea that later on a proposal could be made to bring this particular issue back to the Commission for review at another hearing. He asked Mr. Kend if he would agree to such a proposal. Mr. Kend asked Commissioner Tomblin what concerns he had. Commissioner Tomblin explained he had concerns with the lighting and light pollution. Commissioner Gerstner added that LED signs can be very bright and this is not something the Commission has ever considered in this City. He explained that his was open to some type of sign that does more than a letter board sign, however he was concerned with the level of brightness. He felt that if that could be addressed, the Commission could review this at a later date. Commissioner Emenhiser agreed with Commissioner Gerstner and Commissioner Tomblin's concerns. Planning Connmission Minutes August 26,2014 Page 27 Vice Chairman Nelson also shared the concerns in regards to the LED, however he was confident that there was a way to reduce the illumination and brightness. Commissioner Cruikshank agreed that this is a very good sign program and that it will be a huge improvement to the center. He noted that in driving around the center he saw several businesses with window signs covering their windows and banners throughout the center. He asked if there were conditions included that regulate window signs and banners, Director Rojas did not think there was a condition in the sign program that regulated window signs or banners, however he noted that the Code regulates window signs. He stated staff will talk with the applicant to see how the center can be brought to code in regards to these signs. Commissioner Cruikshank felt that conditions would not be needed if it is already covered in the Code. He also stated that the City does not have the staff to enforce all of these rules, and assumed the management company would be the ones enforcing these rules in regards to the signs, Mr. Fend acknowledged the management company would enforce the sign program. He added that many of the tenants feel the current signage is inferior and they don't have adequate signage. He felt that the tenants will make the argument that if the main pylon signage is fixed and improved they won't need to have the window signs and banners. Commissioner James noted on the plans that the two pylons located near the road appear to be proposed six feet higher than the current pylon. He also noted they are proposed to be illuminated, and asked if there are hours these illuminated signs will be turned off. Mr. Kend showed drawings of the current pylon signs and the proposed pylon signs. He noted he was proposing a 31 foot tall sign as opposed to the current 25 foot tall sign. He also noted the proposed sign is narrower than the current sign, so the overall square footage of the sign will be reduced. He explained that the geometry of the center, with the tremendous amount of frontage on Western Avenue, punctuating the horizontal elements with these vertical elements will create a more elegant and less obtrusive look to the shopping center. He stated that the light from these signs is intended to be a soft glow at night. He explained that the lights currently at the shopping center operate 24 hours per day. In addition, he explained the overall aesthetic they are trying to achieve is to reduce the signage by taking what is there and making it more powerful and give it more effect. He stated one of the ways to do that is by having better visibility on the pylons. Commissioner Gerstner asked if the applicant would be willing to have a condition that says all of the drivers in the lighting would be dimmable and that in cooperation with the Pianning Commission Minutes August 26,2014 Page 28 City they would agree to adjust the levels of illumination to a level that is agreeable to the Community Development Director. Mr. Kend noted that condition is already included in the conditions of approval. Commissioner Gerstner noted that there is a difference between asking the signs be dimmed and the signs being dimmable. Mr. Kend stated there will be a dimmer switch installed, and the lighting can be dimmed. Director Rojas stated condition No. 18 can be modified that the lighting in the signs can be dimmed. He also pointed out that for the tower signs there is wording in the condition that there be soft lighting, and that wording can be added to the condition regarding pylon signs. He noted that condition No. 27 requires a six-month review before the Planning Commission of all of the signage. Chairman Leon closed the public hearing. Commissioner Emenhiser moved to approve staff's recommendation, with option B rather than option A, seconded by Vice Chairman Nelson. Commissioner Gerstner moved to amend the motion to make the changes to the conditions of approval such that the lighting is dimmable and the soft lighting language for the tower signs also be incorporated into the language for the pylon signs, seconded by Vice Chairman Nelson. The motion was approved, and PC Resolution 2014-23 was approved, (7-0). APPROVAL OF MINUTES 4. July 8, 2014 Minutes The minutes were approved without objection, with Commissioner Cruikshank and Vice Chairman Nelson abstaining since they were absent from that meeting. S. July 22, 2014 Minutes The minutes were approved without objection. ITEMS TO BE PLACED ON FUTURE AGENDAS 6. Pre-Agenda for the meeting on September 9, 2014 The Commissioner reviewed and approved the pre-agenda. Planning Commission Minutes August 26,2014 Page 29 ADJOURNMENT The meeting was adjourned at 12,11 a.m. PWnning Commission Minutes August 26,2.014 Page 30