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HomeMy WebLinkAbout5/10/2011MINUTES OF THE CITY OF DIAMOND BAR REGULAR MEETING OF THE PLANNING COMMISSION MAY 10, 2011 le -11 4 1111111 t• •771 Chairman Shah called the meeting to order at 7:00 p.m. in the South Coast Air Quality Management District/Government Center Auditorium, 21865 Copley Drive, Diamond Bar, CA 91765. PLEDGE OF ALLEGIANCE: Vice Chairman Lee led the Pledge of Allegiance. 1. ROLL CALL: Present: Commissioner Jimmy Lin, Vice Chairman Kwang Ho Lee and Chairman Jack Shah. Absent: Commissioners Steve Nelson, Tony Torng Also present: Greg Gubman, Community Development Director; Brad Wohlenberg; Assistant City Attorney; Grace Lee, Senior Planner; David Alvarez, Assistant Planner; Natalie Tobon, Planning Technician; and Stella Marquez, Senior Administrative Assistant. 2. MATTERS FROM THE AUDIENCE/PUBLIC COMMENTS: None. 3. APPROVAL OF AGENDA: As presented. 4. CONSENT CALENDAR: 4.1 Minutes of the Regular Meeting of April 26, 2011. VC/Lee moved, C/Lin seconded, to approve the April 26, 2011, Regular Meeting minutes as presented. Motion carried by the following Roll Call vote: AYES: NOES: ABSENT COMMISSIONERS: COMMISSIONERS: COMMISSIONERS: 5. OLD BUSINESS: None Lin, VC/Lee, Chair/Shah None Nelson, Torng MAY 10; 2011 PAGE 2 PLANNING COMMISSION 6. NEW BUSINESS: 6.1 6.2 Review of Fiscal Year 2011-2012 Capital Improvement Program (CIP) — Conformity with the City's General Plan. SP/Lee presented staff's report and recommended Planning Commission adoption of a resolution finding the proposed Fiscal Year 2011-2012 Capital Improvement Program in conformance with the City's General Plan. C/Lin asked if there was an increase or decrease over last year's budget and SP/Lee responded that there was a decrease. There was no one present who wished to speak on this item. C/Lin moved, VC/Lee seconded to adopt a resolution finding the proposed Fiscal year 2011-2012 Capital Improvement Program in conformance with the City's General Plan. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Lin, VC/Lee, Chair/Shah NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: Nelson, Torng Review of Draft Parks and Recreation Master Plan 2011 — Conformity with the City's General Plan. SP/Lee presented staffs report and recommended Planning Commission adoption of a resolution finding the Draft Parks and Recreation Master Plan 2011 in conformance with the City's General Plan. C/Lin expressed that this was a very well-prepared document. He asked why the projections for 2010 show a population of 55,000 when the City's population is 59,000. CDD/Gubman said he appreciated that C/Lin pointed this out and would have the discrepancy corrected and include an errata in the final document for the correction. There was no one present who wished to speak on this item. VC/Lee moved, C/Lin seconded, to adopt a resolution finding the Draft Parks and Recreation Master Plan 2011 in conformance with the City's General Plan. Motion carried by the following Roll Call vote: MAY 10, 2011 PAGE 3 PLANNING COMMISSION AYES: NOES: ABSENT: COMMISSIONERS: COMMISSIONERS: COMMISSIONERS: 7. CONTINUED PUBLIC HEARINGS: Lin, VC/Lee, Chair/Shah None Nelson, Torng 7.1 Conditional Use Permit No. PL 2010-355 — Under the authority of Diamond Bar Municipal Code Section 22.58, the applicant requested approval to remove an existing Edison streetlight pole located -on Diamond Bar Boulevard's public right-of-way, north Tin Drive and replace it with a similar light pole equipped with cellular telecommunications antennas and associated ground -mounted equipment (Continued from April 26, 2011) PROJECT ADDRESS PROPERTY OWNER: Public Rights -of -Way on Diamond Bar Boulevard and 760 S. Diamond Bar Boulevard City of Diamond Bar 21825 Copley Drive Diamond Bar, CA 91765 APPLICANT: Sequoia Deployment Services On behalf of T -Mobile Monica Moretta One Venture, Suite 200 Irvine, CA 92616 AP/Alvarez presented staffs report and recommended Planning Commission approval of Conditional Use Permit No. PL2010-355, based on the Findings of Fact, and subject to the conditions of approval as listed within the resolution. C/Lin commended T -Mobile for taking extra steps to enhance the aesthetics and the quality of life in Diamond Bar. Monica Moretta, applicant, concurs with the conditions of approval as amended with the proper screening. C/Lin asked if the City would maintain the shrubs and Ms. Moretta responded that T -Mobile was responsible for the maintenance. Chair/Shah asked if T -Mobile was responsible for paying the water bill on a regular basis and Ms. Moretta responded affirmatively and that is why MAY 10, 2011 PAGE 4 PLANNING COMMISSION Walnut Valley Water District is installing a separate meter. VC/Lin asked if T -Mobile would visit the site on a regular basis to make certain the maintenance was taken care of and Ms. Moretta responded that typically, T -Mobile will visit the site on a monthly basis for maintenance of the facility and issues having to do with maintenance of the facility and the site. VC/Lee moved, C/Lin seconded, to approve Conditional Use Permit No. PL 2010-355, 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: Lin, VC/Lee, Chair/Shah NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: Nelson, Torng 7.2 Conditional Use Permit No. PL 2011-058 — Under the authority of Diamond Bar Municipal Code Section 22.58, the applicant Manikku Malraj and property owner Ronald E. Albrecht, requested approval to operate a 3,835 square foot tutoring center. The proposed hours of operation are from 8:00 a.m. to 6:00, p.m. Monday through Friday. The lot is zoned Light Industrial (1) with a consistent underlying General Plan land use designation of Light Industrial. PROJECT ADDRESS: PROPERTY OWNER 782-784 Pinefalls Avenue Diamond Bar, CA 91765 Ronald E. Albrecht Sterling Capital, Inc. 8502 E. Chapman #184 Orange, CA 92369 APPLICANT: Manikku Malraj Ranmal Educational Services 801 Brea Canyon Road Diamond bar, CA 91789 AP/Alvarez presented staff's report and recommended that the Planning Commission continue the matter to May 24 to allow staff to prepare a resolution of denial of Conditional Use Permit No. PL 2011-058. VC/Lee asked if staff had any possible resolution they could propose for allowing this use. AP/Alvarez stated that the basis for denial was that the site would support only 20 parking spaces during business peak hours and MAY 10, 2011 PAGE 5 PLANNING COMMISSION the use requires 25 parking spaces per the Development Code. VC/Lee asked if staff had any communication with the applicant about this matter and offered the applicant to provide a different number for each session. AP/Alvarez responded that the applicant was contacted and wants to pursue the 30 -student maximum limit — three sessions with 10 students per session with a maximum of 30 -students during each block. VC/Lee said then there was no agreement of compromise and AP/Alvarez responded "no." CDD/Gubman stated that staff's support for this project is based on the availability of parking and staff finds nothing objectionable about the use except now that the proposed number of students will generate a parking demand that exceeds what the site is capable of accommodating, a compromise is to reduce the enrollment so that the parking demand can be fulfilled by the 17 available spaces to handle the pickup and drop off between sessions. The compromise in order for staff to recommend approval would require a drop in the proposed enrollment. Ron Albrecht, building owner, said that the parking demand was not understated by the applicant. In fact, he and the applicant pointed out the misunderstanding at the last meeting. He does not know how that number made it into the document but he was quick to point out the error at the last meeting. Based on the application, the applicant was offered a permit and certainly he wants to be in compliance. As the owner of the building, he is very concerned about liability and he and the applicant were very quick to point out that staff's report was not correct. It was not an understatement of the facts, it was an error in the report. Secondly, when the parking study was conducted and in one slot there were 10 cars out of a one week period and most of the time there were seven or fewer cars in the parking lot when the study was done. It is possible that someone across the street used the parking on his side one day. The parking space calculation required is not accurate. The requirement is, as he understands it, for every 200 square feet the building is required to have a parking spot. The building has 3,800 square feet which equates to the need for 19 parking spots and 3 for the instructors because there is never more than 3 instructors in the building at any given time -19 and 3 is 22. The available parking is 30. There are 9 spaces allocated — 2 for one unit, 2 for another unit, and 5 for a third unit, which leaves 21 available parking spots and according to the code they need 22 so according to the code there is a 1 parking spot deficit. Mr. Albrecht read from a prepared statement. At the previous meeting there was a mistaken belief that 30 students are picked up and dropped off every 90 minutes. This is absolutely not the case and is totally inaccurate. This would require a student body of 30 students multiplied by six sessions per day which would be a 180 person student body. There is not, nor will there MAY 10, 2011 PAGE 6 PLANNING COMMISSION ever be, a student body of this size. Most students take multiple sessions so the actual turnover, pickup and drop off of students, is zero to five between sessions, far less turnover than two similar businesses that are currently operating across the street in the same business park. The code, as he understands, does not define or specify how many cars can drop off or pickup. However, the number needed is minimal and far less than the 21 spaces that are available. He knows this to be a fact. About 16 months ago Raj opened this business and operated it for nine months. At that time, Raj went to the City's Planning Department on several occasions and was told that they could occupy the premises. As the owner of the building, he is very concerned about litigation and protecting his assets in this litigious state. When Raj assured him that he had gone in to the Planning Department several times and could open his business they (building owner and applicant) signed the lease and Raj occupied the building. As it turned out, there was an error, a misunderstanding by the person or .persons at the Building Department who gave the go ahead. During the nine months the applicant occupied the building there was absolutely no parking stress and in fact, there was abundant parking and plenty of open spaces during the nine month period when he visited the building several times a week. On those many occasions when he went to the site to use his warehouse space, he never witnessed a full parking lot nor even close to a full parking lot, nor did he receive any complaints from any existing tenants. Perhaps the Planning Commission could define the parking allowed and we could seek compromises with the number of students in the student body. Dellos Dance in the same size building across the street (3800 square feet) has 150 students in their student body. The Music Store at 1900 square feet (one half the size) wrote on their application for permit that they had 155 students. Again, the concern is parking for pickup and drop off. As previously stated, most students take multiple sessions so pickup and drop off is minimal. Perhaps the City could issue the permit with not 150 or 155 student body like the two neighbors, but as discussed with the applicant, an accepted limit of 45-60 total'students in the total student body, thus limiting the number of drop off and pickup between sessions to the number that could possibly be required. Also, if there is a parking issue, the City could revoke the permit because he and the applicant know it will not be an issue. As the owner of the building he does not want to rent to a business that would, cause him to lose his other tenants or to not be able to rent out the remaining unit because of stress on the parking. He is positive that this tenant will not put stress on the parking. The country is in a very difficult recession and this building has sat empty for most of the last three years. There is no parking problem. There are similar businesses across the street requiring more parking and one was recently approved for a permit. Since there will be no stress on the parking he and the applicant are asking the Commission and the City to help MAY 10, 2011 PAGE 7 PLANNING COMMISSION those in the private sector put tenants in this building, create jobs and allow this business to operate. Manikku Malraj said he never intended to misrepresent his business to the City or the Planning Department. He was very up front and very clear about his intentions. He has a business about 150 yards away that is a pre-school and his intention was to provide further education to the children who leave the pre-school after graduation after kindergarten, to elementary, to the 5th grade. There are so many parents who come to them. All students are not the same. There are some students who have learning difficulties which is the reason for providing this service. This is a family owned business and the family is involved in the day to day operation. He is only concerned with helping the children and does not want that to be in jeopardy in any fashion. So please consider the proposal and we will be thankful to the Commission and the City. Chair/Shah asked for clarification about Mr. Malraj having gone to the City's Building Department where someone told him it was okay to continue with the business. Mr. Malraj said the understanding was that they were expanding the existing business as repeated to him by the staff member and as such, he did not have to go for a Conditional Use Permit. He said because we are "expanding the current business." That was his understanding. However, for some reason, that was apparently incorrect and we were requested to get out and we did so. As a result, three teachers lost their jobs and several children had to be relocated to other schools and he lost business. Mr. Albrecht said he wanted to point out that the existing business is 151 feet from his building. At this location there are two businesses across the street in the identical park with the identical building — Dellos Dance which caters to children and within 200 feet, the Music Store which also caters to children. Raj's business is 151 feet away and as he previously stated that as he had discussed with Raj he was sure that he could occupy this business site. He wants to be in compliance as he has been since he has been in Diamond Bar for over 20 years and Raj pointed out, there is a register at the Building Department where he ,signed in when he was at the City discussing this matter with the Building Department. Chair/Shah said he understood that students could go from one class to another but there could be 30 new students in each class. Mr. Malraj said that it would not happen like that. The reason he is saying multiple sessions is so that the parents have an opportunity to register their kids in multiple sessions for a discount. If there are only five students he loses on the MAY 10, 2011 PAGE 8 PLANNING COMMISSION business. So to encourage the parents to enroll their kids in multiple sessions I gave them a discounted rate. And he guarantees that the maximum number of students will be 30 and he will not go beyond that. Chair/Shah asked if Mr. Albrecht was stating that the businesses across the street were not in compliance with the parking regulations and Mr. Albrecht said he was not suggesting that. What he was saying is that they were granted a CUP and they state in their application thatthey have 155 students and they are in a building half the size Raj is occupying. And it looks like the demands for that business -model would require more drop off and pickup than Raj's business model. So Mr. Albrecht actually has more parking available than the business across the street because he has a 3800 square foot building and more available parking but yet the demand for Raj's business model is far less than the business model across the street which was approved by the City. Chair/Shah understands Raj's desire to teach the children is a very noble idea. He asked if Mr. Malraj had considered any alternative to looking at what the Planning Department is facing with respect to what they have described as the parking problem and wondered if there could be a solution. Mr. Malraj said he received staffs report a couple of days ago and it never happens that 30 student drop in and then 30 students leave which is how staff has written the report and that is completely wrong. What he is saying is that any one time there will be a maximum of 30 students taking advantage of multiple sessions and there may be 2 or 5 come in and he has only 12 students at this time and there would always be a maximum of 30 students. Because the students are getting a discount for multiple sessions there will be very minimal drop off and pickup between the sessions. Chair/Shah asked Mr. Malraj if he had discussed with staff what he is describing today. He said he discussed this with staff over the phone. He did not go to the City because to be honest, he was very unhappy. He works in another county and he is very sad about the way these reports have been written. Mr. Albrecht again offered his compromise that if the City and Commission defined the number of students it would assure that there would never be 30 students being dropped off and picked up at one time. Across the street the student body is 150 and 155. If you define Raj's student body at 60 or 45 then as Raj has explained his business model to me it is his goal to get the parents to sign up for as many classes as possible so that his revenue is stable, he does not have to recruit as many parents and it does not stress to the parking which makes Raj a good applicant for him (Mr. Albrecht) for this building. He has other tenants and he has a vacant unit and he does not MAY 10, 2011 PAGE 9 PLANNING COMMISSION want stress on the parking. So the idea of perhaps limiting the size of the student to far less than they have across the street would assure the City that mathematically it would be impossible to drop off and pick up 30 students if he has limited students. So if the student body is 60 or 45 it forced Mr. Malraj to sell more sessions to each student which eliminates any stress on the parking. C/Lin reminded the applicant that the reason the applicant is before the Planning Commission is because the owner's building is not intended to be used for children's services. If this application were within the allowable land use the applicant would not be before the Commission today. If someone wanted to use this location as a warehouse, the applicant and property owner would not,be here. The only reason is that the property is not intended to be used for children's services and those parking spaces that such a use requires are based on the building owner's permitted land use. A tutoring facility is an unusual use and the Commission has to rely on their experts to tell the Commission that based on the City's experience with tutoring facilities what kind of parking and traffic problems a certain location might be facing. The Commission relies on staff to tell the Commission that a particular use — in this case a tutoring facility, may not work. If the applicant could guarantee there would never be 30 students coming and going, even with 30 cars there would be congestion. Mr. Albrecht said that if there were a maximum student body if during the course of the day Raj might get to 30 students in a class but it does not mean that when that session ends there are 30 students coming or going. They are gradually being added and picked up during the day. That is why he suggested that if there were a limit on the student body it would certainly determine that there would not be a lot of coming and going of cars. And with respect to the comment about this kind of business, there is a music store and a dance facility directly across the street in an identical building. A dance class is 20 students or more and the music store's application is that the parents actually stay during the class and it is required parking. The parents stay outside while the music lesson is given. That is not what Raj is asking. The parents will drop the kids off, sign the kids in to class and they will leave in their vehicle. And it will not happen multiple times per day because of the student body limitation. So this business actually has less required parking and needed parking than the existing music store and dance studio which are permitted through the CUP process. C/Lin asked Mr. Albrecht if parking was permitted on both sides of Pinefalls and Mr. Albrecht said yes, but the building is on a cul-de-sac and during that nine month period he would never foresee there would ever be a need to' MAY 10, 2011 PAGE 10 PLANNING COMMISSION park on the street. PT/Alvarez responded to C/Lin that there is street parking available on the cul-de-sac. VC/Lee said he believes the building owner has credibility, has studied the issue and knows his building. He thinks the parking study is a purely calculated estimation. He understands that the parking study should be used as a reference and based on the study staff determines how many parking spaces are available. Based on the study, how many spaces are available? CDD/Gubman stated that the property owner and the applicant raised some points that maybe staff needs to communicate more and staff will meet with the applicant and the property owner at City Hall to establish a better dialogue and not seem to have these disconnects where the areas of tension come to surface during the Commission meeting or there are some nuances that were not understood on staff's part before and perhaps there is a solution wherein if the entire student body enrollment is capped, then clearly, there will be some spread of parking demand that will be less intensive than what staff considered because yes, based on staffs understanding and a careful review of the business plan that was presented to the City, there would be a potential student body of 180 or so. Perhaps at this point the Commission should continue the matter to May 24 to allow staff to meet with the applicant and get the specifications for the number of students, what the actual scenario would be throughout the day and perhaps there is a solution that would enable staff to come forward with a recommendation for approval. He is hearing comments from the applicant and the owner that he does not believe were communicated to staff or perhaps staff did not have enough base information to ask the right questions to get to some of the answers staff is getting closer to this evening. He believes something can be worked out but to do so staff, the applicant, and business owner need to have that dialogue to make sure that all parties are on the same page and then staff can present the Commission with a resolution where it is negotiated between the applicant and the City to where it makes sense intuitively and analytically so that there is no problem. Chair/Shah asked CDD/Gubman to consider giving the applicant a trial for a few months to make sure the borderline intent is to get the space rented and get the children educated so that it becomes a win-win situation. C/Lin asked if the applicant has a permit and has been operating the business for nine months. SP/Lee explained that Mr. Malraj does not have a permit. When staff discovered that he was occupying the space it was via a phone call from the LA County Fire Department informing the City that there was a business operating at this location. When staff went out to do a site inspection staff realized that there was a tutoring business at the site. Staff MAY 10, 2011 PAGE 11 PLANNING COMMISSION then notified the applicant that he is not allowed to occupy the space without a business license and further informed the applicant that in order to occupy the space it would require a Conditional Use Permit for this particular location. Staff gave them a week or two weeks to vacate the space. The applicant did vacate the space and staff verified that vacation. She spoke with the property owner this morning and he indicated to her that this business had been operating at that location for about nine or 10 months. Staff was not aware that the business was operating at this location and the business did not have permits to conduct business. Mr. Albrecht said that he and Mr. Malraj have been in Diamond Bar for quite a while and he wanted to assure the Commission that there was nothing underhanded on their part. He has owned this building for a lot of years. We are dealing with children that live in California. After Raj moved in, he signed a lease and Raj put flooring in and painted. We know that if we did not feel comfortable that Raj had been in compliance, all of that would not have happened. One does not sneak into a building and believe that someday you won't be found out. He wants to make it very clear that there was some misunderstanding because he would never have allowed Raj in the building and Raj would never have spent the money to do the fix up. C/Lin said he understood but unfortunately, the City has to deal within the law. In terms of the parking demand, if you consult with the Institute of Traffic Engineers the parking manual provides clear guidelines for centers on a per -student basis. If there is an undisputable number to discuss for the document that Mr. Albrecht alludes to, he is sure that PWD/Liu would guide staff through that manual. CDD/Gubman said the City purchased the 8th edition of that manual and he made sure that his department had the latest edition about a year and one-half ago. Chair/Shah opened the public hearing. There was no one present who wished to speak on this item. Chair/Shah closed the public hearing. VC/Lee moved, C/Lin seconded, to continue Conditional Use Permit No. PL2011-058 to May 24, 2011. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Lin, VC/Lee, Chair/Shah NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: Nelson, Torng MAY 10, 2011. PAGE 12 PLANNING COMMISSION 8. PUBLIC HEARING(S): 8.1 Development Review and Minor Conditional Use Permit No. PL2011-67 - Under the authority of Diamond Bar Municipal Code Sections 22.48 and 22.56, the applicant, Danny Tseng, and property owners Zhi Zhuang Liu and Meng Zhu requested approval for a 1428 square foot addition to an existing 4,080 square foot single family residence on a 0.69 net acre (30,060 square foot) lot. Minor Conditional Use Permit is requested to allow the continuation of an existing non -conforming 15' 10" front yard setback (30 feet is required). The lot is zoned Rural Residential (RR) with a consistent underlying General Plan land use designation of Rural Residential. " PROJECT ADDRESS: 2160 Indian Creek Diamond Bar, CA 91765 PROPERTY OWNER: Zhi Zhuang Liu and Meng Zhu 2033 Quail Run Drive Diamond Bar, CA 91789 APPLICANT: Danny Tseng 460 Castlehill Drive Walnut, CA 91789 AP/Alvarez presented staffs report and recommended Planning Commission approval of Development Review and Minor Conditional Use Permit No. PL2011-67, based on the Findings of Fact, and subject to the conditions of approval as listed within the resolution. C/Lin said it looks like a nice project. Wherever there is a non -conforming setback and the owner decides he wants a major renovation, does the City Code require them to comply with the setback requirement at that time. AP/Alvarez responded that when an applicant proposes an application ,and they have existing non -conforming setbacks staff does not allow them to further encroach into those non -conforming setbacks so they are required to maintain the non -conforming setback. Staff requires conformance if it is a new single family home. In this case, if the applicant were to tear down the existing structure to build a new structure staff would require that the proposed project meet all development standards. Danny Tseng, applicant, speaking on behalf of the property owner, said they were present to answer Commissioners questions. MAY 10, 2011 PAGE 13 PLANNING COMMISSION Chair/Shah opened the public hearing. With no one present who wished to speak on this matter, Chair/Shah closed the public hearing. C/Lin moved, VC/Lee seconded to approve Development Review and Minor Conditional Use Permit No. PL2011-67, 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: Lin, VC/Lee, Chair/Shah NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: Nelson, Torng 8.2 Development Review and Minor Conditional Use Permit No. PL2010-325 Under the authority of Diamond Bar Municipal Code Sections 22.48 .and 22.56, the applicant requested approval for a 494 square foot second floor addition to the front of the residence, and a Minor Conditional Use Permit for the continuation of a non -conforming front yard setback of 13' 6" (20 feet is required). The property is zoned Low Density Residential (RL) with a consistent underlying General Plan land use designation of Low Density Residential. PROJECT ADDRESS PROPERTY OWNER/ APPLICANT: 23959 Cougas Creek Road Diamond Bar, CA 91765 Jorge and Martha Diaz 23959 Cougas Creek Road Diamond Bar, CA 91765 PTITobon presented staff's report and recommended that the Planning Commission direct the applicant to submit revised architectural elevations to address the design issues outlined in staffs report and continue the matter to May 24, 2011. VC/Lee asked why staff is recommending this matter be continued and PT/Tobon responded that the reason for requesting a continuation is to allow the applicant and property owner time to discuss revisions to the proposed project to minimize the massing and conform to the streetscape due to its close proximity to the street. She provided drawings for the applicant to consider incorporating into the design. MAY 10, 2011 PAGE 14 PLANNING COMMISSION VC/Lee asked if the Commission could approve the project and the applicant could submit revised plans later. Is that really a big matter to staff? CDD/Gubman responded to the Commission that VC/Lee's suggestion is another option. The Planning Commission could approve it with a condition that the front elevation be modified at plan check subject to staff's approval. That would be a judgment call for the Commission because that potentially places the applicant under the discretion of what CDD/Gubman would deem to be appropriate and whether or not the applicant would be able to get a building permit or not, so what staff is suggesting is to provide a more transparent process for the Commission to decide whether it is appropriate or not and that is why staff recommends the plans be revised and brought back to the Commission for approval as opposed to approving with a condition for CDD/Gubman's judgment call. C/Lin asked if with respect to the suggested elevation the existing garage door was in line with the existing front line of the house. PT/Tobon responded that the suggested elevation shows a section that is popped out farther than the garage but the area is not floor area, it is just an architectural projection. CDD/Gubman stated that the small gable area'is pushed out 10 inches forward. C/Lin said so in other words, the existing house is already not in compliance with the setback and the applicant is pushing it 10 inches further toward the street. CDD/Gubman said yes, C/Lin was correct. And what the Commission should understand is that there are allowances for architectural features to project into the setbacks. If this was not allowed and individuals wanted to build right up to the setback there would be no room for any kind of architectural treatment, not even a window sill and especially not even the roof eaves. And so by allowing these non-structural decorative projections into the setback it is an encouragement to allow them to build structurally right up to the setback line, but then still have the flexibility to add some ornamentation or some visual relief to enhance the building's appearance. C/Lin said that the applicant's proposal looks very similar to the house to the north (of the proposed project) in terms of appearance. That residence also has a flat wall. Chair/Shah said he agreed with VC/Lin and saw no reason not to approve this project looking at the other two neighboring houses. He understands staff's concern about the massing but in his opinion, it is pretty close to the neighbors' houses. Jorge Diaz explained that the changes proposed by staff do not have the same style as the present home. The right side is like a ranch style home with the brick fagade and the new proposed protrusion or furred wall looks more like the tract homes that are in Fontana and other places. It is too MAY 10, 2011 PAGE 15 PLANNING COMMISSION modern and does not look like his home and his neighborhood. His home looks like it belongs in his neighborhood. Unfortunately, they outgrew their home and they want to add on while keeping the same feel. The applicant had photos of other homes in the neighborhood and referred to those photos as he was speaking. Staffs proposal does not show the true feeling of what his home is. His proposal looks better and the brick shows better than in the drawing and does not look as "cold." Staffs proposed change just does not blend in with the feel of their home. He found one home that had the type of construction proposed- by staff (picture #10). The picture is of a residence about one block away from their home and the architecture' is completely different than their home and, it is the only home in the neighborhood that has that type of protrusion. In his opinion, it does little to affect the massive look of the home to the street. And, if he has to comply with staff's proposal it may change the entire look of the interior with one window having a deeper opening than the other window because that wall is bigger. Also, it protrudes out 10 inches but also the roof gables stick out even more beyond the setback and his original intention was to have the addition protrude 24 inches but that was not allowed because of the setback. But this is definitely encroaching into the setback. Also, there is additional cost for something they really do not like and it will be a burden and something they come home to everyday and do not really like at the completion of the project. He asked the Commission to approve the project as proposed.. He showed photographs of additional homes in his neighborhood with similar construction. Martha Diaz said she likes the project as proposed by their architect. It took awhile to get it just the way they want it. She appreciates staffs hard work to propose the change but she does not like it and she does not want it and she does not want to pay for something she does not want. Please think about that and hopefully the Commission will approve their idea. Chair/Shah thanked the applicant and said he believed they had a really nice home. Chair/Shah opened the public hearing. With no one else present who wished to speak on this item, Chair/Shah closed the public hearing. VC/Lee said he believed it was a beautiful project and that the applicant was spending considerable money on a design that is beautiful. He takes staff's recommendation as well. MAY 10, 2011 PAGE 16 PLANNING COMMISSION VC/Lee moved, C/Lin seconded, to approve Development Review and Minor Conditional Use Permit No. PL2010-325 as proposed by the applicant with staffs recommendation for the front elevation. Chair/Shah said he believed the applicant had provided the proper elevation and his recommendation would be to approve the project as proposed by the applicant without changes. VC/Lee said he liked it that way better than his motion. He amended his motion to approve Development Review and Minor Conditional Use Permit No. PL2010-325 as presented. C/Lin asked that the motion be amended to read "as submitted by the applicant." CDD/Gubman suggested that VC/Lee wanted the project approved _"as submitted by the applicant." VC/Lee agreed and C/Lin seconded the motion. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Lin, VC/Lee, Chair/Shah NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: Nelson, Torng 8.3 Development Code Amendment No. PL2011-146 — An Ordinance of the City of Diamond Bar regarding recovery of attorney fees in nuisance abatement proceedings and amending Diamond Bar Municipal Code Sections 22.78060(2)(b) and 22.78.070(1). The Ordinance serves to clarify existing provisions of the Diamond Bar Municipal Code relative to recovery of attorney's fees incurred in abatement of nuisances by clarifying that all references to legal "costs" were intended to and do include the City Attorney's fees. PROJECT ADDRESS: Citywide APPLICANT: City of Diamond Bar Community Development Department MAY 10, 2011 PAGE 17 PLANNING COMMISSION CDD/Gubman introduced MA/Santos and explained the proposed Development Code Amendment. CDD/Gubman recommended that the Planning Commission recommend City Council approval of Development Code Amendment No. PL2011-146. C/Lin asked what the City would do if all remedies had been exhausted and the property owner refused to cooperate under the current code. Does the City put a lien against the property or what does the City do? CDD/Gubman said the City places a "special assessment" on the property. It is not exactly a lien but it is an encumbrance on the property that shows up on their property tax bill so it becomes due the next,time their property tax has to be paid to the County Assessor. C11 -in asked if the revision would enable the City to then include attorney's fees into the special assessment and CDD/Gubman stated that C/Lin was exactly right. ACA/Wohlenberg further explained that this is only in relation to public nuisances and not any of the prosecutorial functions of the City Attorney's office or of the City Prosecutor. The reason for all of this is when the court sees the word "costs" that does not include attorney's fees. When there is an award made under a contract and the award states "payment of costs" the Court is talking about the costs related to the filing fees of the action, jury fees, etc., but does not include attorney's fees unless it specifically so states. In an attempt to clarify what we believe the code reads, we want to add the attorney's fees language to be explicit so that if a Court looks at that the Court has the option of awarding that. The judge is not bound by it either. He or she could decline to award those fees. Chair/Shah asked if, in the event of defending the City there is a counter- claim by the property owner and there is a cost associated with defending the City, is the cost of defending the City recoverable and is there something included which protects the City by not having to front the money for litigation? ACA/Wohlenberg said that if someone brought an additional action against the City in response to the City's efforts to_ abate a public nuisance and there are a variety of actions they could bring that under, in most cases, that money will not be recovered. If someone sought a writ or sought a civil rights violation the City Attorney would defend that litigation and the cost of doing so would generally be a cost to the City and not something that would be recovered from the Plaintiff. Generally, in those situations the City is stepping away from the nuisance abatement. At that point, when the City defends itself, unless there is an explicit provision in a contract or some statute that allows recovery of attorney's fees, there will be no recovery of attorney's fees. MAY 10, 2011 PAGE 18 PLANNING COMMISSION �7 �7 Chair/Shah opened the public hearing. With no one present who wished to speak on this matter, Chair/Shah closed the public hearing. ACA/Wohlenberg further explained that the City is, a member of the Joint Powers Insurance Authority. If there is a tort claim against the City often times those are subject to or handed over to the JPIA for the defense of that lawsuit. So the City's cost in that is essentially the cost of maintaining its version of insurance. C/Lin moved, VC/Lee seconded, to recommend City Council approval of Development Code Amendment No. PL2011-146. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Lin, VC/Lee, Chair/Shah NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: Nelson, Torng PLANNING COMMISSIONER COMMENTS/INFORMATIONAL ITEMS: None Offered. STAFF COMMENTS/INFORMATIONAL ITEMS: 10.1 Public Hearing dates for future projects. CDD/Gubman explained that tonight's agenda contained more items than any Planning Commission agenda since he came on board with the City. The items did not quite add up to one Site D but certainly required a lot of different and diverse material for the Commissioners to pass judgment on. Hopefully, the next meeting will even things out a little bit for the Commission. In addition to the continuation of the tutoring center on Pinefalls where staff hopes to bring some closure to that matter, there is a two -lot subdivision on Derringer Lane. 10. SCHEDULE OF FUTURE EVENTS: As listed in tonight's agenda. MAY 10, 2011 PAGE 19 PLANNING COMMISSION ADJOURNMENT: With no further business before the Planning Commission, Chairman Shah adjourned the regular meeting at 9:01 p.m. The foregoing minutes are hereby approved this 24th day of May, 2011. Attest: Respectfully Submitted, -'I', � /,/A � Greg Gubma Community Development Director � �•... � � rte... �'�- ``. � `� , 3� Jack Shah, Chairman