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Public Corr Recd follow Release SR 20150109 and Approved MinsPublic Correspondence Received following the Release of the Staff Report since January 9, 2015 ATTACHMENTS 1-180 Subject: FW: Funeral Service on the Mausoluem From: Matthew Geier [mailto:vvoahoa@gmail.com] Sent: Friday, January 09, 2015 2:33 PM To: Matt Martin; Carolynn Petru; Carol Lynch <clynch@rwglaw.com>; Brian Carter; Rich Martin; CC; PC; Michael N. Friedman Subject: Re: Funeral Service on the Mausoluem Green Hills filed an appeal that effectively stays the moratorium. Matt Geier President Vista Verde Home Owners Association On January 9, 2015 at 13:27:40, Matt Martin (matthewhmartin(a�yahoo.com) wrote It's 1/9/15 at 1:23pm and it appears that Green Hills is holding a funeral service on top of the Mausoleum in Area 11. It was my understanding that a moratorium on this type of activity was in place until action was taken by City Council. I've attached a picture. Thanks, Matt Martin MatthewHMartinAyahoo.com This message and any attached documents contain information that may be confidential and/or privileged. The information herein may also be protected by the Electronic Communications Privacy Act, 18 USC Sections 2510-2521. If you are not the intended recipient, you may not read, copy, distribute, or use this information. If you have received this transmission in error, please notify the sender immediately by reply e-mail and delete all copies of this message to include any attachments. 1 ATTACHMENTS 1-181 Subject: FW: Funeral Service on the Mausoluem From: Matthew Geier [mailto:vvoahoa(Wgmail.com] Sent: Friday, January 09, 2015 2:53 PM To: Matt Martin; Carolynn Petru; Carol Lynch <clynch@rwglaw.com>; Brian Carter; Rich Martin; CC; PC; Michael N. Friedman Subject: Re: Funeral Service on the Mausoluem Just to clarify, Green hills getting a stay was what the Daily Breeze reporter told me. I don't think an appeal should nullify a moratorium! Only a successful WIN of the appeal should, which I don't think they deserve. Matt Geier President Vista Verde Home Owners Association On January 9, 2015 at 13:27:40, Matt Martin (matthewhmartin@yahoo.com) wrote: It's 1/9/15 at 1:23pm and it appears that Green Hills is holding a funeral service on top of the Mausoleum in Area 11. It was my understanding that a moratorium on this type of activity was in place until action was taken by City Council. I've attached a picture. Thanks, Matt Martin MatthewHMartin@yahoo.com This message and any attached documents contain information that may be confidential and/or privileged. The information herein may also be protected by the Electronic Communications Privacy Act, 18 USC Sections 2510-2521. If you are not the intended recipient, you may not read, copy, distribute, or use this information. If you have received this transmission in error, please notify the sender immediately by reply e-mail and delete all copies of this message to include any attachments. 1 ATTACHMENTS 1-183 Subject: FW: Burial Service at Green Hills From: Ellen Berkowitz [mailto:Ellen.Berkowitz@GreshamSavage.com] Sent: Friday, January 09, 2015 8:18 AM To: CC; PC; Carol Lynch <cIvnch@rwglaw.com> Subject: Burial Service at Green Hills On behalf of Green Hills, we want to advise you that an individual who previously purchased a plot on the roof of the Pacific Terrace Mausoleum passed away, and will be buried there today. We will, of course, have a Green Hills representative present for the service, ensure that the service is concluded no later than 3:00 p.m., prohibit the use of amplified sound, use effective screening methods, perform all site work between 10:00 a.m. and 3:00 p.m. and endeavor to shield the adjacent residents from any noise and visual intrusions. We expect the mourners to honor the privacy concerns of the adjacent residents, and we hope that the adjacent residents will honor the concerns of the grieving family. Please let me know if you have any questions. Thank you. Ellen Ellen Berkowitz Shareholder Gresham Savage Nolan & Tilden, PC 333 South Hope Street 35th Floor Los Angeles, CA 90071 Office direct: (213) 873-8395 Office main: (213) 213-7249 Fax: (213) 213-7391 I Cell: (310) 592-3479 www.GreshamSavage,com 1. Privileged and Confidential Communication. -f he information contained in this email and any attachments may be confidential or subject to the attorney client privilege or attorney work product doctrine. If you are not the intended recipient of this communication, you may not use:. disclose, print. copy or disseminate the name. If you have received this in error, please notify the sender and destroy all copies of this message, 2. 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This email has been scanned for email related threats and delivered safely by Mimecast. For more information please visit http://www.mimecast.com 1 ATTACHMENTS 1-184 From: Michael N. Friedman <mnfesq@hfllp.com> Sent: Tuesday, January 13, 2015 5:07 PM To: Carla Morreale Cc: 'Brian Carter'; 'Sharon Loveys'; 'Julie Keye'; 'Matt Martin'; Eduardo Schonborn; 'Ellen Berkowitz'; 'Megan Barnes'; Carol Lynch <clynch@rwglaw.com>; CC Subject: RE: Green Hills Memorial Park Appeal - Early Staff Report Attachments: Letter to City Council.January 12.pdf Dear Ms. Morreale Attached please find my letter of January 12, 2015, in reference to the Green Hills appeal set for hearing before the City Council on January 20, 2015. Please include my correspondence with the councilmembers' agenda packets for the meeting. Thank you. Michael Friedman Michael N. Friedman HIRSCHBERG & FRIEDMAN, LLP 5023 H. Parkway Calabasas Calabasas, California 91302-1421 fel/Fax (818) 225-9593 Cell (818) 642-0822 Email mnfesq@hfllp.com Website www.hfllp.com From: Carla Morreale [mailto:CarlaM@rpv.com] Sent: Friday, January 09, 2015 6:13 PM To: ellen.berkowitz@greshamsavage.com; mnfesq@hfllp.com Cc: Carolynn Petru; Carol Lynch <clynch@rwglaw.com>; Teresa Takaoka Subject: Green Hills Memorial Park Appeal - Early Staff Report Good Afternoon Ms. Berkowitz and Mr. Friedman, The City Council staff report for the Green Hills Memorial Park Appeal is now on the City's website for early review. This is a Public Hearing item that will be heard on Tuesday, January 20, 2015 at 7:00 p.m. The City Council Meeting will be held at the Pt. Vicente Interpretive Center located at 31501 Palos Verdes Drive West, Rancho Palos Verdes. Attached is the staff report (23 pages long) for the Green Hills Memorial Park Appeal. The following is the link to the agenda item (staff report and all attachments) which is on the City website: http://www.palosverdes.com/rpv/citycouncil/agendas/2015 Agendas/MeetingDate-2015-01-20/ Regards, Carla Carla Morreale, CMC, City Clerk 1 ATTACHMENTS 1-185 CITY OF RANCHO PA.OS VERDES City Clerk's Office 30940 Hawthorne Blvd. Rancho Palos Verdes, CA 90275 Phone: (310) 544-5208 Fax: (310) 544-5291 2 ATTACHMENTS 1-186 HIRSCHBERG & FRIEDMAN, LLP 5023 N. PARKWAY CALABASAS CALABASAS, CALIFORNIA 91302-1421 LESLIE D. HIRSCHBERG MICHAEL N. FRIEDMAN Rancho Palos Verdes City Council City of Rancho Palos Verdes 30940 Hawthorne Boulevard Rancho Palos Verdes, CA 90275 EMAIL Idhesq@hfllp.com EMAIL mnfesq@hfllp.com January 12, 2015 TELEPHONE (818) 225-9593 FACSIMILE (818) 225-9593 Re: Green Hills Memorial Park - Master Plan Review and Amendment 27501 S Western Ave, Rancho Palos Verdes, CA 90275 CASE NO. ZON2003-00086 Green Hills' Appeal of Planning Commission Resolution No. 2014-29 Dear Honorable Mayor and City Council Members: This office represents the Vista Verde Homeowners Association in connection with its support of PC Resolution No. 2014-29 and its opposition to Green Hills' appeal thereof. The Vista Verde Homeowners Association is comprised of the owners of the 25 condominium units located adjacent to the northern border of Green Hills Memorial Park, precisely where Green Hills recently constructed its Memorial Terrace Mausoleum, aka Pacific Terrace Mausoleum, after illegally obtaining permission to relocate the mausoleum in 2007 to only 8 -feet from its common boundary with the Vista Verde condominium complex. ISSUES ON APPEAL Green Hills provides the council with a "laundry list" of grounds for appeal with no clear framework in which they apply. This appeal is really quite simple and does not require so many grounds either for appeal or support of the Planning Commission's decision. The council need not be overwhelmed by the number of arguments made by Green Hills' counsel and should seek clarity and simplicity rather than complexity in reviewing the Planning Commission's decision. Vista Verde submits that the issues on appeal are limited to the following: 1. Was the location of the Memorial Terrace Mausoleum properly approved in the 2007 Master Plan Revision? ® Printed on Recycled Paper. A. If so, does the City have the authority to require Green Hills to apply ATTACHMENTS 1-187 Rancho Palos Verdes City Council Re: Green Hills Memorial Park - Master Plan Review and Amendment January 12, 2015 Page 2 for a variance to address adverse impacts caused by the Mausoleum's proximity to the Vista Verde condominiums? B. If not, does the City have the authority to require Green Hills to apply for a variance for its non -conforming setback? 2. Does the Planning Commission have the authority to impose a moratorium to maintain the status quo while Green Hills' variance application is being processed? The City Council's staff report also simplifies the issues on appeal. However, Vista Verde submits that the staff report's analysis is incomplete. Essentially, the staff report takes the position that, if Green Hills misled the City into issuing its approval of the Memorial Terrace Mausoleum, then Green Hills does not have a vested right to keep the structure as -is and the City may require modifications thereto. However, if Green Hills did not mislead the City into approving the mausoleum, then Green Hills does have a vested right and the City cannot require it to change the structure. The problem with this analysis is that it leaves out the rights of Vista Verde entirely. It fails to consider whether public notice was not properly given and the impact of inadequate and erroneous public notice on the vested rights issue. Vista Verde submits that all of the requirements for a validly -issued approval must be considered when analyzing the propriety of the mausoleum's approval and not merely whether or not the City was misled. 1. The Location of the Memorial Terrace Mausoleum Was Not Properly Approved in the 2007 Master Plan Revision In Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, the California Supreme Court established the rule in California that a vested right can only arise "if a property owner has performed substantial work and incurred substantial liabilities in good faith reliance upon a permit issued by the government." Id. at 791. However, the vested right is limited. "Once a landowner has secured a vested right the government may not, by virtue of a change in the zoning laws, prohibit construction authorized by the permit upon which he relied." Ibid. In McAllister v. California Coastal Commission (2008) 169 Cal.App.4th 912, the court states that, "when a developer starts a project without any permit or under an invalid permit—i.e., one that was issued in violation of existing zoning or environmental laws—the developer does not gain a vested right to complete the project; and, in the latter situation, the ® Printed on Recycled Paper. ATTACHMENTS 1-188 Rancho Palos Verdes City Council Re: Green Hills Memorial Park - Master Plan Review and Amendment January 12, 2015 Page 3 government is not estopped from challenging the validity of the permit even if the developers expended resources in reliance on it." Id. at 948. Vista Verde submits that Green Hills' Memorial Mausoleum presents a case where the applicant constructed the mausoleum in its entirety, sold burial sites to innocent third parties and commenced the use of the mausoleum, including its rooftop burial sites, all without ever having obtained a validly -issued approval of its master plan revisions. Vista Verde contends that the approval for Green Hills' master plan revisions was not validly - issued because Green Hills and/or members of the City's planning staff, failed to (1) accurately represent the nature of the project to the Planning Commission and to the public; (2) disclose the project's obvious impacts on Vista Verde residents; and (3) provide full and accurate public notice of the project, including the recirculation of the project's proposed mitigated negative declaration following staff's recommendation of approval of revised conditions proposed by Green Hills which changed the setback for the mausoleum from Green Hills' northerly property line from 80 -feet to only 8 -feet. A. Green Hills Failed to Provide the City With Full and Accurate Information Regarding its Memorial Terrace Mausoleum Before Green Hills proposed changes to the conditions of approval of its revised master plan, City staff described the project proposed by Green Hills. In its February 27, 2007 agenda report for the Planning Commission, staff described the project, in pertinent part, as follows: "Area 11 of the Master Plan Revision (known as Memorial Terrace Mausoleum): allow an addition to the previously approved mausoleum building located southeast of the existing maintenance yard, from a 22,187 square foot building footprint to a 33,668 square foot building footprint." The agenda report provides additional detail regarding the nature of the mausoleum, stating: "With approval of the original Master Plan, adequate setbacks for mausoleum buildings and ground interments were established. These setbacks will not be modified or reduced with the additional mausoleum buildings. The additional buildings requested through the revision include additions to the already approved buildings, thereby making them larger buildings. However, they will continue to be located with sufficient setback within the cemetery ePrinted on Recycled Paper. ATTACHMENTS 1-189 Rancho Palos Verdes City Council Re: Green Hills Memorial Park - Master Plan Review and Amendment January 12, 2015 Page 4 site, rather than along its perimeter... Thus, the setbacks and heights of all proposed improvements will be consistent with the requirements established by the prior Master Plan as approved through Resolution No. 91-7 (attached), and the conditions contained therein will remain in full force and effect unless specifically modified by this Master Plan Revision." Additionally, the City's environmental checklist for the project describes the mausoleum revisions as follows: "The amendments to the originally approved Master Plan include: * * * 7) allow a reconfiguration of, and additional area to the previously approved mausoleum building adjacent (south of) to the existing maintenance yard (depicted as Area 11, and named "Memorial Terrace Mausoleum" in the revised master plan) from a 22,187 square foot building footprint to a 33,668 square foot building footprint." [Emphasis added] All of the foregoing representations are inaccurate. The location of the Memorial Terrace Mausoleum was revised so that it would be located primarily south and southwest of the maintenance yard, not southeast. Were it located southeast of the maintenance yard, it would not be located adjacent to the Vista Verde condominium complex, and would not create any adverse impacts for Vista Verde residents. Instead, the mausoleum and access ramp is located due south of Vista Verde along its entire common property line with Green Hills. That is a HUGE difference! Where did these descriptions come from? Did the City make them up or were they provided by Green Hills? The answer is obvious that the information which is contained in the staff report and environmental checklist came from Green Hills.1 Assuming that the 'Green Hills has previously asserted before the Planning Commission that the site plan it submitted in 2006, which was approved by the Planning Commission on April 24, 2007, accurately depicts the size and location of the Memorial Terrace Mausoleum. Green Hills, however, has never explained why it remained silent when the City consistently referred to the mausoleum as being located southeast of the existing maintenance yard. An applicant cannot sit silent in the face of inaccuracies in a local agency's documents leading up to an approval and then claim good faith reliance on said approval. It was incumbent upon Green Hills, if it knew that its project was not ePrinted on Recycled Paper. ATTACHMENTS 1-190 Rancho Palos Verdes City Council Re: Green Hills Memorial Park - Master Plan Review and Amendment January 12, 2015 Page 5 information did not come from Green Hills, what non -nefarious reason would Green Hills have for failing to disclose to the City the inaccuracies of the project descriptions in the City's documents? At a minimum, the City should investigate further the source of the project description that it included in its environmental checklist and Planning Commission agenda report. On August 8, 2014, this office submitted a letter to the Planning Commission urging it to revoke Green Hills conditional use permit based upon false information Green Hills provided to the Planning Commission to support its application for master plan revisions. A true and correct copy of said letter is attached hereto and incorporated herein by reference as grounds for the City Council to either revoke Green Hills' conditional use permit or find that Green Hills does not have a vested right to retain its Memorial Terrace Mausoleum in its present location. B. The City Failed to Give Adequate and Accurate Public Notice Before Approving Green Hills' Application In Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, the court discussed the role of public notice in land use matters, stating: "[Alt every level of the planning process — the Legislature recognizes the importance of public participation. ([Government Code] § 65033.) To this end, the Planning and Zoning Law has declared the policy of the state and the intent of the Legislature that each state, regional, and local agency concerned in the planning process involve the public through public hearings, informative meetings, publicity and other means available to them, and that at such hearings and other public forums, the public be afforded the opportunity to respond to clearly defined alternative objectives, policies, and actions. (§ 65033, italics [in original].) With this broader perspective in mind, we return to the statutory language at issue here. As stated, the notice of the legislative body's hearing must contain "a general explanation of the matter to be considered." (§ 65094.) This must be read in conjunction with the state's policy and Legislature's intent that the public be involved in the planning process and be given "the being described or analyzed accurately by planning staff, to alert it to that fact before a decision was made by the Planning Commission based upon inaccurate information. Printed on Recycled Paper. ATTACHMENTS 1-191 Rancho Palos Verdes City Council Re: Green Hills Memorial Park - Master Plan Review and Amendment January 12, 2015 Page 6 opportunity to respond to clearly defined alternative objectives, policies, and actions." (§ 65033.) Together, there can be little doubt that the purpose of notice in cases such as this one is to inform the public of the legislative body's hearing so they will have an opportunity to respond to the planning commission's recommendation and protect any interests they may have before the legislative body approves, modifies, or disapproves that recommendation. If notice could be given before the planning commission made its recommendation and, therefore, without inclusion of what that recommendation was, the purpose behind the notice provision would be ill -served, as the notice would not inform the public to what "clearly defined alternative objectives, policies, and actions" they would be responding. Id. at 891-892. [Emphasis added; Citations and internal punctuation omitted.] The public notice herein was filed on February 20, 2007. It erroneously describes the addition to the mausoleum as follows: "The Master Plan Revision includes the following: ... Area 11 of the Master Plan Revision (known as Memorial Terrace Mausoleum): allow an addition to the previously approved mausoleum building located southeast of the existing maintenance yard, from a 22,187 square foot building footprint to a 33,668 square foot building footprint." Subsequent to the February 27, 2007, hearing, Green Hills proposed modified conditions of approval, including Condition No. 7, which reduced the setback for the western extension of the Memorial Terrace Mausoleum from 80 feet to 8 feet. Despite the significance of the reduction in this setback, and the fact that it reduced the setback to a distance shorter than that set forth in the City's development standards for cemetery setbacks from residential properties, no new notice or environmental review of this change took place. The April 24, 2007, Planning Commission agenda report addresses the public notice issue, stating: "Since the project was continued to a date -certain (i.e., April 24, 2007), a new public notice is not required. Nonetheless, as a courtesy, Staff informed the 36 interested parties of the new hearing date via mail, which resulted in one verbal comment from a nearby resident that will be addressed in more detail in the Additional Information section of this Memorandum." (T) Printed on Recycled Paper. ATTACHMENTS 1-192 Rancho Palos Verdes City Council Re: Green Hills Memorial Park - Master Plan Review and Amendment January 12, 2015 Page 7 The condition of approval regarding the setback for the Memorial Terrace Mausoleum, as modified by Green Hills was Condition No. 7. There is no analysis of this condition in the agenda report nor explanation about why it is acceptable to staff. Moreover, despite the significance of this change, particularly as it reduced the setback between the cemetery and residential property, no new or additional initial study was performed nor was any mitigation measure proposed to address impacts from the mausoleum with rooftop burial sites on the adjacent residential property. CEQA Guidelines §15073.5 addresses the rules regarding the recirculation of a negative declaration prior to its adoption. It states: "(a) A lead agency is required to recirculate a negative declaration when the document must be substantially revised after public notice of its availability has previously been given pursuant to Section 15072, but prior to its adoption. Notice of recirculation shall comply with Sections 15072 and 15073. (b) A "substantial revision" of the negative declaration shall mean: (1) A new, avoidable significant effect is identified and mitigation measures or project revisions must be added in order to reduce the effect to insignificance ... " Here, in order to allow Green Hills to locate its Memorial Terrace Mausoleum where it is depicted in its site plan (as opposed to its stated location southeast of the maintenance yard,) the setback from the northerly property line had to be reduced significantly. There is no document in the City's files explaining why the mausoleum had to be moved so far west that it would no longer be located southeast of the maintenance yard. The City's files are absolutely silent on this issue. Given that Green Hills has represented that it does not intend to ever construct an addition to the mausoleum eastward of the existing structure, it is difficult to believe that Green Hills wanted anything other than to shift the location of the mausoleum westward without anyone knowing that was what it intended all along. The public was totally deceived by the notice given of Green Hills' project. When the setbacks were changed just prior to the April 24, 2007, hearing, no notice of any kind was given of that fact. No notice of any kind was given that the mausoleum would be located 8 feet from Vista Verde's southerly property line. Is there any wonder why no Vista Verde residents appeared at the April 24, 2007, Planning Commission hearing? Vista Verde's ePrimed on Recycled Paper. ATTACHMENTS 1-193 Rancho Palos Verdes City Council Re: Green Hills Memorial Park - Master Plan Review and Amendment January 12, 2015 Page 8 residents were clearly and significantly prejudiced by the inadequate and inaccurate notice they were entitled to receive. Whether or not the blame for this lies with the City, with Green Hills or with both, it is clear that blame does not lie with Vista Verde's residents, who must bear the adverse impacts of the mausoleum on their view, the property values and on the impairment of the quiet enjoyment of their homes. 2. Even if Green Hills Has a Vested Right to Keep its Mausoleum in its Current Location, the City Has the Power to Modify its Allowable Uses Vested right can apply to both structures and uses. There is no dispute about that. However, Green Hills accepted the approval of its master plan revisions subject to annual review of the conditions of approval. Section N-3 of the Planning Commission's 2007 resolution approving Green Hills master plan revisions states: " As indicated in mitigation measure AQ -13 above, the project shall be reviewed by the Planning Commission annually, commencing on the date of final approval, to review the applicant's compliance with all conditions of approval associated with the Master Plan and Master Plan Revision. At that time, the Planning Commission may add, delete, or modify the conditions of approval as deemed necessary and appropriate. Notice of said review hearing shall be published and provided to owners of property within a 500' radius, to persons requesting notice, to all affected homeowners associations, and to the property owner in accordance with Rancho Palos Verdes Development Code Section 17.80.090." If the foregoing is to have any meaning, it must be the case that Green Hills cannot claim a vested right to use its property as approved in the master plan revisions. The Planning Commission must, by the terms of this condition of approval, have the ability to change what Green Hills received on April 24, 2007, where circumstances support such a change. Vista Verde submits that the sale and use of burial sites does not constitute a structure but is rather a use of the mausoleum which can be changed by the Planning Commission where it finds that circumstances warrant it. Vista Verde therefore contends that, even if the City Council finds that Green Hills has a vested right to retain the Memorial Terrace Mausoleum in its current location, the City has the power to restrict burials on the mausoleum's rooftop. The operational mitigation measures are not adequate to reduce the impacts of the rooftop burials and family visits of loved ones buried on the mausoleum's Printed on Recycled Paper. ATTACHMENTS 1-194 Rancho Palos Verdes City Council Re: Green Hills Memorial Park - Master Plan Review and Amendment January 12, 2015 Page 9 rooftop to the level of insignificance to Vista Verde residents. The record of the Planing Commission's hearings is replete with descriptions of residents' negative encounters with mourners and the ill -will it creates between residents and mourners alike. The City Council should not allow this situation to persist, particularly where Green Hills has created this negative environment for its neighbors and its customers solely for economic gain. While it is abundantly clear that Green Hills' approval was not validly -issued, the City should, at a minimum, stop all further burials and sales of burial sites on the rooftop of the Memorial Terrace Mausoleum aka Pacific Terrace Mausoleum. 3. The Planning Commission's Moratorium Should Remain in Effect Until the City Council Takes Final Action on Green Hills' Appeal The effect of an appeal of a Planning Commission decision to the City Council in the City of Rancho Palos Verdes is governed by RPV Municipal Code Section 17.80.020, which states: "Effect of filing. The filing of a notice of appeal pursuant to this chapter stays all activity on the project until a final decision on the appeal." [Emphasis added] The "project" in this instance is the use and development of the Green Hills Memorial Park pursuant to the conditional use permit issued by the City of Rancho Palos Verdes, which includes, as a condition of approval, annual review of Green Hills' compliance with the CUP and allows the City to amend the conditions of approval of said CUP. The "project" is not the Planning Commission's resolution imposing, inter alia, a moratorium on sales of and burials in rooftop burial plots atop the Memorial Terrace Mausoleum. The plain meaning of the ordinance does not reasonably permit an interpretation that stays the Planning Commission's moratorium automatically when it expressly stated that it was to be imposed immediately for the preservation of the status quo. The moratorium was ordered, in part, to protect innocent third parties who were sold burial plots or who buried loved ones on the rooftop of the Memorial Terrace Mausoleum without knowing of the dispute regarding the mausoleum's location and the possible ramifications it could have on them. The motive was clearly one of consumer protection, not the taking of private property for public use without just compensation. ® Printed on Recycled Paper. ATTACHMENTS 1-195 Rancho Palos Verdes City Council Re: Green Hills Memorial Park - Master Plan Review and Amendment January 12, 2015 Page 10 On January 9, 2015, a funeral service was conducted on the rooftop of the mausoleum. It is clear that Green Hills has not and will not voluntarily adhere to the provisions of the moratorium. It should be spelled out plainly that the moratorium ordered by the Planning Commission is in full force and effect and cannot be disregarded by Green Hills. The City Council should also decide whether this or future violations of the moratorium should be referred to the City's code enforcement officer. Vista Verde contends that, if the City demonstrates that it is intimidated by Green Hills and its financial resources, there will be no stopping Green Hills in its operation of its cemetery in whatever manner it sees fit. Public Hearing I will be present at the January 20, 2015, hearing and will be available to respond to any questions you may have at that time. Additionally, residents of Vista Verde intend to appear and speak on their own behalf and not as representatives of Vista Verde. It is my hope that you will allow adequate time for me and for these residents to be heard. Thank you for your service and consideration. Very truly yours, HIRSCHBERG & FRIEDMAN, LLP Bv: cc: Mr. Brian Carter Attachment ® Printed on Recycled Paper, MICHA N. ' EDMAN ATTACHMENTS 1-196 LETTER TO PLANNING COMMISSION, DATED AUGUST 8, 2014 ATTACHMENTS 1-197 LESLIE D. HIRSCHBERG MICHAEL N. FRIEDMAN HIRSCHBERG & FRIEDMAN, LLP 5023 N. PARKWAY CALABASAS CALABASAS, CALIFORNIA 91302-1421 EMAIL Idhesq@hfllp.com EMAIL mnfesq@hflIp.com August 8, 2014 Rancho Palos Verdes Planning Commission City of Rancho Palos Verdes 30940 Hawthorne Boulevard Rancho Palos Verdes, CA 90275 TELEPHONE (818) 225-9593 FACSIMILE (818) 225-9593 Re: Green Hills Memorial Park - Master Plan Review and Amendment 27501 S Western Ave, Rancho Palos Verdes, CA 90275 CASE NO. ZON2003-00086 Hearing Date: August 12, 2014, Agenda Item: No. 1 Dear Commissioners: This office was recently retained by the Vista Verde Owners Association ("Vista Verde") to represent its interests in connection with the review and amendment of the Green Hills Memorial Park Master Plan. Please allow me to apologize in advance for my inability to complete this letter and submit it to the Planning Division in time for it to be included as an attachment to the staff report prepared for this hearing. I have had less than one week to get up to speed on this matter and to provide meaningful comments. Executive Summary Vista Verde supports the recommendations of staff as interim measures only while further investigation is undertaken regarding the propriety of the recently constructed Memorial Terrace Mausoleum and, particularly, the rooftop graveyard. Vista Verde urges the Planning Commission to enact the 90 -day moratorium to maintain the status quo while said investigation is pending and to set a future hearing to address issues, including those set forth below, that provide legal grounds for revocation of entitlements for the Memorial Terrace Mausoleum. Vista Verde requests that the moratorium include the sale of rooftop burial plots in addition to funerals for previously -sold plots. Vista Verde requests modification of the proposed revised condition regarding the use of motorized equipment prior to and after burial to prohibit such use on Sundays. Vista Verde requests that Green Hills not conduct rooftop funerals on weekend afternoons because the likelihood that those funerals will be disrupted by normal and reasonable noise emanating from the Vista Verde condominiums (e.g., TV, music, swimming pool/common area use, W Printed on Recycled Paper. ATTACHMENTS 1-198 Rancho Palos Verdes Planning Commission Re: Green Hills Memorial Park - Master Plan Review and Amendment August 8, 2014 Page 2 etc.) is greatest on weekend afternoons. Lastly, Vista Verde requests that visitors of the rooftop graveyard be limited to the hours of 10:00 a.m. to 3:00 p.m. because of their ability to see inside Vista Verde condominiums. Further Investigation of the Propriety of the Memorial Terrace Mausoleum is Warranted by Existing Evidence There are two issues involving the approval of the Memorial Terrace Mausoleum which, combined, are responsible for the "unintended consequences" cited by staff in its report. Those two issues are the mausoleum's height and setback from Green Hills' property line. Our review of the approval of the mausoleum (at both the planning stage and construction stage) reveal improprieties on the part of planning staff with respect to each of these issues which deprived the Planning Commission from considering significant changes to the mausoleum structure prior to its construction and give grounds for the revocation or significant modification of said approvals. A. The Rooftop Graveyard's Height The site of the constructed Memorial Terrace Mausoleum is southwest of its maintenance yard. This is the westernmost portion of the mausoleum (Area 11) approved in the Revised Master Plan in 2007. ® Primed on Recycled Paper. ATTACHMENTS 1-199 Rancho Palos Verdes Planning Commission Re: Green Hills Memorial Park - Master Plan Review and Amendment August 8, 2014 Page 3 According to the approved Revised Master Plan, the maximum height of the mausoleum in this location is 25 -feet. The approved rooftop graveyard is substantially lower than 25 -feet. And blocked from view by walls on the north and south side. OUTLINE OF EXISTING GRADE CEMETERY ROADWAYr ca a MEZZANINE LEVEL gwg /////J/i: //f/-/A,—%/f_•.f Printed on Recycled Paper. ATTACHMENTS 1-200 Rancho Palos Verdes Planning Commission Re: Green Hills Memorial Park - Master Plan Review and Amendment August 8, 2014 Page 4 The mausoleum, however, was redesigned after planning approval but before building permits were issued. The new design is much more monolithic and the rooftop graveyard is at the maximum height of the structure and is no longer surrounded by solid walls but, instead, and due to the increased elevation of the graveyard, is surrounded by wrought iron fencing and, in the front only, by several pilasters which exceed the structure's approved maximum height. Additionally, the structure, as depicted in the construction plans, exceeds the approved 25 -foot height limit. At the April 24, 2007, hearing on the Revised Master Plan, Senior Planner Schonborn was recorded in the meeting minutes as stating: "Senior Planner Schonborn explained that the condition [regarding structure height] dictates that the mausoleum not impair a view, no matter what the height of the structure is. He stated that the height would be measured from the roadway, since that is something that will remain constant. He stated that would be addressed thoroughly when staff receives an application and plans for the construction of the mausoleum." [Emphasis added] In the building plans, the elevation of the interior roadway is listed as 185 feet above sea level. The rooftop graveyard is depicted, on the west side of the structure, as being at 211 feet above sea level (i.e., 26 feet in height) and, on the east side of the structure, as being at 213.5 feet above sea level (i.e. 28.5 feet in height). Considering that the elevation of the rooftop graveyard approved by the Planning Commission was approximately 20 feet above the interior road, this represents an increase in the elevation of the rooftop graveyard of 6 to 8.5 feet. It appears that this additional height was requested by Green Hills so that it could have two-level "stacked' burials for each burial plot. Printed on Recycled Paper ATTACHMENTS 1-201 Rancho Palos Verdes Planning Commission Re: Green Hills Memorial Park - Master Plan Review and Amendment August 8, 2014 Page 5 That is a significant increase in the elevation of the graveyard — an increase too great to be approved by the Planning Director without requiring Green Hills to submit an amendment for review by the Planning Commission. The Planning Director exercised authority he never possessed when certifying that Green Hills' construction plans conform to this Commission's 2007 approval. It clearly does not. B. Setback From the Northern Property Line The original conditions of approval for Green Hills' master plan, contained in Resolution No. 91-7, provided for the following setbacks: "b. Setbacks for above ground structures, including but not limited to mausoleums (except the Pacifica Mausoleum) and crypts shall be as follows: Printed on Recycled Paper. ATTACHMENTS 1-202 Rancho Palos Verdes Planning Commission Re: Green Hills Memorial Park - Master Plan Review and Amendment August 8, 2014 Page 6 North — 80° or no closer than the northern perimeter road, whichever is greater." In the staff report of February 27, 2007, in the draft conditions for approval, the setback for the northern property line is exactly the same. The public notice contained no information regarding any change in the setback from the northern property line. For the April 24, 2007, meeting, Green Hills submitted proposed modified conditions of approval which, for the first time, propose the following change in the setback from the northern property line: 7. Setbacks for above ground structures, including but not limited to mausoleums (except the Pacifica Mausoleum and the Mausoleum shown in Area 11 of the Master Plan Revision) and crypts shall be as follows: North: 80'-0" or no closer than the northern perimeter road, whichever is greater (8'-0" for the western -most portion of the Mausoleum shown in Area 11)." Staff states in its report that it found this modified condition acceptable. It never refers to the condition by its substance — only by the condition number given it by Green Hills. The minutes of the April 24, 2007, hearing reflect no discussion whatsoever regarding the reduction of the setback from 80 feet to 8 feet, and there was never any new notice to the public regarding this enormous reduction in the setback requirements for the proposed mausoleum. A reduction in the setback from the northern property line from 80 feet to 8 feet is so significant that it should have required an amendment to the application for a revised Master Plan and Conditional Use Permit. A new public notice was required but never given. It does not appear clear that the Planning Commission ever knew that it was approving such a large reduction in the setback, given the manner in which it was hidden in an attachment to the staff report but never referenced by subject matter in the report. It is very apparent that the public was not notified of this significant change. Grounds for Revocation/Modification Rancho Palos Verdes Municipal Code § 17.60.100 - Revocation, provides as follows: "A conditional use permit granted pursuant to this section may be modified, revoked or suspended pursuant to Section 17.86.060 (Enforcement) of this Code." Printed on Recycled Paper ATTACHMENTS 1-203 Rancho Palos Verdes Planning Commission Re: Green Hills Memorial Park - Master Plan Review and Amendment August 8, 2014 Page 7 Rancho Palos Verdes Municipal Code § 17.86.060 - Suspension or revocation of permits, provides: "The officer or body taking final action granting any permit pursuant to the provision of this title may, after following the same procedures utilized for approving such a permit, revoke or suspend the permit if: A. The permit was issued erroneously; or B. The permit was issued on the basis of incorrect or fraudulent information supplied by the applicant; or C. The permit was issued contrary to the provisions of the Municipal Code; or D. The permit is being or recently has been, exercised contrary to the terms or conditions of such permit. No permit shall be revoked prior to providing a ten calendar day written notice to the holder of the permit and an opportunity to be heard before the officer or body considering revocation or suspension of the permit. Any decision to revoke or not to revoke a permit, other than a decision by the city council, may be appealed by any interested party pursuant to Chapter 17.80 (Hearing Notice and Appeal Procedures) of this title." Vista Verde submits that it is entirely appropriate for Planning Commission to request staff to investigate whether the 2007 Revised Master Plan and Conditional Use Permit was issued in conformity with the law, when no public notice was given of the 72 -foot decrease in the setback from the northerly property line. It should further be determined whether an amendment to the Revised Master Plan and Conditional Use Permit was required for the approval of the construction plans for the Memorial Terrace Mausoleum when the elevation of the rooftop graveyard was increased from 20 feet to 26-28.5 feet above the elevation of the interior roadway. Additionally, staff should be requested to investigate whether Green Hills provided incorrect and/or fraudulent information when it is represented in its application for a conditional use permit that "There is no adverse impact on adjoining land uses," and "future development will continue to maintain a negative impact [on adjoining land uses.]" There is no doubt that Green Hills knew it was going place a taller mausoleum closer to the Vista Verde condominiums than had previously been approved and it did so in a piecemeal fashion which substantially shielded the true impacts of its proposed development from the watchful eyes of the Planning Commission, its staff and Vista Verde residents. Printed on Recycled Paper ATTACHMENTS 1-204 Rancho Palos Verdes Planning Commission Re: Green Hills Memorial Park - Master Plan Review and Amendment August 8, 2014 Page 8 Vista Verde believes that a 90 -day moratorium on rooftop funerals and burial plot sales is appropriate to maintain the status quo until a proper investigation can be conducted. Given that this situation was not caused by Vista Verde but was, instead, perpetrated upon it, Vista Verde believes it appropriate for the Planning Commission to initiate revocation/modification proceedings on its own and not force Vista Verde to undertake the burden of doing so. Nonetheless, Vista Verde reserves its right to initiate revocation proceedings should the City elect not to do so. Either way, a moratorium will help to prevent any innocent customers of Green Hills from buying a burial plot in the rooftop graveyard or from having a loved one buried there only to have the body relocated in the event that the rooftop graveyard is found to have been inappropriately approved and/or constructed. Support for Interim Conditions of Approval Vista Verde supports staff's proposed modified conditions of approval but only as interim measures designed to mitigate adverse impacts pending a determination of the propriety of the rooftop graveyard and whether physical changes to the graveyard are mandated by the circumstances of its approval and construction. Additionally, Vista Verde has a few of its own proposed modified conditions of approval that it requests be added again as interim measures. Vista Verde requests modification of the proposed revised condition regarding the use of motorized equipment prior to and after burial to prohibit such use on Sundays. All other types of motorized construction equipment is disallowed on Sundays and the same type of equipment prohibited for construction projects should also be prohibited for cemetery use on Sundays. Adequate man -powered alternatives are available so that, at least one day per week, Vista Verde residents do not have to listen to motorized construction equipment on the rooftop graveyard. Vista Verde also requests that Green Hills not conduct rooftop funerals on weekend afternoons. Weekend afternoons are typically a time for recreational activity. Vista Verde residents should be able to use their residences and the common areas for recreation during this time without concern for offending the sensibilities of mourners and funeral goers. It is for both Green Hills' customers and Vista Verde residents that this request is sought. Weekend afternoons are a time when the likelihood that funerals will be disrupted by normal and reasonable noise emanating from the Vista Verde condominiums (e.g., TV, music, swimming pool/common area use, etc.) is greatest. Lastly, Vista Verde requests that visitors of the rooftop graveyard be limited to the Printed on Recycled Paper. ATTACHMENTS 1-205 Rancho Palos Verdes Planning Commission Re: Green Hills Memorial Park - Master Plan Review and Amendment August 8, 2014 Page 9 hours of 10:00 a.m. to 3:00 p.m. because of their ability to see inside Vista Verde condominiums. Vista Verde residents should not be subjected to unintended, unwelcome "visitors" who can see inside their condominium units and balconies between sunrise and 10:00 a.m. and between 3:00 p.m. and sunset. Moreover, this feeling would most likely be shared by those wishing to visit a grave site in solitude and express their emotions in private. Public Hearing I will be present at the August 12, 2014, hearing and will be available to respond to any questions you may have at that time. Additionally, residents of Vista Verde intend to appear and speak on their own behalf and not as representatives of Vista Verde. It is my hope that you will allow adequate time for me and for these residents to be heard. Thank you for your service and consideration. Very truly yours, HIRSCHBERG & FRIEDMAN, LLP Bv: cc: Mr. Matthew Geier ® Printed on Recycled Paper. ATTACHMENTS 1-206 From: bubba32@cox.net Sent: Thursday, January 15, 2015 12:43 PM To: Carolynn Petru; Carol Lynch <clynch@rwglaw.com> Cc: radlsmith@cox.net; CC Subject: Staff Report ad Agenda for January 20, 2015 City Council Meeting Attachments: GH - 6-17-10 Smoking Gun Recording of Pac Garden Lawn Crypts 1 of 4 (2)jpg; GH Interment Plots 401 through 411 Fraudulently Sold in violatio 001 (2)jpg; GH Lillie Planning Group Compliance Reviiew Mausoleum Heights 01_20141202 _Lilley_Planning_Group_Memo_re_RPV_PC_Height_Confirmation.pdf; RPV to investigate setback Violation PV News 8 28 2014 001 (2) jpg Acting City Manager Petru I have a number of specific concerns and issues with the pending Agenda item and published Staff Report. Although the extensive Staff Report prepared by you and the City Attorney have encompassed a great deal of the pertinent background information relevant to possible City Council actions recommended, there are some additional facts and considerations, in my opinion, that should be recognized, as follows; 1.) The December 2, 2014 Third Party Compliance Review by the Lillie Planning Group demonstrates that the Green Hills CUP Condition 36. is not in compliance. 2.) Op. Cit. Condition no. 38 is not in compliance. The mausoleum still does not comply with the 30 -foot height limit.", and "the structure does not comply with the 20 foot height limit." 3.) In addition to these two non compliant items, there are ten (10) others by the Lillie Planning Group in their independent Compliance audit. 4.) As such, and in accordance with RPVMC 17.86.050, the applicant is not entitled to receive or have the city hear any further entitlements, uses, etc., until such violations have been cured. Please note that these referenced violations are the responsibility of the applicant and have not been corrected. 5. Applicant Green Hills has previously demonstrated a gross lack of credibility and ethics (my opinion) by recording, on June 17, 2010 (attachment) a false Plat Map on page 54 of Book 45 that declared NW plots numbered 401 through 411 were compliant with "..all rules and regulations governing Green Hills Memorial Park now in effect.." 6.) RPV has not yet obtained a full and complete accounting of the sales of those plots, including financial sales and dates of sale and interments. These sales and interments have been acknowledged by Green Hills Attorney Berkowitz as a "mistake". However, as the current Staff Report reveals, Green Hills has been denied (condition 6) interments in this NW portion of the cemetery three (3) times previously, and prior to the June 17, 2010 false recording of those plots. Such additional information detail should be in hand prior to RPV making any further substantive approvals for the benefit of Green Hills. This is not an "innocent" "mistake". It would appear that applicant does possess the essential "clean hands" in this matter. 7.) No mention is made in the Staff Report of the pending and still incomplete internal investigation of the setback violations at issue that is also being conducted by the Lillie Planning Group. An abundance of Caution suggests that no further action on any of the pending Staff Report Recommendations be made at this time until a full resolution of the facts and circumstances leading to this situation have been completely and fully vetted in public. 1 ATTACHMENTS 1-207 8.) There are unknown and potentially significant legal and other fallout consequences attendant to any absolutions potentially being granted to the parties and these should be fully explored and UNDERSTOOD prior to any assent being made by the City Council. Respectfully submitted, Jim Gordon 7.) 2 ATTACHMENTS 1-208 nokNI O. PACIFIC GARDEN LAWN CRYPTS GREEN HILLS MEMORIAL PARK v!o g3 -'La ga �0§R� Sze &g '&�bso`km A,44I[, 20/G ATTACHMENTS 1-209 MEMORANDUM GR`'UP Date: December 2, 2014 To: Acting City Manager From: LiIley Planning Group Subject: Third Party Peer Review — REVISED Green Hills Memorial Park: Compliance Review for Conditional Use Permit No: 155 — Green Hills Master Plan 1991-2007 — Present Pursuant to direction received at the Planning Commission meeting on October 28, 2014, the following information regarding the height of the Mausoleum in Area 11 (Memorial Terrace aka Pacific Terrace) has been obtained: City of Rancho Palos Verdes Construction plans signed by both the city planner and the building official dated February 6, 2012 and Building Height Certification signed by a licensed land surveyor dated January 18, 2013. This information has been provided to confirm compliance with conditions of approval for building height, for Area 11 specifically. 36. The overall building heights for the mausoleums are limited to the heights depicted in the Master Plan Revision booklet described in condition No. 1 above. The heights of each mausoleum building shall be certified by a registered Civil Engineer and submitted to the Planning, Building and Code Enforcement Department prior to building permit final. Former Response: No height certification records were in the material provided for review. The condition is not in compliance. Current Response: The construction plans and height certification do not match the Area 11 Mausoleum depicted in the Master Plan Revision booklet. Sheet 11-D of the Master Plan booklet shows a schematic site section for the west wing of the Memorial Terrace I Pacific Terrace with a 25 foot maximum building height but appears to have a 40 -foot rear retaining wall. This condition is not in compliance. 38. With the exception of the mausoleum building on Inspiration Slope, all mausoleum buildings shall not exceed 20 -feet in height as measured from the average elevation of the finished grade at the front of the building to the highest point of the structure and 30 - feet when measured from the lowest finished grade adjacent to the building to the highest point of the structure. 1 ATTACHMENTS 1-210 Former Response: Inspiration Slope is currently under construction and will be certified for height once framing is completed. An additional compliance inspection is required. Height certifications for other structures could not be located in the record provided. The condition is not in compliance. Current Response: In the "General Development Parameters," pages I and II of the Narrative of the Master Plan booklet, it states "Building heights are calculated based on building frontage being the elevation of the individual mausoleums that faces the internal cemetery road system. Heights listed on the color elevations conform to the requirements listed in Condition No. 35 in resolution No. 91-7. The dimensions are shown for the overall height of each mausoleum as measured from the average adjacent grade (not to exceed 20'0') and the overall height of each mausoleum as measured from the lowest adjacent grade (not to exceed 25'-0"0). The Condition in Resolution No. 91-7 reads as follows: "35. Future buildings designated on the Land Use Plan shall not exceed 20 feet in height as measured from the average elevation of finished grade at the front of the building to the highest point of the structure and 25 feet when measured from the lowest finished grade adjacent to the building, to the highest point of the structure." On March 23, 1995, the Planning Commission approved Conditional Use Permit No. 155 Revision "A" to allow structures in the Green Hills Master Plan to have a maximum downslope height of 30 feet. Yet, Condition No. 38 in the 2007 Resolution adopting Revised Green Hills Master Plan states — "With the exception of the mausoleum building on Inspiration Slope, all mausoleum buildings shall not exceed 20 -feet in height as measured from the average elevation of the finished grade at the front of the building to the highest point of the structure and 30 -feet when measured from the lowest finished grade adjacent to the building to the highest point of the structure." It appears the language regarding the 30 - feet in height was carried over into the conditions, but not into the Master Plan Revision Booklet. The result is inconsistencies in how height is calculated and whether or not the maximum height was supposed to be 25 feet or 30 feet. If 30 feet is the rule, the mausoleum still does not comply with the 30 -foot height limit*: 217.00' Top of guardrail 185.00' Finished grade 32.0' *The certified height of the building was slightly under 217.00'.It appears the certification was taken from finished floor not finished grade as required by the condition. 2 ATTACHMENTS 1-211 The structure also does not comply with the 20 -foot height limit: 217.00' Top of guardrail 189.50' Average grade at front of building 27.5' DOCUMENTS FOR REVIEW: a. Peer Review Description. City b. Building Permit for Memorial Terrace Mausoleum dated, 02/06/12 c. Building Plans for the Memorial Terrace Mausoleum signed by the planner and building official d. Elevation Certificates signed and dated by a licensed surveyor e. Planning Application — Green Hills Memorial Cemetery f. 1991 Staff Report and Resolution for CUP No. 155 and VAR No. 262 — Adoption of Green Hills Master Plan g. 2007 Staff Report, Environmental Document and Resolutions for Adopting Revised Green Hills Master Plan h. All Planning documents for 27501 Western Avenue - Green Hills Memorial Cemetery from the 1980s to present i. 2007 Master Plan Revision booklet According to City correspondence, these documents constitute the whole of the permit record for this property. 3 ATTACHMENTS 1-212 1 1 RPV to investigate Green Hills setback violation The city of Rancho Palos Verdes has launched an internal investigation after officials determined Green Hills Memorial Park needed a variance to build its new $2. million Pacific Terrace Mausoleum and rooftop burial ground.8 feet away from a Lomita condomini- um complex. The Planning Commission is also re -opening a public hear- ing set for Oct. 28 on the cemetery's conditional -use permit, even though the commission closed the hearing two weeks ago. C:jmmissioners determined that more discussion is needed on what to do about both an after -the -fact vari- ance and additional alleged violations. At Tuesday's Planning Commission meeting, act- ing City Manager Carolynn Petru said the city is in the process of selecting an inde- pendent firm to conduct an internal investigation, but she offered few additional details. A plan revision to move the mausoleum 32 feet beyond the city's 40 - foot setback requirement made it to the commission without a variance back in 2007 and never came up in discussion with staff. Green Hills' attorney has stated that she does not believe the cemetery should be required to apply for an after -the -fact variance, as has been suggested by city staff, but that her client is open to discussions with the city about applying for one. `-MATitAallAVNTS 1-213 exgIbier b POTENTIAL FUTURE 2nd INTERMENT 1 Pacific Gardens 36 ATTACHMENTS 1-214 From: Christie Bowman <Christie.Bowman@GreshamSavage.com> on behalf of Ellen Berkowitz <Ellen.Berkowitz@GreshamSavage.com> Sent: Thursday, January 15, 2015 2:26 PM To: CC Cc: Carol Lynch <clynch@rwglaw.com> Subject: Green Hills' Appeal - Case No. ZON2003-00086 - Violation of Due Process Attachments: City Council -01 Due Process Violations.PDF SENT ON BEHALF OF ELLEN BERKOWITZ Please see attached correspondence regarding Green Hills' Appeal (Annual Review of Case No. ZON2003- 00086). Should you have any questions or concerns, please do not hesitate to contact this office. Thank you. Ellen Berkowitz Shareholder Gresham Savage Nolan & Tilden, PC 333 South Hope Street 35th Floor Los Angeles, CA 90071 Office: (213) 213-7249 Ext.1802 Fax: (213) 213-7391 www.GreshamSavage.com 1, Privileged and Confidential Communication. The information contained in this email and any attachments may be confidential or snbieet to the attorney client privilege or attorney work product doctrine. If you are not the intended recipient of this communication, you may not use disclose, print. copy or disseminate the same ,f you have received this in error, please notify the sender and destroy all copies of this message, 2. IRS Circular 230 Notice. In accordance with Circular 230 of the Internal Revenue Service, we inform you that any tax advice contained in this email, including any attachments. 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For more information please visit http://www.mimecast.com 1 ATTACHMENTS 1-215 GRESHAM SAVAGE January 15, 2015 VIA ELECTRONIC MAIL & U.S. MAIL Honorable City Council Members City of Rancho Palos Verdes 30940 Hawthorne Blvd. Palos Verdes, CA 90275 Ellen.Berkowitz(aGresllarnSavage.cont • Los Angeles (213) 213-7249 • fax (213) 213-7391 Re: Due Process Violations Green Hills' Appeal (Annual Review of Case No. ZON2003-00086) Dear Honorable City Councilmembers: As we advance closer to Green Hills Memorial Park's appeal hearing scheduled for next week, I wanted to bring to your attention a troubling development which has compromised the City Council's ability to render a fair and enforceable decision at the upcoming appeal hearing. Specifically, as of the date of this letter, it is our understanding that the City Council continues to be advised with respect to Green Hills' upcoming appeal by the same City Attorney and City Staff as participated in the matter at the original approval and Planning Commission stage, even though doing so is — as we have previously advised — a violation of due process protections established by the Constitution. As we noted in previous correspondence to the City Attorney, due process mandates that appellate proceedings such as these shall be heard and ruled upon by a neutral decision -maker. Such protections also require that the advisors to the decision - makers, including the City Attorney and City Staff, also maintain a neutral and disinterested disposition. These legal protections were clearly detailed in Nightlife Partners Ltd. v. City of Beverly Hills, (2003) 108 Cal.App.4th 81, where the California Court of Appeals found that a City Attorney cannot represent a City as both the "prosecutor" in a matter, while simultaneously serving the function of the City's "advisor." The Court in that case specifically ruled that the City Attorney should not have served in an advisory capacity during the appeal hearing after having played an active role in the prior permit renewal request process, the very process that was being contested on appeal. As a result of this conflict of interest, the Court found that the business' due process rights had been violated. = 550 East Hospitality bane, Suite 300 • San Bernardino, California 92108 3750 University Avenue. Suite 250 • Riverside. California 92501 550 West C Street, Suite 1810 • San Diego, California 92 101 333 South Hope Street. 35`41 Floor • Los Angeles, California 90071 (1 ATTAC H M E N TS583-D00216ei Honorable City Councilmembers January 15, 2015 Page 2 The situation is particularly problematic here, where the City Staff now purporting to act as independent advisors to the City Council on issues pertaining to Green Hills are the very same individuals responsible for the original approval process and for any errors or failures that occurred during that process (such as, for example, their failure to request a variance, if indeed one was required). Additionally, these are the same City Staff members now trying to cover their own mistakes by pointing the finger at Green Hills. And these are the very same City Staff members who are responsible for the alleged "internal investigation" into their own deeds and misdeeds. Clearly, these are no longer impartial governmental officials; as such they cannot and should not be advising the City Council. We therefore request that the appeal hearing be continued to a later date to allow the City an opportunity to obtain new legal counsel and advisors relative to this matter, and to allow said counsel to become apprised on the issues involved in this appeal. Should the City Council hear this matter as scheduled, be advised that it does so at the risk that its decision may be set aside by a reviewing Court. Thank you for your immediate attention to this issue. Very truly yours, Ellen Berkowitz, of GRESHAM SAVAGE NOLAN & TILDEN, A Professional Corporation EB:dff cc: City Attorney, Carol Lynch ATTAC H M E N TS83i2217 Approved Planning Commission Minutes for November 11, 2014 ATTACHMENTS 1-218 CITY OF RANCHO PALOS VERDES PLANNING COMMISSION MINUTES REGULAR MEETING NOVEMBER 11, 2014 CALL TO ORDER Approved January 13, 2015 The meeting was called to order by Chairman Leon at 7:05 p.m. at the Fred Hesse Community Room, 29301 Hawthorne Boulevard. FLAG SALUTE Vice Chairman Nelson led the assembly in the Pledge of Allegiance. ATTEN DANCE Present: Commissioners Cruikshank, Emenhiser, Gerstner, James, Tomblin, Vice Chairman Nelson, and Chairman Leon. Absent: None Also present were Community Development Director Rojas, Senior Planner Schonborn, Associate Planner Mikhail, Acting City Manager Petru, and City Attorney Lynch. APPROVAL OF AGENDA The Commission unanimously agreed to hear agenda item Nos. 2 and 3 before item No. 1. COMMUNICATIONS Director Rojas reported that at their November 4th meeting the City Council adopted the proposed LCP amendment regarding flag poles in the City's Coastal Zone, as recommended by the Planning Commission. Director Rojas distributed 9 pieces of correspondence, a strike -out version of the proposed conditions of approval, a follow-up memo from the Lilley Planning Group and a letter from the City Attorney in response to the recent letters from Green Hills, all related to agenda item No. 1. Commissioner Emenhiser noted his objection to conducting the Planning Commission meeting on Veterans Day, and Vice Chairman Nelson noted the freedoms we enjoy as a result of the veterans. ATTACHMENTS 1-219 COMMENTS FROM THE AUDIENCE (regarding non -agenda items): None CONTINUED BUSINESS 2. Coastal Permit, Conditional Use Permit & Environmental Assessment (Case No. ZON2014-00332): 5500 Palos Verdes Drive South Director Rojas presented the staff report, noting that the Commission heard this item at their last meeting, however the comment period on the Negative Declaration had not yet concluded, and therefore staff's recommendation was to continue the public hearing to tonight's meeting. However, staff received a comment letter from the Coastal Commission strongly recommending a property line survey be obtained prior to the City making a decision on the proposed Coastal Permit. He noted the applicant is in the process of getting the property line survey, and staff is therefore recommending the public hearing be continued to December 9th. He noted that he has received no speaker slips for this item. Vice Chairman Nelson moved to continue the public hearing to December 9, 2014, seconded by Commissioner Emenhiser. Approved without objection. PUBLIC HEARINGS 3. Height Variation (Case No. ZON2014-00103): 28723 Shire Oaks Associate Planner Mikhail presented the staff report, explaining the scope of the project and the need for the Height Variation. She explained that during the public noticing period the neighbor at 6309 Alto Circle expressed some privacy concerns. She noted photos taken by staff from the rear yard at 6309 Alto Circle, and explained that staff did not feel there would be any new or significant impacts to this neighbor as a result of the proposed addition. She stated staff was able to make the necessary findings and was recommending the Planning Commission approve the project as conditioned in the staff report. Chairman Leon opened the public hearing. Mr. Atalla's daughter stated she was available to answer any questions from the Commission. There being no questions, Chairman Leon closed the public hearing. Commissioner Emenhiser moved to approve staffs recommendation, seconded by Commissioner Tomblin. PC Resolution 2014-28 was approved, (7-0). Planning Commission Minutes November 11, 2014 ATTACHMENTS 1-220 CONTINUED BUSINESS 1. Green Hills Memorial Park Annual Review Director Rojas explained that the public hearing for this item was continued to tonight's meeting, therefore the public hearing remains open. He reminded the Commission that at the last meeting the Commission approved three motions and directed staff to come back with a Resolution, which is now before the Commission. He noted that staff did their best to capture the motion, and in doing so is open to suggestions from the Commission. In addition, while drafting the Resolution staff and the City Attorney identified some ambiguities in certain conditions, and given testimony made at the last meeting, staff took the initiative to propose some additional changes to the conditions of approval. He noted that staff has distributed to the Commission a strike -out version of the draft conditions of approval. He also noted that there is an addendum to the compliance report that was submitted by the Lilley Group, which has also been distributed to the Commission. Acting City Manager Petru explained that at the last meeting a compliance report was submitted to the Planning Commission, however there were a number of items and conditions where the consultant was not able to make a determination regarding compliance. She noted the primary reason was the consultant was provided with a hard copy file and did not have access to some of the electronic files through the Building and Safety Division. She explained the focus of the report was on the mausoleum in Area 11 in terms of building height certification and whether or not it complied with the conditions of approval, which is the sole subject matter of the three page memo that was distributed to the Commission. She noted there are currently two conditions in the CUP that relate to building height, the first being condition No. 35, and she read aloud condition No. 35. She noted the Lilley Group's response that the construction plans and the height certification do not match the Area 11 mausoleum depicted in the Master Plan Revision booklet. Specifically, the consultant referenced sheet 11-D, which is a section through the mausoleum, noting that sheet 11-D shows a schematic site section of the west wing of the Pacific Terrace Mausoleum with a 25 foot maximum building height, but appears to have a 40 foot high rear retaining wall. She noted that the other condition regarding height was condition No. 38, and read condition No. 38 which states all mausoleum buildings shall not exceed 20 feet in height as measured from the average elevation of finished grade at the front of the building the highest point of the structure and 30 feet when measured from the lowest finished grade adjacent to the building to the highest point of the structure. She explained that in 1995, the Planning Commission amended the condition to change the downslope height measurement from 25 feet to 30 feet. She noted that condition No. 38 allows for a 30 foot height maximum while condition No. 35 is still operating at the 25 foot height maximum. Presuming that condition No. 38 is the condition that controls, the consultant determined that, based on the stamped and approved building plan, the building complies with the 30 foot height limit. However, when looking at the 20 foot height measurement, the building does not comply. She felt that something does need to be done in terms of the conflicting conditions of approval. In addition, if the Commission wishes to do something regarding Planning Commission Minutes November 11, 2014 ATTACHMENTS 1-22413 the non-compliance, it would be within their jurisdiction through a Conditional Use Permit revision. Commissioner Tomblin asked staff to clarify if the mausoleum building on Inspiration Slope, which is currently under construction, is exempt from these conditions of approval. Acting City Manager Petru explained that the height of that structure was handled through another condition of approval, which states the Director has the authority to approve the maximum height of the structure so that it doesn't impact views. Commissioner Tomblin questioned that there appears to be a number of conflicts that the Commission and staff have been looking at and this building is currently under construction. Acting City Manager Petru did not think there was a conflict of terms of Inspiration Slope because it has its own specific condition of approval regarding the height. It was approved by the Director through an administrative approval to a specific elevation. Ellen Berkowitz stated her comments are included in the submittal letter, adding that she would like to take a closer look at the consultant's comments that were given to the Commission, as she had not yet seen them. She also stated that she agrees with some of the points raised by Mr. Friedman in his email to the Commission, specifically that staff has added a number of conditions into the draft resolution that were never raised or discussed at the prior Commission meeting and are only now being presented for the first time. She noted that Green Hills is continuing to be denied the ability to file the plans for the administration building, and that Green Hills is under a very tight time frame in regards to this building. Commissioner James asked Ms. Berkowitz if Green Hills was now prepared to move the above -ground structures on the west side that contain remains. Ms. Berkowitz answered that there are actually very few that do contain remains, and the ones that do will be moved so that they are out of the five-foot setback. She estimated this will be completed by next week. Commissioner James asked Ms. Berkowitz about the over -height trellises in that area. Ms. Berkowitz answered that those will be taken down and will ensure that they are not over six feet in height. City Attorney Lynch clarified that the trellises do not have to be lowered to less than six feet if they are outside of the setback area. Michael Friedman (representing Vista Verde HOA) stated he has sent an email to the Planning Commission noting his concern that the proposed Resolution went too far in Planning Commission Minutes November 11, 2014 ATTACHMENTS 1-224 terms of staff taking initiative rather than following the direction and instructions of the Commission. He stated the Commission previously voted on three items, and it is only these three items that should appear in the Resolution, so that there isn't discussion on what has already been voted upon. As it stands, the current Resolution has all sorts of new things added to it that, in his opinion, deserve a public notice and public hearing. He was concerned that once again the Commission would be in a position where they could not adopt the Resolution as presented. He stated the Commission has already identified problems and those problems deserve to be addressed immediately. Commissioner Gerstner asked Mr. Friedman if his primary objection was one of the Commission being unable to vote on a Resolution, or was it the content of the Resolution. Mr. Friedman felt it was the content of the Resolution, as he did not want to address at this late date the notion of having to change the height of the mausoleum from the average of the finished grade level to a 30 -foot height. City Attorney Lynch respectfully disagreed with Mr. Friedman's comments, noting this is an open public hearing. She stated that staff has provided the Commission with a red- lined version of the Resolution and staff is seeking the Commission's direction in regards to any additional changes that were included. Linda Ott stated one simple line between February27th and April 24th that was crossed out, underscored, and a new piece of information was added. She said if you look at the progression it is very subtle, and now Pacifica and Pacific Terrace Mausoleum will be included in massive changes. She felt that the Commission and staff know that the mausoleum was built too high, too wide, they went too deep, too much dirt was brought in, it's in the wrong place, and fifty people have been massively affected by all of this. Sharon Lovevs stated the Commission was going to put a moratorium in place in February and it is now November and nothing has changed. She questioned the logic of applying for an after -the -fact Variance if it can't be approved. She asked the Commission to do something for the residents and encouraged them to place the moratorium on this small area of Green Hills until the City and Green Hills has figured out what to do with the mausoleum and the above -ground burials. Julie Keve stated that in the almost one year they have been coming to the Commission each month has shown, little by little, how many mistakes and oversights have occurred at Green Hills. She encouraged the Commission to place the moratorium as requested. Laurie Brown stated it was her understanding that one of the objectives of the City of Rancho Palos Verdes was to preserve ocean and coastline views, and noted Green Hills is taking that away. She stated that once a coastline view is taken away it will be gone for all future generations, and she encouraged the Commission to preserve the coastline views. Planning Commission Minutes November 11, 2014 ATTACHMENTS 1-235 Matthew Martin felt it was very clear what the height limitations were, as it clearly said the height of the mausoleum will match what is in the booklet and the booklet says the heights will comply with what is in the conditions of approval. He read from the February 27, 2007 staff report in which staff stated that in regards to significant impacts to views from neighboring properties staff believes the grading will not adversely impact any views from surrounding properties since the requested earth movement will prepare the site for mausoleum buildings and ground interments. He also noted the staff report stated that the locations of the mausoleums and the associated backfill continue to be within the internal portions of the cemetery site and no mausoleum buildings are proposed along the perimeters of cemetery that abut the residences to the north and the south. With that, he felt the moratorium should not only be for burial on the rooftop, but for the entire building. Ellen Berkowitz recalled that this was supposed to be four separate Resolutions and not one Resolution. She also stated that she would respond to some of the other issues in another written submittal when they see the next compliance review. Commissioner Emenhiser suggested the Commission review the changes to the Resolution line -by-line, and the Chairman agreed. City Attorney Lynch stated she did not understand that there was supposed to be separate Resolutions regarding each Commission action, noting this has never been a past practice. She stated that if the Commission wants this broken down into four Resolutions staff can certainly do that and bring them back to the Commission, however she did not think that would add anything. City Attorney Lynch began with the Resolution language on page 14 of the staff report, noting staff added Section 3 which addresses the moratorium on any burials on the roof of the mausoleum. She stated that at the previous meeting Mr. Martin had raised the issue of a moratorium on any interments anywhere in the mausoleum, but staff understood the Commission's direction to be only with respect to the rooftop burials. She stated that Section 3 also includes the various operational conditions that the Commission wanted, and those were all left in place except for those that the Commission specifically directed to be deleted, which she would review when discussing the conditions of approval. She moved on to Section 4 (page 16 of the staff report) which was the direction from the Commission to have, within 30 days of the adoption of the Resolution, a requirement that Green Hills submit a Variance application to the City to seek approval to allow the existing Memorial Terrace Mausoleum (Pacific Terrace Mausoleum) to remain encroaching 32 feet into the required 40 foot setback and to allow the thirteen existing below -ground burials and the six companion spaces within the 16 foot setback in the northwest corner of the cemetery site. She noted it specifically calls out the plots where there are already interments as well as where the companion plots are located. She stated that a Variance would be required to allow any of the existing structures to remain within the five-foot setback along the western property line. She noted that if Planning Commission Minutes November 11, 2014 ATTACHMENTS 1-2246 Green Hills moves forward with their plan to more all of the items that exceed six feet in height or contain human remains that are above ground to be moved outside of that setback area, the requirement would no longer be applicable. She suggested leaving the language in the Resolution and adding the language "Unless the structures are removed from the setback by Green Hills prior to the thirty day deadline, which is December 11, 2014." Commissioner Gerstner requested that staff and the Commission begin the review with the first page of the Resolution (page 10 of the staff report). Chairman Leon asked staff if there were any changes made to page 10 of the staff report, and the City Attorney responded that no changes had been made. City Attorney Lynch stated no changes were made to page 11 or page 12. She noted that on page 13 staff included what they thought were the Commission's actions and requested the Commission read through each of the paragraphs. Commissioner Gerstner noted on the next to the last WHEREAS on page 13, the word "neighbors" should be changed to "residential properties" to be consistent with the rest of the document; and that "burial" should be changed to "burials and activity". He also noted that in the last WHEREAS it would be clearer to reference this as being in contradiction to a municipal code section which restricts this from happening. Vice Chairman Nelson questioned the definition of "final City action". City Attorney Lynch responded that final City action would either be the adoption of the Resolution by the Planning Commission if there are no appeals to the City Council, or if the Commission's decision is appealed to the City Council, it would be the City Council's final decision on the matter as reflected in the adoption of its Resolution. Commissioner James suggested adding to the end of that sentence, "or further determination from the City Council" to clarify the sentence. The Commission agreed. Commissioner Gerstner looked at the fourth WHEREAS on page 13, explaining that the Planning Commission required the Variance to fulfil the requirements of the Municipal Code. Therefore, he would like that reflected in the WHEREAS. Moving to page 14, Commissioner Gerstner felt an additional WHEREAS was needed. He explained that the Commission is not completely acting on all of the actions and review of the consultant's work, which is intended to be discussed at the next annual review. Therefore, a final WHEREAS that says this is an intermediate action or an immediate action to address the issues that can be currently addressed, understanding that there are some open issues that the Commission anticipates addressing at the next review. Planning Commission Minutes November 11, 2014 ATTACHMENTS 1-225' City Attorney Lynch suggested the following: WHEREAS there is an ongoing compliance review that will be completed in the future, there are open issues that will be addressed at the next upcoming compliance review. Commissioner Gerstner felt that was the gist of it, but wanted to further discuss the language later in the meeting. City Attorney Lynch then moved through the Sections. She noted Section 1 did not change. She stated that Section 2 reflected the Commission's direction to address a new operational condition and to address the existing violations of the Master Plan. She explained that Section 3 is the area where the moratorium is being imposed on the rooftop burials at the mausoleum. Commissioner Tomblin noted the language that this moratorium was based on the visual and noise impacts. He felt it was far more than the visual and noise impacts, as there are also direct violations of the CUP occurring at the site. He felt this should be noted in the Section 3. Commissioner Gerstner suggested wording to include "due to inconsistencies between the approval and the building". City Attorney Lynch added the language so that Section 3 read: "As a result of the observed visual privacy and noise impacts associated with the rooftop burials on the Memorial Terrace (Pacific Terrace) Mausoleum building, Area 11, and due to inconsistencies between the conditions of approval and the constructed mausoleum, a moratorium is hereby imposed on the burials and sale of plots on the roof of the Memorial Terrace (Pacific Terrace) Mausoleum in area 11. In addition, the following conditions of approval are added to the Green Hills Master Plan which are included as conditions 1.3(A) through 1.3(0) in the attached Exhibit A which is incorporated here and by reference." Commissioner Gerstner suggested saying Memorial Terrace (Pacific Terrace) Mausoleum throughout the section, rather than just mausoleum. Commissioner Cruikshank commented that in Section 2 it states "the impermissible construction of large structures." He suggested removing the word "large" from the sentence. The Commission agreed. Chairman Leon asked the Commission if they were in agreement on page 14. There were no objections. Commissioner Emenhiser stated that it looks like all of the conditions, with the exception of condition 0 are consistent with what the Commission voted on at the previous meeting. Therefore, he suggested jumping ahead to condition 0, which is the condition staff added. The Commission agreed. Planning Commission Minutes November 11, 2014 ATTACHMENTS 1-228 Before discussing condition 0 Commissioner Gerstner asked the City Attorney to comment on the word "inconsistent" in the third sentence of condition A. She explained adding the word inconsistent was because there were other conditions that were imposed that govern other parts of the Park. Commissioner Gerstner suggesting saying "conflicting conditions" rather than "inconsistent conditions", and City Attorney Lynch agreed. Commissioner James referred to condition A, and suggested adding language to say "when not in use". In addition, on the last line of A he suggested changing "and" to "or" in the last line. The City Attorney agreed. Commissioner James referred to condition B and felt the word "only" was in the wrong place as it suggested the landscaping should grow only to the satisfaction of the Director rather than the landscaping should grow only on the wall. The Commission had no further comments on page 15, and moved on to page 16. City Attorney Lynch discussed condition 0, explaining staff understood the Commission's direction was not to allow the last row of plots along the northern property line on the roof of the mausoleum. Staff felt it was important to add a condition that so stated that reflected the Commission's direction. Commissioner Emenhiser recalled the discussion at the last meeting and felt condition 0 was consistent with what was discussed. Commissioner Tomblin agreed. Commissioner Gerstner questioned if this condition does not restrict above -grade interments on the rooftop within the sixteen feet, and felt it might be clearer to state that all interments are prohibited within the 16 foot setback on the rooftop of the mausoleum. City Attorney Lynch agreed, and suggested changing the language to read that "No interments shall be allowed on the rooftop of the Memorial Terrace (Pacific Terrace) Mausoleum building that are within sixteen feet from the northern property line, specifically plots illustrated in Sections 540 through 563 as depicted in Exhibit C are hereby eliminated." Commissioner James referred to condition K and asked that the wording be changed to "potential rooftop ground interment plots". Commissioner Emenhiser noted that throughout the Green Hills discussions there has been discussion regarding the Pacific Terrace Mausoleum as well as Memorial Terrace (Pacific Terrace) Mausoleum, and asked staff to clarify. City Attorney Lynch clarified that Memorial Terrace Mausoleum is how it is described in the initial Master Plan, but is now called Pacific Terrace Mausoleum. Planning Commission Minutes November 11, 2014 ATTACHMENTS 1-227' Vice Chairman Nelson stated that the County Recorder records and Green Hills both refer to it as the Pacific Terrace Mausoleum and staff continuously refers to it as Memorial Terrace Mausoleum. He felt that what the County Recorder has on record and what Green Hills calls it should be what it is named. City Attorney Lynch stated that staff uses Memorial Terrace Mausoleum because that is what it is called in the city approved Master Plan. She stated she will go back to the reference to include a cross reference. City Attorney Lynch asked the Commission if they wanted to review the language in Section 4 in regards to the requirements of submitting a Variance. The Commission was in agreement. Chairman Leon noted there was now concurrence on page 16 and asked to move on to page 17. Commissioner Tomblin noted a typo on the date in Section 5. Commissioner Tomblin asked staff if, even if an appeal is filed, the moratorium comes into effect as of the adoption of the Resolution and would stay in effect until such time a decision was made on the appeal. City Attorney Lynch answered that was correct, the moratorium would be in effect until the City Council made a decision on the appeal or if Green Hills goes to court and has the moratorium invalidated. Commissioner Cruikshank noted that on Exhibit B there is no north arrow or any other reference, and felt that should be added. Commissioner Tomblin questioned if a condition could be added that upon final resolution that Green Hills modify all County plot maps so they are in compliance with the City decisions and there will be no ambiguity. City Attorney Lynch suggested language to Section 4 stating that "In addition, Green Hills shall submit modified maps to the County of Los Angeles that accurately reflect the final action by the City." The Commission agreed. The Commission agreed that they were satisfied with the language on page 17. City Attorney Lynch read the language in the Code regarding appeals, which states that the filing of the notice of appeal stays all activity on the project until a final decision on the appeal. It's for that reason that staff interprets that during the 15 day appeal period the Commission's decision in not in affect. Given the language of the Code section, and staff's interpretation, she felt that the moratorium would not be in effect immediately Planning Commission Minutes November 11, 2014 ATTACHMENTS 1-228° upon adoption of the Resolution. She explained the moratorium would become effective if no appeal is filed or if the City Council takes action to impose the moratorium. Commissioner Emenhiser asked if there was alternative language the Planning Commission could insert that would allow the moratorium to go into effect once the Resolution was approved and to make the moratorium effective immediately. Commissioner Gerstner noted the Commission is trying to suspend activity on the property, which he felt was the intent of the code section. City Attorney Lynch agreed that the point of the Code language was to prevent applicants from developing something on the property until the appeal period was over or the City Council made a decision. She suggested language stating, notwithstanding that particular code section the Commission's action on the moratorium is to be effective immediately. She stated she will further consider the language. City Attorney Lynch next discussed the conditions of approval. She noted that many of the conditions are conditions carried forward from1991 and 2007, as well as some of the prior approvals. She explained that, other than the language highlighted in color, no other changes were made. The Commission had no comments on pages 1 or 2 of the conditions of approval, which were distributed as part of the late correspondence. On page 3, City Attorney Lynch pointed out that the language had been changed from tombstones to headstones, since headstones had been used elsewhere in the document. She also noted that staff added a definition of "low garden walls" with a definition similar to that in the code. She stated that this was not part of the motion but rather staff added it for clarification. Commissioner Cruikshank suggested taking out "low" and just defining "garden walls", and the Commission agreed. Chairman Leon felt language should be added to prohibit garden walls from being used as a columbarium, and Commissioner Tomblin agreed. City Attorney Lynch suggested the following language "Garden walls and headstones shall not be used to contain above ground interments." The Commission agreed. City Attorney Lynch discussed condition J, noting it is new and again, was not directed by the Commission, and if the Commission does not like the language it can be removed. She explained the condition requires all new mausoleum buildings to first have a silhouette constructed, notice be sent to all adjacent property owners, and requires a decision approving any new mausoleum by the Planning Commission at a duly noticed public hearing. Planning Commission Minutes November 11, 2014 ATTACHMENTS 1-2' Commissioner Gerstner felt the original CUP was a bit bold in allowing the Director to approve new mausoleum buildings without a public hearing, and agreed with the suggested language. Commissioner Cruikshank also agreed with the proposed language, but questioned if the word "mausoleum" should be removed so that all new buildings must first come before the Planning Commission. The Commission agreed. The Commission had no other comments on page 3 or page 4. On page 5 City Attorney Lynch explained the minor modification in "I", changing the date by which the applicant must submit an application for a building permit regarding the administrative offices. The Commission agreed. City Attorney Lynch noted language added on page 6 in regards to vines on the northern wall of the Memorial Terrace (Pacific Terrace) Mausoleum and the addition of "which shall be allowed in consultation with the abutting Vista Verde Condominium Association". Commissioner Gerstner preferred "in concurrence with" rather than "in consultation with". There was no objection from the Commissioners. Commissioner James noted that "when not in use" should be added to 1.3 (a). City Attorney Lynch stated that all of the changes made previously will be reflected in the Resolution. There were no other comments on page 6. On page 7, City Attorney Lynch noted added language after a, b, c, d, and e, which apply regardless of whether the moratorium is in effect or not. Language was added to differentiate those conditions from f, g, h, i, and j which will apply when burials resume, if they do, on the roof of the Memorial Terrace (Pacific Terrace) Mausoleum. The Commission agreed with the changes on page 7. City Attorney Lynch explained that on page 8, the old condition "I" was deleted as directed by the Commission. The Commission also directed that the hours that the sales personnel could show perspective plots in Area 11 be changed to 10 a.m. to 3 p.m. Monday through Sunday. Commissioner James noted that the language discussed earlier that no sales personnel shall be allowed to show potential rooftop ground interment plots should be added. Commissioner Gerstner noted that in "o" the words "below grade" should be eliminated. Planning Commission Minutes November 11 2014 ATTACHMENTS 1-2g432 The Commission was in agreement with the language on pages 8 and 9. On page 10, City Attorney Lynch explained the changes to AQ -1 were to make the condition consistent with the same changes the Commission just authorized regarding Planning Commission review of buildings rather than Director review. She noted the word "mausoleum" will be changed to "buildings". With that, the Commission agreed to the changes on page 10. The Commission had no objections to pages 11 and 12. City Attorney Lynch noted on page 13 there was an issue with respect to whether or not the Commission wanted to have the cross referencing to allow this approval pursuant to a Variance. She noted that Mr. Friedman feels this condition is inconsistent with condition No. 55, however she did not agree. Mr. Friedman stated that with respect to condition No. 7, the North section should say 80 feet and in parenthesis say 40 feet for the entire mausoleum. He explained that it should be set at 40 feet because at present that is the lawful setback. If there is an approval of a Variance there can be a change of the condition of approval to make it 8 feet. He noted that condition No. 55 references the required 40 foot setback, which is why he feels the conditions are inconsistent. Commissioner Gerstner stated that condition No. 7 is saying that setbacks for above ground structures, including mausoleums and crypts shall be as follows, except for Pacifica Mausoleum and the mausoleum in Area 11. However in the requirement the first thing done is to throw into parentheticals something for one of the excepted mausoleums. He did not feel this was a clear way to write the condition, and suggested taking the exception language out and adding it into a condition 7a. City Attorney Lynch felt this was a good point, and noted condition No. 8 was written in a similar way and a condition 8a could be added for the mausoleum in area 11. Mr. Friedman explained that what he was proposing was that condition 7 (north) say 80 feet or no closer than the northern perimeter road, whichever is greater (40 feet for the mausoleum shown in area 11). Commissioner Gerstner understood, however he noted that was not what was done, and part of the dispute is 40 feet or 8 feet. Mr. Friedman felt that if the City is requiring a variance for the 8 foot setback, the code says 40 feet and 40 feet is what it is today. If a variance is granted in the future, the condition can be revised to reflect the distance granted by the variance. Planning Commission Minutes November 11 2014 ATTACHMENTS 1-21 13 City Attorney Lynch read proposed condition 8a, which would say that "Setbacks for the Memorial Terrace (Pacific Terrace) Mausoleum in area 11 shall be as follows: North: 40 feet unless a variance is approved by the City for a reduced setback." Senior Planner Schonborn stated that would go in hand with deleting the portion of condition 7 that discusses the mausoleum in area 11. Chairman Leon noted that the undeveloped side of this has an 80 foot setback from the north property line, which should be in condition 8a. In discussing the mausoleum it needs to be 80 feet adjacent to the maintenance yard and 40 feet in front of Vista Verde. City Attorney Lynch stated that was correct. She noted the 80 foot setback language was still needed, even though Green Hills has already stipulated, and language has already been included in the conditions, that there will be no additional mausoleum in area 11. Commissioner James asked the City Attorney to read into the record conditions 7, 8, and 8a. City Attorney Lynch read the following modified language in condition 7: "Setbacks for above ground structures including, but not limited to mausoleums, except the Pacifica Mausoleum and the mausoleum shown in area 11of the Master Plan and crypts shall be as follows: North: 80 feet or no closer than the northern perimeter road, whichever is greater. South: 40 feet East: 25 feet West: 5 feet." She stated that condition 8 is unchanged, and condition 8a is added to read "Setbacks for the existing Memorial Terrace (Pacific Terrace) mausoleum in area 11 shall be as follows: North: 40 feet, unless a Variance is approved by the City for reduced setbacks." Chairman Leon felt language should be included that setbacks are 40 feet on the western portion of the north setback and 80 feet in front of the equipment yard. He explained that condition 8a is the condition controlling the mausoleum in area 11, and the Master Plan shows the mausoleum going all the way across. Senior Planner Schonborn referred to letter F on page 2, explaining F states there are no expansions to the building that is already constructed. Commissioner Gerstner understood, however he felt this is where there could be confusion. He explained that the condition says you can't build here so we're not going to tell you what the setback is, and in the future someone comes in with an application for a building there and staff is going to consider whether or not they can have it. Then staff will have to figure out what the setback will have to be because it was never written anyplace. He suggested calling the area the north property line, north of the maintenance yard. Planning Commission Minutes November 11 2014 ATTACHMENTS 1-2324 City Attorney Lynch suggested revised language for condition 7 " North: 80 feet or no closer than the northern perimeter road, whichever is greater, from the north property line north of the maintenance yard and 40 feet from the north property line abutting the Vista Verde condominium complex." The Commission was in agreement on page 13. Ms. Berkowitz questioned if this new language was now pretending that this was never approved at 8 feet, that 2007 approval never existing, the building plans were never approved, and the building was never built at 8 feet. City Attorney Lynch explained they were talking about the setbacks for the existing building and the language was saying that the building needs to conform to the setback requirements in the Municipal Code for Cemetery Districts, which is 40 feet from adjacent residentially zoned properties. She stated it is, in some respects, fiction since the building already exists, however it is also saying that the City would require a Variance to be approved in order to allow the building to allow in its existing location. She also noted that this language is more for clarity and how to address future proposed buildings on the property. The Commission was in agreement in regards to pages 14, 15, and 16. City Attorney Lynch referred to condition 36, noting staff modified the condition to require that approval of any mausoleums be approved by the Planning Commission, thereby making it consistent with the other conditions. She also discussed the proposed revision to condition 38 which addresses the discrepancy about the height of the Pacific Terrace Mausoleum. She asked the Commission if they wanted to leave the language regarding the average elevation at the front of the building, as it is currently written. Commissioner Gerstner did not think the language in condition No. 38 should be changed, and after some discussion the Commission agreed. The Commission agreed the language on page 18 was satisfactory. On page 19, Commissioner Emenhiser referred to condition No. 56, recalling at the previous meeting there was a perspective motion in regards to the security cameras, however the Commission took the CEO of Green Hills at his word that the security cameras were being used to deter vandalism and theft, and therefore the motion maker withdrew the motion. He therefore did not think condition No. 56 was needed at this time unless the consultant or member of staff provides different information. Commissioner James agreed. Commissioner Gerstner felt that if there are no laws against putting cameras on your property, then what basis did the Commission have to restrict the use of the cameras. Planning Commission Minutes ATTACHMENT emriSS Chairman Leon felt the Commission has to make findings that there is or is not unreasonable infringements of privacy. He felt it was quite reasonable to have this condition to ensure privacy to the residents at Vista Verde. Commissioner James stated that the Commission has no evidence that cameras are pointed directly at the resident's windows. He stated there have been allegations that residents feared there might be, but there is no affirmative evidence in the record. He stated that is not to say that at some point in the future if someone shows evidence to the City that some type of condition can be added back in at a future review. Commissioner Gerstner agreed with Commissioner James' comments. The City Attorney stated she would remove condition No. 56, Commissioner James referred to condition No. 54 and stated the language from the Resolution needs to be added to the condition. Commissioner Gerstner stated the last WHEREAS where the City is trying to establish the Planning Commission is making a Resolution to discuss the issues the Commission can address and suggested language to address this. Senior Planner Schonborn read Commissioner Gerstner's suggested language for the final WHEREAS as follows: "WHEREAS the Planning Commission seeks to provide resolution to certain items of immediate importance pursuant to the operational review, and being aware of the fact that certain conditions of the operation remain under review by consultants to the Planning Commission, the Planning Commission intends to consider the findings of the consultant no later than its next scheduled operational review of Green Hills anticipated to be conducted in early 2015." Acting City Manager Petru suggested changing the wording of consultants to the Planning Commission to City Consultants. Moving to the title of the Resolution, City Attorney Lynch suggested changes which she read as follows: "A Resolution of the Planning Commission of the City of Rancho Palos Verdes imposing a moratorium on ground burials, interments, and sales of burial plots on the rooftop of the Memorial Terrace (Pacific Terrace) Mausoleum building located in Area 11 of the Master Plan and imposing a moratorium on above ground burials within the five-foot setback area along the western property line in the area south of the Pacifica Mausoleum building, unless said encroachments are removed within thirty days of the date of final City action. Whereby the moratorium shall remain in effect until final action is taken by the City to approve a variance for the Memorial Terrace (Pacific Terrace) Mausoleum building and to allow existing interments in the required setbacks to remain. Requiring submittal of a variance application and to seek approval to allow the existing Memorial Terrace (Pacific Terrace) Mausoleum building in Area 11 to remain encroaching 32 feet into the required 40 foot setback; to allow existing below - Planning Commission Minutes November 11 2014 ATTACHMENTS 1-2a4 ground interments and six additional companion interments to encroach into the 16 foot setback in the northwest corner of Green Hills; imposing additional conditions of approval; amending the Green Hills Cemetery Master Plan for property located at 27501 Western Avenue, Green Hills Memorial Park." City Attorney Lynch then referred to Section 3 and explained that at the beginning of the section the following language would be added: "Notwithstanding Section 17.80.020 of the Rancho Palos Verdes Municipal Code, as a result of the observed visual, privacy, and noise impacts associated with the rooftop burials on the Memorial Terrace (Pacific Terrace) Mausoleum building in Area 11, and inconsistencies between the conditions of approval and the constructed mausoleum Memorial Terrace (Pacific Terrace) building a moratorium is hereby imposed immediately on the burials and sales of plots on the roof of the Memorial Terrace (Pacific Terrace) Mausoleum in Area 11." She stated the rest of the section remains the same. Commissioner Emenhiser moved to approve both the Resolution and Exhibit A, as amended per the discussions that have taken place at this meeting, seconded by Commissioner Tomblin. Commissioner Tomblin asked the City Attorney if she felt comfortable with the language regarding the moratorium, and that the moratorium would be in effect immediately and could not be subject to an appeal. City Attorney Lynch responded that was the intent, as the language supersedes the Municipal Code section. However, she noted that Green Hills will most likely make a contrary assertion. Commissioner Tomblin asked what the remedy would be if Green Hills chooses not to abide by the moratorium. City Attorney Lynch answered that the City would have to evaluate to determine whether the City would go to court to get an injunction to prevent individuals from interred on the roof of the mausoleum. Commissioner Tomblin asked, if Green Hills were not to follow the moratorium, if the City could consider revocation of the CUP. City Attorney Lynch stated there is a condition of approval that states failure to comply with the conditions of the Master Plan and the Commission's actions could entitle the Commission to commence revocation proceedings. City Attorney added that on page 13, the last WHEREAS is being deleted, as it refers to the administrative buildings, and it is being added to the separate Resolution regarding the administrative building. Planning Commission Minutes ATTAC H M E N tgemmer ; Commissioner Emenhiser moved to amend his motion to eliminate the last WHEREAS on page 13 in regards to the administrative building, seconded by Commissioner Tomblin. Vice Chairman Nelson stated that none of the Commission or staff are experts in running cemeteries. He stated the Commission has spoken on micromanagement in the past, and now the Commission is micromanaging the cemetery. He felt that taking the punitive actions that they are about to take should wait until the internal investigation is over so that the Commission has all of the facts. He realized the time and effort that has been put into this, but could not support taking the punitive actions that are part of this motion. Commissioner Emenhiser felt that after six very long hearings this is the best the Commission can do for Green Hills, the City, and the residents at Vista Verde. Commissioner Tomblin agreed that the Commission does not like to micromanage, however the role of the Commission is to enforce the codes of the City. While performing the annual review, unfortunately the Commission discovered there are violations at Green Hills of these codes. He felt it was the Commission's obligation to enforce the City's codes, and that he was doing his job as a Commissioner. Commissioner Cruikshank agreed. He felt it was time the Commission do something to help a very bad situation, and this was the least the City can be doing for the residents that have to live with this every day. The motion to approve the Resolution and Exhibit A as amended, thereby adopting PC Resolution 2014-29 was approved, (6-1) with Vice Chairman Nelson dissenting. City Attorney Lynch read the following Resolution into the record: "A Resolution of the City of Rancho Palos Verdes directing the City to allow submittal of construction plans to the Building and Safety Department for the administration building addition that was approved by the Planning Commission on July 22, 2014 for property located at 27501 Western Avenue (Green Hills Memorial Park). WHEREAS the Planning Commission previously established deadlines for the submittal of plans and construction of the administrative offices building and the removal of the temporary modular units; NOW THEREFORE the Planning Commission of the City of Rancho Palos Verdes does hereby find, determine and resolve as follows: SECTION 1 Notwithstanding Municipal Code Section 17.86.050 the Planning Commission hereby agrees to allow Green Hills to proceed with submittal of construction plans into Building and Safety plan check for the administration building addition that was approved by the Planning Commission on July 22, 2014." Commissioner James moved to adopt the resolution as read by the City Attorney, seconded by Commission Emenhiser. PC Resolution 2014-30 was approved, (7- 0). Planning Commission Minutes N vember 11,_2014 ATTACHMENTS 1-2668 Commissioner James asked staff the status of the internal investigation being conducted. Acting City Manager Petru reported that the City's labor attorney has retained a private third party investigator to conduct the investigation, and will be assisted by the Lilley Planning Group. In regards to the time line, she explained the LiIley Group is finishing up the compliance review, and once done will move on to compiling the documents for the investigator. She did not have a time line for that, noting that to her knowledge this has not yet commenced. Commissioner James stated he was disappointed that this has taken so long, and Commissioner Emenhiser agreed. APPROVAL OF MINUTES 4. October 14, 2014 Minutes Commissioner Emenhiser moved to approve the minutes as presented, seconded by Vice Chairman Nelson. Approved, (5-0-2) with Commissioner Gerstner and Chairman Leon abstaining since they were not at that meeting. ITEMS TO BE PLACED ON FUTURE AGENDAS 5. Pre -Agenda for the meeting on December 9, 2014 The pre -agenda was approved without objection. ADJOURNMENT The meeting was adjourned at 11:09 p.m. Planning Commission Minutes N vemberl1 2014 ATTACHMENTS 1-2a 19