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HomeMy WebLinkAbout2/28/2012MINUTES OF THE CITY OF DIAMOND BAR REGULAR MEETING OF THE PLANNING COMMISSION FEBRUARY 28, 2012 Chairman Shah called the meeting to order at 7:03 p.m. in the City Hall Windmill Room, 21810 Copley Drive, Diamond Bar, CA 91765. PLEDGE OF ALLEGIANCE: C/Lee led the Pledge of Allegiance. 1. ROLL CALL: Present: Commissioners Jimmy Lin, Steve Nelson, Tony Torng, Vice Chairman Kwang Ho Lee, -and Chairman Jack Shah Also present: Greg Gubman, Community Development Director; Bradley Wohlenberg, Assistant City Attorney; Natalie Tobon, Planning Technician; Raymond Tao, Building Official; Kimberly Young, Associate Engineer, and, Stella Marquez, Administrative Coordinator.. 2. MATTERS FROM THE AUDIENCE/PUBLIC COMMENTS: None offered. 3. APPROVAL OF AGENDA: As presented. 4. CONSENT CALENDAR: 4.1 Minutes of the Regular Meeting of January 24, 2012. C/Torng moved, Chair/Shah seconded, to approve the Minutes of the Regular Meeting of January 24, 2012, as amended. Motion carried by the following Roll Call vote: AYES: NOES: ABSTAIN ABSENT: 5. OLD BUSINESS: 6. NEW BUSINESS: COMMISSIONERS: COMMISSIONERS: COMMISSIONERS: COMMISSIONERS: 7. PUBLIC HEARINGS: None None Lin, Nelson, Torng, Chair/Shah None VC/Lee None 7.1 Development Code* Amendment No. PL2011-454 — Under the authority of Diamond Bar Municipal Code (DBMC) Section 22.70 this was a request to amend the following sections of Title 22 of the Diamond Bar Municipal FEBRUARY 28, 2012 PAGE 2 PLANNING COMMISSION Code: 22.43; 22.10.040; 22.10.030 Table 2-5 and Table 2-6; 22.42.100; 22.38.030; 22.36.130 Table 3-14; 22.34.030; 22.42.130(g)(3)(d); 22.56.020; 22.47.020; 22.68.030(b); 22.66.050(c) and (d); 22.80.020; 22.22.080(b)(6); 22.16.060; 22.22.120; 22.20.040; 22.22.080(b)(7); 22.42.110(c); 22.42.060(2)(j); 22.22.100(a). PROJECT ADDRESS F-AToilimlmom Citywide Diamond Bar, CA 91765 City of Diamond Bar CDD/Gubman stated that as of the publication deadline for this matter, staff's report was not completed. Therefore, staff recommends that the Planning Commission open the public hearing for this item and continue the matter to the March 13, 2012, agenda. By opening the public hearing the matter can be continued without re -noticing. Chair/Shah opened the public hearing. C/Lin moved, C/Lee seconded, to continue the public hearing to March 13, 2012. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Lin, Nelson, Torng, VC/Lee, Chair/Shah NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: None 7.2 Conditional Use Permit No. PL2012-08 - Under the authority of DBMC Section 22.58 the applicant., Jamie Dietz-Felez and the property owner, Diamond Bar/Grand LLC, requested Conditional Use Permit approval for a jiu-jitsu studio for students ages four years and older Mondays through Fridays from 4:00 p.m. to 8:3.0 p.m. and Saturdays from .11:30 a.m. to 12:30 p.m. The subject property is zoned Regional Commercial (C-3) with an underlying General Plan Land Use designation of General Commercial. PROJECT ADDRESS: 1273 S. Diamond Bar Boulevard Diamond bar, CA 91765 PROPERTY OWNER/ Diamond Bar/Grand LLC APPLICANT: 2717 West Coast Highway Newport Beach, CA 92663 PT/Tobin presented staff's report and recommended Planning Commi . ssion approval of Conditional Use Permit No. PI -2012-08, based . on FEBRUARY 28, 2012 PAGE PLANNING COMMISSION the Findings of Fact, and subject to the conditions of approval as listed within the resolution. C/Lin asked for clarification of Condition 4. CDD/Gubman stated that the approval resolution includes the operating conditions by which the applicant must abide and approves, by reference, the plans that were submitted depicting how the business operation would be laid out in that particular tenant space. By approving this condition the Commission is limiting the number of students, the hours and other operating parameters for this use. If the applicant or the successor is found to violate any of the conditions they are potentially subject to Conditional Use Permit revocation. Under the project description submitted by the applicant staff found that there is sufficient parking to satisfy the parking demand generated by this use. CDD/Gubman recommended that the Commission strike Condition 4 and renumber the rest of the conditions in the Resolution because he concurred that this condition as written may be .vague and perhaps somewhat unnecessary because there are other provisions in the Municipal Code where staff could bring this matter back to the Commission should staff find that this use creates a. nuisance. or some other land use impact. ACA/Wohlenberg stated that once a Conditional Use Permit has been issued and the applicant has expended the money and effort to construct their business and begin operating, Conditional Use Permits essentially vest at that point. Once that has happened, the City cannot merely revoke a Conditional Use Permit without a hearing. If there were a violation of the City's ty's parking standards, it would be something staff would have to schedule for hearing and notice the applicant. PT/Tobin responded to VC/Lee and pointed to the. non load bearing walls on the overhead stating they are within the locker room. The area where the students will be practicing is a different area which she pointed out on the PowerPoint. BO/Tao responded to C/Lee that the wall to the left of the locker room is shown incorrectly on the plan. Generally, these small tenant spaces consist of non-bearing walls. When, staff visits the . site that will be verified FEBRUARY 28, 2012 PAGE 4 PLANNING COMMISSION and staff will ask for proper modifications to the plan if required. BO/Tao said a condition could be included so that staff verifies the site structure prior to issuance. Chair/Shah said they did not have to be bearing walls as long as it is structurally strong enough to withstand the intended use and it should be left to staff to determine whether the structure is safe. CDD/Gubman said staff would add a new Condition #5 to the effect that "the entire perimeter of the open mat area should be either load-bearing walls or walls that are constructed to withstand potential impacts that may occur during the course of activities." Jaime Dietz, applicant, offered to respond to Commissioner's questions. VC/Nelson said he felt C/Lee had brought up a very good point and asked Mr. Dietz if there was any problem with the structure. Mr. Dietz responded that C/Lee's concern was valid. Mr. Dietz has taught for many years. Students can hit the walls and create holes in walls so the impact can be serious and one hundred percent agreed that the wall would need to be strong whether load-bearing or non load-bearing. The wall will be padded which will soften some of the blows but the wall needs to be solid. . Chair/Shah opened the public hearing. With no one present who wished to speak on this item,. Chair/Shah. closed the public hearing. C/Lee moved, C/Lin seconded, to approve Conditional Use Permit No. PL2012-08, based on the Findings of Fact, and subject to the conditions of approval as listed within the resolution, with the removal of Condition DA and addition of a condition to ensure that the wall is safe and secure. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Lin, Nelson, Torng, VC/Lee, Chair/Shah NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: None Chair/Shah recused himself from discussion of Item 7.3. Prior to leaving the meeting, he thanked C/Lee for his past service to the Commission and said he would be missed. C/Lin asked if Chair/Shah would, have a conflict of interest because he knows the applicant. ACA/Wohlenberg responded that there would only be a conflict of interest if Cha'ir/Shah felt he would be unable to render an unbiased decision. That said, it is a frequ ent practice FEBRUARY 28, 2012 PAGE 5 PLANNING COMMISSION 7.3 for office holders to choose to recuse themselves from a matter in order to avoid any appearance of impropriety. C/Lin said that Item 7.3 was a fairly significant item and for the Commission to discuss and felt it would warrant a conclusion from the *entire Commission. Chair/Shah said he appreciated C/Lin's concerns and felt he was honor bound to recuse himself and believed the Commission would make the appropriate decision. C/Torng suggested to staff that it might be appropriate for another Commissioner to assume . control of the meeting in place of VC/Lee since he will be leaving the Commission and would not be available to participate in the discussion should Item 7.3 be continued. ACA/Wohlenberg responded that since VC/Lee is the Vice Chairman he would normally be the person to receive the gavel in the absence of the Chairman. The Planning Commission will be reorganized and there could be a change at that point anyway. The decision on who should chair the rest of 'the meeting is a parliamentary issue which resides with the Chairman and is not open to a vote of the Commission. Chair/Shah passed the gavel to VC/Lee and left the meeting at 7:35 p.m. Revision to Developmerit Code,. Review., No. 2006-38 and Minor Vaflance No 2007-06 (Planning Case No. PL2011-387) Under the authority of DBMC Section 22.66.060, applicants Pete Volbeda and Sam Bhogal as well as, property owner Paul Ghotra requested approval for revisions to the height.of the building. pad and finished grades for a new single family residence approved by the Planning Commission on July 24, 2007. The subject property is zoned Rural Residential (RR) with an underlying General Plan Land Use designation of Rural Resident . ial. PROJECT ADDRESS PROPERTY OWNERS: APPLICANTS: 22909 Ridge Line Road Diamond Bar, CA 91765 Paul Ghotra 1241 S. Grand Avenue Diamond Bar, CA 91765 Pete Volbeda 180 N. Benson Avenue, Suite D Upland, CA 91786 And Sam Bhogal 23415 Pleasant Meadow Diamond Bar, CA 91765 FEBRUARY 28, 2012 PAGE 6 PLANNING COMMISSION CDD/Gubman presented staff's report and recommended the Planning Commission open the public hearing, consider all testimony and evidence, direct staff to prepare a resolution to approve or deny the requested revisions, and continue the matter to March 13, 2012, for adoption of said resolution. RECESS: VC/Lee recessed the meeting at 8:00 p.m. RECONVENE: VC/Lee reconvened the meeting at 8:05 p.m. C/Nelson asked if he heard correctly that staff stated that the new retaining wall would be reduced in height by putting down slope of the wall a 2:1 slope so that visibility of the wall would be what is within the eight foot condition but in effect, it would still go down as far as it is currently. CDD/Gubman responded that C/Nelson was correct. At one point, a new retaining wall was introduced on the site at the lower level to then allow the 2:1 slop to be built up to cover up the exposed faces. The footings are where they are and they are where they are proposed to remain. C/Nelson asked for confirmation that the point was so that the actual visibility of the retaining wall would be reduced but it would still be the same size to which CDD/Gubman responded that C/Nelson was correct. C/Nelson asked CDD/Gubman if he understood correctly that "The Country Estates" Homeowner's Association is opposed to this and CDD/Gubman responded yes, that the HOA . has requested that the grading be restored to what was on the approved plans. C/Nelson asked if the 2:1 slope would start at the property line and go up and CDD/Gubman responded that along the side property line that was the case so that part of the wall would be buried. C/Lin referred to Page 7, last paragraph, 5th line from the bottom of staffs report it indicates that "The Country Estates" HOA is "not inclined" to approve the modification to the site. C/Lin asked if the City approved the project and the HOA said no it would serve no purpose and the applicant should have the blessing of the HOA before coming to the City for approval. CDD/Gubman stated that the property,owner has to serve the two masters. The HOA and the City have no accountability to one another. The City does not require HOA approval as a prerequisite to its approval and visa versa. Ultimately, however, the City and. the HOA have the ability to veto each other, the City through its police powers and the HOA through the contract that exists between the property owner and the HOA. C/Lin said he,bbserved the property line between the subject property a d property to the south has a trench that has been dug. Abutting the trench. FEBRUARY 28, 2012 PAGE 7 PLANNING COMMISSION there is a stair that was constructed from the neighboring property that immediately abuts the property line. The landing goes nowhere and said he was curious why that was constructed. With respect to whether this project interferes with the neighboring property and the neighbor said he was opposed to the height and was curious why two feet would suddenly make a difference and the potential impacts to resale of the property. Does staff have sound statistics that a two -foot higher wall would affect those two questions the Commission is asked to consider. CDD/Gubman responded to the -two-foot height concern by setting up the projection screen to show the neighbor's property and proposed new residence. The blue line shows the proposed new finished floor elevation forthenew pad. A two -foot differential from this perspective does not appear to be much of a difference. The question is whether it is a serious enough differential to place it in the negative column. Looking at the record of the original approval there was no discussion that where the proposed elevations were on the original plan pushed the project to the acceptable threshold.. There is nothing in the previous approval that says that at a certain height the wall becomes intolerable. He has only the response from the HOA and from the neighbor that they find this change to be objectionable and based on that controversy he made the determination that this is a decision that should not be relegated to staff making an over the counter decision but that it was an important decision that needed to come back to the Planning Commission for full, discussion... To the second question about Finding #5 and whether there is any tangible evidence about how this. affects property values, the affect on property values is generally too speculative to make a decision on whether the findings can be made. C/Lin asked if the commission is, today considering this as a new application due to the revision or is the Commission considering this application relative to its original approved plan. CDD/Gubman responded that under the Development Code this application can be considered a revision to something that was previously approved. It is not regarded as a "new" project.. C/Lin asked if it was true that any decision this body makes must take the original approval into consideration and CDD/Gubman responded yes. Staffs advice is for the Commission to revisit the findings that were made when the project was originally approved in light of these changes and determine whether those original findings still track with the proposed changes or with the changes in combination with the efforts the applicant proposes to mitigate the raised pads would potentially create. ACA/Wohlenberg said that in the end, the Commission's decision will stand on its own and the facts in the record. Because it isa modification to an existing approval the record includes all ., of the facts and information that Was before the Commission in the previous decision. The reconsideration includes a determination as to. * FEBRUARY 28, 2012 PAGE 8 PLANNING COMMISSION whether the facts have changed enough to change those conclusions. C/Lin said the only difference was that he remembered that three weeks ago the Commission was talking about a project that had a two foot setback and the difference in this instance is this consideration is after the fact because the construction has been completed and now the project is in an "as built" condition for consideration. He said it was important to him because if the Commission considers this as a brand new application it requires a different mindset. If this is a modification that the commission has to tie into with an original approval, he believes his thinking will be different. C/Torng asked if the 2011 aerial photograph depicted the current status and CDD/Gubman responded that he believed the applicant had lowered and cut back that particular wall. The wall has been cut down to where the hinge point angled it up and the amount that extended forward was demolished. So the wall has been restored to its original layout. C/Torng asked if in addition to the violations the rest of the plan would remain unchanged and CDD/Gubman responded "essentially, yes." The house height was lowered and the pad height was increased. C/Torng asked if the project met all of the Hillside Management standards and CDD/Gubman responded affirmatively. C/Torng asked if the City has codes to prevent these types of violations from occurring. CDD/Gubman responded that the development standards allow for retaining walls to be terraced in that manner and when the project was approved it was found that the findings could be made. C/Torng felt that Finding No. 2 "dev*elopment will not interfere with use and enjoyment with the existing neighborhood or future development" which to him was an important consideration in this instance. When this code was set up why was there no follow up or determination of this violation by the City's building department? If the neighbor had not complained there apparently would never have been a finding and the issue would not have come before the Planning Commission. CDD/Gubmbn responded that when the project was inspected the walls were re as shown in the Power Point presentation. Subsequent to that inspection additional construction and extension of the wall occurred which occurred after the project passed inspection for rough grading and another inspection had not yet been scheduled. Ultimately, this would have been, caught without it having been brought to staff's attention by the neighbor. VC/Lee said the Commission must comply with the law and wanted to make sure the . City did not have a "view easement": or an "air easement". and CDD/Gubman responded that VC/Lee was. correct. FEBRUARY 28, 2012 PAGE 9 PLANNING COMMISSION C/Nelson wanted to know how this happened. C/Lin asked BO/Tao about the recent changes. BO/Tao responded that since June 30, 2011, modifications that have occurred were in relation to getting the project closer to, the original approval. Staff requested the applicant to lower the wall and bring it back to closer to the original approval and subsequent to that, the survey was done by the HOA which indicated that there were, even more discrepancies. BO/Tao reiterated to C/Torng that the project currently does not meet the code and cannot unless it is modified. The lower slab has already been poured oured but it has to be brought down. C/Torng asked BO/Tao if the CUP approval would satisfy the code and meet the development code. BO/Tao said the project could technically meet the development, code. but it would not be in compliance. with the original plan. VC/Lee asked if based on her professional opinion, AE/Young felt an eight -foot retaining wall was safe. AE/Young deferred to the Building Official because retaining walls are reviewed by the City's Building. Department. * BO/Tao said the City* typically does not allow standard details. There is a detail on the original plans fora maximum nine foot tall retaining wall so anything beyond that was not designed appropriately. VC/Lee opened the public hearing. Pete Volbeda, applicant, said this project is on hold du ' e to a surveying error . and the applicant had no reason to question his survey. it was not the applicant's intent to raise the pad by two feet. In fact, the HOA 'found the error by hiring another surveyor.. Original approval was received for this house in 2007 and many lots on Ridgeli ' ne are steep and do not have usable rear yards. At that time, the applicants and property owner were encouraged to find More of a usable rear yard and that was the reason there was a front yard reduction of 24 feet granted which would allow the project to increase the rear yard. In addition, with the variance, the project wasallowed to raise the walls from four to six to eight feet high to accommodate a larger usable rear yard. The photos look bad because the walls are not stuccoed to match the house and there are not plantings to screen the walls. But once the work iscompleted they will, dissolve into the landscaping and wall coverings.* S I ome of the Walls are above the eight foot height and will either be cut down or fill dirt will be -placed in front or, some of the steps will be modified so that the wall heights do not e the house.pad is.two feet higher, to mitigate exceed eight feet. Because o lower any view the structure might be impairing, they have volunteered, t PAGE 10 PLANNING COMMISSION the building elevations to where the ridge height is the same as it was in the previously approved plan. The project will reduce the ceiling heights in order to accommodate the lower ridge height. The major views on Ridgeline are to the north and the valley out and those will not be impacted too much by the adjacent homes. He understands the neighbor's concern about views adjacent but the major views are not to the side or to the left, they are to the north to the valley. In addition, the neighbor to the left is much lower than the project site and the neighbor to the right is slightly higher than the project and the owner and applicants feel the impact with neighbors looking to the side will be very minimal. In addition, the applicants propose to increase the landscaping in conjunction with the revised proposal. More shrubs and trees will be planted and those plantings will grow eight feet (the height of the retaining wall) or higher so that in a couple of years the neighbors should be seeing virtually only green landscape. The project has since retained a new engineer to help with the surveying and he is present this evening if the Commission has questions. Ed Eckert, Gilbert Engineering Company, said he was hired last year to look into what had transpired at this site. He does not have a long history with the site but he did inspect the walls and found that the elevations were higher than per the approved plan and his firm submitted a plan to the City for mitigation which has been passed on to the Commission. C/Nelson asked of the builder why when he has a project with approved plans that stipulate a certain retaining wall height and a surveyor comes out and surveys it and all of a sudden that height increases, where are the "checks and balances" and who says "wait, that's not what was approved." In this case, that was not done and who is the person that should have taken care of this matter? Mr. Eckert said that if his firm staked the walls for construction his firm stakes the location and gives the applicant a cut w or fill to the footing. Beyond that, the top of the all is based off the top of that footing and if the plan calls for a six -foo I . t w . all that.is what the builder should build. If they are building beyond that his firm.. sometimes gets involved and sometimes not. C/Nelson asked who the backup person would be that would see and recognize that error. Mr. Eckert responded that the wall builder and general contractor should FEBRUARY 28, 2012 PAGE 11 PLANNING COMMISSION become aware of it from the wall contractor. C/Nelson asked if the general contractor was present. Sam Bhogal, contractor, said he lives in "The Country Estates" and has built homes there for many years. It is nice that the Commission is asking questions to make the right decision. it is good that this picture has been taken and that C/Lin is concerned and answering questions. The wall is too big and it was a mistake made by his sub -contractor. As soon as, he found out that his sub -contractor made a mistake the wall was removed right away. He does not intend to build . anything wrong. If the entire house is built two feet higher than what was approved what would it benefit the owner? In "The Country Estates" there are 700 lots and houses and out of those.700 about 20 percent of the * houses are 20feet higher than the street or lower than the street and how would a house that is two feet up or down affect the neighbors negatively? But if the neighbor wants to complain and hurt the job, this house was never built until now. and he has been living there for .15 or, 20 years and he feels the side lot should be empty. C/Nelson explained to Mr. Bhogal that it does make a difference. First, if you are the next door neighbor, two feet. higher creates more of a shadow effect. Second, the wall and pad. were constructed in spite of the City's"conditions and if this Commission sets a precedent for allowing this to happe*h then everybody will start to feel that it is easier to request forgiveness than to play by the rules.. Third, as CDD/Gubman d out to hi en though the Commission does pointe rn several weeks ago, even decision-making,I I they not need. to consider the HOA's feelings. in its represent the community and this Commission's primary charge is, to serve the community and to do what is right for the community. So, the contractor telling him that it does not make any difference does not compel him to override the feelings of the community and the fact that the conditions of approval were violated. VC/Lee said that C/Nelson ha's pointed out so many things the Commissioner's value. This is a community that pursues common interests in spite of the City not having a view easement. Subcontractors. must comply. Subcontractors are. under the authority of the general contractor and must comply with: the regulations — no exceptions. Mr. Bhogal has presented himself as a professional and is trying to blame his subcontractor for making a mistake which is unacceptable.. Surveyors' are professionals and whereas a.two inch tolerance might be acceptable, twofoot mistakes are, not acceptable. VC/Lee advised Mr. Bhogal to accept ept responsibility because a. two -foot mistake by professionals is not acceptable.. Mr. Bhogal said that he builds long walls and even the City Inspector did not ca . tch this error. VC/Leereminded Mr. Bhogal that it. was not the City Inspector's job to catch a survey error. Mr. Bhogal said that . at is FEBRUARY 28, 2012 PAGE 12 PLANNING COMMISSION why they are cutting down the height of the house. VC/Lee said he understood that is a logical compromise. C/Lin asked Mr. Eckert if he agreed that the error was not from the benchmark but instead was merely shoddy work. Mr. Eckert said the error was in the construction of the walls themselves. C/Lin asked the property owner why he was not willing to tear down and rebuild the walls to code and Mr. Ghotra responded it was for financial reasons because he has already spent almost one-half million dollars on the retaining walls and grading. C/Lin explained that every engineering firm carries professional liability insurance and the owner can file a claim against the engineering firm for the cost to rebuild. Mr. Ghotra said that timing is an issue as well. It is a mistake and he apologizes for that. He is not an engineer. He is just a resident of Diamond Bar. He never tried to make it difficult for his neighborhood because he wants to be a good neighbor and have a good relationship with the doctor. He felt he had a good relationship with his neighbor and does not know how these things happened and why he has to spend, all of this time on these kinds of issues. He needs help from his neighbors, from the Commission and from the City staff to tell him how he can resolve this matter and survive. C/Lin said that he read in staff's report that the engineer admitted in writing that it was his error. Mr. Ghotra said he had no idea if that was so. He cannot even read the report. Fadi Madanat, 22835 Ridgeline, explained that earlier the Commission was discussing whether to review the project as it currently exists or whether to go back and disregard the original approval and the City Attorney mentioned whether the facts have changed enough to make a difference. When C/Nelson asked for the general contractor to come up and speak he asked how something like this could happen. This happened because someone parades around the City representing himself as a contractor and builder and.does not have a license. That is how these things happen. So have the facts changed enough to; make- a. differenc . e? Well, this is a project being built by someone who, is not a I I icensed contractor who puts the City and the HOA at risk for liability and puts the residents in jeopardy as well. Earlier staff showed photos of the retaining walls when the project was first approved which shows retaining walls of two feet, four feet, six feet, eight feet and five feet, and the project was given a variance and the state licensing board put a hold on the project. Subsequently, the HOA and. the City surveyed the project and marked walls after conducting a comprehensive study.. And the Commission has been provided evidence of the wall markings* indicating the amount by which the walls exceeded what was approved.. So if the FEBRUARY 28, 2012 PAGE 13 PLANNING COMMISSION Commission compares the diagram to what was originally approved, it will see that the amount of feet by which the walls exceed the approved height and the amount they need to be cut to the height originally approved. Many areas were actually graded to the height they would have been graded if the walls had been built to the proper according to the plan. The issue is not just a two -foot error at the very top. There are 3.43 and 4.18 foot errors. "The Country Estates" homeowners take their plans to the HOA to determine and when the HOA sees a plan that shows a four -foot retaining wall and a three-foot retaining wall and a two -foot retaining wall it is easy for the members to sit back and say it seems like it is going to be okay and in good faith the HOA assumes the owners are not trying to misrepresent their project and the HOA members assume that the City is acting according to regulations. So when a project suddenly turns into a twelve foot wall here, a fourteen and one-half foot wall there and so forth, what there is, is not a two -foot error, it is a major differential. The before picture Mr. Madanat provided shows what the property looked like before any work was done by Mr. Bhogal. The after picture taken. by Mr. Madanat this afternoon shows the dramatic effect of the construction. The pad was engineered to sit higher than the roofline of Mr. Madanat's house. The plan provided to the Association shows a three. -foot, four -foot and two -foot retaining wall and does not represent that the pad would turn into what it has become. He summarized by stating that he believed the applicant had broken the law and compromised the neighborhood and the City. He recommended that the Planning Commission deny the requested revisions. VC/Lee asked if Mr. Madanat had any proof that the applicant broke the law. Mr. Madanat reiterated the blatant disregard for City codes, regulations and ordinances and the fact that the contractor is not and was not licensed. C/Lin asked Mr. Madanat if he knows for 'a fact that the general contractor does not have a contractor's license and Mr. Madanat deferred to staff. VC/Lee asked if the City has a way to verify whether -a contractor is licensed and ACANVo'hienberg responded that the City has general rules that,anyone operating a business within the City has to comply with all applicable law. Enforcement of the contractor licensing and standards is handled at a state level and generally, if there is a state or federal law being broken the City does not have an independent criminal authority to enforce that. BO/Tao stated that the City raised that question originally and contacted the contractor license board to verify whether or not it was appropriate to FEBRUARY 28, 2012 PAGE 14 PLANNING COMMISSION allow Mr. Bhogal to be the project manager under a licensed contractor and the state indicated it was acceptable.. There were issues with respect to the applicant receiving a citation from the contractor's license board and the allowance of them to issue the permit and have that contractor be the contractor and have Mr. Bhogal act as the project manager which was acceptable to the contractors licensing board. VC/Lee asked if Mr. Bhogal was licensed and BO/Tao responded that Mr. Bhogal is not licensed but is acting on behalf of a contractor. VC/Lee said this was a very important point and he wants to make sure he has the correct answer before moving forward. Was the permit issued under an owner -builder license and BO/Tao responded no that is incorrect, it is actually a separate contractor by a different name. VC/Lee asked when the building permit expires and BO/Tao responded that the two year permit expires sometime in April for the Planning Review, The Building permit is valid for 180 days from the last inspection. VC/Lee asked if the Building Permit has expired and BO/Tao responded that it has not expired because there was progress on the project. VC/Lee asked if the applicant is acting legally and BO/Tao responded affirmatively. George Madanat, neighbor of Mr. Ghotra, said he is a member of a civilized society and he lives by the law and no one should take the law into his own hands. His family lives in the house and .they have had a difficult time during the past five years. His house burned down on March 18, 2007, so he and his family lived in a hotel for several months and then rented a place. He wanted to sell the house but his . s wife loved the house so he proceeded with the rebuild. So far he has spent $2.4 million to rebuild their home. So far, Mr. Ghotra's house is a manmade disaster. Certain words spoken by CDD/Gubman during his staff report struck him such as, "conceal, to mitigate, to change" words .that indicate one can proceed with impunity. This is truly unfortunate that someone is allowed to . proceed in this manner. Mr. Ghotra was talking with Mr. Madanat's I son Michael, after he tore down the fence between their two properties he said he would rather do things his way and apologize later. Mr. Madanat said he had documentation of this event and went on to explain that this is what he has been dealing with from his neighbor. He would love to have nice neighbors with whom he could visit and share his home. Unfortunately, this is not the case. He has a gorgeous sun room in his home but unfortunately, the sun cannot get to the sunroorn because, of the 30 foot wall next to it. He and his family are miserable. There is no FEBRUARY 28, 2012 PAGE 15 PLANNING COMMISSION reason for Mr. Ghotra to do what he has done. His property is the same elevation as the speaker and he could have gone down 10 feet and had a gorgeous home. He asked for everyone to be reasonable and play by the rules. For Mr. Ghotra to claim he does not have the money is not an accurate statement. RECESS: VC/Lee recessed the meeting at 9:07 p.m. RECONVENE: VC/Lee reconvened the meeting at 9:15 p.m. C/Lin said that W Madanat's speech was very compelling but based on C/Lin's assessment is that if the house is built according to plan, Mr. Madanat would still have shadows in his sunroom. However,. the approved plan does not dismiss the fact, that the approved plan was violated. But as it stands, if the project is built as approved it will still be in the shadow of the house. Agop Calliene, de signer and contractor, asked CDD/Gubman if he could show the picture of the cross section. Mr. Eckert is a, good engineer and does not know what happened. The dark area is filled with excess soil and they could have cut and filled and these problems would have been avoided. Unfortunately, it is done. Vice Chair/Lee closed the public hearing. C/Torng asked staff to provide the Commission with a scale of the approved plan versus the current status, especially at the lower end. Also, he wants to see if the retaining wall in the approved plan is that high and whether the current proposal will resolve the issue. He understood the neighbors were suffering as a result.of this project but hope.that staff can communicate with Mr. Madanat and the builder to understand how they can reach a mutual understanding about the project. He would like to have this be a win-win situation for' both neighbors. As a last resort, the applicant would have to redo the project according to the original plan but that has not yet been decided and hoped that all parties, could .reach a conclusion that would resolve this matter. C/Nelson said he too would like to see a mutually satisfactory conclusion to this dilemma and was not sure that would happen. He thinks the Commission is held to et standard and that standard would be grossly violated if it did not hold a property owner to the conditions that were set forth when the project was approved. It is almost irrelevant to him whether this was an "error" or not. The responsibility does not lie on the applicant's neighbors to accommodate the mistake, the responsibility lies, with the FEBRUARY 28, 2012 PAGE 16 PLANNING COMMISSION property owner. And if the mitigation does not resolve the matter, he will find for the neighbors because what happened was not what they expected to happen and regardless of whether it was an honest error, the responsibility still lies on the owner and he feels very strongly about that. He wants to leave the Commission as someone who can be known as a Commissioner who did his best for the community and not for individual interests. A couple of years back the -Commission denied a cell phone tower at Ronald Reagan Park and the decision was based not on the fact that the Commission could not judge it on the basis of any health effects which was illegal, but it was based on the fact that it created a stigma for the surrounding community and that it was a bad thing that would create a pall over the community. Despite the fact the Commission could not judge the matter on the health issue, it based its decision on the community benefit. C/Lin found when he looked at Finding No. 2 that after all of the testimony he is of the conclusion that the neighboring property has indeed been interfered with. If the Commission has to consider all six findings in order to approve this revision he finds it puzzling whether the Commission should grant approval even though it could represent significant financial difficulties for the applicant. He is inclined to recommend denial of the application. VC/Lee said he understood that staff brought several suggestions and the Commission must carefully consider all of the issues involved. People live in a democratic society and must respect private property owners and their rights. Owners have a right to proceed as long as they comply with the law. He reiterated that the City does not have a View. Easement law and even though the project might cover certain view areas for the neighbors, the Commission cannot enforce that because of the law. The applicant suggested they increase the elevation by two feet but they cut down the building so overall the end result is that the height of the building has not changed. Humans can make mistake and if the, applicant claims it was a mistake the Commission must accept, their word. Also, the neighbor said the contractor is not licensed but in fact, they can build the project as long as the person who pulled the permit is licensed so it is not illegal construction. The City and this Commission must evaluate all, factors and if the applicant complies with the conditions of approval, it must be approved. If the Commission and the City do not act in this way, it is liable and can be sued. FEBRUARY 28, 2012 PAGE 17 PLANNING COMMISSION C/Lin asked CDD/Gubman to again recite the three options open to the Commission. CDD/Gubman stated that the three alternatives presented for the Commission's consideration are 1) to determine that the findings for the changes of the project cannot be made and continue the matter to March 13, 2012, and direct staff to prepare a resolution for denial; 2) to determine that the findings can still be made in the affirmative, continue the matter to March 13, 2012, and direct staff to prepare a resolution for approval; and, 3) continue the matter to a later date for further information. ACA/\Nohlenberg stated that because the Commission is dealing with a decision that requires factual findings by the Commission he said he wanted to walk through the issues to make certain the Commission is properly following all of the issues in the Code that are required by law. The staff report discusses how staff determined, that this was a major change to the existing entitlement based on the criteria contained in the Municipal Code Section 22.66,020 and what that says as contained within the staff report is that those kinds of changes can only be approved by the review authority — in this case the Planning Commission, through a new entitlement application or modification process in compliance with the Development Code. And what'the Development Code says in that regard (Section 22.52.040) as to findings and, decisions as part of the approval process, is that a Minor Variance application shall not be approved, modified,. conditioned or disapproved by the Director (so thd Director has exercised his ability to send the matter forward to the Planning Commission) unless all of the following findings can be made.. One of the questions from C/Lin was whether this was a new decision or, a modification. The Code does not really differentiate between a new decision and a modified decision. If there is a modified decision the Commission still has to make all of the findings that are required by the Code which again,.are all discussed in staffs report. it is common (also discussed in the Commissioner's Handbook) that when the Commission has a factually intensive decision like this the Commission makes a tentative decision and then directs staff to prepare a formal written set of findings and decision for the Commission to adopt at a later meeting .as CDD/Gubman stated. If the Commission has any facts or issues that it wishes to add to the discussion tonight to make sure those can be taken into account to create the findings in . support of the Commission's decision, please make sure each Commissioner has placed those comments into the record or emphasize those to staff so that when staff prepares the decision it will properly reflect the Commission's findings and conclusions. From what he has heard so far it sounds like the Commission is leaning toward being unable to make the Finding #2 and Finding #5 that are discussed in the staff report. Finding #2 is "will the design.and layout of the proposed development not interfere with the use FEBRUARY 28, 2012 PAGE 18 PLANNING COMMISSION and enjoyment of neighboring existing and future development and will it not create traffic or pedestrian hazards" and he wanted to make sure that there was general consensus about C/Nelson's comment; Finding #5 is "will the proposed development not be detrimental to the public health, safety or welfare or materially injurious to properties and improvements in the vicinity" as discussed by C/Lin and other Commissioners. As CDD/Gubman pointed out, the other Findings probably have not changed that much but ACA/\Nohlenberg wanted to make certain that Findings 2 and 5 were brought out in sufficient detail to support the Commissions decision. C/Lin' asked if the motion should cite the Findings. ACA/Wohlenberg responded that the Commission makes a tentative decision for or against the request and direct staff to prepare a resolution appropriate to the Commission's decision and staff will make certain all of the items in the record will be called out to support the decision. Tonight's decision is a tentative decision because staff will bring back a full discussion and explanation of all of the facts in writing for final consideration. C/Torng said he would like more information from staff in order to be able to make a good decision. C/Lin moved, C/Nelson seconded, to direct staff to prepare a Resolution of Denial based on the negative findings. Motion approved by the following Roll Call vote: AYES: COMISSIONERS: Lin, Nelson, VC/Lee NOES: COMMISSIONERS: None ABSTAIN COMMISSIONERS: Torng ABSENT: COMMISSIONERS: Chair/Shah 8. PLANNING COMMISSIONER IONER COMMENTS/.IN FORMATIONAL ITEMS: C/Torng thanked VC/Lee for his service on the Planning Commission and wished him well in his future ventures. C/Nelson said it had been a pleasure serving with VC/Lee who has often expressed alternative perspectives on issues which is important for this Commission. C/Nelson thanked VC/Lee for his good service to the Commission. C/Lin wished VC/Lee good fortune. Tonight, one of C/Nelsbn's statements really touched ouched him which was the fact that this Commission is charged with protecting. the public interest, and he feels that was accomplished, this evening. FEBRUARY 28, 2012 PAGE 19 PLANNING COMMISSION VC/Lee thanked staff for their support and his colleagues for their support as well. While he has truly enjoyed his time with the Commission he has other things to pursue and we will meet in another time and place. 9. STAFF COMMENTS/INFORMATIONAL ITEMS: CDD/Gubman stated that for the March 13 meeting which will be held in the Windmill Room, there are three agenda items: 1) Resolution for Denial for Item 7.3 that was heard this evening; 2) Development Code Amendment cleanup; 3) seat the new Planning Commissioner and have a reorganization of the Planning Commission. CDD/Gubman, on behalf of staff, thanked Commissioner Lee for his years of service to the Planning Commission and the City. CDD/Gubman said he enjoyed working with Commissioner Lee and enjoyed being challenged by Commissioner Lee with tonight being no exception, and for his finale Commissioner Lee went out with a bang! CDD/Gubman said he was very impressed this evening with VC/Lee's management of item 7.3. 9.1 Public Hearing dates for future proiec 10. SCHEDULE OF.FUTURE EVENTS: As listed in tonight's agenda. ADJOURNMENT: With no further business before the Planning Commission, Chairman Shah adjourned the regular meeting at 9:15 p.m. The foregoing minutes are hereby approved this 13th day of March, 2012. Attest: Respectfully Submitted, Greg Gubman Community Development Director Planning mmiiissio Chairman