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HomeMy WebLinkAbout04/25/2017 PC MinutesMINUTES OF THE CITY OF DIAMOND BAR MEETING OF THE PLANNING COMMISSION APRIL 25, 2017 CALL TO ORDER: Chair/Wolfe called the meeting to order at 7:05 p.m. in the Windmill Room, 21810 Copley Drive, Diamond Bar, CA 91765. PLEDGE OF ALLEGIANCE: C/Farago led the Pledge of Allegiance. 1. ROLL CALL: Present: Commissioners Naila Barlas, Frank Farago, Jennifer "Fred" Mahlke, Vice Chair Ken Mok, and Chair Raymond Wolfe Also present: Greg Gubman, Community Development Director; James Eggart, Assistant City Attorney; Grace Lee, Senior Planner; Mayuko Nakajima, Associate Planner; and Stella Marquez, Administrative Coordinator. 2. MATTERS FROM THE AUDIENCE/PUBLIC COMMENTS: None Offered 3. APPROVAL OF AGENDA: ChairMolfe asked that the meeting be re -ordered to have Item 7.1 be the last item heard tonight with 7.2 and 7.3 to be heard as the first and second items, respectively. 4. CONSENT CALENDAR: 4.1 Minutes of the Regular Meeting of March 28.2017: C/Mahlke moved, VC/Mok seconded, to approve the Minutes of the Regular Meeting of March 28, 2017, as presented. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Barlas, Farago, Mahlke VC/Mok, NOES: ABSENT: 5. OLD BUSINESS: 6. NEW BUSINESS: COMMISSIONERS: COMMISSIONERS: 7. PUBLIC HEARING(S): None None Chair/Wolfe None None 7.2 Development Review No. PL2016-221 — Under the authority of Diamond Bar Municipal Code Section 22.48, the applicant requested development review approval to construct a 1,246 square foot addition and a 438 square foot attached APRIL 25, 2017 PAGE 2 PLANNING COMMISSION balcony and patio area to an existing 2,104 single family residence on a 0.2 gross acre (9,239 gross square foot) lot. The subject property is zoned Low Residential (RL) with an underlying General Plan land use designation of Low Residential PROJECT ADDRESS: PROPERTY OWNER/ APPLICANT: 3543 Hawkwood Road Diamond Bar, CA 91765 Anil Luthra 3543 Hawkwood Road Diamond Bar, CA 91765 AP/Nakajima presented staffs report and recommended Planning Commission approval of Development Review No. PL2016-221, based on the Findings of Fact, and subject to the conditions of approval as listed within the resolution. Chair/Wolfe opened the public hearing. Anil Luthra said he has lived in Diamond Bar since 1985 and is the original owner of the property which was purchased in March 1985. He thanked AP/Nakajima for working with him so cooperatively and constructively through this process. In proceeding with this remodel, he had three objectives: 1) to accommodate his older sister in living somewhat independently and yet remain with the family so that they can look after each other; 2) he is retired and wanted to develop the home to feel like a resort so that he could enjoy the peace and quiet and, 3) provide a bedroom on the first floor to accommodate older family members when they visit. Chair/Wolfe closed the public hearing. C/Barlas moved, VC/Mok seconded, to approve Development Review No. PL2016-221, based on the Findings of Fact, and subject to the conditions of approval as listed within the resolution. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Barlas, Farago, Mahlke VC/Mok, Chair/Wolfe NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: None 7.3 Development Review No. PL2016-174 — Under the authority of Diamond Bar Municipal Code Section 22.48, the applicant and property owner requested Development Review approval to construct a new 12,978 square foot single family residence on a 1.39 gross acre (60,548 gross square foot) lot. The subject property is zoned Rural Residential (RR) with an underlying General Plan land use designation of Rural Residential. APRIL 25, 2017 PAGE 3 PLANNING COMMISSION PROJECT ADDRESS: APPLICANT: 2133 Derringer Lane Diamond Bar, CA 91765 Sumermal Vardhan 2127 Derringer Lane Diamond Bar, CA 91765 Pete Volbeda 180 N. Benson Avenue #D Upland, CA 91786 AP/Nakajima presented staffs report and recommended Planning Commission approval of Development Review No. PL2016-174, based on the Findings of Fact, and subject to the conditions of approval as listed within the resolution. ChairMolfe opened the public hearing. Pete Volbeda, Architect, said he appreciated staffs assistance in getting the project to this stage. He designed the houses on either side of the project and with this project, he worked the design to be compatible with the style of the contiguous homes. VC/Mok commented that he noticed the similar Mediterranean design and wondered if all three were designed by the same architect and said that all three were gorgeous homes. ChairM/olfe closed the public hearing. C/Farago moved, C/Mahlke seconded, to approve Development Review No. PL2016-174, based on the Findings of Fact, and subject to the conditions of approval as listed within the resolution. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Barlas, Farago, Mahlke VC/Mok, ChairMolfe NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: None 7.1 Time Extension — Planning Case No. PL2016-221 — Under the authority of Diamond Bar Municipal Code Sections 21.20.150 and 22.66.050, the applicant requested a one-year time extension for Tentative Tract Map No. 54081, a 16 -lot residential subdivision on 12.9 acres, located at the southern terminus of Crooked Creek Drive, east of the SR57 Freeway, Brea Canyon Road and Brea Canyon flood control channel and north of the City's southern boundary (Los Angeles County Assessor's Parcel Number 8714-028-003). The City Council initially approved the project on February 20, 2007. The state legislature passed four APRIL 25, 2017 PAGE 4 PLANNING COMMISSION bills: SB 1185, AB 333, AB 208, and AB 116, which automatically extended the duration of the approval period for all tentative maps that were set to expire. The duration of the combined time extensions granted by all four Senate bills set the expiration date of this tentative map to February 20, 2017. PROJECT ADDRESS: Southern terminus of Crooked Creek Drive, east of the SR57 Freeway, Brea Canyon Road and Brea Canyon flood control channel and north of the City's southern boundary (APN 8714-028-003) Diamond Bar, CA 91765 PROPERTY OWNER/ Cathay View Development, LLC APPLICANT: 411 E. Huntington Drive, Suite 312 Arcadia, CA 91006 AP/Nakajima presented staffs report. Chair/Wolfe asked AP/Nakajima to read aloud the proposed condition of approval for the extension of time request regarding Mitigation Measure No. 6 of the Mitigated Negative Declaration. AP/Nakajima responded as follows: "At the time of approval of the Map Extension, grading activities on the project site have not commenced. In such an event, Mitigation Measure No. 6 for the project requires the applicant to perform a new Biological Survey to reassess the presence or absence of protected biological resources on and adjacent to the site. This condition clarifies that the intent of Mitigation Measure No. 6 is that if the survey finds that such protected biological resources are present, that additional environmental analysis will need to be conducted. This clarification does not pre- suppose the type of environmental document that will be required, which determination shall be made based on the survey and the possible impacts at the time the survey is completed." AP/Nakajima said that staff received several comments from the public and public agencies up until the 5:00 p.m. hour. Public agencies, Native American representatives and a variety of advocacy groups have expressed concerns. Staff also received two letters today and have provided copies to the Commissioners. She summarized comments and provided responses as follows: Comment — The project is not in compliance with AB 52, which requires notification and consultation requests with area Indian tribes. Response —AB 52 only applies to projects for which a Negative Declaration was filed on or after July 1, 2015. APRIL 25, 2017 PAGE 5 PLANNING COMMISSION • Comment— Conditions have changed regarding the project site's environmental setting which must be reexamined. Response — The MND acknowledges that the potential of these resources may change over time and it could potentially require a re -assessment of the project. As a result, the MND provides that if grading has not commenced by 2007, a new biological survey needs to be conducted. If the survey determines that there have been changes, additional environmental analysis will be required. This could potentially include anything from an addendum to an EIR and the MND contains a discussion about the County's sensitive ecological areas. However, as noted in the MND, the project site is not located within any existing or proposed sensitive ecological areas. Comment - The map has been revised, and an updated CEQA analysis is needed. Response - While the applicant may be considering substantial changes to the project, none are being proposed to date with this time -extension request. Until the applicant actually submits an application to modify the project, CEQA analysis would be premature. As to the new information concerning biological resources, the MND acknowledges that endangered and threatened species could be impacted by the project and proposed mitigation therefore. The fact that the project may impact these species is not new information or a changed circumstance. As noted earlier, the applicant will be required to conduct another biological survey prior to any grading which may, in fact, result in a need for additional CEQA analysis. Comment — The tentative map has expired. Response - The developer filed a request for the extension before the expiration date and the City is permitted to consider the Time -Extension request. Staff believes that the applicant has made a good -faith effort to record the Final Map and the request is reasonable in light of the applicant's progress. If approved, the new expiration date would be February 20th of 2018. The Time Extension does not change the approved project nor the Conditions of Approval. Staff recommends that the Planning Commission adopt the resolution with the added Condition recommending that the City Council approve a one-year time extension for Vesting Tentative Tract Map No. 54081 and related entitlements based on the Findings of the Diamond Bar Municipal Code Section 21.20.150 subject to Conditions of Approval as listed within the draft resolution - Planning Case No. PL2016-221. C/Farago asked how soon the applicant would have to complete the biological survey if this time -extension request is approved and how many extensions can be issued. AP/Nakajima responded that the applicant is allowed up to three one- APRIL 25, 2017 PAGE 6 PLANNING COMMISSION year extensions and the applicant would need to get the final map recorded by February 20, 2018. And prior to any grading, the applicant would have to perform the biological surrey. C/Farago asked for confirmation that the applicant could not do any grading until the final map was approved and that the final map had to be approved by February 20, 2018, again unless they request another extension of time. Chair/Wolfe stated that the matter in front of the Commission this evening is just a request for an extension for them to record and this has nothing to do with grading. C/Farago said he was asking what would have to take place if the Commission approved an extension and if they have to immediately do a biological survey he believes everyone would be anxious to see it and he asked how long the applicant had to complete it and whether it is just to the end of the one-year extension. SP/Lee said that to C/Farago's first question, he is correct that the applicant has until February 20, 2018, to record the final map. However, the grading can start after the final map records. Because there are grading plan check approvals that are required for the final map, there is no time table as to when grading will start. It depends on approval of grading plans and all of the other technical improvement plans. And yes, biological assessment would be required prior to any grading activities. VC/Mok said that supposing the issues that have come before the Commission today are substantiated and the issues are true, would the applicant have to address those issues before anything else could happen. SP/Lee responded that the applicant has not filed any revisions to the Map at this point. So when they resubmit plans that they are currently working on, staff would, at the time of submission, determine if there are any substantial changes to the Tentative Map and then determine what level of environmental review would be required. VC/Mok asked if that would perhaps be in the form of an EIR and SP/Lee said it could be a Mitigated Negative Declaration or it could be an EIR. C/Mahlke said when she looks at the initial report and the letter from the developers, she is struggling with the idea of the three things that need to happen in order for the MND to have to be redone. The MND was done in 2006 and there are three things proposed substantial changes to the project which staff has not seen because there is no plan in place (SP/Lee said nothing has been submitted yet) — correct. "Substantial changes have occurred with respect to the circumstances under which the project will be undertaken that will require major revisions" which she struggles to understand and the paperwork from the developer notes that there are differences in the aerial topography and they note sanitary sewer issues and they note geotechnical evaluation changes. So she is reading this as the developer saying there have been changes and she asked for clarification of the way she was assessing the report. When she reads it, it feels like it might negate the MND based on that second option because what the APRIL 25, 2017 PAGE 7 PLANNING COMMISSION developer has said is that these things they are now finding out. SP/Lee said right. It is possible, but again, the applicant has not formally submitted any plans so staff has not made that determination. The developer has expressed that there will be some changes because they did find some survey errors on the topographic map. Staff understands there may be changes but does not know whether they are "substantial" changes. C/Mahlke said thank you. So even though the developer is saying there are going to be changes, this is not an official plan so it does not fall under those environmental assessment changes because a revised map has not been submitted. ACA/Eggart said that if there are changes, the analysis under CEQA and whether the changes would require a change to the MND, without specific information, City staff is not able to evaluate whether whatever changes the developer might propose would require a change to the MND — C/Mahlke said putting the CEQA before the Plan like the cart before the horse so to speak. ACA/Eggart said that not all changes require redoing an MND so staff has to evaluate exactly what the change is and what environmental analysis will be required . VC/Mok said he too had a problem with the verbiage in that section. He read an excerpt from a letter sent by Cathay View Development which on Page 4 said that"improvement plans were redrafted i.e., prepared from scratch discarding the previous efforts." When he read "prepared from scratch" that automatically denotes to him that this is a major change which, that said, hopefully in the discussion later on someone will clarify what "substantial change' actually means. Chair/Wolfe opened the public hearing. Chuck Lockman, Engineer of Record, TTG Engineers, speaking on behalf of his client Cathay View Development, LLC, thanked staff for working diligently with his firm. He became involved with the project in July 2016. It is a very difficult site and was originally planned to be built on by the original developer going back to the late '70s. To clarify, their client Cathay View Development purchased this property represented by the seller that the plans were previously submitted to the City and were essentially approved and that all Cathay needed to do was to move forward with plans that were previously done on this project. Cathay purchased the property with that understanding and submitted the plans to the City they understood had been previously approved. Cathay got comments back through a normal plan check process but the comments they received back were not what one would expect to be getting on plans that were previously approved and ready to go. It is not the fault of the City staff. Cathay began looking at the comments and wondered what they would do and they came to his office and asked him if he would take on this project. Before TTG said yes, they wanted to conduct their own due diligence to find out what they would be up against and whether Cathay coming to them could be beneficial. At first blush, when they began going through the plans that were "approved," the comments that came back from the City were APRIL -25,2017 PAGE 8 PLANNING COMMISSION just and needed to be addressed. When they contacted the original engineer that did the Tentative Map, they were trying to find out where they got their source of topography because all of the documents did not identify their source of topography. Unfortunately, the engineer that did the Tentative Map is no longer in business. He is retired and living in New York and when Mr. Lockman spoke with the gentleman, he basically had no recollection of the project. Mr. Lockman then spoke to the engineer that took the plans over and submitted and he had no idea where the topography came from. In going through this process he told the developer there were certain things that would have to be done if they wanted to continue with this project. First, there has to be good topography on the site to know what they are dealing with because when dealing with hillside development, if the plans are off by 2/10ths or two feet it can be disastrous when one is in the field. Additionally, he wanted to meet with the County to have discussions and everyone agreed that his firm would take on that effort and try to make this a better project and try to do it right. When they re -flew the site and entire area, they found out that in some areas the topography was off only a couple of 10ths and in some areas it was off as much as six feet. The land forms in general appeared the same but the actual elevations and locations of the contours were off. While this is not abnormal in the development process, it is that they did not use a design -level topography when they did the Tentative Map. The other thing they began to notice was the street design. The original applicant in the Tentative Map had created a high point and created Crooked Creek to drain to the south. The improved street of Crooked Creek currently drains to the north. In doing that and attempting to get the sewer to drain to the north, they came up with a condition the City picked up on and rightfully so, that they were not able to give the required distance over the sewer at the end of the new cul-de-sac and meet with code. Because of that issue, they had to redesign the street and raise it up or put in a sewer lift station. When they spoke with the County which will maintain the sewer they said they did not want a sewer lift station for 16 homes because it is not practical and his firm agreed. In short, they kept coming across issues like this that they have been working through to make it a better project. The geotechnical issues were that plan check comments came back addressing historical landslides so his firm needed to do additional geotechnical testing to find out more information about those slides so that the information can be incorporated into the design to mitigate those slides which is something the other engineers did not do. In short, they are trying to make the project a better project and be as compliant with the Tentative Map as possible. The goal would be to be in compliance with that Tentative Map but if that cannot be worked out, they would bring modifications back to the City. This request is seeking additional time to do all of these things he has spoken about. Dr. Gary Stickel, 845 S. Windsor Boulevard, No 1, Los Angeles, CA 90005, received his PhD from and taught at UCLA and is now retired from that and has the honor of being the Tribe Archeologist for the original Indian tribe of this area, the Kizh, the story of which can be found on the tribal website www.gabrielenoindians.org. They had a vast territory which included this area APRIL 25, 2017 PAGE 9 PLANNING COMMISSION and have lived here for at least 9,000 years based on the sacred artifact, the Sunstone, which was studied by a student of his who became a professor at California State University, Los Angeles. The Sunstone is co -existent with the tribal territory. All of this property was originally stolen from the Kizh who have never been redressed in any way. They are not asking for reparations but they are asking to be recognized and respected. The concern is that this parcel contains natural environment oak trees which were sacred to the Kizh and is the staff of life for all California Indians. The acorns provided food and the tree provided wood for warmth and safety and provided shade. As he understands it, these are some of the last oak woodlands within the City of Diamond Bar and they need to be preserved which he believes is the absolute responsibility of the City. In reviewing documents for Cathay Development, he was disappointed that they did not address CEQA adequately which he mentioned in the letter he provided to the Commission, and they did not address AB 52, which is California State Law that passed in 2014 which augments the concern for Native American and sacred sites which is cause to redo the Environmental Impact Report. Tobingna and Acuangna are in this area. In addition, there is a 1938 County of Los Angeles Map which shows a site which may well be on the subject property. Kizh means domed shaped houses made of willow and thatching which is shown on the tribal logo. Ryan Venti said that this area was recently referred to in an issue of DB Connection as sphere of interest. In the distant past it was considered to be a future park. Within two of the three parks built at the end of Castle Rock Road, there are barbecues, drinking fountains and feeding tables and without restroom facilities there is a problem. The land was set aside for a new continuation school and then sold for $26 million. It is necessary that there be another park and by Diamond Bar's education standards, possibly named Continuation Commemoration Park located at the end of Crooked Creek Drive. There are adequate facilities to be installed for the neighboring other three parks having plenty of room for natural wilderness hiking trails, parking, small pond with stream. The restroom facilities will take care of public needs that will arise for the four parks. We stand on a lid created from Antarctica that is hundreds of years old. There is no documented evidence of this. It has been covered up by communism. We live on the surface. Then there's a place called Nami. Then there's a place called The Republic. The Republic is what they dug down to and took all of the gold in the 1400s and 1500s. The burial site of King Arthur is on this exact site and the sword Excalibur metaphysically is erected on the site. Dr. Joan Licari, 16017 Villa Flores, Hacienda Heights, representing the San Gabriel Valley Task Force of the Sierra Club, sent in a letter. Her group shares the same concerns Commissioners have addressed that this is indeed a new project. And this was evidenced by some of the comments that were presented by Cathay LLC in their letter to the City. The first is that the expiration date has passed and her group does not believe that there should be an extension granted, but that this is a new project that should be addressed with new APRIL 25, 2017 PAGE 10 PLANNING COMMISSION environmental studies. The project is the same now but they are saying in their document that the roads will be changed, pad levels will be changed, the sewer needs to be redesigned and this is an area in which there is new information concerning things such as the hydrology, seismicity, and this is an area that has some unconsolidated materials that might be subject to liquefaction which sounds to her like there should be extensive new studies done. In fact, in Cathay's letter, they said that the improvement plans were redrafted — essentially prepared from scratch and this sounds like a new project. We are hoping the extension will not be granted, that they can come in with their new designs to start a new project with an environmental review. Amy Tiang, 3702 Crooked Creek Drive, echoed what others have said about the original plan being approved in 2007 eleven years ago and this should be looked at as a new project and not just a continuation from the original "approved" plan. She hopes Councilmembers will think about this as a new project and not look at it as an extension. This is a culturally rich area with a lot of natural resources and it is the responsibility of the residents and those in charge to preserve those cultural heritages which she does not believe is being addressed by the applicant. There should be someone neutral to look at this as a new project and she hopes this extension will not be approved. Robin Smith also believes this is a new project and for the benefit of the applicant, as well as the citizens of Diamond Bar the extension should be denied and this should begin as a new project with all of the appropriate and updated surveys. From Cathay's own letter it says they were led to determine that prior documents (improvement plans) were not to the standard of the industry (Page 307) and as they continue to move forward they find more and more discoveries where they are basically thrown into damage control or find themselves interacting with these new discoveries. When she went through the IS MND she found a couple of things that confused her very much. The July 2006 MND frequently refers to the Diamond Bar 1992 General Plan and it refers to the "addendum of the 1995 General Plan." And it does this again and again and again and she does not know what the 1992 General Plan is and she cannot get it. She has ordered it and she does not know where it is. But she has read about it in newspaper articles and it says "the 1992 Draft Plan was contentiously appealed defending Tonner Canyon from proposed transit roads and high density housing, which is why the July 1995 General Plan was adopted." And there was a lot of fighting back then. She knows many of us were not there. It is confusing. She gets that. But she wants to know how this IS MND can refer to two General Plans back and forth to justify its conclusions. She did not think that could be done. She thought there was one General Plan. This document was created in 2006 and how does that work. She truly believes it is not reliable to do that. It is confusing. The other thing that confuses her is that the agenda packet (for tonight's meeting) says that "the time extension does not change the approved project and the conditions of approval set forth in City Council Resolution, etc. and will not change with the extension of time." This statement makes no sense and how is it true in light of APRIL 25, 2017 PAGE 11 PLANNING COMMISSION the ongoing total redesign of the project as specified by Cathay. She struggles with that as well. "All planning projects are to be consistent with the General Plan and the General Plan must be internally consistent with itself' and how does that bear on the documents and references that the MND uses to uphold itself? And then of course Cathay expresses surprise and shock at all of this. I would like to see this developer have all of the support and guidance possible and she would like them to know about the Los Angeles County Oak Woodland Conservation Guide which is not the same as an Oak Tree Permit. This City has no oak tree policy. There is nothing in the City's library that can offer the best support to these developers that are dealing with very sensitive habitats. And a habitat is not like an individual tree, a City tree or even some of the trees she has in her backyard. They are living things. And in conclusion, she wants to uphold the community's health, safety and aesthetic character. So to help the applicant apply for this project as a separate thing with all of those necessary supports, she believes is the best course of action and she appeals for that. David Warren stated that the Los Angeles County Oak Woodland Conservation Guide applies to the City of Diamond Bar. Yet, to date, we do not see our City adopting "best practices" of that document. State protections apply. The California Department of Fish and Wildlife, is California's trustee agency for fish and wildlife resources and holds those resources in trust by statute for all of the people of this state. CDFW in its trustee capacity has jurisdiction over the conservation, protection and management of fish, wildlife, native plants, and habitat necessary for biologically sustainable population of those species. The Public Trust Doctrine is a legal principle that characterizes natural resources as public resources that must be held in trust for the people of California. This doctrine includes natural resource protection meaning that local entities may not allow activities that will damage them unnecessarily. The City of Diamond Bar is responsible for its role as a public trust guardian, especially when fragile or rare resources are being impacted. Present weed discing damages the understory plant alliance with wildlife which supports the woodland habitat. R. Lee Paulson, 21919 Santaquin Drive said that obviously, all of the speakers have more than five comments and he understands and appreciates what the staff is saying. He would hope that the Commission would do the right thing. As a normal citizen sitting back listening to this, there is a saying that if it looks like a duck, walks like a duck and quacks like a duck, it might be a duck and we're fairly certain it's a duck, but after listening to all of the Cathay folks and all of the other things, oh, gosh, it walks on four legs, has fur and howls at the moon but we're going to approve this on a technicality because we really don't know how much is changed. He suggested that the developer's representative has already said enough to make it a significant change to warrant a new project. Secondly, he is concerned about mitigation and he presented a map of the Millennium project in 2007 before the project was undertaken which shows all of the green trees, oak woodlands, etc. In 2012 the developer came and destroyed over 9,000 oak trees and all of these woodlands and did so in 2007. Today, 10 years later, APRIL 25, 2017 PAGE 12 PLANNING COMMISSION there is no mitigation. There are no trees. There is nothing. So when the City says "trust us" to mitigate this and take care of this, he would like to know what the City will specifically do to ensure that this project and other projects have the appropriate mitigation so that trees actually get planted. He would also like to know when the Planning Commission allows for mitigation to be paid to take a tree down, where that money goes. Does that money go into the General Fund or to plant more trees? The same thing is true about the parks the City needs. He understands developers can pay money and cut down the amount of parks and the City takes it and yet he does not see the additional parks being built. He would like to know what happens to that because these oak woodlands and this terrain are a unique Diamond Bar asset, one of the most precious assets the City has. It seems to him that if they are being taken out and paved over, it needs to be done with the utmost discretion and care and he does not hear that coming tonight from the staff or the developer. It sounds to him like the developer got a raw deal. Mr. Lockman said that if changes are made that are in non -conformity with the Tentative Map, those changes will have to be brought back to the Council and if those changes are ultimately made, the developer will have to comply with whatever staff determines as far as new environmental documentation, whether it be Mitigated Negative Dec, EIR or whatever. This is not what is before the Commission this evening. We are trying to make the project be in substantial conformance with the Tentative Map. He appreciates comments the audience has made on this project tonight. He lives in Chino Hills and has spent a lot of time in Diamond Bar refereeing the young people in the community and he appreciates the community. He has been practicing engineering in the San Gabriel Valley for over 30 years and the last thing he wants to do is to come in and do a project that everyone is not proud of. The developer is more than willing to go through and do an updated biological survey on this property. They have had a consultant come in and work with the developer to do an initial study. In 2008 there was a fire. This property was burned in that fire. A lot of the oak trees that were there are gone as a result of that fire. The developer has not said they will not adhere to the documents that detail the mitigation. That would not be to the benefit of the developer or the City. The developer will adhere to the mitigation and do a new study. The developer wants to put oak trees back on that property as part of this project which it is conditioned to do. In reviewing the documents that were done when this project was initiated back in the 70s as well as their own cultural surveys, there was no indication of Indian artifacts or Indian tribes on this property whatsoever. So he feels very confident that is not an issue. Going forward, the Commission and Council's approval of this is to say the developer can go forward with the project while trying to make it better. If changes are made, it comes back to the Commission and Council. ChaidWolfe closed the public hearing. APRIL 25, 2017 PAGE 13 PLANNING COMMISSION C/Mahlke asked staff to clarify some of the comments. She knows the land was purchased in 2014. The timeline shows that there were no big plans given to the City until December 2016, a gap of two years. AP/Nakajima said that was correct. It sounds like the developer did not get appropriate information from the sellers but all of that is public record. AP/Nakajima said that any correspondence would be public record. C/Mahlke asked if the developer's letter reflecting the idea that they were not given adequate information and that they were misled about being given the understanding that the improvement plans and Final Map for this project were essentially completed and previously reviewed and approved by the City of Diamond Bar or their representative, would that be in public record? CDD/Gubman said he. did not believe the references in the letter are public record items. To be blunt, it sounds like it was part of the sales pitch that preceded the transaction. So the information that has been made public record is in this Extension of Time request from Cathay View Development which appears to chronicle in quite a bit of detail the errors and omissions that were encountered as the current purchaser took over the project and then embarked on the process of trying to comply with the Tentative Map conditions by commencing on the actual tract improvement plans which includes all of the infrastructure plans, utilities, and constructability-level studies for the site. C/Mahlke said that part of the developer's argument (for the time extension) is that they did not get adequate information and she was curious how much of the information they did not have could have been accessible to them through public records. CDD/Gubman replied that everything that has been submitted to the City for review is public record but some of the information, for example, the source of survey, was not submitted. When staff is reviewing a Tentative Tract Map, it receives as part of the graphics submittals a layout of the lots and a conceptual grading plan, and those maps and exhibits include topographic information - slopes, contours, elevations and so forth. When staff is reviewing a Tentative Tract Map it is not reviewing the constructability, the final survey level of detail. So whatever the baseline information that the previous project engineer had obtained through their enlisting of their own surveyors and so forth, they are presenting to staff (on the maps and plans) as the site conditions. And then as the very capable technical team that is currently doing the project, they have encountered some errors at the metadata level of this effort. VC/Mok said that with respect to AB 52, he understands that if the project was developed or if the application was in before July 1, 2015, that no tribal consultant would be necessary and AP/Nakajima said that was correct. VC/Mok said that the developer seems to be pretty amenable to doing almost anything to get the project accomplished and asked if the applicant had any qualms about hiring a consultant. Chair/Wolfe reopened the public hearing for the developer's response. APRIL 25, 2017 PAGE 14 PLANNING COMMISSION Mr. Lockman said they would have no problem accepting an additional condition that the property be studied for Indian cultural artifacts. Chair/Wolfe closed the public hearing. C/Mahlke said that hiring a consultant does not mean that the requirements for the actual law would go into place so any post findings would not be enforceable. CDD/Gubman said he did not immediately know how staff would craft the necessary language for such an amendment if that is something the Commission would like to do but he would suppose that the general outline of such a condition would be to state that the applicant shall commence in Tribal consultation pursuant to AB 52 and staff may need to contact the Native American Heritage Commission for guidance because there is a list of Indian Tribes that have submitted notifications to staff that they have claims to this area as being part of their historical region of occupation. Under AB 52, the City is obligated to ask the California Native American Heritage Commission for a list of those Native American associations, tribes and consortiums so that the City can request consultation. In addition, pursuant to AB 52 staff has a mailing list from organizations that have requested to be added to that list that would need to be reached out to for consultation requests. ACA/Eggart said that since the question has come up and AB 52 is being thrown around, he should briefly explain what AB 52 requires. AB 52 applies to projects for which an initial study is performed after July 1, 2015, and what it requires is for the City — it imposes a requirement on the City, to engage in consultation with Tribal representatives that have provided notice to the City that they want consultation for these areas. And once that consultation concludes, the City would then make a determination whether to impose any conditions of approval on a project that is being studied that came out of that consultation. So even though oftentimes the developer will be the one that engages in a consultation because it is more efficient, it is the obligation of the City and it pre -supposes the City is making a subsequent discretionary determination in which it can impose a condition on the developer related to that consultation with the Tribes. That is not necessarily the situation that this Commission would have and it could not guarantee that because there may or may not be subsequent decisions by the City depending on what happens with this particular project. So the Commission could not say to the developer, you shall comply with AB 52 because AB 52 is an obligation that the City would have to comply with. If the developer said they agree to a condition where they would consult with the Tribe, not necessarily within that statutory construct where they would consult with the Tribe and reasonably consider mitigation measures proposed by the Tribe as a result of the discovery of artifacts or potential for discovery of artifacts on a property, that might be a condition that could actually be enforceable or would actually work, but it could not be put in the construct of "comply with AB 52" because it is not a developer requirement to begin with. APRIL 25, 2017 PAGE 15 PLANNING COMMISSION VC/Mok said he might be belaboring the AB 52 issue, but somewhere in his reading (of staffs report) did it say something about if they find artifacts on the surface of the ground then that would require a Tribal Consultant. His question is, suppose a developer goes in and starts grading and digging around and prior to that there are no artifacts on the surface, but in the process of moving land (earth) they do discover artifacts, then it is incumbent upon the City to stop everything and reevaluate? i.e., suppose there is a burial site there, then as a City, what do we need to do? ACA/Eggart said that sometimes that is a project Condition of Approval so typically, when an environmental analysis is undertaken to determine whether there is a likelihood of discovery of artifacts and if there is, oftentimes conditions are imposed that would say, if you discover artifacts, stop. The Community Development Director is telling him that he does not think that that was a condition of this project approval because at the time that the analysis was undertaken, it was determined that there were no such cultural resources, so that is not currently a current project condition of approval. VC/Mok said but we don't know how that determination was made — that there were no cultural implications. CDD/Gubman stated that the cultural resources analysis section of the initial study led to the conclusion that the likelihood (of encountering cultural resources) is so low that a mitigation measure was not warranted. The mitigation measures do not state that should any artifacts be encountered during grading, work shall stop and further investigation begin. To his reading of this, the only obligation that is imposed on this project is if human remains are found then there are legal requirements for the county coroner to come out, but it doesn't appear that any such condition was imposed on the project when the Negative Declaration was adopted in 2007. ACA/Eggart further stated that so essentially, based on the information at the time (of approval) the City determined that there weren't any and the City has not, at this point, undertaken further environmental analysis because nothing has triggered the City to do so to determine whether there is new information. Chair/Wolfe said he was going to bring this back and see if he can call for the question. While we understand that there are changes based on the applicant's own admission and on some of the discussion here this evening, as our general counsel has noted, we don't know enough information yet to adequately ascertain whether or not there is sufficient change to require reopening the environmental document and so, really what is in front of us (the Commission) tonight is whether the Planning Commission believes that the applicant has had enough time to record the Tract Map and whether the proposed project still represents the best APRIL 25, 2017 PAGE 16 PLANNING COMMISSION use of the property. And so, as the Chair of the Planning Commission, he would like to move the staff recommendation with the corrected amendment. Motion: to adopt the resolution with the added Condition recommending that the City Council approve a one-year time extension for Vesting Tentative Tract Map No. 54081 and related entitlements based on the Findings of the Diamond Bar Municipal Code Section 21.20.150 subject to Conditions of Approval as listed within the draft resolution - Planning Case No. PL2016-221. C/Farago second the Motion. Motion carried 3-2 by the following Roll Call vote: AYES: COMMISSIONERS: Barlas, Farago, Chair//Wolfe NOES: COMMISSIONERS: Mahlke, VC/Mok ABSENT: COMMISSIONERS: None 9. PLANNING COMMISSIONER COMMENTS/INFORMATIONAL ITEMS: VC/Mok said it is nice to see his fellow Commissioners and staff at the City's events i.e., the Easter Egg Hunt, the City Birthday Party. Staff did a greatjob in supporting the City. Chair/Wolfe said he was unable to participate in the City Birthday Party. His father passed away recently and he has been dealing with some of those issues. 10. STAFF COMMENTS/INFORMATIONAL ITEMS: 10.1 Public Hearing dates for future projects. CDD/Gubman offered condolences to Chair/Wolfe. The next Planning Commission meeting is scheduled for May 9 with one item which is a Tree Removal Permit on a project site for a new home that originally incorporated the preservation of a Walnut tree. The applicant has determined that the preservation of that tree is not feasible and, therefore, would be requesting an amendment to the Conditions of Approval requiring its preservation and requesting approval for an alternative of removal of the Walnut tree and mitigation in accordance with the City's Tree Preservation Ordinance. APRIL 25, 2017 PAGE 17 PLANNING COMMISSION 11. SCHEDULE OF FUTURE EVENTS: As posted in the Agenda. ADJOURNMENT: With no further business before the Planning Commission, Chair/Wolfe adjourned the regular meeting at 8:32 p.m. The foregoing minutes are hereby approved this 9th day of May, 2017. Attest: Respectfully Submitted, Greg Gubman Community Development Director O v" Raymo d Wolfe, Chairperson