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03_PC_MINS_20140826AUGUST 26, 2014 PLANNING COMMISSION MINUTES (EXCERPT) CONSENT CALENDAR 1. Green Hills Memorial Park Annual Review Director Rojas noted that because there are speakers for this item and staff has some comments regarding the Resolution, it is staff's recommendation that this item be pulled from the Consent Calendar for discussion. Commissioner Tomblin moved to remove item No. 1 from the Consent Calendar, seconded by Commissioner Cruikshank. Director Rojas clarified that removing the item from the Consent Calendar means there will be discussion on the item. Since the public hearing was closed at the last Planning Commission meeting there can be no new testimony given and no new issues raised. The discussion must be limited to the language in the draft Resolution and whether it accurately reflects the motion passed at the last meeting. If any member of the Commission wishes to have additional discussion or hear additional testimony from the public, a new public notice must be sent out, and the public hearing would be re -opened at a future date. The motion was approved without objection. Director Rojas stated that before the Commission is a resolution which staff believes memorializes the decision made at the last meeting by the Planning Commission regarding the Green Hills annual review. He stated that today staff received correspondence from the Green Hills attorney seeking clarification on some of the conditions. With that, staff and the city attorney reviewed these conditions and now have some minor clarifications to add to the conditions of approval before the Commission. He also explained that there has been some correspondence stating that the Commission should not take any action on adopting the resolution because of code violations on the property. He reminded the Commission that what is before them is an annual review and not a permit request from Green Hills, so action can be taken despite confirmed code violations. City Attorney Lynch reviewed the changes made to the conditions of approval. She referred to page 8 of the staff report, the second bullet point from the bottom. She noted that the word "services" was being construed with anything having to do with activities prior to the actual internment. She stated that what was meant, instead of "services" was "ceremonies". With that change, the other condition regarding the placement of the screening walls and tents could occur two hours before that. She referred to the fourth bullet point on page 9 of the Resolution. She stated that after reviewing the tape of the August 12th meeting, staff added leaf blowers to be allowed once a week. She stated the last suggestion was also on page 9, and referred to placing flags on plots scheduled for a burial. She noted that staff suggested adding Planning commission Minutes August 26, 2014 Page 2 language that the flags be placed at the site seven days in advance, and in any event, not less than 24 hours prior to the scheduled internment. Sharon Yarber strongly suggested the Commission reopen the public hearing, and that the public hearing be postponed to an indefinite date until a third party independent investigation into this situation has been conducted. She understood there may be one currently underway and she asked the acting City Manager who had been selected to conduct that investigation. In regards to the Resolution, she felt the Resolution encompassed a couple of things that could be segregated. She explained one is the after -the -fact Variance application versus some conditions. She felt that if may be beneficial to impose some conditions on a temporary basis until some other things can be figured out. She did not think that should be combined with encouraging the submission of a Variance until we find out whether any kind of relief is awardable to Green Hills because she feels the situation is so egregious that it smacks of impropriety. She felt that since there are known violations of the CUP, and staff was directed to do a line by line investigation of the CUP, that the City should leave open the possibility of a revocation of the CUP. Scott Gaver stated he is from Rolling Hills Town Club No. 1, which is the community that is in between Vista Verde and Peninsula Verde. He stated he sympathizes with the homeowners who lost any portion of a view they may have had from the time they purchased their unit. He stated he watched the tapes of the August 12th meeting, as well as the April 2007 Planning Commission meetings and was left confused by the last few minutes of the 2007 meeting. He wondered if that wasn't the beginning of the problems with the approval of the mausoleum. He hoped that having a Lomita address does not make him any less valuable a person than an adjacent neighbor that has a Rancho Palos Verdes address. He stated he will be paying close attention to Area 4 of the Master Plan which hopefully one day will only enhance the view he currently has. He added that he currently was not a board member of his HOA, nor was he speaking on behalf of the HOA. He hoped that his speaking at the meeting would help to strengthen the communication between his HOA, the Rancho Palos Verdes Planning Commission, and management from Green Hills in the foreseeable future. Paul Tetreault felt it was wise for the Planning Commission to do whatever they could at this point to mitigate the impacts to the Vista Verde residents, however he questioned if acting upon this now in Section 6 of the Resolution would preclude future changes to the Conditional Use Permit following the city's investigation into what happened. In referring to Section 6 of the Resolution and the request a Variance be submitted to the City within 90 days, he felt this was something that staff may want to reconsider as part of the Resolution. He referred to Municipal Code Section 17.64.050 which discusses the findings necessary to grant a Variance. In Section B there is a discussion about how a Variance can be granted in the event of an error that is committed by staff or the City and the applicant, in reliance on that error, conducts substantial construction. He felt it was possible that during the investigation it may be found that perhaps there may be something on the part of the applicant which may make Section B not applicable. He therefore felt it may be wise for the Commission to wait on demanding a Variance until Planning Commission Minutes August 26, 2014 Page 3 all the facts are known. Finally, he questioned the title of the Resolution and if the mausoleum was identified under the correct name. Jeff Lewis suggested the Planning Commission ask staff if, in the event the Commission decides not to vote in favor of this Resolution, what is the consequence to the Vista Verde residents in terms of rooftop burials. Secondly, he stated the conditions of approval suggest the cemetery file for a Variance. He noted the cemetery has taken the position that they don't need to file for a Variance. He stated the conditions do not have a date certain for the cemetery to file for a Variance and he questioned what happens six months down the line when no Variance application is filed. Lori Brown stated recently there was an article in the LA Times where Target was ordered to stop building a building because it was too tall. She questioned why the City can't just stop the rooftop burials. Debbie Landis referred to page 9 of the Resolution and the discussion of a minimum six-foot tall temporary wall system or screening, noting this was something discussed quite some time ago and the Vista Verde homeowners had decided they didn't want to have that done, and she thought Green Hills had agreed. Commissioner Emenhiser asked staff to clarify the correct name of the mausoleum in question, whether or not there is a date certain in the Resolution for submittal of the Variance, and asked staff for an update on the internal investigation. Director Rojas clarified the Memorial Terrace Mausoleum name comes from the approved Master Plan submitted by Green Hills and approved by the City. As such, staff continues to use that name. He stated staff was aware that Green Hills has newer material that refers to the same mausoleum by a different name, but staff feels it should be referred to by the name on the approved Master Plan. He stated the Resolution does have a time limit for submittal of the Variance, referring to Section 4 which says that within 90 days of the adoption of the Resolution an application for an after -the -fact Variance shall be submitted to the City. Chairman Leon asked staff what happens if the applicant does not submit the Variance application within the 90 -day period. City Attorney Lynch answered that at that point the City would look into getting some type of restraining order with respect to what can occur at the mausoleum and the rooftop area of the mausoleum, as well as the northwest corner in which internments may have been taking place within the 16 -foot setback. Commissioner Gerstner asked if there were a way for the City to consider a Variance without an application having been submitted. Planning Commission Minutes August 26, 2014 Page 4 City Attorney Lynch stated she would need to review the Municipal Code before answering that question, noting there are times when the Commission can initiate this type of review. In responding to the question asked by Ms. Yarber, Acting City Manager Petru stated that the third party independent investigation being conducted is an internal investigation and would not have any bearing on the processes that are occurring with this body in the future. She stated an outside firm will perform the investigation, but did not know the name of the firm, as the City is in the process of selecting the firm. Commissioner Tomblin stated he just read the late correspondence from Green Hills attorney, Ms. Berkowitz, and her comments that if any person who has purchased a plot in the area within the required setback passes away before the Conditional Use Permit is modified, Green Hills will honor that individual's contract for internment. He stated that he reads this to say that no matter what this Commission passes, Green Hills is not going to abide by the City's setback conditions on ground internments. He asked staff if they have certified whether or not there are internments being performed in violation of the sixteen foot required setback. Director Rojas answered that staff has verified that Green Hills is not in compliance with the CUP in regards to the condition that requires below ground internments to be a minimum of sixteen feet from the property line. Commissioner Tomblin asked what the City will do when someone purposely violates the City's code. City Attorney Lynch answered there are a number of different remedies, including judicial remedies, which is where the City will most likely go with this. In regards to whether Green Hills was saying they would not comply with the condition in regards to refraining from interring someone who had already purchased a plot in that area, she agreed that appears to be Green Hills intent. Commissioner Tomblin asked if the Commission is authorized to revoke the entire Conditional Use Permit for Green Hills. City Attorney Lynch explained revocation proceedings are complicated proceedings, and can occur when there has been fraud perpetrated by an applicant. Depending upon the findings that are made in that regard, whether there has been fraudulent conduct on the part of the applicant, revocation is a possibility. She felt that intentionally proceeding to not comply with conditions of approval could be another ground for revocation. Commissioner Tomblin asked if it was possible for the Commission to set a date for a public hearing for revocation of the Conditional Use Permit based on the internal investigation as well as the written testimony of Ms. Berkowitz that Green Hills will not abide by the conditions of approval. Planning Commission Minutes August 26, 2014 Page 5 City Attorney Lynch explained the investigation is an internal investigation and that issue does not bear upon the Commission's determination about whether to conduct further revocation proceedings. She suggested the Commission wait until staff finishes the review of all of the conditions of approval so that if there is more than one violation it could all be addressed at the same time as part of the same hearing. City Attorney Lynch addressed the previous question asked by Commissioner Gerstner regarding whether the City had to have a Variance application to discuss the after -the - fact Variance. She stated that the Code says that the Planning Commission, upon verified application of any interested person, shall initiate proceedings for consideration of a Variance. She interpreted this to be broad enough to give the Commission the authority to go forward with the Variance process themselves. Commissioner Gerstner asked if the Commission itself can satisfy the role as an interested party. City Attorney Lynch answered that was correct. Commissioner Tomblin stated that some of the public comments received have indicated fraud on behalf of Green Hills, as well as accusations of unclean hands or payoffs that may have taken place, and asked if that would be part of the investigation. City Attorney Lynch explained that the internal investigation into what occurred will focus on the internal workings of the City and what occurred with respect to staff. She clarified that unclean hands could have a variety of meanings, but typically means there is knowledge on the part of the applicant that the application was not appropriate or they were not conducting themselves in accordance with the Conditional Use Permit, or that the applicant was not relying on staff's or the City's actions in approving the CUP because they were aware of other facts that would cause them to understand this was a process that should have gone forward. Commissioner Tomblin stated he had the utmost respect for staff and staff's integrity, but unfortunately this was brought up and the record should be cleared up. Commissioner Tomblin asked the Commission if Ms, Berkowitz could be allowed to speak to acknowledge that Green Hills is not going to follow the conditions set by this Commission. Chairman Leon felt that would be acceptable. Commissioner Gerstner pointed out that the sixteen -foot setback is not part of the new resolution before the Commission, but rather it is part of the existing CUP. Therefore, the way he read Ms. Berkowitz's correspondence is that Green Hills intends not to comply with the existing CUP relative to internments not being allowed within the sixteen -foot setback in the area of the northwest corner. Planning Commission Minutes August 26, 2014 Page 6 City Attorney Lynch agreed with Commissioner Gerstner's comments. Ms. Berkowitz came to the podium. Commissioner Tomblin stated that it was his understanding by the written submission, as a representative of Green Hills, that she has stated for the record that Green Hills will not comply with the existing CUP and will violate the existing CUP and that if the Resolution before the Commission is approved, Green Hills will not follow that Resolution. Ms. Berkowitz answered that was not correct, She explained that what she put in writing has to do with the internments in the northwest corner that are ground burials. She stated Green Hills has already sold all of those plots within that setback area. She explained that if there is a person who passes away who has purchased a plot in that area, Green Hills will see if it is amenable to relocate that person. However, if there is a burial permit for that person, if that person already has a spouse interred at that area and their contract requires them to be buried there with their spouse, Green Hills is in a very difficult spot to promise that they will not inter somebody. She very much hoped this issue will be resolved and that nobody who is not amenable to being relocated will pass away during this period, but if they do Green Hills may have to inter them where they are legally obligated to do so. Commissioner Tomblin asked Ms. Berkowitz if she was saying Green Hills may bury someone in this area, even though it is in direct violation of the CUP. Ms. Berkowitz answered that each situation will have to be analyzed, but it may be that if there is someone who passes away who has a spouse that is already interred there and they have a contract to be buried there, Green Hills would be in a very difficult to tell them they cannot be buried where they legally purchased a plot, Commissioner Tomblin stated that at the last meeting he asked Ms. Berkowitz if Green Hills was in compliance with the CUP, He asked her again if Green Hills is in compliance with the CUP. Ms. Berkowitz stated that at the last meeting she said that she believed that Green Hills was in compliance with the CUP. She stated that Green Hills has since done their own investigation and learned that there are burial plots within that corner that are within the sixteen foot setback. Commissioner Tomblin asked her about the rooftop. Ms. Berkowitz answered there are no burial plots within the sixteen foot setback on the rooftop, nor have any been sold on the rooftop, Planning Commission Minutes August 26, 2014 Page 7 Chairman Leon referred to the northwest corner and asked how many of the plots have an existing contract. Ms. Berkowitz answered that there are forty four plots within the northwest corner. Currently there are eleven people interred there and the remaining spots have all been sold. Chairman Leon stated that presumably all forty-four plots are not within the sixteen foot setback. Ms. Berkowitz stated all forty-four are within the sixteen foot setback. Commissioner Gerstner asked if there were an individual who did not have a spouse or other relative interred in this area and still chose to be interred there because they have a legal contract with Green Hills, is Green Hills going to honor that contract. Ms. Berkowitz answered that Green Hills will try to entice them to relocate, but will be in a very difficult spot if they are forced to choose between not honoring their contract with their customer who has an expectation and this situation. She hoped this situation will not occur. Chairman Leon asked if notices within 500 feet included owners of burial plots. Director Rojas stated that staff has not included owners of burial plots in their notices. Commissioner Tomblin stated that while Green Hills feels they have to violate the law because they are in a very bad situation, it has also put the City in a very bad situation by having the Commission sit here and not take any action in regards to Green Hills breaking the law. If they want to continue to break the law, he asked if Green Hills was ready to indemnify the City on all counts of any legal action or court costs. He asked Ms. Berkowitz to state, for the record, that Green Hills will choose to violate the law. Ms. Berkowitz stated that she will not state that Green Hills will violate the law. She stated that this is not a black or white situation with a black or white answer. Commissioner Tomblin disagreed, stating there is a condition in the CUP that says a person cannot be buried within sixteen feet of the property line, and Ms. Berkowitz has stated that Green Hills they will bury people in violation of this condition. Ms. Berkowitz stated Green Hills is going to try to get that fixed as expeditiously as possible and it is not Green Hills goal to violate the law. However, there are contracts and obligations with people that they will be in a very difficult position with them and the City, and they are trying to accommodate all parties. Commissioner Tomblin asked Ms. Berkowitz about providing an indemnification. Planning Commission Minutes August 26, 2014 Page 8 She stated she will discuss this with her client, but did not know if she will have an answer this evening. Commissioner James stated he is also troubled by Ms. Berkowitz's position that Green Hills will do their best to try to decide whether to comply with their contracts or to comply with the law. He compared this to a drug dealer who has a contract to sell someone drugs, even though it is against the law. He didn't think this situation is really much different. Ms. Berkowitz did not think that someone who wants to be buried with their spouse is akin to selling drugs. Commissioner James disagreed. He asked Ms. Berkowitz if she was willing to state that, other than the spouse situation, Green Hills will definitely not comply with the contract. Ms. Berkowitz stated she has to speak to her client before answering that question. Vice Chairman Nelson stated that staff has indicated in their report that no further sales or internments shall occur in this area without further modification to the CUP. He asked Ms. Berkowitz if she felt that was a moratorium. Ms. Berkowitz felt that was a moratorium. Vice Chairman Nelson continued reading from the staff report that the City will be advising Green Hills that future internments cannot occur in the last row of internment spaces in the mausoleum without approval to an amendment. He asked Ms. Berkowitz if she felt that was a moratorium. Ms. Berkowitz answered that she felt this was a moratorium. Vice Chairman Nelson noted that at the last meeting this Commission voted that there would be no moratorium put in place at this time. Commissioner Tomblin commented that whether there is a moratorium or not, the situation is there are violations in the setback, and he did not think this mistake should be allowed to continue over and over. Commissioner James referred to the staff report and a letter from Ms. Berkowitz pointing out that the Municipal Code says the Planning Commission has the power to create conditions as part of a CUP, and once that is done that overrides any zoning restrictions that may have existed before that. He noted staffs position and response was that such conditions can only be stricter than the minimum required standards in the code. He asked the City Attorney her view on staffs response to Ms. Berkowitz, Planning Commission Minutes August 26, 2014 Page 9 City Attorney Lynch explained that a Variance is required to establish deviations from the setback minimums. The CUP language to which Ms. Berkowitz refers talks about creating setbacks that are greater than the minimum allowed. In addition, a CUP could supersede all of the Variance findings and the requirements the Commission usually makes in connection with approving a Variance. She noted that with respect to one of the other mausoleums on the western side of the property, a Variance was approved for the setback modification that occurred. Commissioner James understood what the City Attorney was saying, however he did not think that was what the Municipal Code says. City Attorney Lynch understood why Commissioner James may be reading it differently, however under the principal of statutory construction one must try to read the code in ways that give meaning to all of its provisions. In her opinion, if you read it to allow for additional intrusions into required setback areas through a Conditional Use Permit process, you are thereby negating the whole Variance process. Commissioner James stated the statement of the rule is if something is ambiguous, and he did not feel this was ambiguous. Commissioner Cruikshank asked the City Attorney if the City would be violating the law if a condition were added that burials are no longer allowed, regardless of whether or not the plot had sold. City Attorney Lynch did not think the City would be violating the law in this situation, as she felt this was a problem of their own making. Commissioner Gerstner felt that the Commission reaffirming, as part of a Resolution, existing requirements of the CUP such as no burials within 16 feet of the property line, is not a new item. He felt that contract law should not trump the CUP, and the Commission reaffirming Green Hills cannot do something that is in violation of the CUP is not a moratorium. In regards to the Variance, he stated he made the motion at the previous meeting to require the Variance and felt he was clear in the way he was asking for it, however he did not think that was reflected in the current staff report. He stated he never used the words after -the -fact or referred to it as an after -the -fact Variance. He specifically didn't say the Variance was to seek approval to allow the existing Memorial Terrace Mausoleum Building to remain encroaching. He stated he was suggesting the Commission consider a Variance on the merits of the Variance to determine if a setback variance would be allowed in that area of the cemetery, irrespective if there is a mausoleum building there or not. He stated his motion was to analyze the variance on the merits of the findings to determine whether or not it should exist. Therefore, he would not be able to support the Resolution before the Commission because he did not feel it was correct. City Attorney Lynch asked Commissioner Gerstner to clarify in the Resolution where he felt changes should be made. Planning Commission Minutes August 26, 2014 Page 10 Commissioner Gerstner referred to page 7 of the Resolution, the second Wheras, he suggested striking "after -the -fact", he struck "application", and after the word "approval" in the third sentence he struck from the words "to allow the existing" down to fourth line including the word "setback". He read the change should read, "the Planning Commission directed Green Hills Cemetery to apply for a Variance to seek approval of a reduced setback for a structure within the required 40 foot property setback line to reduce the setback to 8 feet." He stated this language also appears on page 9 of the Resolution Commissioner James referred to an earlier discussion in which the City Attorney stated any interested person could seek this Variance. Assuming the Commission were to go with that language and the Planning Commission would be that interested person, he asked if this is that something the Commission should be considering doing now or is a further noticed hearing required. He asked if there were other options available that would segregate the Variance issue from the restrictions of the CUP. City Attorney Lynch answered the Variance could certainly be severed out from the operational conditions. She noted that this current meeting is to discuss the Resolution and the conditions of approval, therefore the issue of the Variance can be brought separately. Commissioner James asked if the Planning Commission is suggesting the Variance, would a noticed public hearing be required. City Attorney Lynch stated that if the Planning Commission wishes to have an item at a meeting to discuss whether or not the Planning Commission wishes to initiate the process, it should be a noticed public hearing item. Commissioner Gerstner commented that he thought Green Hills would see this Variance as an opportunity to clear this issue up and submit the application very quickly. However, as this may not be the case, the Commission should act quickly. Commissioner Tomblin supported this discussion, however noted his concern that Green Hills has gone on record that they will continue to violate the CUP. He stated that he would like see as part of the upcoming motion that the Commission direct staff to issue a public hearing for the revocation of the CUP if necessary, if Green Hills continues to violate the CUP. Commissioner Gerstner pointed out that there is the issue of the sixteen -foot setback in the ground internments in the northwest setback, which is clearly not allowed in the CUP. Then there is the sixteen -foot setback in the area of the existing mausoleum building, and one might argue the eight -foot building setback in a building that can have internments in it all the way up to the edge, trumps the sixteen -foot setback. Therefore, he wouldn't want to combine these two issues together as if they are the same issue when they're not, He would rather limit this Variance to only the area where the building Planning commission Minutes August 26, 2014 Page 11 is located. He stated he was not ready to consider a variance for the ground internments in the northwest corner or reducing that setback at this point. City Attorney Lynch suggested, given the direction the discussion seems to be taking, that it might be useful to focus solely on the operational conditions this evening and bring the rest of the issues back at a future meeting in order to provide public notice. Commissioner James suggested asking the applicant if they have any intention of submitting a Variance application. Ms. Berkowitz apologized for not being able to answer the question, as there is only one Board Member from Green Hills present at this meeting. In regards to the Variance, she explained Green Hills is still evaluating its options. She stated that if the City is so inclined to take it upon itself to seek a Variance that would be acceptable to Green Hills. Commissioner Tomblin asked Ms. Berkowitz if she was saying that she and the Board had two weeks to consider a very important item that was coming before the Commission, and they had no discussion on this item and she came unprepared to address this issue of the Variance. Ms. Berkowitz answered that Green Hills is still evaluating what they want to do with respect to the Variance. Commissioner Tomblin stated that in the meantime Green Hills continues to break the current CUP and have burials within that setback. Ms. Berkowitz stated that Green Hills does not think they are breaking the current CUP. She acknowledged there are problems with the ground burials within the sixteen -foot setback, but in connection with the mausoleum she did not believe they were breaking the condition of the CUP. She stated Green Hills is continuing to consider whether or not to apply for a Variance, noting that as stated in her letter they do not think the Variance is necessary. Commissioner Gerstner suggested that if the Commission continues with its position that a Variance application be submitted, ninety days be changed to something significantly less. City Attorney Lynch noted that when the motion was made before it was to establish a time limit in which Green Hills could apply and staff suggested 90 days. However, if the Commission doesn't think that's appropriate and wants to come up with another time period they can always give staff that direction. Commissioner Tomblin suggested language that if Green Hills fails to apply for the Variance in the allotted time period and the Commission has to make the application, that at that time the Commission direct staff to set a public hearing for the revocation of the CUP. Planning Commission Minutes August 26, 2014 Page 12 Commissioner Gerstner agreed there needs to be a consequence, however he felt this suggestion might be good someplace else. He suggested that if Green Hills inters someone in an area that they now know is not allowed by the CUP, that would trigger revocation of the CUP. Commissioner Tomblin supported that suggestion. Chairman Leon felt that staff should be working with Green Hills on a plot by plot basis to remedy this situation as opposed to looking at this as an overall picture. He encouraged the applicant to work with staff on this and come back with a very precise Variance application for individual plots. Commissioner James felt that some of the confusion may be that what was before the Commission previously was discussion regarding the need for a variance application with respect to the mausoleum. However, tonight's discussion has also included the new issue with respect to the northwest area. He recalled that when the motion was made at the last meeting it did not include the northwest area, and it was not anticipated that would be included in the current Resolution before the Commission. He felt that since the Commission is conducting an operational review, this issue is appropriately before the Commission, however he was not sure that the Commission has received public testimony on this subject. While he agreed with Commissioner Tomblin that it was unacceptable for Green Hills to state they will violate their CUP, he did not think this has anything to do with the Resolution that is currently before the Commission that should be the topic of discussion. Commissioner Gerstner suggested one of two things can happen, he can make a motion to strip everything out of the current Resolution except for the Variance discussion, or he can make a motion to create a new Resolution for the Commission to consider at the next meeting that addresses the Variance. Chairman Leon stated that he would like to see the items together on one Resolution, noting he will not be at the next Planning Commission meeting. Commissioner Tomblin noted that he will not be at the next meeting, and he would like to be a part of this decision, Commissioner Gerstner felt that modifying the existing Resolution may be extensive enough that staff will have to rewrite the Resolution and bring it back to the Commission on the Consent Calendar. Commissioner James asked if it would be acceptable to hear the variance item in four weeks when all the Commissioners are present, rather than two weeks, and pass some of the items tonight at this meeting. Planning Commission Minutes August 26, 2014 Page 13 City Attorney Lynch replied that the variance issue could be heard in four weeks, which would give staff time to send out the public notice. She reminded the Commission that tonight's discussion is to be limited to the conditions in the current Resolution. Commissioner Gerstner felt that, based on tonight's discussion, the modifications the Commission has talked about making to the Resolution may go beyond what was specifically discussed in the last meeting. He felt that including the possibility of the Commission initiating the Variance, as well as a trigger to invalidate the CUP if Green Hills were to intentionally violate the CUP in regards to the sixteen foot internments in the northwest corner may not be proper to include in this Resolution since it was not discussed at the previous meeting. City Attorney Lynch agreed. Acting City Manager Petru noted that two meetings from tonight's meeting would be September 23rd. Ms. Berkowitz noted that neither she nor her client will be available on September 23rd. Commissioner James stated the meeting after September 23rd would be October 14tH Commissioner Tomblin stated he supports the extension, but asked the City Attorney what the City will do if Green Hills buries a person in violation of the Conditional Use Permit. City Attorney Lynch answered the City can then consider revocation proceedings or going to court to get an injunction to prevent Green Hills from continuing to inter people in violation of the CUP. Ms. Berkowitz stated, in response to Chairman Leon's request, that Green Hills will be happy to come back with a plot by plot analysis of who is buried at the site and whether there are double plots. Commissioner Gerstner suggested that the Commission could also have a special meeting to hear just the Green Hills item. He explained that he doesn't want to wait too long because he wants to have these items and issues addressed before more families and more people are potentially harmed by these actions. City Attorney Lynch did not think that would be a problem, but reminded the Commission that it has to be at least fifteen days out in order to properly notice the meeting. A discussion followed on what date the meeting could be held, as various Commissioners and members of the Green Hills Board will be out of town. Planning Commission Minutes August 26, =4 Page 14 John Resich explained that he will be out of town from September 211t through October 6th or 7th. Commissioner Tomblin asked Mr. Resich, as a member of the Green Hills Board, if Green Hills will or will not comply to the direction of the CUP as it currently stands, and will they continue to violate the conditions of the CUP by burying people in those spots. Mr. Resich answered that Green Hills will comply with all Federal and State Laws that are applicable to Green Hills. He stated Green Hills will not knowingly violate any laws. He stated there are many issues that the Commission is not aware of that Green Hills will comply with and have complied with. Commissioner Tomblin stated that with that, Mr. Resich has said as a member of the Board, Green Hills will continue to violate their CUP. Mr. Resich stated that is not what he said, He repeated that Green Hills will not knowingly violate any rules or regulations. Ms. Berkowitz noted that she does not have a majority of the Board present, however she stated she has a proposal she would like to put forward. She noted that she would have to get concurrence with the majority of the Board first, but thought it was worth bringing up now. She stated that Green Hills recognizes there are internments in the setback in the northwest corner. She stated Green Hills did not knowingly or intentionally place them there in violation of the setbacks. However, so that there is not a problem in the future, she suggested that Green Hills be allowed to do an inventory as the Chairman suggested to see how many people are family members, how many are spouses, and who might have a particular situation that Green Hills may need to request permission to bury there. Green Hills will also evaluate who else has purchased plots in this area and see if they can be persuaded to be moved. She did not think it would take much time to do this inventory and inform the city of the results, Commissioner Tomblin appreciated the offer, however he felt that the Board of Directors of Green Hills have unfortunately directed Ms. Berkowitz to put in writing to violate the code. Ms. Berkowitz understood and clarified that Green Hills was asking to do the inventory and to come back to the City seeking permission for those family members who already have family interred in this area, that other people in the family be allowed to be buried there with their family members. She stated Green Hills would not intentionally inter people in this area without getting approval. Commissioner Gerstner reviewed that this item was pulled off of the Consent Calendar to only discuss the Resolution and its consistency with the Commission's previous motion and direction to staff. He felt the Resolution was lacking in several places relative to that. Specifically, he noted the Variance process and what he thought he had said in the motion was reflected a bit differently in the Resolution. Second, he noted the Planning Commisslon Minutes August 26, 2014 Page 15 language in the Resolution which said to allow below ground internments in the northwest corner of the cemetery encroach into the sixteen -foot setback. He did not think that was ever part of the previous motion and this Resolution should not contain such language. Third, he recalled the Commission had discussed operational issues and had directed staff to analyze the operational issues and report back to the Commission. However, what is in the Resolution is that if there are any violations of operational issues they will be dealt with through code enforcement. Given these three deviations, Commissioner Gerstner moved to continue this item to the September 23, 2014 meeting. In addition, given the discussions held this evening and in recent letters it is apparent there is new information that should be considered relative to these issues and a new public hearing should be noticed and opened to have these discussions, seconded by Vice Chairman Nelson. Commissioner Tomblin stated he supported the September 23rd date and felt it was unfortunate that the Green Hills Board may be on vacation on September 231d , but they are Board members and have a fiduciary responsibility to Green Hills to handle business. He felt that if the Board members felt the issue was that important, they may have to make some changes in their schedules. Commissioner James disagreed, noting this is a matter that may have originated over seven years ago. He did not think it was necessary to find a resolution in two weeks as opposed to three weeks, However, he would be uncomfortable with just continuing the entire matter with no conditions put in place. He noted that in the discussions there are things Green Hills is willing to do with respect to burials in this area. He stated that he supported the continuance to October 14th to allow the City's internal investigation to conclude and to give Green Hills time to consider whether or not they will submit the Variance application. In addition, it will give ample time to notice the public hearing. Commissioner James made a friendly amendment to the motion to continue the hearing to October 14, 2014 and to approve some of the conditions to be put into place before the October 14th hearing. Commissioner Gerstner accepted the friendly amendment to continue the hearing to October 14, 2014. However, he did not think the Commission could consider new items and new information relative to the Commission's review of the Resolution. He felt all the Commission could do at this meeting in regards to the Resolution was to either say the Resolution was correct or it is not correct and how is not correct. Chairman Leon suggested there are conditions within this Resolution that could be reviewed and adopted at this meeting. Director Rojas reviewed that this Resolution was supposed to be a reflection of the motion made at the Commission's previous meeting. The question is whether the Commission can bifurcate the motions made at the last meeting into two items where Planning Commission Minutes August 26, 2014 Page 16 the Commission deals with the operational aspects of the Resolution at tonight's meeting while directing staff to renotice a public hearing to October 14th to continue the discussion of the Variance and other issues that been brought forward. He asked the City Attorney for her opinion. City Attorney Lynch suggested this item be put on the Consent Calendar at the next meeting to focus on the operating conditions and have the remaining discussion noticed for the October 14th meeting. Commissioner James explained that what he envisioned was keeping in Section 3 with the four amendments suggested by staff. He suggested taking out Sections 4, 5, and 6. He added that the only condition that might bear some discussion in Section 3 was the third bullet point on page 9. He noted a speaker tonight had stated Vista Verde residents do not want a six-foot tall temporary wall at the site. Vice Chairman Nelson felt there was a minor conflict in the language in that the language on page 17 says pre -service burial and plot preparation and post -service plot backfilling to take place between 10:00 and 3:00 and burials are to take place between 10:00 and 3:00. He felt the pre -service preparation should take place two hours before the actual service. He then discussed Condition K on page 17 regarding the minimum six-foot tall temporary fence. He noted that there may be instances where the wall is put up at 8:00 a.m. for a 10:00 service and stays up for an upcoming service at 2:00. The wall is not removed until 4:00. Now the residents have had a six-foot wall erected in front of their homes for the entire day, which is not what he thought the Commission had intended. He stated he would vote to remove Condition K. Commissioner Gerstner did not disagree, however he did not think that was part of the discussion that the Commission could have this evening regarding the Resolution. City Attorney Lynch suggested that this is a good reason to continue the entire issue to the public hearing on October 14th. She noted the Commission has heard from one resident and didn't know if other residents may feel differently or not. Commissioner James withdrew is friendly amendment and made a new friendly amendment to continue the public hearing to October 14, 2014. Commissioner Gerstner accepted the friendly amendment. Chairman Leon made a friendly amendment to continue the public hearing to October 28th rather than October 14th. Commissioner Gerstner accepted the friendly amendment to continue the public hearing to October 281h Commissioner Tomblin was in favor of continuing the public hearing to October 28th Planning Commission Minutes August 26, 2014 Page 17 Commissioner Gerstner asked the City Attorney if she intended to send any correspondence to Green Hills relative to the comments submitted by Green Hills in the past week. City Attorney Lynch stated that she will be sending a letter to Green Hills admonishing them in regards to their obligations to comply with their existing Conditional Use Permit. Commissioner Tomblin asked the City Attorney what type of code enforcement actions will be taken in Green Hills fails to comply. City Attorney Lynch stated there are various options that could occur, one being civil injunction proceedings or possible criminal proceedings, another being the commencement of revocation proceedings. Commissioner Tomblin asked if there are provisions to corrections once they have been put on notice they are in violation. City Attorney Lynch answered that Green Hills would have the opportunity to correct the violations. The motion to continue the public hearing to October 28, 2014 was approved, (7- 0). Commissioner James commented that the Commission has heard extensive testimony from residents who are opposed to what has happened at Green Hills. He did not think those people will be very happy if they felt the Commission had just continued the public hearing for months with absolutely no restrictions on Green Hills. He therefore encouraged Green Hills to do their absolute best to comply with their operational conditions. Commissioner Gerstner hoped Green Hills would also apply for the Variance during this time. PUBLIC HEARINGS 2. Height Variation, Grading Permit & Sitep'lan Review (Case No. ZON2014- 00064: 6321 Villa Rosa Drive Associate Planner Mikhail presented the s ff report, noting this case has been before the Commission several times/made noting t last public hearing was August 12th. She stated no changes have t the project since that time. She briefly discussed the background of the pra changes that have been made. These changes include the reduction of totage, reduction in height, increased setbacks, reduction of privacy impuction in individual and cumulative view impairment to a less thalevel. She pointed out corrections to the Resolution, which were ihe late correspondence. She stated that staff is Planning Commission Minutes August 26, 2014 Page 18