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PC MINS 20160412 Approved May 11, 201 CITY OF RANCHO PALOS VERDES PLANNING COMMISSION MINUTES REGULAR MEETING APRIL 12, 2016 CALL TO ORDER The meeting was called to order by Chairman Tomblin at 7:04 p.m. at the Fred Hesse Community Room, 29301 Hawthorne Boulevard. PLEDGE OF ALLEGIANCE Commissioner Nelson led the assembly in the Pledge of Allegiance. ATTENDANCE Present: Commissioners Cruikshank, Emenhiser, James, Leon, Nelson, and Chairman Tomblin. Absent: Commissioner Bradley was excused. Also present were Interim Community Development Director Rodrigue, Deputy Community Development Director Mihranian, Senior Planner Mikhail, Assistant Planner Caraveo, and Assistant City Attorney Burrows. APPROVAL OF AGENDA The agenda was unanimously approved as presented. COMMUNICATIONS Deputy Director Mihranian reported that at their March 15, 2016 meeting the City Council recognized former Planning Commissioner Gerstner for all of years of service to the City. He also reported the City Council is now going through the budget process for the 2016- 17 fiscal year, and the plan is to have the budget approved by June. Deputy Director Mihranian stated the Planning Commissioners may be receiving emails from the public regarding the Green Hills project, and noted that the emails and concerns raised in these emails are being reported to the City Council in formal reports. He noted that there has been communication regarding the Inspiration Slope Mausoleum and rooftop burials, and he explained that staff has informed Green Hills personnel that if they do move forward with requesting rooftop burials at that site the item will have to be heard by the Planning Commission for review based on the Council adopted conditions. Deputy Director Mihranian stated that an appeal was not filed on the Arrowroot project heard by the Planning Commission at their last meeting. He also reminded the Commission that during the February 23rd orientation meeting the Commission agreed to report on each agenda item if they had visited the site and who they had spoken to. Chairman Tomblin reported that he attended an informal meeting with Mayor Dyda, Council Misetich, and two other Commissioners to discuss procedural matters related to appeal items. Selection of a Vice Chairman Commissioner Emenhiser nominated Commissioner Cruikshank as Vice Chairman, seconded by Commissioner Nelson. There being no other nominations, Commissioner Cruikshank was elected Vice Chairman byavote of60. COMMENTS FROM THE AUDIENCE (regarding non-agenda item): Russell LaRose stated he had a petition to add an item to the next meeting agenda to amend PC Resolution 2016-04 in regards to condition No. 28 which states the glass of the bay window must be constructed of translucent glass, which accurately reflects the Commission's concern with the neighbor's privacy, and the added condition No. 29 which allows the Community Development Director, at his discretion and without Planning Commission approval, to override condition No. 28 and delete the requirement for translucent windows. He stated he would like an item added to the next agenda as a consideration to correct the Resolution to accurately reflect the Commission's desire for permanent translucent windows that cannot be changed without Planning Commission approval. Chairman Tomblin asked staff how this type of request should be handled. Deputy Director Mihranian explained that if the Commission feels there is ambiguity in the condition the Commission can direct staff to bring back an item to clarify that condition. He noted that condition No. 29 was included in the agenda packet that was presented to the Commission at the March 8th meeting. He explained that the intent of that condition is to guarantee the windows on the third floor are not changed out without being reviewed by the Planning Department, noting that window change-outs are typically not reviewed by the Planning Department but are handled directly by Building and Safety. He noted a tag has been placed on this parcel in the City's permit tracking system so that any time a development application for this property is submitted to the City, staff will be alerted to this condition. He therefore felt that condition No. 29 was sufficient and there was no ambiguity. Chairman Tomblin polled the Commission as to whether or not they would like this item to come back to the Planning Commission, as requested by Mr. LaRose. Assistant City Attorney Burrows felt that the appropriate time to discuss whether or not to bring this item back would be at the end of the agenda under future agenda items. Planning Commission Minutes April 12, 2016 Page 2 Bernadette Sabath discussed her objections to Inspiration Slope Mausoleum at Green Hills, noting that she can now see people standing at the internment site and all of the funerals would now become a clear ear shot and eye shot from her residence. She stated that there are now vaults at the site awaiting to be put in the dirt without the application, without the permit, without hearing from the neighbors, and without the City Council vote. Gloria Sabath stated she would have liked to have had an opportunity to speak when the vaults were positioned on the top of the mausoleum. However, as it stands she was completely confused with how we have gotten to this place so quickly without the Commission or City Council intervening. Mike McClung understood that the Commission is not the enforcement body of the City and the things the residents say to the Commission at this meeting the Commission is unable to respond to. However, he noted Green Hills is building another mausoleum and it is already becoming a problem with the surrounding residents. He felt Green Hills will be putting crypts on the top of the mausoleum and will plant grass and this will not be a storage area for crypts. He warned the Commission that the problems they saw in the past will be before them again with the current mausoleum and burials. Matthew Martin briefly discussed the Conditional Use Permit and asked the Planning Commission to look into how the CUP language was being interpreted. He asked the Commission to look into whether or not the burials inside the mausoleum, eight feet from the property line, are encroaching on the sixteen foot setback for internments. He questioned if these are below ground or above ground. Noel Weiss stated he has made available for the Commission a copy of the Cemetery Code as well as copies of two provisions of the Rancho Palos Verdes Municipal Code (Section 17.90.010 and Section 17.78.050). He felt that part of the problem with Green Hills is they are dealing behind closed doors with the bureaucracy and possibly with the politicians and he felt they have boot legged their way into rooftop burials. Sharon Loveys stated that two years ago the Planning Commission considered pulling the Conditional Use Permit for Green Hills, and asked the Commission if they could revoke the Conditional Use Permit and still allow Green Hills to perform burials. She felt this may still allow Green Hills to perform burials but not allow them to continue their expansion and building until issues have been settled. Debbie Landes felt that the new rooftop crypts that Green Hills is claiming are only being stored and most likely already bought and paid for. In terms of the Conditional Use Permit, she asked when the next annual review by the Commission was due to take place, and requested someone get back to her with that answer. Joanna Jones-Reed recapped the events at Green Hills, noting that there is now a lawsuit, and questioned why the residents have to sue to get the justice they deserve. She questioned why the fiasco at Green Hills couldn't be settled and the right thing be done. Planning Commission Minutes April 12,2016 Page 3 She felt the City Council has validated Green Hills unlawful conduct and she felt continues to enjoy some sort of special relationship perpetuating the infringement of her property rights. She asked the Planning Commission to look into the nefarious actions of Green Hills and revisit the records and issues that the public has been speaking about. Jane Gualeni explained her home looks into the area of Green Hills where they currently store their tractors, equipment, and empty Crypts. She was concerned that Green Hills has been slowly raising the grade of the land behind her walls, and she stated her concern with the existing Master Plan and future development of Green Hills. She noted the Master Plan calls for six very large mausoleums, and they have been told by staff that there is no plan for rooftop burials and that there is no plan to build these mausoleums for many years. She asked the Commission to closely look at the Master Plan, and to act in the best interest of the surrounding residents. CONSENT CALENDAR 1. Approval of March 8, 2016 Minutes Deputy Director Mihranian noted there was late communication provided by Commissioner James pertaining to suggested modifications to his comments on page 6 of the minutes. He noted Commissioner James had explained he reviewed the tape of the meeting and his suggested revision was the verbatim comments he made at the meeting. Commissioner James explained he had modifications to the paragraph in question, and rather than take the time at the meeting, he submitted his changes in writing. Commissioner James moved to approve the minutes as amended, seconded by Commissioner Nelson. Approved (5-0-1)with Commissioner Leon abstaining since he was absent from that meeting. NEW PUBLIC HEARINGS 2. Height Variation and Grading Permit (Case No. ZON2016-00284): 6780 Verde Ridge Road Chairman Tomblin asked the Commissioners as to whether or not they had visited the subject property. All Commissioners had made a site visit. Assistant Planner Caraveo presented the staff report, reviewing the scope of the proposed addition and the need for the Height Variation and Grading Permit. He stated that staff has found that the proposed style and materials for the addition are compatible with the homes in the surrounding neighborhood. He explained that staff received one public comment from the next door neighbor expressing a concern of potential view impairment caused by the proposed entryway. He noted that the potential view impairment is from a second floor master bedroom which, according to the Height Planning Commission Minutes April 12, 2016 Page 4 Variation Guidelines, is not a protected viewing area because it is on the second floor of the home. However, the applicant voluntarily reduced the height of the entryway by one foot. He stated that staff was recommending the Planning Commission approve the proposed project, as conditioned in the staff report. Vice Chairman Cruikshank referred to condition No. 16 which states no more than 50 percent of the existing interior walls may be removed or demolished, and asked staff if that calculation was made. He felt the demolition plan shows almost all of the walls being removed. Assistant Planner Caraveo stated he would check the plans for the calculation and get back to the Commission with the answer. Commissioner Leon asked staff if they had a street view photo of where the proposed retaining wall will be located. Assistant Planner Caraveo displayed the photo. Commissioner Leon was concerned that a nearly vertical retaining wall will be built right next to the street, and this would be the only area in the immediate neighborhood with such large retaining walls. Deputy Director Mihranian referred back to the Vice Chairman's question regarding the demolition of the existing walls. He confirmed that in looking at Sheet A-1 of the plans, it appears that more than 50 percent of the existing structure will be demolished. He stated that if it is the Commission's pleasure, staff can delete or modify condition No. 16. He recommended that when the Commission is considering the project, a recommendation to amend the conditions can be made at that time. In regards to the view issue, Commissioner James stated he read the Height Variation Guidelines and he felt that the Guidelines add something that is not in the Code, specifically the requirement that the view area is not on a floor that is different that the living room or dining room. He felt this leaves the residents neighboring this project with a home with no protected viewing area. He questioned how this Guideline was developed. Deputy Director Mihranian clarified that the residence may have a viewing area, which is in the back of the residence with an ocean view over the park. He stated that when looking at the Height Variation Guidelines, the City Council wanted to further clarify what the intent of Proposition M. He did not recall exactly when this was done after the adoption of Prop M. Chairman Tomblin opened the public hearing. Philip Boutte (applicant) stated he was available for any questions or clarifications from the Planning Commission. Planning Commission Minutes April 12, 2016 Page 5 Chairman Tomblin referred to the elevations and the pictures submitted by the neighbor, and asked Mr. Boutte if there was any reason from a design standpoint that the height of the entryway couldn't be reduced. Mr. Boutte explained that the height has already been reduced one foot from its original height to give the neighbors more of a view. He also pointed out that the subject house has been set back from the street a bit farther than required. Chairman Tomblin asked Mr. Boutte to address the privacy concern from the balcony, and asked if there was any design element that would be affected if the balcony were not there. Mr. Boutte stated that from the balcony one cannot see into the bedroom, however from the neighboring bedroom there is a view onto the balcony, as the balcony is almost 7 feet lower than the neighboring master bedroom. Bruce Miller stated that from the beginning the applicant has involved him with the design of the plans, and they have made a few concessions. He stated that his biggest concern was the two-story entryway, noting that to his knowledge there are no other two-story entryways in the area. He did not think reducing the height of the entryway to restore his view would be a big concession to the overall design of the house. He stated he is the only residence whose view is being at all diminished, and understood that. He also noted that there is a proposed balcony across the entire south elevation. He explained there is existing foliage between the two properties which protects his privacy from a view from the south balcony, however if the foliage were to be removed there would be a direct line of view into his backyard from this south balcony. He also suggested the possibility of making some of the windows along the east side of the house translucent to help with privacy issues from the windows along the west side of his house. Commissioner Emenhiser asked whose property the existing hedge is on. Mr. Miller answered that the hedge is on his neighbor's property. Commissioner Emenhiser asked staff if there were any options staff could consider in terms of the foliage and privacy issue. Deputy Director Mihranian explained that if the Commission feels there is a privacy issue from the southern balcony, they could include a condition that requires the hedge or foliage remain at a certain height to provide some sort of screening. Chairman Tomblin asked Mr. Miller to discuss his concerns in regard to privacy issues to his master bedroom from the proposed balcony. Mr. Miller explained that staff explained to him that because the balcony is so much lower than his master bedroom window, they did not think it was possible for someone standing Planning Commission Minutes April 12, 2016 Page 6 . on that balcony to be able to look into his master bedroom, however he could not confirm or deny this because he did not understand where the line of sight would be. Mr. Miller also pointed out that the ocean view from the applicant's balcony will be blocked by the tall entryway roof. Deputy Director Mihranian explained that there is a difference in pad elevations between the two properties, with Mr. Miller's property being at a higher elevation. Therefore, when standing on this proposed balcony one would have to look up at an angle where they might have a view of the ceiling inside Mr. Miller's bedroom. However, from the Miller's bedroom one can look down onto the balcony and there is more of a privacy issue on the balcony. He explained that this same logic applies when discussing the windows along the applicant's east side, as they are lower than the Miller's windows and staff did not feel there would be a privacy issue. Chairman Tomblin closed the public hearing. Commissioner Nelson stated he read the staff report and visited the site and has no issues with staff's recommendations. Commissioner Leon stated that there are a significant number of two-story additions on this street, and the fact that the second story of the applicant's house is lined up with the second story of the neighbor's house affords them equal rights. He was in support of the staff's recommendations. Vice Chairman Cruikshank referred to the rear balcony, and understood Mr. Miller's privacy concern. He felt the balcony could be pulled back slightly so that it does not overlook the Miller's backyard rather than requiring the applicant maintain a hedge. He was also in favor of further lowering the entryway roof, as Mr. Miller pointed out this roof also blocks the applicant's view from their own balcony. Commissioner James stated he supports staff recommendation, noting there are already many two-story homes on the street. He did not think it could be said that this proposed home is not compatible with the neighborhood as a result of the proposed addition. Chairman Tomblin also stated he could support the application, but favored the Vice Chairman's comments regarding the back balcony and the entryway height. Commissioner Nelson moved to approve the project as recommended by staff with the amendment to remove condition No. 16, and to urge the applicant consider modifying the back balcony and the height of the entryway. Deputy Director Mihranian suggested that, rather than delete condition No. 16, to strike out the first sentence so that the condition starts with the sentence "Residential buildings that are remodeled or renovated such that 50 percent or greater of the existing exterior walls or existing square footage is demolished or removed within a two year period shall be considered a new residence." Planning Commission Minutes April 12, 2016 Page 7 • Commissioner Nelson moved to amend his motion to approve the project as recommended by staff with the amendment to delete only the first sentence of condition No. 16, seconded by Commissioner James. Commissioner Cruikshank stated he would like to see a condition the balcony be brought back away from the neighbor's property line to help with privacy issues. He asked staff for suggestions on how to condition the approval to reflect this concern. Deputy Director Mihranian suggested adding a condition that the deck be set back in line with the edge of the master bathroom. In addition, the Commission could require an opaque panel be required along the railing that runs parallel to the property line. Commissioner Leon noted that opaque typically means black, and he didn't think the Commission wanted to require the applicant to have black windows. He suggested using translucent or obscuring panel rather than opaque. Deputy Director Mihranian stated the proposed amendment would then read the balcony along the rear facing facade would be set back approximately nine feet from the property line where it aligns with master bathroom, and/or installation of a translucent or obscuring panel be required along the railing that runs parallel to the property line. In addition, a patio cover over the first story would still be allowed where the balcony was cut back. Commissioner Cruikshank moved to amend the motion a stated by the Deputy Director. Commissioner Nelson accepted the amendment, seconded by Commissioner James. Chairman Tomblin moved to amend the motion to require the hedges remain in place to help with the privacy issues and that entry roof line be lowered. Commissioner Nelson accepted the amendment in regards to the hedges, but wanted staff to show the Commission the impact of lowering the entry roofline. Commissioner James stated he would not second the motion, as there is no code basis to require the entry roofline be lowered. Commissioner Nelson stated he appreciated and agreed with the comments made by Commissioner James. Chairman Tomblin reopened the public hearing and asked Mr. Boutte to address the comments made by the Commission. Mr. Boutte asked staff to clarify the amendment to the balcony so that he could understand exactly what was being required. Planning Commission Minutes April 12, 2016 Page 8 , Deputy Director Mihranian showed the proposed floor plan and showed the area of the balcony that the Commission was requiring be set back. Mr. Boutte stated he needed a moment to discuss this with the property owners. Mr. Miller noted that if there is just an opaque panel along the eastern side of that balcony there should be some decision on what the height of the panel should be. He explained that a four-foot high panel would not help if someone is standing on the balcony, as they can easily look over the panel and would have the same unobstructed view into his yard that they would have had without the panel. He stated that doesn't solve the whole problem because the Commission is assuming that there is no view into the backyard from anywhere else on that rear south facing balcony. He felt that if one stood at the western most area of the proposed balcony one would still have a direct view into his rear yard. He felt that moving the balcony back would block the view but an opaque panel would not. He felt that saying either moving the balcony back or inserting opaque panels, those two have very different affects because moving it back will block the view and an opaque panel will do nothing. Commissioner James asked Mr. Miller if one were standing at a halfway point on this proposed balcony, wouldn't their only line of sight into his back yard be the very rear of the property. Mr. Miller explained that currently there is no way to really know, as the hedges are helping to obstruct the view into his rear yard. However, he felt there will be a significant view into his rear yard, even from the western edge of the balcony. Deputy Director Mihranian suggested modifying the language to remove the word "or", so that the amendment would say to move the balcony back 9 feet and insert a translucent panel. Mr. Boutte stated the property owners would prefer to keep the language as or, explaining they don't believe they will be able to see into the neighbor's rear yard and that there won't be a privacy issue. They agreed to maintain the hedges along the side property line. Deputy Director Mihranian explained that staff's concern with the hedges is that they could die, be trimmed, or there may be a new property owner. He stated that to condition something to rely on vegetation to provide privacy doesn't guarantee that privacy protection in the long run. In light of this, he recommended the balcony be set back and some type of translucent panel be installed up to the roof plate of the second floor. Chairman Tomblin closed the public hearing. Chairman Tomblin asked staff to restate the motion with the included amendments. Planning Commission Minutes April 12, 2016 Page 9 Deputy Director Mihranian stated the amendment to the motion would read to set back the rear facade balcony nine feet from the east elevation and install an obscure panel up to the second floor roof plate. Commissioner Leon was uncomfortable with this language, and noted that by doing so he felt the house design would be significantly compromised for a view that will never really be taken. He felt that one will be looking out at the view from this balcony rather than turning and looking into the neighbor's backyard. He would therefore be more comfortable with just an obscure panel being required and leaving the balcony as is. Deputy Director Mihranian felt there is the ability to keep the symmetry and balance by keeping the column on the lower level and allowing for a patio cover on the lower level to go all the way to the east façade. Chairman Tomblin asked if the hedges would be part of the amendment. Deputy Director Mihranian answered that staff's recommendation would be that the hedges are not part of the amendment. Chairman Tomblin and Commissioner Leon felt that the hedges should stay as part of the amendment. Commissioner Nelson asked that staff read the amendment back to the Commission one more time. Deputy Director Mihranian stated the amendment would be to require that the rear façade balcony be setback nine feet to the west and an obscure panel be installed up to the second floor roof plate and to preserve the hedges along the side property line. The amendment to the motion was approved, (6-0). The motion to approve staff's recommendation as amended to strike the first sentence in condition No. 16 and to add the amended language regarding the rear balcony was approved, (6-0), thereby adopting PC Resolution 2016-05. 3. Appeal of an unsubstantial amendment determination (Case No. ZON2011-00281): 5448 Bayridge Road All Commissioners with the exception of Commissioner Emenhiser indicated they had visited the subject site. Senior Planner Mikhail presented the staff report, explaining in 2013 the Planning Commission approved a second story addition and retaining walls at the subject property. She explained that at that time there were concerns raised by the neighbor in regards to the height of the retaining wall. She stated that on the original plan the applicant showed a 2'-8" garden wall, however during the course of construction it became clear that it would be beneficial to have the height of the wall increased to approximately 4 feet in Planning Commission Minutes April 12, 2016 Page 10 height in order to better protect the neighbor's slope. She explained that a wall under 3 feet in height does not need Planning Department approval, as they are typically allowed by-right. However, once the wall was increased to 4 feet in height it is considered a retaining wall and needs Planning Department approval. In looking at the modification, Staff felt this change could be made at the Director level, as it would be considered an unsubstantial amendment to the plan. This decision was based on the fact that the Development Code permits retaining walls between 3 feet and 5 feet in height when it's adjacent to a driveway; the 4 foot retaining wall would essentially be an extension of the retaining wall that was approved by the Planning Commission in 2013; and that a 4 foot high retaining wall is typically a Director level decision and not something that is taken to the Planning Commission for review. She noted that because of the concerns the neighbor had previously raised, staff notified the neighbor of this unsubstantial amendment, and explained it was an appealable decision to the Planning Commission. She discussed the appeal, noting that most of the points in the appeal pertain to the structural integrity of the retaining wall and the accuracy of the information provided to the City on an as-built plan, as opposed to the actual visibility of the wall in terms of aesthetics which is what is under the purview of the Planning Commission. She briefly discussed the points of the appeal, as outlined in the staff report, and noted that the addition of the information, or the lack thereof, wouldn't have changed the Director's determination that increasing this wall from 2'-8" to 4 feet in height was minor in nature and didn't need to come back to the Planning Commission for review. Finally, she noted that in terms of what would normally come before the Planning Commission, staff did not feel the appellant had noted any of the concerns in regards to the findings that must be made in approving a Grading Permit or that the aesthetics of the wall create an issue. She stated staff is recommending the Planning Commission deny the appeal based on the reasons outlined in the staff report, and uphold the Director's determination. Commissioner Leon asked what staff would consider a substantial change. Senior Planner Mikhail explained there are instances where a project will come before the Planning Commission and a number of issues regarding the case have arisen, such as view impacts or over-height retaining walls. If a modification is suggested that the Director determines could cause a significant impact, the modification is brought before the Planning Commission at a duly noticed public hearing for review. Deputy Director Mihranian added that if the Commission determines this revision is a substantial change and ultimately overturns the Director's decision, the applicant will then request an amendment to the plan, the change will come back to the Planning Commission at a noticed public hearing. He added that the recommendation from staff would be to allow the walls to increase to a height of four feet. He explained that structurally, to stabilize the slope between the two properties, the wall should be four feet in height. Commissioner Leon understood it was not in the purview of the Planning Department to check the structural integrity of the wall, however he asked if the Commission can be assured that a licensed engineer approved the structure of the wall. Planning Commission Minutes April 12, 2016 Page 11 , Interim Director Rodrigue answered that the plan was stamped and signed by a licensed engineer and the wall was inspected by staff. He stated he has also gone to the site several times and he is confident in the structural integrity of the wall and where it is placed. He added that one of the roles of the City's Building Official is to ensure structures are built per State and City building codes, and that has been done in this instance. Commissioner Leon asked the City's Building Official's opinion on the structural integrity of the wall. Building Official Christman stated that this wall was built to the standards of a four-foot tall retaining wall. He stated there was a schedule included on the plans, and the wall was built to the four-foot standard and the footings, rebar spacing and sizing met the criteria for the height and retention of the wall. Commissioner Nelson asked the Building Official how drainage was being addressed with the wall. Building Official Christman answered the wall has a french drain behind it and in areas where the wall is directly on the property line a weep type drainage system since they could not put a french drain on the neighbor's property. Vice Chairman Cruikshank asked the Building Official if this wall is considered a retaining wall because of the slope behind the wall. Building Official Christman responded that walls over 30 inches measured from the bottom of the footing, with a slope of 5:1 or greater are considered a retaining wall and require a building permit per the California Building Code. Vice Chairman Cruikshank asked if the structural plans for this four-foot wall were part of the construction documents. Building Official Christman stated the wall was depicted on the S pages of the plans and signed by the civil engineer. Commissioner James read from the Municipal Code which states that a decision as to what constitutes a substantive revision to a plan is made by the Director. If it is substantive, a decision will be made by the same body which took the final action in granting the original application. He noted the Municipal Code also says that in cases involving the interpretation of the Planning Commission, the Director shall prepare a written interpretation and transmit it to the appropriate review body. He read that the Director's interpretation shall include a determination on whether the said interpretation decision constitutes a minor, non-substantial revision to the approved application. He read that this allows the appropriate body to either concur with the Director's interpretation, or if the interpretation results in a minor revision to the approved application, approve the revision by minute order or make a determination that the subject Planning Commission Minutes April 12, 2016 Page 12 interpretation may result in a substantive revision and thus require a formal review hearing. He felt that this section of the Code clearly applies in this case. He also pointed out the difference in definitions between "substantive" and "substantial". He felt that this change has gotten to the Commission in the wrong way, and in doing so it has taken away the ability of the Planning Commission to determine that this is a substantive change and something the Commission should have looked at pursuant to the Municipal Code. That being said, he felt that it may be the Commission has gotten to the same place anyway and that the decision the Commission needs to consider is whether this four foot wall is appropriate and something they should approve. He stated that he disagrees with the way this has been handled, and felt it was quite clearly the design of Code Section 17.78.050, that the Commission at least get the opportunity to decide whether or not a revision is non-substantial before the Director makes the decision. Assistant City Attorney Burrows stated she will have to read and review the subject code sections. Chairman Tomblin felt that what has occurred with this project, and has happened in two other very high profile cases, is that the Planning Commission made a decision based on certain plans that were presented and now what has happened is a determination was made regarding a change in the design and plans. In looking at the photos of the revised wall, he did not think this design was something that would have ever been approved by the Commission, especially the lower part of the wall near the sidewalk He asked staff what the procedure would be if the Planning Commission were to uphold the appeal. Deputy Director Mihranian explained that if the Planning Commission were to overturn the Director's decision this item would come back to the Planning Commission as an amendment to the conditions of approval with a staff recommendation to allow the revision. The item would be agendized for a duly noticed public hearing. He also pointed out that the small crib wall at the end of the retaining wall is less than three feet in height and does not need Planning Department approval and is allowed by-right. Interim Director Rodrigue pointed out that if the Planning Commission upholds the appeal the property owner also has the option to lower the height of the wall to less than three feet so that it doesn't need Planning Department approval. However, he did not think this option would be in the best interest of the appellant. Chairman Tomblin opened the public hearing. Rollin Sturgeon (appellant) stated his property has always been perfectly stable, however the applicant has graded back to the property line and he felt the vertical cut is unsupported. He felt the new wall should be engineered, and stated the property owner has submitted a plan which he drew and he did not think the plan correctly reflects the as-built wall. He stated that there is a large surcharge and his property is not supported. He stated that his appeal was based on the fact that there was no permit when the wall was built and they cut to the property line. Planning Commission Minutes April 12, 2016 Page 13 , . Commissioner Leon noted there are basically three sections to the wall, and asked Mr. Sturgeon if he had any concerns with the long concrete section of the wall. Mr. Sturgeon answered that he did not have a concern with the concrete section of the wall, as an engineer provided drawings for the footings and steel in the wall. He felt the new walls should be the same since they have a surcharge. In addition, when they changed the wall from a three-foot garden wall to a four-foot retaining wall they did not change the footings of the wall. Jarrod Koch (applicant) stated he did not particularly like the design of the wall, however it is a compromise between his architect and staff. He stated the wall is built the same structurally the same as the first part of the wall. He explained that most of everything done with this wall was at the request of the City. He stated the wall was built in 2014, designed by three engineers, he works with a licensed architect, and a licensed general contractor built the wall. He felt that he has done everything he could to satisfy the City and his neighbor. Vice Chairman Cruikshank asked what was in this area before the wall was built. Mr. Koch pointed to a photo showing the grade in front of Mr. Sturgeon's home and explained that is what was along the side between the two properties. He stated the grade is currently reduced along the side yards with the dirt he has brought in and compacted. Chairman Tomblin closed the public hearing. Vice Chairman Cruikshank asked, if there were approved plans as the applicant claimed, why staff would require an as-built plan for the wall. Deputy Director Mihranian answered that the building official required the as-built plan to reflect what was actually at the site versus what was shown on the permitted plan. Vice Chairman Cruikshank felt it would have been helpful in the decision making process to see the original grading plan with the staff report, but added that he understood the Commission's purview is just the height and not how the wall was structurally built. He stated that in regards to what was built, he has no issues with the wall. Commissioner Emenhiser stated that the small wall at the end of the driveway is not particularly attractive, however he also sees a wall that was designed by a licensed architect and engineer. He stated he will vote to overturn the appeal. Commissioner James stated he would like staff to respond to some of the points made by Mr. Sturgeon. Mr. Sturgeon stated that since there was a surcharge, this retaining wall was automatically not permitted, and Commissioner James asked if staff disagreed with that statement. Planning Commission Minutes April 12, 2016 Page 14 . Senior Planner Mikhail explained that there are two separate processes, the Planning process which looks at the Development Code, and Building and Safety which works within the Building Code. In discussing surcharge, this is a Building and Safety matter rather than a Planning Department matter. Commissioner James noted that Mr. Sturgeon had stated that when they changed from the original 3-foot garden wall to the 4-foot retaining wall the footing was not changed, and asked staff for clarification. Senior Planner Mikhail responded that it was staff's understanding that when the property owner was building the larger wall, they constructed the wall in question the same way, with the same footings and foundation as the larger wall. She noted, however, that this should be confirmed by the Building Official. Building Official Christman stated that the foundation dimensions on the wall that started out as 2'8" and is now 4 feet in height was built to the standard for the height that it is and the retention behind it. In addition, this has been verified by a building inspector. In respect to the small front wall, he explained that the total height of the wall is approximately 24 inches, however the City only requires a permit if the wall is 30 inches or more as measured from the bottom of the footing. He explained that wall does not have a footing and does not require a permit. Chairman Tomblin stated that he supports staff's recommendation on this item. Commissioner Nelson moved to approve staff's recommendation and deny the appeal, thereby upholding the Director's decision, seconded by Commissioner Emenhiser. Commissioner Leon noted it would be worthwhile for the Building Official to review the compaction behind the wall. The motion to deny the appeal as recommended by staff was approved, (6-0), adopting PC Resolution 2016-06, (6-0). ITEMS TO BE PLACED ON FUTURE AGENDAS 4. Pre-Agenda for the meeting on April 26, 2016 Deputy Director Mihranian noted that based on the pre-agenda there are no items scheduled for the April 26th meeting, and staff is recommending the Planning Commission cancel that meeting. Chairman Tomblin asked the Commission if there were items they wanted to discuss for the May 10th meeting. Planning Commission Minutes April 12, 2016 Page 15 . Commissioner Emenhiser stated that, in regards to Mr. LaRose's request to revisit the conditions of approval for the project on Arrowroot, the project was just recently approved and he saw no reason to revisit it. He felt the proper forum for Mr. LaRose's concerns was to have appealed the decision to the City Council. Commissioner Nelson agreed with Commissioner Emenhiser' s comments, noting the appeal period has passed, and Mr. LaRose or any other resident, should have appealed the decision to the City Council. Vice Chairman Cruikshank agreed that the Planning Commission's reconsideration would not be the correct process. Commissioner Leon explained that the issue is whether or not the Director has the authority to make a decision regarding the windows in question. He noted that if the Director makes a decision on a change, Mr. LaRose has the opportunity to appeal that decision to the Planning Commission. Therefore, he felt the public's rights are maintained as there is a recourse to come back to the Commission. For those reasons, he was not in favor of having this item returned back to the Commission. Chairman Tomblin asked Mr. LaRose to comment. Mr. LaRose explained the reason he brought this up was because he anticipates that sooner or later this issue will come up because the owner will decide to change the windows. He was trying to avoid problems by simply changing the wording in the condition from "may" to "must" so that if the owners want to change these windows they must come back before the Commission with the proposed change. Commissioner James felt that there is currently very clearly an avenue for this item to come back to the Commission for a decision, which is what Mr. LaRose is seeking. He stated that the way the language reads, there are a lot of decisions that might be made where there is no reason for the Planning Commission to be involved. He felt that bringing this decision back to the Planning Commission is only necessary if there is an honest disagreement in the proposed change. He felt that as long as Mr. LaRose's right to be heard by the Commission is preserved there is no need for the change. Chairman Tomblin thanked Mr. LaRose for his comments. Commissioner Emenhiser stated he would like to see an update on the progress of the General Plan on the next agenda. Commissioner Nelson asked the Chairman to allow Noel Weiss 30 seconds to express what he would like to see on a future agenda, and stated he agrees with Mr. Weiss. Commissioner James noted he will not be at the May 10, 2016 meeting. Planning Commission Minutes April 12, 2016 Page 16 . Vice Chairman Cruikshank asked staff to ensure that any required annual review is done and brought before the Commission on time. Chairman Tomblin stated he would like to see at future meetings a discussion item regarding the Commission's viewpoints regarding their concerns in reference to some of Planning Commission decisions that have been overturned. Secondly, he stated that it was his understanding that the City Council, based on the recommendations of the City Attorney, voted to take away the annual review of Green Hills from the Planning Commission. He asked staff to give an update on that. Further, he asked that the Commission get an update on the status of items at Green Hills. Deputy Director Mihranian stated that there is an annual review, however he did not have the condition in front of him and would have to get back to the Planning Commission on who is to hear that annual review. Commissioner Emenhiser cautioned that he would not want to get too deep in discussions on Green Hills, noting there is a lawsuit taking place and the City Council has taken over the direction of the issues. Unless there is a new Planning Commission issue that needs to come before the Commission, he would be reluctant to go to against the advice of the City Attorney and the direction of the City Council. Noel Weiss felt a discussion by the Commission was needed on how to amend the Zoning Code, as the Zoning Code only talks about earth internments and doesn't discuss specifically if a Variance is required for setbacks and other issues that are not clarified in the Code. He stated there is also the issue, not a subject of litigation, which is the internments in the mausoleum within the 16 foot setback. Chairman Tomblin recommended that at the May 10th meeting staff present an update to the Commission on current issues being raised by the public in regards to Green Hills. Commissioner Emenhiser cautioned that putting such an item on the agenda will open the subject to lengthy public comments and, unless it is a new issue, he felt that revisiting the past will be stepping on the toes of the City Council. He hoped the Commission would get a lot of direction from the City Attorney on how to proceed. Commissioner James agreed with Commissioner Emenhiser's comments and felt the City Attorney should comment before scheduling any items on a future agenda. He felt the City is in an awkward position to start changing the Code and rules when there is current litigation. Chairman Tomblin responded that is why he is asking strictly for an update on what is occurring at the site and not an open public hearing. Commissioner Nelson moved to cancel the April 26, 2016 Planning Commission meeting, seconded by Commissioner Leon. Approved without objection. Planning Commission Minutes April 12, 2016 Page 17 ADJOURNMENT The meeting was adjourned at 10:23 p.m. Planning Commission Minutes April 12, 2016 Page 18