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04_PC_MINS_20140812AUGUST 12, 2014 PLANNING COMMISSION MINUTES (EXCERPT) CONTINUED BUSINESS (cont) 1. Green Hills Memorial Park Annual Review Director Rojas presented a brief staff report, noting that Green Hills has a Conditional Use Permit that controls the development and operational aspects of the facility. There is a condition in the CUP that allows the Planning Commission to review the CUP on an annual basis to address any issues that may arise, and the Commission has the ability to add, delete, or modify any conditions of approval to address any issues that have been raised. He explained an issue has been brought up concerning the mausoleum that was built in Area 11 of the Master Plan and a number of residents from the city of Lomita who abut this area have raised their concerns with staff and the Commission. He stated that Green Hills and the residents have not come to an agreement in regards to any mitigation measures, and therefore the matter is before the Commission to review potential conditions of approval or mitigation measures to address the impacts. He noted that there has been a large number of correspondence submitted since the staff report was made public. He stated the staff report recommends a number of operational conditions to address the noise and other impacts. However a number of issues have recently been raised which staff, the acting City Manager, and the City Attorney have had an opportunity to review, and therefore staff is offering a new recommendation to the Planning Commission. He explained that staffs position is that a Variance is necessary to allow the mausoleum to remain in its present location since it is within the Code required 40 -foot setback for such structures. He added that information was very recently brought to staff's attention that other internments in other sections of Green Hills may not be not in compliance with conditions of approval. Therefore staff is recommending the Planning Commission direct Green Hills to submit an after -the -fact Variance application to seek approval of the mausoleum and any other internments that may not meet the required setbacks. At the time the Variance application is before the Commission the Commission will have the ability to review and impose any conditions of approval they feel necessary to address any impacts that have been raised thus far. Commissioner Gerstner asked staff to clarify why a Variance is required. Director Rojas displayed the Master Plan that was approved by the Planning Commission in 2007, and pointed out the mausoleum that is currently being discussed. He noted that in 2007 there was no discussion in the staff report of a setback reduction, noting however that the plan, which indicated the subject mausoleum 8 feet from the property line, was submitted and attached to the staff report. He explained the Code requires a 40 -foot setback from a property line that abuts residences, and therefore this mausoleum should have had a Variance approved to allow for the reduced setback in conjunction with the CUP amendment that was approved in 2007. As a result, staff is now recommending that Green Hills apply for an after -the -fact Variance for the reduced setback. Planning Commission Minutes August 12, 2014 Page 3 Commissioner Tomblin suggested that, since Green Hills may be applying for this after - the -fact Variance, it may be beneficial to Green Hills to bring anything else that is not in compliance on the property into compliance at this time. Chairman Leon asked if the Commission were to entertain a Variance application, would it then be wise to look at some of the operational recommendations and move forward on those on a temporary or a permanent basis. Director Rojas explained that attached to the staff report there is a Resolution for a temporary moratorium, since that was the direction given by the Planning Commission at the last hearing on this item. He noted that since it will take some time for Green Hills to prepare and submit a Variance application to the City, staff is recommending that the Planning Commission impose, on a temporary basis, some operational conditions until the Variance is acted upon by the Commission. Commissioner Tomblin asked staff if they could give a rough estimate on the time frame involved. Director Rojas explained that it will depend on the applicant and how long it takes them to submit the Variance application, plans, and pay the fee. Once that is submitted and deemed complete, a public notice will be sent out to residents within 600 feet, and the item is scheduled to be heard by the Planning Commission. With that, he was estimating four months at the very earliest. Director Rojas clarified that, in terms of operating conditions, staff did not suggest any type of limitations or restrictions on military services held at Green Hills. City Attorney Lynch added that it is legally required that the playing of Taps be allowed, thus staff is suggesting that the playing of Taps be exempt from any regulation. Senior Planner Schonborn discussed the proposed conditions associated with the operation of the mausoleum, as stated in the staff report. Commissioner Tomblin noted the City received a letter from Senator Ted Lieu noting that any noise or interference within three hundred feet of a service was considered a minor misdemeanor. He asked staff how this would be addressed if the residents of the condos have a pool party on a Saturday, and the pool is within eight feet of a burial. City Attorney Lynch clarified that Senator Lieu's letter says that it is a minor misdemeanor if anyone protests within three hundred feet of a service. She did not think ancillary noise, such as children playing at a swimming pool, would be considered a problem as long as it was not directed at the funeral as some type of protest. Commissioner Cruikshank asked staff if there were any limitations on the proposed operational conditions as far as how far the Commission could take these conditions. Planning Commission Minutes August 12, 2014 Page 4 Senior Planner Schonborn explained that these proposed conditions are conditions staff felt would help address some of the basic issues that have arisen as a result of the operation of rooftop burials. Commissioner James referred to the proposed conditions, and asked staff if the City can prevent his neighbor from using his leaf blower once a week. City Attorney Lynch answered that there are cities that preclude leaf blowers from being used. Director Rojas added that Rancho Palos Verdes does not preclude the use of leaf blowers, but does limit the hours they can be used. Commissioner James asked how staff felt they could prohibit Green Hills from using a leaf blower once a week when leaf blowers are used daily in his neighborhood. Director Rojas explained that staff was reacting to the specific concerns that were expressed during the previous public testimony regarding noise and impacts. Ellen Berkowitz (representing Green Hills) read aloud the letter from Senator Ted Lieu so that everyone would know the contents of the letter. She stated that at the May Planning Commission meeting, the Commission had asked that Green Hills and Vista Verde HOA work together to attempt to resolve the issues. Green Hills had presented a number of potential operational improvements and looked forward to a continued dialogue with the HOA. Unfortunately Green Hills was advised that the only measures that would be acceptable to the HOA were either that Green Hills ban all future rooftop internments on the mausoleum roof, which it cannot do for a number of legal reasons, or that Green Hills lower the height of the mausoleum, which also could not be done unless all of the individuals that are laid to rest in and on the mausoleum are disinterred, As a result, Green Hills does not now appear before the Planning Commission with an agreement with the HOA. However, she stated that Green Hills does stand behind their commitment to develop measures that she hoped would reduce some of the concerns the HOA had expressed, She noted the staff report contains a number of conditions, many of which were contained in her May presentation to the Commission. She noted that while Green Hills agrees in concept with most of the conditions suggested by staff, Green Hills has offered a slightly revised version of some of the conditions. She noted that Green Hills retained a noise consultant to prepare a noise study and a representative is available to answer any questions on this study. With regards to staff's recommendation that a Variance application be submitted seven years after a building was approved and three years after all building permits were issued, she stated she will have to review the legal issues associated with that recommendation should the Commission choose to move forward with that recommendation. She noted that there are serious legal and moral impediments to disinter individuals that have already been interred at the mausoleum, and referenced a recent case where Eden Memorial Park was required to pay $80 million in settlement for the emotional distress and trauma that Planning Commission Minutes August 12, 2014 Page 6 they caused the families of those that were disinterred and Green Hills will oppose any effort to disinter any individuals at this site. Michael Friedman (representing the Vista Verde HOA) appreciated staff's recommendation that a Variance be sought by the applicant, as he felt it was clear a mistake was made in the approval of this project. As a result of these mistakes there are unintended yet significant consequences. He stated there is a clear understanding by the homeowners that this issue is dealing with people's sensitivity and people's sensibilities about death, bereavement, and grief. He stated that the problem with the noise is that it is not excessively loud, but rather the homeowners can hear every word of the Pastor or of any person speaking, and it is horribly sad. He stated it is very difficult for these homeowners to be living with two to three funerals per week that are in clear view of their homes. He stated that the speaker's voice may not be at 65 decibels, but it doesn't need to be to have an effect on the residents. He felt it was important to note that the concept of operational modifications to the conditions of approval appear to have emanated from staff, and it does not appear that the conditions of approval that allow the Planning Commission to review the operations restrict modifications of the conditions of approval to operational changes. He stated this is very important because it is the location of the structure that is the problem, and any operational modification will not solve the impacts that are a result of the structure height and proximity to the property line. Therefore, he felt that trying to use operational modifications is a band aid at best. He stated that as much as the homeowners would like to see operational changes, he did not think it was a solution. He stated when he has tried to get Green Hills to consider any structural changes, the subject is immediately taken off the table. He stated Green Hills put in their Conditional Use Permit application that there would be no adverse impacts to adjoining property owners, and yet Green Hills is acting like they are the victims. He explained that currently Green Hills is putting one body on top of another, which is why the rooftop burial area is so high. He therefore felt it was possible to make some structural changes to remove one of the layers. He felt that once Green Hills starts discussing the possibility of structural changes, things become wide open. However, Green Hills is claiming they have the right to keep things just as they are. He noted that everyone knows mistakes were made, and he felt some of those mistakes were inaccurate or false information contained in their applications, which gives grounds for revocation. He did not think Vista Verde was saying a mausoleum could never be built at this site, only that the current mausoleum is too close and too big. He felt more time was needed to look at all of this, and more time was needed in order to come up with the most balanced solution. However, he would recommend that the deceased loved ones not be used as human shields, and allow more to be put in the ground where they may have to be disinterred in the future. He felt this could be accomplished by having a 90 day moratorium in place on sales of new lots. Commissioner Emenhiser asked Mr. Friedman what he saw as the ultimate solution. Mr. Friedman answered that he would like to see the rooftop burial area gone, but possibly with an expansion to the mausoleum itself to try to recoup some of the lost space. He explained that with the removal of the rooftop burials there would be nobody Planning Commission Minutes August 12, 2014 Page 0 standing on the roof, nobody looking into the condos, nobody playing music, as it would all be contained within the building. He pointed out that there would still be some view loss, as this is still a very large building eight feet from the property line. Commissioner Emenhiser asked if any of the conditions of approval that have been proposed are acceptable to the Vista Verde HOA, Mr. Friedman answered that the HOA would accept all of the conditions proposed by staff, as well as the modification proposed by Green Hills with respect to the military funerals. He pointed out that the problem with the military funerals is that they are held on the rooftop, not how they are conducted. He suggested there be no burials on the rooftop on Saturday and Sunday afternoons. Vice Chairman Nelson asked Mr. Friedman if he knew of any law against digging up a casket and reburying it. Mr. Friedman stated that he is a land use attorney and does not have any specialty in cemetery law. However, he added that he would be very surprised if there is nothing in the Green Hills contract for sale of burial plots that doesn't talk about the possibility or the necessity to relocate an interned body because of circumstances beyond their control. Ann Christensen stated she is a resident of the City and her father is a veteran buried at Green Hills, and noted that they used no amplification system. She stated she is also a mortuary science student and stated there are laws about disinterring bodies, and in an emergency the bodies can be disinterred but they must be put back in exactly the place from which they were removed. She stated that she and her husband spent the last two Saturdays at Green Hills on the rooftop area. She stated there was nobody in the Vista Verde swimming pool from noon to 1:30 on either Saturday, and reminded the Commission that these were both very hot days, She also noted that the only other person on the rooftop either day was a woman laying at a grave site. She added that she worked at Green Hills for a short time, and noted that 80 to 90 percent of the people who came in to look for plots did so on Saturdays and Sundays between approximately 1:00 and 4:00. Therefore, limiting Green Hills to 2:00 would be very hurtful to their business. Martin Dodell stated that over the years he has been involved with numerous community and civic groups within the City. During that time he has come to value the presence of Green Hills and the services they provide to the Peninsula and the entire South Bay. He stated that from what he has read in the newspaper and has heard at this meeting there have been comprises suggested that may move in the direction of some sort of solution, and it was his hope that the Planning Commission would continue to work in that direction. He felt that imposing a moratorium on funeral services was far too harsh a remedy, as it will not impact Green Hills but rather an unknown number of bereaved families and their friends from the entire South Bay. He felt that relying on a moratorium will simply serve to harden positions and add to the mistrust of the Planning Planning Commission Minutes August 12, 2014 Page 7 Commission and City staff. He hoped the Planning Commission will work toward a suitable solution such as offered by staff. Commissioner Tomblin asked Mr. Dodell his opinion on the HOA's suggestion on a 90 day moratorium on future sales. Mr. Dodell did not feel he had enough information to be able to answer that question. Matthew Geier (Vista Verde HOA President) explained that he has had time to think about all the things that are wrong with the building of the mausoleum, and thanks to the recent media coverage he has heard from people he does not know on this matter. He has been asked why the HOA didn't do anything and how the City could allow this mausoleum to be built to close to a condo and a pool. He recalled that when he bought his condo he was told by his realtor that there is a 40 -foot setback as defined in the Municipal Code and nobody could build in that area, He explained that the HOA did not act in 2007 because the notice given to the residents affected by the new mausoleum was not accurate, as it stated the new mausoleum would be built in the southeast portion of Area 11. He stated this mausoleum has affected the views of the residents and cost residents many hundreds of thousands of dollars in property values, and their privacy is priceless. He said this could not be fixed in the long term with walls, barriers, tents, and noise restrictions, He did not think the homeowner's views will not be restored and privacy will not be the same until, at the very least, the mausoleum conforms to the original Master Plan or all roof top crypts and burials are removed and relocated altogether. He noted that Green Hills has already admitted that the moved some deceased bodies to the new mausoleum after it had been built, and they had been previously been buried elsewhere. He clarified that the homeowner's have absolutely no problem with anyone who has served this Country or any mourners at Green Hills, He stated the problem is the proximity and the size of this grave area on the roof top of the mausoleum. Diane Smith felt that if the Planning Commission had been told by city staff that the mausoleum would destroy views and that the minimum 40 -foot setback would be reduced to less than 8 feet, the Commission would never have allowed Green Hills to erect this mausoleum. Furthermore, she felt the Green Hills architects knew full well the City's codes and knew the setback should have been a minimum of 40 feet. She stated that if her father were buried in a mausoleum that caused so much grief to the nearby residents she would want him out and moved to a happier place. She felt that a Variance was a ridiculous idea and the wall should be removed. She felt an investigation should be performed to find out how this mistake was made, and noted that the staff who made these mistakes are still there and are advising the Planning Commission. She stated that on the April 24, 2007 Planning Commission video, clock time 3:09:10, Commissioner Knight asks the Planning Director about Lomita residents' Area 11 view impairment, and on the tape there is a whispering of someone saying "just say no". She felt a full investigation was called for. Planning Commission Minutes August 12, 2014 Page 8 Steven Crecy stated he was a member of Vietnam Veterans of America Chapter 53 of the South Bay. He stated he had some prepared remarks, however the Planning Commission's reassurances have comforted him that veteran internments will not be hampered and ceremonies will be allowed to continue as they do in the military tradition. He stated that former military personnel deserve a level of dignity at the time of their passing and the time honored military practice of a three volley salute is intended to demonstrate our respect and thanks to the family of the departed, as well as to affirm our status of a grateful nation. He reminded the Commission that their decision will send a signal. The Commission thanked Mr. Crecy for his service to the Country. Judy Garland stated she was a civilian working with the military in Vietnam and chose to speak at this meeting to show her support of the nation's veterans. She explained she was a bit distressed by comments made by some of the residents that they felt a full military funeral was an imposition on their life. Commissioner Emenhiser explained that there are no suggested conditions in regards to military funerals, and the one Planning Commissioner who asked the question about military funerals is no longer on the Commission. Dawn Anzack stated she was speaking in support for military funerals as well as for first responders. She felt the military should be able to support any first responder killed in the line of duty. She explained it is not always possible to make arrangements for someone to play Taps, and hoped that the requirement that there be no amplified music that a recording of Taps or the bagpipes is excluded. She stated the military personnel give everything to this Country and ask for nothing in return. She asked the Commission if a bugle player or a bagpipe player is not available, if a recording of the music will be allowed to be played. Chairman Leon answered that it would be allowed. Bridgette Jameson felt that the recent media publicity of this has lead people to complain about things that they did not previously consider a problem. While that is fine, she did not think the upset over these issues should not be responded to in such a petty manner as banging pots, yelling obscenities, setting off car alarms, or other disruptions. She felt that lowering the wall will completely ruin a 2.5 million dollar investment. She also noted that before this mausoleum was built the City sent out notices to surrounding neighbors inviting them to make comments about the proposed structure and attend the Planning Commission meeting. She felt that the most offensive thing that has been said was an attorney saying that Green Hills stole the resident's views and sold it to a bunch of dead people. She noted that just because there was a view that didn't mean there always would be a view. She felt that cemeteries are just as much for the living as they are for the dead. She did not think an exclusion should be made for audio devices being used, as often times they are necessary. Planning Commission Minutes August 12, 2014 Page 9 George Hood felt this was a case of two neighbors who can't get along, and someone is going to have to do some compromising. He had hoped the two sides could have worked this out without getting the City so involved. Julie Reynolds stated that when she goes out on her balcony she is just a few feet away from people who are grieving, and she has seen people get up and leave because it makes them uncomfortable. She stated that mourners have no idea how helpless and how sorry the residents feel. She clarified that the Vista Verde HOA never requested a moratorium on the twenty-one gun salute. She felt that these type of accusations are meant to hide a central core fact that the mausoleum has been right next to their homes and Green Hills has shown time and time again that they are not willing to negotiate with the HOA, She felt that Green Hills has offered the HOA so little and then blame them for not accepting it. She stated the Commission has the power to change that, and asked the Commission to revoke their Conditional Use Permit. Julie Keve stated she is a homeowner at Vista Verde, and gave a brief history of her interactions with city staff leading up to the approval of the mausoleum. She felt it was important to watch the February 27, 2007 and the April 24, 2007 meetings to see how it was possible that the eight -foot setback got approved. She explained that setback changes were made and the condo owners were told it was legal. She wondered if this was a special situation with Green Hills. She noted the Municipal Code requires a 40 - foot setback and this 8 -foot setback now sets a precedence throughout the cemetery, She added that the homeowners were never notified that the setbacks were going to be changed, and when she questioned Mr. Rojas why these changes were never discussed with the Planning Commission he responded that he didn't think there would be any objection and he didn't think anyone would mind. Chip Keve stated that he has looked at all of the files in the Planning Department regarding Vista Verde and Green Hills, noting that in 1990 there was extensive correspondence regarding Green Hills and concerns with setbacks and views. He felt that staff had to have seen these concerns in the file. He discussed the 2007 meetings, noting that the homeowners missed these meetings because the initial facts represented to the public were false, stating that the proposed mausoleum would be located southeast of the maintenance yard when it was actually southwest of the maintenance yard. He explained that he bought his condo for the panoramic ocean views, and staff had stated several times that no views would be impacted. (At this point Julie Keye finished Chip Keye's statements). She noted that Mr. Frew, CEO of Green Hills, had the integrity to say on the record that they knew before the mausoleum was built that it would block views, and that he spoke up about it on several occasions. The mausoleum was built anyway. She stated that even if the City bans rooftop burials there will be a constant stream of people coming to mourn over loved ones. Sharon Loveys stated that when she appeared before this Commission last May she thought the information she shared regarding the April 2007 meeting was about a mausoleum in Area 11. She noted that Commissioner Knight kept referring to a silhouette with a ridge below anything that will block a view. She kept wondering what Planning Commission Minutes August 12, 2014 Page 10 silhouette he was referring to. She recalled that the silhouette used for Area 2 was up for over six years. She was curious as to why the meeting in 1990 had such an outcry and the 2007 meeting had none. She referred to the public notice from February 6, 2007, section 6 states the request was to allow for an addition to the previously approved mausoleum building located southeast of the existing maintenance yard. She questioned where the previously approved mausoleum was, and questioned how one can put an addition on a building that was never built. She felt that there is now a precedence to allow an eight -foot setback to all property lines adjacent to the cemetery. She did not think the Commission would have approved this mausoleum if they had been given the correct information, and now the Commission may realize the truth but is under pressure of a lawsuit from Green Hills. She asked the Commission to revoke the Conditional Use Permit. Lore Brown stated she has been a Vista Verde resident for over 25 years. She stated her role at this meeting was discuss chronological facts, and noted that in 1990 fifteen letters were submitted to Rancho Palos Verdes during the Green Hills hearing. These letters objected to several issues, including changing the setback, loss of the harbor views, loss of privacy, massive amount of grading, and changing of the landscape. At that time Green Hills staff reached out to residents and said that no views would be impacted and future development would be dormant for the next 70 to 80 years. However, she noted development was not dormant and views were impacted. She stated in 2012 the mausoleum was built, and in 2013 the Vista Verde HOA wrote two certified letters to Green Hills attempting to reach some conclusion to some of the issues. When they heard nothing from Green Hills, she stated Green Hills informed the HOA that the letters were tossed. She stated that 24 years later there are still the same, unresolved issues, Brian Carter explained he has recently moved into the Vista Verde condos, and one of the selling features of the condo was the swimming pool. He noted that he was using the pool this afternoon and at that time there were small children visiting their deceased mother at Green Hills. He stated it is very difficult to use the pool when you hear the issues at Green Hills. He also felt that may be inappropriate for residents to be using the pool while there is a service taking place, He stated that the size and proximity of the mausoleum makes him feel like a prisoner in his own home, especially when there is a service taking place. He clarified that the owners are not using the pool because they don't like using the pool, but rather because they feel it is unacceptable to bother the mourners while they are at the grave sites. Lane Mayhew discussed the sunlight that used to stream in her windows from the south, overlooking her patio. She stated that today there is not much light left to come into her living room, as well as no ocean view, lights from the Palos Verdes hill, and only a partial sky. All because they are blocked by the mausoleum. She stated it is her unit whose view and privacy is most affected by the mausoleum, and submitted a picture showing where her condo is located in relation to the mausoleum. Planning Commission Minutes August 12, 2014 Page 11 Nevada Prewitt stated she purchased her property at Vista Verde in 1988 primarily for the ocean view and the green vistas in front of her living room and dining room. She explained that before the construction began she received a vague notice from the City, and contacted the Planning Department to get more information. She stated the person she spoke to in the Planning Department assured her the changes that were proposed would not affect her property whatsoever, and the changes were to be made on a parcel that wasn't even close to her property. She had no reason to believe she would be given false information from the City. She stated she was also told that the rules didn't apply to her because she did not live in the City of Rancho Palos Verdes. She discussed the problems she encountered during the construction of the mausoleum and measures she took to try to discuss these problems with someone from Green Hills. She stated she has suffered a loss to her property value, a complete loss of her ocean view, has obstructed vista views, a complete loss of privacy in her home and pool, and loss of enjoyment of her home. Commissioner James asked Ms, Prewitt if she recalled who told her that because she didn't live in the City that the rules didn't apply to her. Ms. Prewitt answered that she didn't really recall, other than it was a man. She added that the only name that sounded familiar to her was Eduardo, but she was not sure if was him or not. Joanna Jones -Reed clarified that this situation has absolutely nothing to do with veterans or military burials. She discussed the fact that there is a swimming pool, recreation room, bar-b-que, and jacuzzi and the condominiums for everyone's use to ensure leisurely relaxing time and entertaining. She stated that directly next to this area is the extremely large mausoleum complete with rooftop burials, mourners, and funerals. She stated this image is dour, gloomy, tearful, and sad. She stated this large structure also blocks the pre-existing harbor view. She felt that the intention of Green Hills was to intimidate the homeowners and their intention to build this monstrous structure is a deliberate attempt to harass the homeowners and constitutes malfeasance. She stated the Vista Verde HOA is asking for an investigation into this intolerable situation. John Astbury stated that in listening to the dialogue from the May meeting it sounded like some of the Commissioners were wondering how the situation has gotten to where it is now. Many of the Commissioners have been in his home, and he stated that at least one former Commissioner stated they had no realization of what was being approved, and if they knew then what was being contemplated they would not have voted for the approval in 2007. He explained that he has researched the files at the City and has found correspondence from the City Manager of Lomita objecting to the 1990 proposed changes, as well as a legal opinion from the Rancho Palos Verdes City Attorney that appears contrary to Green Hills' request. However, he felt that the 2007 notice sent by the City was vague and contained errors. Planning commission Minutes August 12, 2014 Page 12 Nadia Geomena stated she would like to point out some of the ways in which Green Hills has been operating in violations of their Conditional Use Permit. She discussed the lack of maintenance of the existing chain link fence and wrought iron fence which surrounds the perimeter of the cemetery. She showed photos of the landscaping water and irrigation that spills over onto the Vista Verde property, She also showed photos of several plants she felt were planted in violation of the conditions of approval. Veronica Lawlor stated that before the mausoleum was built she had a panoramic view of the port and the mountains. Now she felt they live like prisoners with the exhaust and dust from digging up the graves and the funerals that take place on top of the mausoleum cause them to close their drapes. She then read a letter from the Mayor of Lomita written in 1990 to the Rancho Palos Verdes Planning Director objecting to the change in variance at Green Hills. She stated that the residents of Vista Verde would have complained out this recent mausoleum if they had been given proper and correct notice. She stated that the residents of Vista Verde would have complained out this recent mausoleum if they had been given proper and correct notice. Debbie Landes stated Vista Verde has been her home since 1986, and has a unit that encompasses the entire length of the Pacific Terrace Mausoleum rooftop. She explained that she did not lose an ocean view, but rather a view of an expansive beautiful green area, the wonderful breezes that used to come through, and most importantly, the loss of personal space. She felt she was intruding on a very private part of people's lives just by being in her own home. She questioned if it was considered harassment for her to be sitting outside reading her newspaper while a funeral service was taking place. She asked if having a bbq while a service was taking place was considered harassment, noting her guests now have to witness the funeral as well. She realized that it must be difficult for a Green Hills administrator or a Rancho Palos Verdes Commissioner or staff member to understand the extent to which the rooftop has affected the lives of the Vista Verde residents. She explained that without living there it is difficult to understand the day to day experiences. She felt that to make this situation right for the residents and the families of the deceased, the rooftop burials at the mausoleum should be removed. Bob Holme stated he served as Mayor and Councilman for Manhattan Beach for twelve years. He also stated he had the honor of serving in the United States Army for three years. He asked that the Commission be very careful in their wording to exclude military burials from any possible moratorium or modifications. He asked that there be no restriction place on live or recorded playing of Taps or bagpipes, and that there be no restriction placed on the rifle salute with the military burial. Finally, he noted that the staff report includes a burial activity report for rooftop burials at Memorial Terrace Mausoleum building. This report shows there were 45 burials on the rooftop over the past twelve months. He noted the land use attorney earlier stated that there are four to five burials a week in this area, which is a large discrepancy. He stated that are instances, documented by the United States Air Force and the mortuary, of harassment by the residents during military burials, He noted that there have been staff reports and hearings before the Planning Commission and the City Council on this mausoleum Planning Commission Minutes August 12, 2014 Page 13 since 2004 and he felt that everyone had ample opportunity to read these reports and express their concerns. Rabbi Gary Spero stated he has officiated at a number of burials at Green Hills and felt that an open-air roof top burial can be quieter than what goes on inside an echoing mausoleum. He felt that the idea that burials be restricted to certain days of the week will cause problems for Jewish burials, as their religious laws require burial within 24 hours or as soon thereafter as the death certificate is issued. Customs restrict laying someone to rest on Saturday, and therefore if a person dies on a Thursday or a Friday they will most likely be buried on a Sunday. He was very concerned about the documented incident that occurred where obscenities were used during a military funeral. He felt that when one chooses to live next to a cemetery you have to expect to see funerals. Chairman Leon asked Rabbi Spero if, other than the 24 hour restriction, are there any time of day restrictions in place for burial under the Jewish Laws. Rabbi Spero answered that only so far as it would approach the Sabbath. Jeffrey Lewis stated he was not before the Commission representing any party or organization other than the Commission's good conscience. He stated that he was on the Planning Commission in 2007 when this matter came before the Commission. He stated that in 2007 there was no discussion about rooftop burials or reducing the setback to 8 feet. He stated that if there had been and the cemetery had been forthright about their intentions, he felt there would have been CEQA issues, there would have been notice given to the neighbors, and all of this could have been avoided. He asked, now that this has happened, what is the City going to do about it and should it been the homeowners or the cemetery who bears the burden. He felt it had to be the cemetery, as the homeowners did nothing wrong. He stated that he recently reviewed the 2007 tapes of the meetings and discovered the cemetery requested a standard condition be deleted, that there not be a public annual review of their operations. In retrospect, he is very suspicious of that request. He stated he was of the opinion the City can and should find that the Conditional Use Permit was issued on the basis of incorrect information supplied by Green Hills, and the City can and should revoke the Conditional Use Permit. If the applicant wishes to conduct rooftop burials or reduce the setback to eight feet, they should go through the appropriate CEQA process. In conclusion, he stated he is Jewish and knew of no requirement that requires us to be buried in that particular spot, and the cemetery can make reasonable accommodations with anybody that needs a fast funeral and there is no reason that Jewish law should be used as a pretext for what the cemetery has done. Commissioner Emenhiser asked Mr. Lewis his opinion on the neighborhood notification issue in terms of how they were notified and if they were notified in 2007. Planning Commission Minutes August 12, 2014 Page 14 Mr, Lewis answered that the best evidence of what happened in 2007 is the video tape and the empty room. He felt there is a reason this room is packed tonight and it wasn't in 2007. Mike McClung (1896 Peninsula Verde Drive) stated that at the last meeting the very first speaker for Green Hills stated he was an expert in cemeteries and traveled the United States testifying on behalf of cemeteries, and he helped cemeteries plan how to build cemeteries. Yet, Green Hills has said they had no idea this was going to happen. He felt that by this gentleman's own testimony they knew exactly what they were doing and knew the exact results they would get. He recommended the Commission make it right for the Vista Verde residents. He stated that he likes having the cemetery as his neighbor, but he would not like them building a mausoleum eight feet from his back wall. Matthew Martin felt staff made an earlier comment at this meeting that he thought was inaccurate. He stated that staff had said they did not address the setback issue in the staff reports, but he distributed a staff report from February 2007 which included many of these issues. He felt Green Hills is currently in violation of condition No. 6 of their CUP, and noted condition No. 35 gives the City the authority to revoke the CUP if they are in violation of any conditions. He quoted several sections from the 2007 staff report and noted the sections where the 80 foot setback was changed to 8 feet. He stated this change directly violates section 1 and section 3 of the Municipal Code for issuing a CUP. Therefore, he felt the CUP wasn't issued in compliance with City Codes and should be revoked. He questioned why, instead of disinterring people, the entire building couldn't be moved. He felt that even if the mausoleum was approved in 2007 at 8 feet from the property line, there is still internments within the 16 foot setback which is in violation of a separate condition that addresses internments in the ground. He stated that the crypts inside the mausoleum are also below ground and could also be in violation. Paul Tetreault stated he was on the Planning Commission in 2007 when this item came before the Commission. Stated he was here to express his regret and his sorrow that in some way he had a hand in this situation. As a Planning Commissioner he did not appreciate the conflicting language, and felt that none of the Commissioners did. He did not think any of the Commissioners realized there would be rooftop burials or a substantial deviation of the setback. He did not recall any time in his ten years as a Planning Commissioner that he approved a variance to a setback on any property. He did not think staff was trying to hide anything or there was any type of conspiracy, things just happen sometimes. He felt the Commission should now do the best they can do to fix this situation. Commissioner Emenhiser asked Mr. Tetreault his opinion on what the solution may be. Mr. Tetreault stated it is a problem, in that there are people who have purchased these plots not knowing the problems and controversies surrounding them, There are homeowners who, through no fault of their own, have suffered harm, He was puzzled by Green Hills, as they have put their clients in a bad position by doing this, He Planning Commission Minutes August 12, 2014 Page 15 acknowledged there are a lot of aggrieved parties and he was not sure what can be done, as there are legal issues involved, Kyle Orlemann stated she and her husband are both very active in the veteran's community and have seen the incredible respect Green Hills shows towards veterans and the law enforcement community. She felt there are a lot of unintended consequences in every direction with this project. She felt it was very obvious that mistakes were made along the line, some of the mistakes made in innocence and some made by people who did not do their due diligence. She pointed out the differences between 40 feet, 16 feet, and 8 feet and did not feel that in this case it would make much difference. She also noted that there are approximately 400 plots on the rooftop and over 125 of them are currently occupied, She felt this is a finite problem, as not that many more burials will be happening at this area, and they all will not happen within the next week, month, or year. Greq Tonkovich stated Green Hills hired his company to do a noise study on this project and he stated he was available for any questions. He briefly explained that he took several noise measurements, noting that the condos are already being impacted by noise from other sources, which they experience every day. He noted that the staff report has suggested several mitigation measures, however based on the noise study there is no noise impact happening, as the noise is all below City standards. He did not think there was a nexus to any of the suggested mitigation measures. Chairman Leon stated that there is a difference between coherent and random noise and the communication that takes place. He stated that what Mr. Tonkovich was measuring was random noise, but there is still coherent communication that can take place at a much lower level which is the message that the residents are receiving from the area, and that which the Commission is looking at conditioning. Ellen Berkowitz (in rebuttal) clarified that there are approximately three funerals per month at this site, and most funerals last less than thirty minutes. She stated the services are now tented, and hoped this would help mitigate the privacy concerns. She noted that cemetery laws are contained in a number of codes, including the penal code, the government code, the business and professions code, and the health and safety code. She stated there are very clear prohibitions in the law about moving interred individuals. She stated Green Hills has been accused of threatening a law suit, and she stated that nobody is threatening a law suit. She referred to Mr. Friedman's comment that bodies were moved to the mausoleum after death, but that was with express consent of the families that wanted their loved one at the mausoleum. She was pleased that the Commission has indicated they do not want to do anything that would impact the veterans, however she pointed out there are number of the discussion points and a number of proposed conditions of approval that would do so. She stated disinterring veterans would adversely affect the families as would tearing off the roof of the mausoleum, imposing a moratorium, or seriously reducing the hours that people can look at burial plots or have services. In regards as to whether the rooftop burials were disclosed to the Planning Commission, she noted that in the conceptual plans that went Planning Commission Minutes August 12, 2014 Page 16 before the Commission in 2007 there were a number of mausoleums that contained rooftop burials and they were shown on the plans. She stated that one of those drawings was attached to the HOA's letter submitted to the Commission in connection with this hearing. Ms. Berkowitz reviewed and explained the red -line version she submitted of the Resolution prepared by staff. These conditions were also displayed on the overhead for the audience to view. City Attorney Lynch suggested the Commission not try at this meeting to make any of the changes suggested by Green Hills, but rather have the Commission make suggested changes to staff and allow staff to return with a Resolution reflecting those changes. Vice Chairman Nelson asked Ms. Berkowitz how the staff proposed 3 p.m. burial cutoff fit with the Jewish tradition, and if the funeral started at 4 p.m. because it has to be within 24 hours of death, would Green Hills impose a fee. Ms. Berkowitz answered that Green Hills would most likely impose the fee to any funeral after 3 p.m. Chairman Leon asked Ms. Berkowitz if the exception they were requesting for music at military funerals would also apply to funerals for policemen and firemen. Ms. Berkowitz answered that it would encompass fire and police personnel. She stated that Green Hills has suggested the addition of two additional conditions of approval. She explained the first condition would be that every week Green Hills will mark the grave sites where a funeral is scheduled for the upcoming week, and the website will have posted the exact time of those funerals. Secondly, Green Hills has offered to have at least one employee attend every service to make sure there is no untoward activity. Vice Chairman Nelson asked if that employee will have the ability to enforce the cease and desist order. Ms. Berkowitz answered that if there is a person who is disrupting a service the Green Hills employee will be able to tell the person they need to stop, and can perhaps show them Senator Lieu's letter. They will also have the ability to call the Sheriffs Department. Commissioner Emenhiser stated that some of the speakers mentioned something about cameras and recording devices placed by Green Hills, and asked Ms. Berkowitz if she was aware of such devices. Ms. Berkowitz answered that there are security cameras placed throughout Green Hills and there are security cameras placed on the back of the mausoleum. She explained there are no microphones recording any conversations and the cameras are sound activated cameras. She stated these cameras are not pointed at the condos and Green Hills cannot see the residents with these cameras, as they are aimed at Green Hills Planning Commission Minutes August 12, 2014 Page 17 property. She explained the reason the cameras are there stems from an incident where someone complained Green Hills was allowing parties to take place at the site, and the cameras are there to monitor any trespassing. Commissioner Cruikshank referred to a comment made by a speaker that there looks like there may be a violation of the 16 -foot setback of internments. He asked Ms. Berkowitz if she had any comments, and if there was a violation he asked what Green Hills would be willing to do. Ms. Berkowitz stated that she had not heard of this alleged violation before this evening and would have to look into it before commenting. Commissioner Tomblin asked Ms. Berkowitz if she could certify at this point in time that Green Hills is in compliance with the CUP. Ms. Berkowitz responded that her knowledge is that Green Hills makes every effort to be in compliance with the CUP, and she suspected that Green Hills was in compliance with the CUP. However, she did not know about the information presented at this meeting and will have to look into it. Commissioner Tomblin asked how much time would be needed to get back to staff in reference to the CUP. Ms. Berkowitz felt Green Hills could get back to staff by the end of the next day. Commissioner Tomblin asked what Green Hills is disclosing to all potential buyers and existing customers in reference to the pending review of the Planning Commission that may restrict or change conditions in this area. Ms. Berkowitz answered that Green Hills is not disclosing to people that the CUP may be revoked. She explained the people have been reading articles in the newspaper and there have been concerns, but from her perspective Green Hills has a right to be where they are since the mausoleum was built with City approvals and permits. She stated that if people ask questions about what is going on, Green Hills is happy to answer them. Commissioner Tomblin suggested a condition be added to protect the City that there be a disclosure made to all potential individuals that there is review by the Planning Commission and the City in reference to the Conditional Use Permit. Chairman Leon referred to the double crypts and asked Ms. Berkowitz if anyone has been placed in the top layers. Ms. Berkowitz did not know the answer to that question. Planning Commission Minutes August 12, 2014 Page 16 Chairman Leon asked, within that area, if Ms. Berkowitz was aware of how many were sold but still empty. Ms. Berkowitz estimated that approximately three quarters of the total number have been sold. She did not know how many were broken up into the top or the bottom. Commissioner Tomblin referred to the letter from Senator Lieu, and asked what position Green Hills will take if there is a loud pool party taking place at the condominiums during a service. Ms. Berkowitz clarified that what the Ted Lieu statute discusses is protest activities, which are actions that are directed toward the participants in the funeral or burial service that are negative statements specifically directed towards them. Commissioner Cruikshank asked if participants in funerals are prepared for or realize the area is so close to a residential condominium complex. Ms. Berkowitz explained that everyone who purchases the plot will go to the site before purchase to see where their loved one will be buried. In addition, prior to the funeral itself Green Hills will take the family to the plot site. She added that this is another reason that putting restrictions on the sales staff to two hours on the weekends is problematic. Commissioner Cruikshank asked if members of the funeral service, outside of the immediate family, are aware they will be near a residential community. Ms. Berkowitz answered that they do know they will be near homes and there are now notices now posted up that there reminding them. Commissioner James asked Ms. Berkowitz her response to the suggestion made by the HOA attorney for a moratorium on the sales of new plots in this area. Ms. Berkowitz stated that Green Hills would object to that, explaining approximately three quarters of the lots have been sold, and it may be that a family member is buried in this area and the family wants to purchase additional lots to be close to their loved one. She added that she does not believe it is legal to do that. Chairman Leon closed the public hearing. Commissioner Gerstner referred to page 126 of the staff report, which discusses rooftop internment. He commented there are approximately 43 people interned on the rooftop at this time, and noted it also appears that for the plots furthest to the north, which are the plots closest to the condominium complex, there is currently no one interned. He then referred to the section on frequency of burials, which shows in the first month there were ten internments on the rooftop, most likely those being moved to this area, but after that an average of 3 to 4 burials per month. Planning Commission Minutes August 12, 2014 Page 19 Commissioner Tomblin asked staff how long it will take for staff to go out to Green Hills to measure and verify setbacks at the rooftop area to ensure there are no violations of the setback requirements. Senior Planner Schonborn stated staff can go out and drop a measuring tape or staff can rely on the applicant to provide staff with a certification from a land surveyor showing the location of the plots in relation to the property line. Chairman Leon felt it would be best to have staff go out and do a cursory check before going through the survey process. Chairman Leon asked staff if it was there interpretation that if there is dirt on the roof of the mausoleum, that is considered below ground. Director Rojas responded that is the point made by the speaker with regards to his documentation. He stated this is a new issue raised to staff, and staff has not made its final interpretation as to whether that was the intent of the Code. Commissioner Tomblin felt that in ground is in ground, and even though it may be up thirty feet there is still equipment that has to dig a hole into the ground for an internment Chairman Leon asked for opinions from the Commission on whether there should be a set of temporary conditions put in place, and whether they should be instituted now, after, or as part of a variance process. Commissioner Gerstner felt that there was a change in the setback that requires a variance and that variance does not exist at this time. Therefore, he felt for the CUP to be properly valid and correct, that a variance application needs to be made and processed. He noted that all the rules that go along with a variance need to be followed, including a public hearing and making the required findings. He felt the Commission should request the applicant make an application for a variance to allow the setback to be in compliance with the city codes. He asked that staff also look at all of the other conditions of approval of the CUP and report back to the Commission the status of compliance with the CUP, taking into account the recent questions regarding setbacks that may not be in compliance. He also stated that if the variance process proceeds, any conditions of approval that the Commission applies should be temporary conditions of approval such that certain goals of the Commission are accomplished during the period in which the variance is being reviewed. He felt those conditions need to attempt to mitigate potential harm to people being interned, families, residents, and the cemetery itself so that nobody gets into a worse situation than they are in now and nobody incurs greater liability than they currently have. Commissioner Gerstner moved that the Commission request Green Hills make an application for a Variance for the setbacks that were adjusted in the conditions of approval of the CUP without the proper Variance application, and that a time limit be set on the submittal of this application. He requested the application be Planning Commission Minutes August 12, 2014 Page 20 submitted and heard by the Planning Commission in the fastest possible time. Second, that staff review all of the conditions of approval of the CUP and the current compliance or non-compliance with those conditions of approval, and that this be done before the Commission hears the Variance application, seconded by Vice Chairman Nelson. Commissioner James asked Commissioner Gerstner if he favored a moratorium. Commissioner Gerstner explained he favored a restriction, at some level, of what is going on at the rooftop. He was not sure that was a moratorium or not. Commissioner Emenhiser commented that he felt every burial is a sacred event, and certainly burials of veterans and first responders are the most sacred of all. He stated that in 2007 Green Hills presented a plan to the Planning Commission, and he wondered why nobody from the condo association responded to the public notice. He felt that question was answered this evening. He felt that these problems slipped by a lot of people, however he also believed Green Hills had a very good idea of what they were doing and the potential impacts. He did not think that neither Green Hills nor the condo association will be happy with whatever the Planning Commission ultimately decides. He stated that he will be voting against a 90 -day moratorium, however he will be voting in favor of some of the conditions. Commissioner Cruikshank felt it was troubling to have to learn about CUP violations from the public, but he realized that staff is limited. He appreciated that the Commission was going to ask staff to look into full CUP compliance. He also complimented ex - Commissioners Tetreault and Lewis for speaking before the Commission. He stated he would be voting in favor of the motion. Commissioner James felt that the testimony of the two ex -Commissioners carried a lot of weight. He felt a huge mistake had been made and there was no way to get around that. He stated he will vote in favor of this motion, as the only way he could see to try to start getting to the right place was by the Variance approach that is the subject of the motion. He felt it was unfortunate, but he didn't see another solution at this time. He felt it was the Commission's duty to try to do the right thing, and he felt this was the right thing. The motion was approved, (7-0). Chairman Leon next wanted to discuss interim conditions that the Commission may want to impose on Green Hills. Commissioner Tomblin moved to accept staffs recommendations on the conditions with two additional conditions: 1) that Green Hills disclose that there are pending reviews that may require a change of use of the rooftop plots and a prohibition of rooftop internments, and 2) that staff immediately do a field survey Planning Commission Minutes August 12, 2614 Page 21 of the alleged violations of setbacks and that any internments that may be in violation of the CUP not be allowed. City Attorney Lynch added that Ms. Berkowitz had raised the issue about amending the one condition so that as far as amplified sound it would exclude the military burials. She suggested this may want to be part of the motion. Commission Tomblin moved to amend his motion to modify the condition to exclude amplified sound restrictions from military, police personnel, and fire personnel burials. Commissioner Gerstner asked for clarification, as there was a discussion for amplified sound for the playing of Taps and a conversation about amplified sound for other things. He felt that generally when everyone was speaking about amplified sound they usually said "and things like that". He asked the City Attorney for guidance as to be how to be very specific about what kind of amplified sound and for whom. City Attorney Lynch stated that staff would bring a condition back to the Planning Commission for review at the next meeting. Vice Chairman Nelson seconded the motion on the floor, Commissioner Bmenhiser noted that the motion includes a prohibition, and wondered if there was a way to soften that prohibition given that Green Hills sold the plots to people who chose that location, and what would happen if those people died in the next 60 to 90 days. He also questioned the condition that sales personnel be limited at the site from noon to 2:00 on Saturdays and Sundays, and suggested changing the hours to 10:00 to 3:00 on Saturdays and Sundays. Commissioner Tomblin clarified that his motion is that staff do an evaluation of the most northerly plots to verify there is no setback violation, and that until that evaluation is complete there be no burials in those north plots. In regards to the 10 — 3 issue, he noted that three-fourths of the plots have already been sold and there aren't too many more available. With that, he favored staff's recommendation. Vice Chairman Nelson asked Commissioner Tomblin if he would be willing to allow a leaf blower at this site once a week, Commissioner Tomblin agreed that was a compromise that he could agree with. Vice Chairman Nelson asked Commissioner Tomblin if he would like to add a condition that at least one Green Hills employee attend and monitor each service. Commissioner Tomblin agreed to that modification. Planning Commission Minutes August 12, 2014 Page 22 Chairman Leon referred to Ms. Berkowitz's suggestion that small flags be placed on sites where a burial was scheduled within the week, and the website would have the burial date and time. He suggested that Green Hills language be used rather than staffs suggested language. City Attorney Lynch noted that the Green Hills language states that flags will be put on plots "where feasible", and questioned why it wouldn't ever be feasible. She recommended striking the words "where feasible". The Commission agreed. Chairman Leon noted the other modification made by Green Hills in regards to landscape maintenance activities requiring use of mechanized equipment, and separating that from personnel collecting flower and litter. Commissioner Tomblin agreed to that modification. Director Rojas explained that staff would come back to the Commission with a Resolution that memorializes the motion and the revisions to the motion. Commissioner Tomblin's motion was approved, (6-1) with Commissioner Gerstner dissenting. 3. Height Variation & Sit M Per the Commission rules, since it was agreed to hear item No. 3. ZON2014-00008: 21887 Ella midnight the Commission unanimously Associate Planner Mikhail presented a staff report, stating the item has been before the Commission on two previous oc anions and at the last meeting in July the Commission indicated their remai ng concerns with neighborhood compatibility. She reviewed the history of the proje and the series of revisions that have been made, and discussed the current design t at is before the Commission. She stated that staff feels the applicant has addressed taffs concerns, and if the Commission agrees, staff recommends the Commis 'on adopt the Resolution before them. She noted that on one of the last conditions of proval regarding the clearstory window along the north side, it should say north wind and not west window. She stated that there is a decision deadline with this ap ication, and if the Commission feels the applicant has not addressed their co erns, there is an alternative resolution available. Commissioner mblin referred to the pop -out window and the flat roof, and noted that at some point i the future it could become an after -the -fact addition. He asked if that were to chan a to a flat window all the way across and the flat roof changed to some type of a pit ed roof, if it would affect staff's recommendation, Planning Commission Minutes August. 12, 2014 Page 23