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PC MINS 20040727CITY OF RANCHO PALOS VERDES PLANNING COMMISSION MINUTES REGULAR MEETING JULY 27, 2004 CALL TO ORDER Approved August 10,2004 The meeting was called to order by Chairman Mueller at 7 00 p m at the Fred Hesse Community Room, 29301 Hawthorne Boulevard FLAG SALUTE Vice Chair Cote led the assembly in the Pledge of Allegiance ROLL CALL Present: Commissioners Gerstner, Karp, Knight, Tetreault, Vice Chair Cote, and Chairman Mueller Absent: Commissioner Van Wagner was excused Also present were Deputy Director Pfost, Associate Planner Blumenthal, Assistant Planner Yu, Project Coordinator Nelson, and Recording Secretary Peterson APPROVAL OF AGENDA Commissioner Karp moved to move Item No. 1 to the end of the Agenda, seconded by Commissioner Gerstner. Chairman Mueller noted that the Planning Commissioners were welcome to comment on the Agenda, however he felt it was the prerogative of the Chairman to set the agenda with input from the Commissioners He noted that this item has been continued twice and he wanted to get through the item at tonight's meeting, as it will most likely have to come back to the Planning Commission with the suggested revisions Commissioner Karp noted that there are three items on the agenda which may require a fairly lengthy discussion and there are people in the audience who may want to speak on these items He did not feel the people in the audience should have to sit and wait while the Planning Commission has their discussion on the View Restoration Guidelines Project Coordinator Nelson felt that the review of the Guidelines should not take too long, as the Planning Commission should be giving staff direction to either come back after the Commissioners have had a chance to review the changes and provide more substantive comments Commissioner Gerstner felt that if staff was giving a presentation on Item No. 1 and the discussion was brief he would like to see it done, however he noted there were several people in the audience waiting and he would rather deal with the business of the residents first. Vice Chair Cote stated that based on the staff member's comments she felt the Planning Commission could move through Item No 1 quickly and was optimistic that the members in the audience would not have to wait too long The motion to change the order of the Agenda failed, (3-3) with Commissioner Tetreault, Vice Chair Cote, and Chairman Mueller dissenting. COMMUNICATIONS Deputy Director Pfost reported that two items of correspondence regarding Agenda Item No. 4 had been distributed to the Planning Commission Commissioner Knight reported that he had received a phone call and e-mail from Sunshine regarding Agenda Item No 4 Commissioner Karp suggested staff look into the idea of e -mailing to the Planning Commissioners any late correspondence, rather than waiting to distribute it at the meeting Deputy Director Pfost stated that he would check with the Director. COMMENTS FROM THE AUDIENCE REGARDING NON -AGENDA ITEMS None CONTINUED BUSINESS 1 Review of the City's View Restoration Guidelines Project Coordinator Nelson presented the staff report explaining that Chairman Mueller had requested the Planning Commissioner review the View Restoration Guidelines to see if there were any minor modifications that may be added to the Guidelines to help streamline the process She gave a brief history of the Guidelines and the modifications that have been made over the years, stating that staff felt the current Guidelines were working quite well. She stated that staff was recommending any modifications made to the Guidelines remain minor at this time. Commissioner Karp stated that the Planning Commission has taken the position that the City does not enforce private contracts, however there is a section in the Guidelines that states that if work is not done the City will fine them, noting that this is a private contract between the foliage owner and the applicant He also commented that there was no Planning Commission Minutes July 27, 2004 Page 2 reason to send items registered mail and felt that certified mall is sufficient He suggested items be sent by FAX, keeping the transmittal report. Project Coordinator Nelson noted that there is nothing in the Guidelines that discusses private agreements, and the fines and penalties discussed have to do with existing restoration and preservation cases Vice Chair Cote noted that there was a section in the Guidelines where it is clear the City is encouraging residents to enter into private agreements and even states that staff will assist in the preparation of the private agreement and offers a sample of a private agreement She wondered if these types of statements should be made when at the same time the City does not want to get involved in private agreements. Project Coordinator Nelson agreed, however she noted that the City Council has given staff direction to facilitate the private agreements, as residents have not been able to formulate these private agreements on their own She noted however, that even if staff does assist in drafting the private agreement, the agreement is not something the City will enforce. Chairman Mueller felt there could be some type of disclaimer statement that could be added to the language and suggested staff research that with the City Attorney Commissioner Knight asked staff to clarify "evidence" as referred to in the Guidelines. Project Coordinator Nelson explained that "evidence" could mean several things and would be considered on a case-by-case basis, explaining it could be input from the City Geologist or City Arborist Commissioner Knight asked if staffs opinion could be considered as evidence Project Coordinator Nelson answered that in the past staff has relied on the technical information from the technical people and past experience from these people as evidence Commissioner Knight discussed insurance and felt the Guidelines were unclear in this area, as he did not know if the insurance provided by the contractor had to be acceptable to the foliage owner as well as the City Project Coordinator Nelson explained the City verifies that the contractor has insurance that will cover the City and the foliage owner's property Commissioner Karp felt the contractor's insurance policy should name the foliage owner as additional insured on their liability and worker's compensation insurance, noting that it will not cost the contractor any additional money to add that language to their insurance Planning Commission Minutes July 27, 2004 Page 3 Commissioner Knight stated that there is a definition of "viewing area" in the Guidelines which states that setback areas are excluded from viewing areas. He felt there were a lot of situations where, because of the arrangement of the backyard where there is a pool, the gathering area may actually be in the setback area, and the way the Guidelines are written there would be no way to address that Project Coordinator Nelson explained that in order to consider views from the setback area the definition of viewing area would have to be changed. She stated that if there were privacy issues the Planning Commission has the latitude to provide foliage if the finding can be made that privacy is an issue from the viewing area. She noted that greater weight is given to outdoor privacy versus indoor privacy She cautioned that the Guidelines have to be reasonable and not prevent anybody from walking on any piece of property and not see into anyone's backyard. She further explained that the staff report is staff's report as a technical arm to the Planning Commission of what staff believes is going on in the field, and the Planning Commission can discuss and make decisions based on what their perceptions are. Vice Chair Cote asked staff, since there is no longer a View Restoration Commission and the Planning Commission is now hearing these cases, to try to have the administrative procedures as aligned to the Planning Commission administrative procedures as possible. She also felt the Guidelines could be clearer regarding reference points on trir"nming Project Coordinator Nelson stated that defining a reference point in the Guidelines was difficult and may be clarified better in the staff reports Vice Chair Cote stated that she does not recommend changing the definition of a viewing area in the Guidelines, as this would have to go forward to the City Council for approval. She agreed that there is a lot of latitude in working with privacy issues and foliage Chairman Mueller discussed the replacement foliage and felt that over the years the latitude on the replacement has grown. He stated that he does not have problems providing replacement foliage, however he did not know how to trace the replacement foliage back to the Ordinance or Prop M He understood replacement foliage for reasons of public health and safety, privacy, and shade, however he noted other instances on page 20 of the Guidelines that he did know how to reference back to the Ordinance or Prop M. Project Coordinator Nelson answered that prior to the 1998 revision to the Guidelines the Commission was limited in when they could provide replacement foliage in situations where there were only privacy findings She did not think there was anything directly in Prop M and the additional discussion was to broaden the scope, and what was added to the Guidelines was in keeping with the intent of the Ordinance Planning Commission Minutes July 27, 2004 Page 4 Chairman Mueller stated that if there is nothing in the Guidelines or in Prop M that mentions these types of instances for replacement foliage, specifically d, e, and f on page 20 and he was hesitant to have them in the Guidelines. Commissioner Knight felt there were certain situations regarding (e) on page 20 where somebody has a landscaping plan where plants do need shade, and he would not like to be implementing a policy where shade plants could not be planted on a property Commissioner Tetreault understood the Chairman's intent, however he felt there were instances where residents planted their landscaping years before Prop M came about and if there is some modification to the replacement foliage requirements, there should also be some sort of grandfathering clause included Commissioner Knight noted that the Guidelines state that the Planning Commission "may" order replacement foliage, and that replacement foliage is not mandatory. Project Coordinator Nelson explained that the language only provides greater latitude to the Planning Commission to provide for replacement foliage if they felt the replacement foliage was necessary Chairman Mueller stated that (d), which addresses replacement foliage for energy efficiency of the home, was something that did not belong in these guidelines because it can be provided by other means. He felt that the person who directly benefits from the energy efficiency of the shade is the foliage owner and therefore the foliage owner should bear the cost of replacement foliage for that particular condition. He did not think it was the view owner's responsibility to provide shade to the foliage owner's home. Commissioner Knight disagreed, stating that in a situation where, when restoring a view, a major shade tree has been removed, there may be a direct impact on the comfort of the home as well as a financial impact if the foliage owner has to then invest in an air conditioner. Commissioner Gerstner felt that the items in the Guidelines are there to provide discretion to the Planning Commission when determining when replacement foliage can be ordered Therefore, he would like to have as much discretion as possible when determining whether or not replacement foliage should be given Chairman Mueller felt the Guidelines should be in line with Prop M and the Ordinance, otherwise there may be situations where residents can say the City is not enforcing what is in the Ordinance Vice Chair Cote moved that staff consider the various Commissioners' input and incorporate the appropriate changes into the Guidelines and continue the item to a future meeting, seconded by Commissioner Knight. Approved, (6-0) 2 Neighborhood Compatibility Code Amendment Planning Commission Minutes July 27, 2004 Page 5 Deputy Director Pfost presented a brief staff report explaining that staff and the City Attorney have not been able to work out all of the necessary issues on the Neighborhood Compatibility Code Amendment, and therefore staff was requesting a continuance of the item to the meeting of August 10th Commissioner Knight moved to continue the item to August 10, 2004, seconded by Commissioner Tetreault. (6-0) PUBLIC HEARINGS Height Variation Permit/Grading Permit (Case No ZON2002-00507) 4342 Admirable Drive Deputy Director Pfost presented a brief staff report, explaining that staff has identified some concerns to the applicant, and based upon those concerns the applicant has decided to look at redesigning the project, and has therefore requested a continuance to the August 10th meeting. Commissioner Gerstner moved to continue the public hearing to August 10, 2004, seconded by Vice Chair Cote. Continued, (6-0). RECESS AND RECONVENE At 8:25 p m. the Planning Commission took a short recess until 8:35 p.m. at which time they reconvened. PUBLIC HEARINGS (cont) 4 Appeal of Site Plan Review (Case ZON2003-00280): 5 Rockinghorse Road Assistant Planner Yu presented the staff report, explaining the proposed project and the reason for the appeal. She explained that staff reviewed the basis of the appeal and determined that the basis of the appeal is a civil matter between the two parties. Staff felt that the fence is an existing improvement on the easement and the fence could have existed prior to City incorporation, thus qualifying the fence for a non -conforming status. Furthermore, staff is of the opinion that the applicant has taken steps to address the appellants concerns, since portions of the fence have been removed and has removed a proposed 6 -inch curb from the plan. Therefore, staff is recommending the Planning Commission deny the appeal and uphold the Director's decision to approve the project. Commissioner Gerstner asked if there is anything new being proposed to be constructed in the easement Assistant Planner Yu answered there is nothing being proposed to be constructed in the easement, other than the driveway approach. Planning Commission Minutes July 27, 2004 Page 6 Commissioner Knight stated that there is still a fence at the property that has not been removed, and asked if it was going to be removed. Assistant Planner Yu showed photographs of the property, showing what fences have been removed and that the fence under the ivy that has not yet been removed. Commissioner Knight stated that he had an opportunity to review the Conceptual Trails Plan as well as the Administrative Procedures for Trail Implementation and wanted to make sure the Planning Commission was appropriately addressing the issue He asked staff why he did not see an analysis in the staff report regarding the easement and the implementation of trails. Assistant Planner Yu stated that at this time there is an easement on the property, however not for trails but for utility purposes She stated that it has been the City Attorney's opinion in previous applications that there is not a nexus to require the applicant to provide a trail easement as part of an application. Deputy Director Pfost explained that he agrees with the statement that in order for a trail to become a usable trail it must first be implemented, however it is a question of how the trail is implemented and whether or not, in this particular case, there is a nexus between the proposed addition and requiring a separate trail easement. He stated that it is staff's opinion that there is not a nexus in relationship to the addition of the project to require the owner to make those improvements to the trail or provide a separate trail easement Commissioner Knight stated that his concern was that he would have liked to have seen this explanation in the staff report or some analysis that he could have read before the meeting, and asked that this type of analysis be include in future staff reports when necessary Deputy Director Pfost agreed to include such an analysis in future staff reports when trail issues are involved. Vice Chair Cote asked if this particular case had been reviewed by the City Attorney to establish whether there was a nexus with this particular application in regards to establishing an easement for a trail Deputy Director Pfost clarified that this particular case was not reviewed by the City Attorney, however there have been other cases where the City Attorney has reviewed additions where there have been trail areas and whether or not to request an easement, based upon the addition to the house, and it has been the City Attorney's opinion that there is not a nexus related to that. Commissioner Gerstner discussed the fence and questioned why, on such a large addition to the house, staff was not taking the opportunity to make all non -conforming items on the property conforming. Planning Commission Minutes July 27, 2004 Page 7 Deputy Director Pfost stated that because there is no work being done to the fence the Code does not allow the City to require the fence be brought up to conformance, only those areas of the property that are being improved Commissioner Tetreault asked if the issue was that the existing fence under the ivy be removed or is there more to it than that, such as improvements to allow better use by non -automobiles Deputy Director Pfost answered that the appellant would have to answer that question, but felt that the appellant wanted the fence removed and additional improvements made. Commissioner Tetreault asked if these improvements were done would it then create an almost island affect and it would not be contiguous with improvements on other property easements. Deputy Director Pfost answered that was correct Commissioner Tetreault asked if the Planning Commission now has the ability to review the entire project, or if the review is confined to the appellant's issues Assistant Planner Yu answered that the Planning Commission may review the entire project. Chairman Mueller opened the public hearing. Sunshine read a prepared statement from the appellant Rose Marie Di Santo, 13 Cayuse Lane, who was not able to attend the meeting Ms Di Santo felt there were at least three reasons the Director should not have approved the Site Plan Review 1) The existing fence, built after 1984, is 48 inches high and is not in compliance with the Rancho Palos Verdes Municipal Code, and is in the front setback area She did not feel staff should have accepted the application without it including a request to bang the site into compliance 2) The documents submitted with the application are not clearly complete and do not provide full dimensions as required by the Development Code. 3) The site visit should have noted the wall and the ivy that has grown over the fence which is not accurately depicted on the plans. She noted that the Development Code specifically calls for reduced heights for fences, wall, and hedges when they are adjacent to streets She felt that staff should be following the codes in such a way that the purpose of the codes are upheld and enhanced She noted that General Plan Amendment No 22 says that trails should be improved in relation to property improvement She did not think staff should have accepted the application and by approving the application the Director has allowed the applicant to perpetuate damage to the easement holders interest in real property. She felt approval of the project should be conditioned upon the applicant clearing and keeping clear the unpaved area of the Planning Commission Minutes July 27, 2004 Page 8 road easement by removing all fences, vegetation, and anything else that interferes with the passage over this area Chairman Mueller asked if Ms Di Santo mentioned anything about the size of the project or the compatibility of the project in her written statement, and asked if the basis of the appeal was about the easements and the trails Sunshine answered that she did not recall Ms. Di Santo having issue of the size of the house or compatibility, but rather the easement and trail issues. She stated that the deed restriction that created the roadway easement is not just a private agreement. She felt that in pursuit of the City's goals of preserving an open appearance and non - motorized vehicle circulation, staff should have been searching for a way to encourage the applicant to remove the obstructions in what, except for a technicality, is a roadway frontage Robert Castelao 5 Rockinghorse Road (applicant) stated that he has removed the fence and has met with Sunshine at the property several times He stated that he does not want to remove the remaining fence and ivy just yet, as he is worried about erosion control during the construction phase, however he has indicated that he will remove the fence and ivy during the landscaping phase of the project. He suggested making it a condition of approval on the building permit that he not receive a final until the fence and ivy are removed. He referred to the deed for his property, and noted that the deeds refer to easements for utility purposes only and there is nothing referring to easements for trails He stated that he has removed the curb from his plan and has agreed to take the fence and ivy down, and therefore there should be no basis for the appeal Commissioner Knight tasked Mr. Castelao if staff had ever advised him of the Bronco Loop Trail along his property and that there is a conceptual trails plan and a trail along the street i 1 Mr Castelao answered that staff had mentioned there was a conceptual trails plan, however it is conceptual Vice Chair Cote asked Mr Castelao to clarify his position on what he is willing to do in regards to the fence Mr. Castelao explained that he has already removed part of the fence, he is willing to take down the remainder of the fence and ivy prior to the final of the construction of his addition at the landscaping plan. He stated that he has already removed the proposed curb off of the plan and he is willing to maintain his landscaping out of the easement area Commissioner Karp asked staff if they felt that if the applicant has done everything that needs to be done according to the City codes. Deputy Director Pfost answered that was correct Planning Commission Minutes July 27, 2004 Page 9 Sunshine (in rebuttal) stated that the concern was that implementing a trail is a one property at a time issue, so that as each opportunity arises a little piece of the trail is implemented, and that eventually there is a trails network. She felt that this was an opportunity for staff to do that She felt that the idea is keep the roadway easement useable and to leave the affect of having an open front yard Commissioner Tetreault noted that the Conceptual Trails Plan is being implemented parcel by parcel, and asked Sunshine if she felt that there have been substantial links of the trails being created parcel by parcel as people are remodeling their homes Sunshine answered that this is part of the problem, as it has not been implemented very well in Rancho Palos Verdes She explained that creating a trail is a long-term goal, and in some instances it can take 20 years or more to get all of the easements necessary to build the trail Commissioner Gerstner asked Mr. Castelao if he knew who the other co -holders of the easement are, and if they are the other property owners on the private road. Mr Castaleo answered that the deed clearly states and is recorded that he is the owner of 147 feet along the roadway area. Chairman Mueller closed the public hearing. Commissioner Karp stated that there was currently a 30 -foot easement in front of the property and asked staff if that was sufficient for a trail to be constructed Deputy Director Pfost answered that you can run a trail along a 30 -foot easement, however he thought that what the appellant is arguing is that the 30 -foot easement area is not the paved width. Commissioner Knight noted that this is a pnvate easement the City cannot go in and build a trail without all of the necessary easements being granted and one way to accomplish that would be to implement the trails plan and have a dedicated easement for a trail. Chairman Mueller asked if the Planning Commission has any authority to impose an easement on this project on a private street to do what the appellant is asking for Deputy Director Pfost answered that staff did not think the Planning Commission had that authority, and would recommend against that Chairman Mueller asked staff if the City has ever taken the approach with individual properties to establish a trail easement. Deputy Director Pfost stated that he was familiar with instances with Parcel Maps where a parcel has been subdivided and dedicated a trail and to his recollection there has not Planning Commission Minutes July 27, 2004 Page 10 been an instance where a remodel or addition where a trail easement has been imposed Commissioner Karp felt that this was a private issue between the applicant and appellant He noted that the applicant has agreed to remove the fence, remove the boulders, and the vegetation and he felt that the applicant has met all of the reasonable criteria necessary and that he agreed with the staff recommendation to deny the appeal Vice Chair Cote asked staff, if a condition were added to the approval that the fence and ivy be removed, when would an appropriate time for that removal be Deputy Director Pfost felt that, because of the applicant's willingness to remove the fence and ivy, it would be reasonable to condition the approval that the fence and ivy be removed prior to the issuance of a certificate of occupancy. Commissioner Tetreault stated that the Resolution in the staff report makes certain findings for the project that the Planning Commission did not analyze, such as findings for neighborhood compatibility and privacy He was concerned that the Resolution was broader than the Planning Commission's ability to make the specific findings Commissioner Karp did not feel it was necessary to go back and review the entire process, as there are only two or three items of concern, and the Planning Commission should focus in on those concerns He noted that the applicant has agreed to remove the fence and the ivy and that the Planning Commission can request an irrevocable offer to grant an easement for a horse trail. Commissioner Gerstner stated that this is a private road and a private easement and the City cannot take or use the easement without the approval of the easement holders. Further structures cannot be built in the easement area without the approval of the easement owners, however the existing structure is non -conforming. Therefore, he felt that the Planning Commission should ask the property owner to remove the non- conforming fence and he should do so at the appropriate time If the City wants to implement the conceptual trails plan, the City should go to the individual property owners through which the trails plan passes, and request that they grant easements He did not feel it was right to hold a property owner hostage when they wanted to do construction on their residence and demand the property owner grant the easements Commissioner Knight stated that since the existing fence was legal non -conforming it could not be required to be removed, but if staff felt that it could be removed that it was appropriate to ask it be removed at the appropriate time during construction. Regarding the Conceptual Trails Plan, he felt that there was a procedure in place to implement a trail through a dedicated easement He noted that staff does not feel there is a nexus between the proposed construction and requiring the dedication of the easement He questioned how the nexus would be made in future applications Planning Commission Minutes July 27, 2004 Page 11 Vice Chair Cote felt there was a strong and valid reason for the appeal, specifically the arguments with respect to the non -conforming fence She was pleased that the applicant has agreed to the removal of the fence and vegetation. She stated that she has always been a very strong advocate of the implementation of the Conceptual Trails Plan whenever there is the latitude to do so She felt in this situation it was a little more difficult, as applicant lives on a private road She stated that without an offer by the applicant to dedicate the easement she felt it would be difficult to create a condition of approval in this instance. Chairman Mueller agreed that the Planning Commission could make the removal of the fence and ivy a condition of approval of the project. He noted, however, that this is a pnvate road and he did not think there was a mechanism to Impose such a condition He did not see a nexus between this development and trying to procure an easement on a private street for a trails plan Commissioner Tetreault was not convinced that the City has the authority to require the applicant to remove a non -conforming fence However, because the applicant has stated that he is willing to remove the fence he felt that a condition of approval could be added regarding the removal of the fence at the appropriate time Commissioner Gerstner moved to adopt P.C. Resolution No. 2004-30, denying the appeal and upholding the Director's approval, with the added condition that the applicant shall, prior to receiving a certificate of occupancy, remove the fence and ivy in the front yard easement, seconded by Commissioner Karp. Commissioner Tetreault stated that he had difficulty making the findings in the Resolution that the proposed addition is compatible with the neighborhood, specifically because the addition was not flagged or had a silhouette erected when he was at the property. Commissioner Knight agreed, noting that the Resolution is signed by the Planning Commission as if they agree with the neighborhood compatibility finding Further, in reference to the Conceptual Trails Plan, he was unclear how their decision would be relative to the General Plan Amendment No 2 and if it was in compliance or non- compliance with administrative procedures for trail implementation. Commissioner Tetreault asked if it was required that the Planning Commission make a full review of the entire project on appeal rather than the issues on appeal. He asked if the Planning Commission could deny the appeal and add a condition to the approval without making any other findings on the project, as the Director has already made these findings for his approval. Deputy Director Pfost stated that it was his understanding that the Planning Commission would be upholding the Director's decision and those findings that made that decision when denying an appeal Planning Commission Minutes July 27, 2004 Page 12 The motion to adopt P.C. Resolution No. 2004-30 as amended was approved, (4-2) with Commissioners Knight and Tetreault dissenting. RECESS AND RECONVENE At 10 30 p.m. the Planning Commission took a short recess until 10:40 p.m. at which time they reconvened. PUBLIC HEARINGS (cont) 5. Height Variation Permit (Case No ZON2004-00164) 5416 Littlebow Road Associate Planner Blumenthal presented the staff report explaining that it was recently discovered that a portion of the addition on the first floor is encroaching into the setback and staff is therefore requesting a continuance of the public hearing to August 24, 2004 to allow the applicant to apply for a Minor Exception Permit to allow the encroachment Vice Chair Cote moved to continue the public hearing to August 24, 2004, seconded by Commissioner Gerstner. Continued, (6-0) 6 Height Variation Permit (Case No 2003-00559). 44 Headland Drive Associate Planner Blumenthal presented the staff report, explaining the history of the project and the scope of the request He stated that staff has reviewed the height variation findings with respect to the revision request, and could make all of the findings in a positive manner and was recommending the Planning Commission approve the requested Height Variation Permit application, subject to the recommended conditions of approval Commissioner Knight asked staff if the applicant has changed the railing on the existing deck from wrought iron to glass. Associate Planner Blumenthal answered that on the latest set of plans it does appear that the railing material has changed Commissioner Knight asked if the outdoor kitchen shown on the plans was on the original plans and if it required approvals and permits Associate Planner Blumenthal stated that the outdoor kitchen detail should have been omitted from the plans Since this area does not constitute lot coverage the applicant can receive staff approval through a Site Plan Review application Chairman Mueller opened the public hearing. David Berman 44 Headland Drive (applicant) stated that the deck is proposing will have no affect on his neighbors' views and will cause no change in the structure of the house Planning Commission Minutes July 27, 2004 Page 13 already approved by the Planning Commission both in terms of the footprint and the elevation, as he is asking for a different use in a particular area He stated that he changed the railing on the balcony from a wooden type railing to a plexiglass type railing to take further advantage of the view from that area. He felt that the proposed deck will significantly enhance his property with no significant impact on his neighbors and requested Planning Commission approval Commissioner Knight asked Mr Berman if he brought this revision to the Planning Commission because of the change in Code regarding roof decks Mr Berman answered that was correct. Madhu Berman 44 Headland Drive stated that this proposed outdoor deck will offer her family a place to be outside where there are no insects present and they can enjoy the evenings Virginia DeBritz 32 Headland Drive stated that the Bermans are building a new home which she feels will enhance the neighborhood, however construction of the proposed roof deck will very much impact her privacy. She noted that it appears that the Bermans have always intended to build this deck, as there is already a door in place that leads out to the area and re -bar at the deck area that will be used for the deck. She explained that her residence is behind the Bermans and the deck will look directly into her yard. She added that the Bermans have removed all of the trees on their property, which further adds to her loss of privacy. She explained the Bermans did not have a view prior to construction olthe new home and his new view will be through all of the neighbors' yards. Commissioner Knight Osked Ms DeBntz if she testified at the Planning Commission meeting when the original application was before them. Ms DeBritz answered ;that she did not, as the plans proposed to her did not include the large roof deck. She also explained that after viewing the original plans she thought the proposed house was going to be a single story residence with a small loft above, noting that it is actually a very Targe room on the second story. Chairman Mueller asked Ms. DeBritz if her main concern with the proposed roof deck was her privacy. Ms. DeBritz answered that was correct Chairman Mueller explained that for the Planning Commission to make a finding regarding privacy, the proposed roof deck would have to be over 16 feet in height for that finding to apply Commissioner Knight asked Ms DeBritz if Mr Berman were to restore some foliage to the property, if that would reduce some of her privacy concerns Planning Commission Minutes July 27, 2004 Page 14 Ms DeBritz answered that help with her privacy concerns Chairman Mueller asked Ms DeBritz if it were possible for her to plant some foliage on her property that would alleviate some privacy concerns Ms. DeBritz answered that she could also plant foliage on her property, noting that would take some of Mr Berman's view away. Charlene O'Neil 38 Headland Drive stated that she was opposed to the proposed roof deck as the deck will look over her entrance, the horse area, and her home She also noted that the birch trees on her property lose their leaves in the fall and so much more of her privacy is exposed She stated that decks of this type are common in the beach communities, but not in this neighborhood She stated that when she reviewed the original plans for the home the second story was described as a small loft and balcony, noting that the small loft is actually a large family room She stated that she has spent a great deal of money and time relandscaping her property near the Berman residence as all of the trees were cut down prior to construction She stated that the proposed deck would loom over her property and greatly infringe on her privacy. Commissioner Knight noted that there is currently a clear door on the Berman's second story that looks onto her property, and asked if she objects to the door. Ms O'Neil felt that the clear door was put there to access the roof deck area that the Bermans were hoping to have approved, noting that there would be no other reason to put a door at that location Vice Chair Cote asked if there had been any discussion as whether the Bermans would be removing their trees and what type of landscaping they would be planting after the house was completed. Ms O'Neil stated that she still does not know what type of landscaping will be planted on the Berman property. Mr. Berman (in rebuttal) stated that he would have preferred that if his neighbors had concerns regarding the roof deck that they had talked to him so that they could have worked out some compromises He stated that the he will be looking from his roof deck down onto his large yard, his pool, a beautiful view, a portion of Ms O'Neil's horse stables, and a portion of Ms DeBritz's driveway Regarding the existing door, he stated that the door was installed to allow access to the roof area to clean the skylights, however he had always hoped that he would be allowed to construct a roof deck He stated that the trees he cut were on his property and as far as he is aware, there is no ordinance preventing him from cutting trees on his own property. He felt that the Ms DeBritz and Ms O'Neil could plant trees on their property to alleviate any pnvacy issues they may have. Planning Commission Minutes July 27, 2004 Page 15 Vice Chair Cote asked Mr. Berman what type of landscaping he would be planting on his property. Mr Berman explained that he will planting a six-foot high hedge along the property line Chairman Mueller closed the public hearing. Commissioner Knight asked staff to clarify how high the proposed roof deck would be Associate Planner Blumenthal explained that the roof deck, from the adjacent grade to the top of the rail, would be 14 feet. Commissioner Knight asked if this roof deck would, at any point, become a viewing area as defined in the View Restoration Guidelines. Associate Planner Blumenthal answered that the View Restoration Guidelines state that views will be taken from the first floor level Vice Chair Cote asked staff why the finding for privacy was not applicable in this case. Associate Planner Blumenthal explained that in the recent revisions to the Height Variation findings the City Council specifically was looking for anything that extends above the 16 -foot by right height limit He stated that maximum height of the roof deck, including the railings, was 14 feet, and therefore staff felt the finding was not applicable Vice Chair Cote asked staff, even with the new input from the neighbors regarding privacy, the finding was therefore not applicable because the deck will be under 16 feet in height. Associate Planner Blumenthal answered that was correct, and further clarified that even if this finding was applicable, it is staffs opinion that this would not be a significant privacy impairment because currently when someone is standing in the Berman's rear yard they are looking directly into the neighbors' yards, and therefore the roof deck would not be creating a new infringement on privacy. Commissioner Tetreault was disappointed that the information from the neighbors regarding their concerns over view impacts was not given to the Planning Commission at an earlier time. He stated that he was at the property, but not knowing that there were neighbor concerns, he did not visit their properties He felt that because privacy issues do not come into play because the structure is below 16 feet, then the Planning Commission should not consider the privacy issues in making their decision Commissioner Knight asked staff if their privacy analysis and findings would have been the same if the vegetation still existed on the Berman's property when they did the analysis Planning Commission Minutes July 27, 2004 Page 16 Associate Planner Blumenthal stated that staffs recollection of the trees was that they were tall enough that from the proposed roof deck one would not be able to look into the neighboring property, therefore the privacy analysis would not have changed. Commissioner Knight stated that he still has an issue with privacy, as the conditions have changed since the original approval in terms of the foliage. He understood that the roof deck is under 16 feet in height, however he stated that it is a roof deck that creates a vantage point that is close to, if not equal to, a second story. Commissioner Karp stated that the information and pictures submitted by the neighbors was not done in a timely manner and did not give the Planning Commissioners enough time to consider and review the information. Therefore, he was not going to consider their information and his vote will be based on his site visit and the staff report. He felt that everyone was given due notice regarding this project and he did not think the Planning Commission had to accept late information Vice Chair Cote disagreed, as the Chairman accepted the information and it was provided to the Planning Commission, and therefore she felt she had to consider the information. She stated that she visited the Berman property to view the roof deck, however she did not understand the ramification of the roof deck with respect to the neighbors' privacy She questioned if it might be prudent to continue the item to allow the Planning Commissioners the time to visit the site to consider the concerns of the neighbors Chairman Mueller asked if there was a privacy issue raised when the height variation was before the Planning Commission when considering the new house Associate Planner Blumenthal stated that, when reviewing the minutes from that meeting, the only issue raised was neighborhood compatibility Vice Chair Cote agreed, however noted that at the time the foliage on the property was extensive and neighbors may not have understood the privacy impacts from this house once the foliage was removed. In reviewing the Resolution adopted for the home, Associate Planner Blumenthal noted that the Planning Commission was able to make the findings for privacy based on the location of the other structures, the distance between the structures, and the topographical changes in the area Chairman Mueller did not feel there was a large concern that he could raise about the roof deck that he could not raise about the other parts of the structure, and given that he did not think this roof deck was such a large extension to the balcony He felt that the neighbors have other ways to mitigate their privacy with foliage, and to try to depend on the applicant to maintain the foliage on their property, he did not think that was a reasonable request. He did not think it was not the responsibility of the applicant to maintain foliage to protect the abutting properties, noting however that the applicant is Planning Commission Minutes July 27, 2004 Page 17 proposing foliage along the property line He did not think the continuance was necessary as the structure is under 16 feet and there is no privacy finding to make Commissioner Gerstner also did not think continuing the public hearing to allow the Commissioners the opportunity to go back out to the property would offer him anything additional than he already has. He stated that given that the house is located far from property lines and that the neighbors have ample opportunity to plant vegetation to protect their privacy, he did not object to the roof deck. Commissioner Knight stated that the second story addition may not have much infringement on the neighbors' privacy, however the addition of the roof deck allows an area where a person can walk up to the edge of the roof deck and have a vantage point quite a bit further forward He felt this was a significant difference in the original application approval. Regarding the foliage, he felt that if an applicant is creating a new vantage point and asking the City to give permission to create the new vantage point that may infringe on privacy, it can be appropriate for that person to provide mitigation for the right to create that new vantage point He stated that he was troubled that one would be standing at a vantage point 12 feet above the ground on this roof deck, yet the City approaches this as if it were a first story addition below 16 feet in terms of the privacy analysis. Commissioner Tetreault moved to adopt P.C. Resolution No. 2004-31 thereby approving the Height Variation (Case No. ZON2003-00559) as presented by staff, seconded by Commissioner Karp. Approved, (4-2) with Commissioner Knight and Vice Chair Cote dissenting. APPROVAL OF MINUTES 7 Minutes of July 13, 2004 Chairman Mueller noted revisions to page 15 of the minutes Commissioner Gerstner moved to approve the minutes as amended, seconded by Commissioner Tetreault. Approved, (5-0-1) with Vice Chair abstaining since she was absent from that meeting. ITEMS TO BE PLACED ON FUTURE AGENDAS 8. Pre -Agenda for the meeting of August 10, 2004 Commissioner Karp suggested a future agenda item to discuss the procedure for late submissions and whether those submissions should be accepted by the Planning Commission ADJOURNMENT Planning Commission Minutes July 27, 2004 Page 18 The meeting was adjourned at 1218 a.m. Planning Commission Miriutes July 27, 2004 Page 19