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HomeMy WebLinkAbout08/26/2003PLANNING FILE COPY COMMISS10 August 26, 2003 7-000 P.M. South Coast Air Quality Management District Government Center Building Auditorium 21865 East Copley Drive Diamond Bar, CA Chairman Vice Chairman Commissioner Commissioner Commissioner Steve Tye Dan Nolan Steven Nelson Joe Ruzicka Jack Tanaka Copies of staff reports or other written documentation relating to agenda items are on file in the Planning Division of the Dept. of Community & Development Services, located at 21825 E. Copley Drive, and are available for public inspection. If you have questions regarding an agenda item, please call (909) 839-7030 during regular business hours. In an effort to comply with the requirements of Title I/ of the Americans with Disabilities Act of 1990,-. the City of Diamond Bar requires that any person in need of any type of special equipment, -assistance -ori accommodation(s) in order to communicate at a City public meeting must inform the Dept. of Community & Development Services at (909) 839-7030 a minimum of 72 hours prior to the scheduled meeting. Please refrain from smoking, eating or drinking in the./kuditorium City of Diat7o-i�t-d Bar uses recycled paper and encourages you to do the same - City of Diamond Bar I Planning Commission MEETING RULES PUBLIC INPUT The meetings of the Diamond Bar Planning Commission are open to the public. A member of the public may address the Commission on the subject of one or more agenda items and/or other items of which are within the subject matter jurisdiction of the Diamond Bar Planning Commission. A request to address the Commission should be submitted in writing at the public hearing, to the Secretary of the Commission. As a general rule, the opportunity for public comments will take place at the discretion of the Chair. However, in order to facilitate the meeting, persons who are interested parties for an item may be requested to give their presentation at the time the item is called on the calendar. The Chair may limit individual public input to five minutes on any item; or the Chair may limit the total amount of time allocated for public testimony based on the number of people requesting to speak and the business of the Commission. Individuals are requested to conduct themselves in a professional and businesslike manner. Comments and questions are welcome so that all points of view are considered prior to the Commission making recommendations to the staff and City Council. In accordance with State Law (Brown Act), all matters to be acted on by the Commission must be posted at least 72 hours prior to the Commission meeting. In case of emergency or when a subject matter arises subsequent to the posting of the agenda, upon making certain findings, the Commission may act on item that is not on the posted agenda. INFORMATION RELATING TO AGENDAS AND ACTIONS OF THE COMMISSION Agendas for Diamond Bar Planning Commission meetings are prepared by the Planning Division of the Community and Development Services Department. Agendas are available 72 hours prior to the meeting at City Hall and the public library, and may be accessed by personal computer at the number below. Every meeting of the Planning Commission is recorded on cassette tapes and duplicate tapes are available for a nominal charge. ADA REQUIREMENTS A cordless microphone is available for those persons with mobility impairments who cannot access the public=.,:. speaking area. The service of the cordless microphone., and. sign language: interpreter services are available^,by- giving notice at least three business days in advance of the meeting.---- Please telephone (909) 839-7030 between. 7:30 a.m. and 5:30 p.m., Monday through Thursday, -and 7:30 a.m. and 4:30 p.m., Friday. - HELPFUL PHONE NUMBERS . Copies of Agenda, Rules of the Commission, Cassette Tapes of Meetings (909) 839-7030 General Agendas (909) 839.7030 email: info@ci.diamond-bar.ca.us... Next Resolution No. 2003-28 CITY OF DIAMOND BAR PLANNING COMMISSION Tuesday, August 26, 2003 AGENDAA PLEDGE OF ALLEGIANCE: 1 ROLL CALL: COMMISSIONERS: Chairman Steve Tye, Vice -Chairman Dan Nolan, Steve Nelson, Joe Ruzicka, and Jack Tanaka This is the time and place for the general public to address the members of the Planning Commission on any item that is within their jurisdiction, allowing the public an opportunity to speak on non-public hearing and non -agenda items. Please complete a Speaker's Card for the recordina Secretary (Completion of. this form is voluntary.) There is a five-minute maximum time limit when addressing the Planning Commission. The following items listed on the consent calendar are considered routine and are approved by a single motion. Consent calendar items may be removed from the agenda by request of the Commission only: 4.1 Minutes of Regular Meeting: August 12, 2003. 4.2 Minutes of Adjourned Meeting: August 13, 2003 5. OLD BUSINESS: 5.1 Development Code Amendment * No __,,:2003-01-m(pursuant .-oto' Code Section 22.44) is a. request to amend fh6­ followiq Article/Section7of the Development Code. ARTICLE III Sections 22.36.050 and 22.36.080 Exemptions from Sign Permits -and Prohibited Signs: Amendment relates to the placement and size of election signs and signs in the public right-of-way. August 26, 2003 Page 2 PLANNING COMMISSION Environmental Determination: Pursuant to the provisions of the he California Environmental Quality Act (CEQA), Section 15070, the City has determined that a Negative Declaration is required for this project. Negative Declaration No. 2003-01 has been prepared. The Negative Declaration review period began April 18, 2003, and ended May 7, 2003. Recommendation: Staff recommends that the Planning Commission consider adoption of the draft resolution and direct staff as appropriate. 6. NEW BUSINESS: None. 7. PUBLIC HEARINGS: None. 8. PLANNING COMMISSION COMMENTS / INFORMATIONAL ITEMS: 9. STAFF COMMENTS / INFORMATIONAL ITEMS: 9.1 Public Hearing dates for future projects. 10., SCHEDULE OF FUTURE EVENTS: MAYOR'S ROUNDTABLE: Thursday, August 28, 2003 - 7:00 a.m. Government Ctr/AQMD Cafeteria 21865 E. Copley Drive PARKS AND RECREATION Thursday, August 28, 2003 - 7:00 p.m. COMMISSION MEETING: Government Ctr/AQMD Hearing Board Room 21865 E. Copley Drive LABOR'DAY HOLIDAY: Monday, September 1, 2003 City offices will be closed in observance of the holiday and will reopen Tuesday, September 2, 2003 CITY COUNCIL MEETING Tuesday, September 2, 2003 - 6:30 p.m. -Government Center/AQMD Auditorium f. 21865 E. Copley Drive TRAFFIC AND Wednesday, September 3, 2003 - 6:30 p.m: TRANSPORTATION government Center/AQMD Room CC -6 COMMISSION SPECIAL 21865 E. Copley Drive MEETING: August 26, 2003 Page 3 PLANNING COMMISSION NEIGHBORHOOD MEETING: Thursday, September 4, 2003 - 6:30 p.m. (ADEUGERNDAH) Government Center/AQMD Room CC-6 21865 E. Copley Drive ADMINISTRATIVE REVIEW Tuesday, September 9, 2003 - 6:00 p.m. MEETING: Government Center/AQMD Auditorium 21865 E. Copley Drive PLANNING COMMISSION Tuesday, September 9, 2003 - 7:00 p.m. MEETING: Government Center/AQMD Auditorium 21865 E. Copley Drive CALTRANS MONTHLY Wednesday, September 10, 2003 - 6:30 p.m. MEETING: Government Center/AQMD Auditorium 21865 E. Copley Drive -SPIRIT AMERICA DAY: Thursday, September 11, 2003 - 7:00 a.m. Government Center/AQMD Patio Area 21865 E. Copley Drive . TRAFFIC AND Thursday, September 11, 2003 — 7:00 p.m. TRANSPORTATION Government Ctr/AQMD Hearing Board Room COMMISSION MEETING: 21865 E. Copley Drive Fil%�T %�yV� onand is ready for aW nning MINUTES OF THE CITY OF DIAMOND BAR REGULAR MEETING OF THE PLANNING COMMISSION AUGUST 12, 2003 Chairman Tye called the meeting to order at 7:02 p.m. in the South Coast Air Quality Management/Government Center Auditorium, 21865 East Copley Drive, Diamond Bar, California 91765. Vice Chairman Nolan led the Pledge of Allegiance. 1. ROLL CALL: Present: Chairman Steve Tye; Vice Chairman Dan Nolan; and Commissioners Steve Nelson; Joe Ruzicka; and Jack Tanaka. Also present: James DeStefano, Deputy City Manager; Linda Smith, Development Services Assistant; Lorena Godinez, Planning Intern; and Stella Marquez, Administrative Assistant. 2. MATTERS FROM THE AUDIENCE/PUBLIC COMMENTS: None Offered. 3. APPROVAL OF AGENDA: As presente 4. CONSENT C ALENDAR: I 4.1 Approval of July 22, 2003, Regular Meeting minutes. Chair/Tye asked that the minutes be corrected to reflect his absence and that the Attest be corrected to indicate Vice Chairman Dan Nolan at the end of Page 8. C/Ruzicka moved, VC/Nolan seconded, to approve the July 22, 2003, minutes as corrected. Motion carried by the following Roll Call vote: AYES: Ruzicka, Tanaka, VC/Nolan None Nelson, Chair/Tye COMMISSIONERS: NOES: COMMISSIONERS: ABSTAIN: COMMISSIONERS: AUGUST 12, 2003 Page 2 PLANNING CONWISSION .1 R1 5.1 Sigh Regulations DCM/DeStefano announced that this item would be discussed at the Adjourned Regular Meeting on August 13, 2003, at City Hall, 21825 E. Copley Dr. DCM/DeStefano presented staffs report. Staff recommends that the Planning Commission recommend City Council approval for filing of the 2002 General Plan Annual Report. C/Ruzicka asked for grammatical corrections: Change 50 to 500 on page 2, third paragraph under Land Use should read "a banquet room that will accommodate 500 (instead of 50) for dining; "Under Housing, first paragraph, fourth line, "continues to offer (eliminate "s"); page 4, third paragraph, second to last line "free of charge" (instead of free of change). Under Public Health & Safety, second paragraph, "Uniform Building Code continues to mandate (rather than mandates); page 6, fourth line, "Additionally, in the year 2002, slurry seal for residential neighborhoods was completed in Area 4 which is one of the..." (instead of in); Public Services & Facilities, last paragraph on page 6 "Construction of the new Community/Senior Cen ' ter .... and provide opportunities for the community "without regard to" age (instead of "no matter age). VC/Nolan suggested that page 6, line 14, should read "in 2002 the City implemented striping modifications to Diamond Bar Boulevard" (instead of stripping). VC/Nolan asked if the First Time Home Buyer program included condominiums. DCM/DeStefano responded that the program includes single family homes only. AUGUST 12, 2003 7. Page 3 PLANNING COMNUSSION DCM/DeStefano confirmed to VC/Nolan that the General Plan changes recommended by the Planning Commission at the end of 2002 were not made because the trailer park project was withdrawn. The Planning Commission unanimously concurred to approve the 2002 General Plan Annual Report with changes and forward the document to the City Council for review and approval. 7.1 Development Review No. 2003-14 (pursuant to Code Sections 22.48.020(A) is a request to construct a two story, single family residence of approximately 11,358 gross square feet including balconies, porch, attached four car garage and two site retaining walls with a maximum exposed height of six feet and forty-two inches. PROJECT ADDRESS F2,1061221119KOAR"101:10 3068 Windmill Drive (Lot 5 of Tract No. 48487) Diamond Bar, CA 91765 Windmill Estates, LLC 3480 Torrance Blvd. #300 Torrance, CA 90503 Pl/Godinez presented staff's report. Staff recommends Planning Commission approval of Development Review No. 2003-14, Findings of Fact, and conditions of approval as listed within the resolution. Kurt Nelson, applicant, said his firm reviewed staffs report and concurs with the conditions of approval. C/Nelson asked Kurt Nelson if his firm was responsible for the planting palate for landscape of his properties. Mr. Nelson responded yes. The CC&R's for all of the Windmill Estates, LLC tracts including the proposed project under review specifically prohibit the list of invasive plant species that go back to the original concerns about the SEA when the first phase was approved by the City Council. Further, they prohibit any intrusion into the natural area. He serves on the architectural review committee for all associations in their tracts and he reviews all projects with respect to Diamond Bar issues re Tonner Canyon and its vegetation. AUGUST 12, 2003 Page 4 PLANNING COMMSSION. Chair/Tye opened the public hearing. There being no one present who wished to speak on this matter, Chair/Tye closed the public hearing. C/Ruzicka moved, C/Nelson seconded, to approve Development Review No. 2003-14, Findings of Fact, and conditions of approval as listed within the resolution. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: NOES: COMMISSIONERS: ABSENT: COMMISSIONERS: Ruzicka, Nelson, Tanaka, VC/Nolan Chair/Tye None None 7.2 Development Review No. 2003-12 and Minor Conditional Use Permit No. 2003L-10 (pursuant to Code Sections 22.48.020, 22.56, and 22.42.080(3)) is a request for an intensification of land use in the commercial center's retail suites to a restaurant use with outdoor dining ("It's A Grind"). PROJECT ADDRESS: PROPERTY OWNE*,ai 1121/1123 Diamond Bar Boulevard Diamond Bar, CA 91765 Diamond Bar/Grand LLC 2717 West Coast Highway Newport Beach, CA 92663 Sunmin Won 364 E. Trabuco Canyon Brea, CA 92821 DSA/Smith presented staff's report. Staff recommends Planning Commission approval of Development Review No. 2003-12 and Minor Conditional Use Permit No. 2003-10, Findings of. Fact, and conditions of approval as listed within the resolution. C/Tanaka said that as more businesses request variances and tend to encroach on the parking structures, what happens to parking for the overall center? AUGUST 12,2003 Page 5 PLANNING COMMSSION 1. DSA/Smith explained that the City looks at each business on a case-by-case basis. Each project includes a review of the overall parking for the center. Taco Factory, for instance, eliminated parking spaces. This project does not eliminate parking spaces. So far, parking has not reached capacity or near capacity in this center. C/Ruzicka asked how long the space was vacant. DSA/Smith explained that the space currently occupied by the travel agency is being vacated. In addition, the nail shop is leaving the center. C/Ruzicka asked if clientele would be served by employees or purchase food items inside and move outside to the seating area? DSA/Smith understood that patrons would purchase food items inside the restaurant and proceed to outside seating. Chair/Tye asked if the dining tables could be placed against the wall thereby leaving the sidewalk area open. DSA/Smith responded that what Chair/Tye outlined is staff's recommendation absent the wrought iron. Chair/Tye asked if the Commission could waive physical confinement by eliminating the wrought iron? DSA/Smith responded "yes." DCM/DeStefano explained that absent a defined area, there would be an open seating arrangement that could be more consistent with 'The Country Hills Towne Center" food court. If the wrought iron were removed, there would be more walking space. However, you would lose the defined space and some problems could result. If the tables and chairs were confined to an identifiable area, violations would be easily detected. The tables and chairs could be moved closer to the building glass as long as there is an adequate path of travel that meets the building code requirements — about a four foot wide area. r J! AUGUST'12,2003 Page 6 PLANNING COMMSSION -- -------- Toby Foreman, LLC, speaking on behalf of the applicant, explained that the applicant would agree to move the tables to the glass side creating a walkway toward the parking lot. The objective is to create an attractive space for patrons and the center. Mr. Foreman responded to Chair/Tye that he would prefer not to have the wrought iron in place. Alternatively, the applicant could place planters at the curb to define the space and create a more pleasing ambiance. Mr. Foreman assured VC/Nolan that it was acceptable to the applicant to have tables on the Grand Avenue side away from the glass and tables on the Diamond Bar Boulevard side against the glass. Chair/Tye opened the public hearing. There being no one present who wished to speak on this matter, Chair/Tye closed the public hearing. C/Ruzicka moved, VC/Nolan seconded, to approve Development Review No. 2003-12 and Minor Conditional Use Permit No. 2003-10, Findings of Fact, and conditions of approval as listed in the resolution in accordance with the applicant's wishes with the addition of a condition that provides a final review by the City's Building Official to insure that code requirements are met. C/Tanaka wanted staff to work out the details and present the item to the .Commission at a later date for consideration. C/Nelson was concerned about what would prevent customers from turning the tables into seating for four on the pillar side thereby reducing the pass through foot traffic area. Using overhead graphics, DCM/DeStefano explained the possible configurations and requested Commission confirmation of changes to be incorporated in Condition (r) on Page 8 (revisions to the outdoor dining plan). AYES: Ruzicka, VC/Nolan, Nelson, Chair/Tye Tanaka None COMMISSIONERS: NOES: COMMISSIONERS: ABSENT: COMMISSIONERS: AUGUST 12, 2003 Page 7 PLANNING COMMISSION 7.3 Development Review No. 2003-16 and Minor Conditional Use• Permit No. 2003-11 (pursuant to Code Sections 22.48.020, 22.56, and 22.42.080(3)) is a request for an intensification of land use in a commercial center's retail suite from a take out use to a restaurant use and outdoor dining ("Cold Stone Creamery.") PROJECT ADDRESS: 1127 Grand Avenue Diamond Bar, CA 91765 Diamond Bar/Grand LLC 2717 West Cost Highway Newport Beach, CA 92663 APPLICANT: Cold Stone Creamery, Ken Hamilton 1127 Grand Avenue Diamond Bar, CA 91765 DSA/Smith presented staff's report. Staff recommends Planning Commission approval of Development Review No. 2003-16 and Minor Conditional Use Permit No. 2003-11, Findings of Fact, and conditions of approval as listed within the resolution. Ken Hamilton, owner, Cold Stone Creamery, stated he would comply with staff's recommendations. Mr. Hamilton responded to VC/Nolan that he was initially unaware that outside seating was not allowed. Therefore, he has committed to the review process. Mr. Hamilton indicated to Chair/Tye that he has one table. There is sufficient access and lobby width for people and wheelchair access. He could accommodate one additional table in the space toward the front of,the store. With respect to wrought iron, he would comply with the conditions of approval. He would prefer to incorporate something more attractive, if possible. Chair/Tye opened the public hearing. There being no one present who wished to speak on this matter, Chair/Tye closed the public hearing. AUGUST 12, 2003 Page 8 PLANNING COMMSSION C/Nelson moved, C/Ruzicka seconded, to approve Development Review No. 2003-16 and Minor Conditional Use Permit No. 2003-11, Findings of Fact, and conditions as listed within the resolution.. Chair/Tye asked that the motion be amended to strike the requirement for wrought iron and direct staff to work with the applicant to arrive at an acceptable alternative that is aesthetically pleasing and consistent. C/Nelson and C/Ruzicka accepted the amendment. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Nelson, Ruzicka, Tanaka, VC/Nolan, Chair/Tye NOES: COMMISSIONERS: ABSENT: COMMISSIONERS: None 7.4 Conditional Use Permit No. 2000-03(1) (pursuant to Code Section 22.66.060(2)) is a request to modify the existing permit to add 1,300 square feet from an existing adjoining retail suite to be used for the Montessori Elementary School and to convert the existing elementary classroom to child day care use. 1:10041:140 23555 Palomino Drive Diamond Bar, CA 91765 AP Diamond Bar LLC 12383 Lewis Street #200 Garden Grove, CA 92840 APPLICANT: Diamond Bar Montessori Academy 23555 Palomino Drive Diamond Bar, CA 91765 DSA/Smith presented staffs report. Staff recommends Planning Commission approval of Conditional Use Permit No. 2000-03(1), Findings of Fact, and conditions of approval as listed within the resolution. Tige and Christy Licato, -owners, concurred with staff's conditions of approval. AUGUST 12, 2003 Page 9 PLANNING COMMSSION Mr. Licato responded to VC/Nolan that construction of the computer lab was delayed due to lack of funding. They intend to commence construction within the two-year timeline. In response to C/Tanaka, Mr. Licato indicated current enrollment is 98 in accordance with original CUP licensing requirements. Chair/Tye expressed his appreciation for the school and its requests for expansion. Chair/Tye opened the public hearing. Chris Perhatch commended the Licatos on their project. Chair/Tye closed the public hearing. C/Ruzicka moved, C/Tanaka seconded, to approve 2000-03(1), Findings of Fact, and conditions of approval as listed within the resolution. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Ruzicka, Tanaka, Nelson, VC/Nolan, Chair/Tye NOES: COMMISSIONERS: ABSENT: COMMISSIONERS: None 7.5 Conditional Use Permit No. 2003-04 (pursuant to Code Section 22.58) is a request for approval of an exercise facility for women identified as Contours Express in an existing shopping center. PROJECT ADDRESS: 968 North Diamond Bar Boulevard Diamond Bar, CA 91765 PROPERTY OWNER: Beal Bank 6000 Legacy Drive Piano, TX 75024 APPLICANT: Suzette Douglas 4195 Chino Hills Parkway #258 Chino Hills, CA 91709 AUGUST 12,2003 Page 10 PLANNING COMMISSION DSA/Smith presented staffs report. Staff recommends Planning Commission approval of Conditional Use Permit No. 2008-04, Findings of Fact, and conditions of approval as listed within the resolution. Suzette Douglas, applicant, said she read staffs report and concurred with conditions of approval. Chair/Tye opened the public hearing. There being no one present who wished to speak on this matter, Chair/Tye closed the public hearing. C/Ruzicka moved, C/Nelson seconded, to approve Conditional Use Permit No. 2003-04, Findings of Fact, and conditions of approval as listed within the resolution. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Ruzicka, Nelson, Tanaka, VC/Nolan Chair/Tye NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: None 8. PLANNING COMMISSION COMMENTS: Chair/Tye said it was exciting that so many businesses were interested in locating and expanding in Diamond Bar. He hoped to see everyone at the last 2003 Concerts in the Park tomorrow evening. 9.1 DCM/DeStefano asked that two Commissioners to serve on a Home of the Month or Business of the Month recognition subcommittee to reward those who maintain a high quality landscape maintenance of their properties. Chair/Tye recommended C/Tanaka and VC/Nolan. DCM/DeStefano reported that the August 25 dinner with the City Council has been canceled. Two dates for further consideration are September 15 or September 29. DCM/DeStefano reported that other than tomorrow night's adjourned meeting, the only item scheduled for the August 26 meeting is consideration of sign code changes to the development code. Development Code changes recently forwarded to the Council are slated for their consideration in September. Further development code changes are contemplated. DCM/DeStefano reported that EPC closed its Diamond Bar business. AUGUST 12, 2003 Page 11 PLANNING COMMISSION The City Council is looking at the one -acre site immediately adjacent to the Community/Senior Center as potential for a new library project. The City Council will review the Mitigated Negative Declaration for.the exempt project in mid-September, early October. He explained why earlier this evening he considered two projects that were continued to the middle of September. 10. SCHEDULE OF FUTURE EVENTS: As listed in the Agenda. ADJOURNMENT: There being no further business to come before the Planning Commission, Chairman Tye adjourned the meeting at 8:45 p.m. to the 5:30 p.m. August 13, 2003 Adjourned Regular Meeting, City Hall, Conference Room B. Respectfully Submitted, James DeStefano Deputy City Manager Attest: Chairman Steve Tye MINUTES OF THE CITY OF DIAMOND BAR ADJOURNED REGULAR MEETING OF THE PLANNING COMMISSION AUGUST 13, 2003 Chairman Tye called the Adjourned Regular meeting to order at 5:30 p.m. at City Hall, Conference Room B, 21825 East Copley Drive, Diamond Bar, California 91765. 0100��� Present: Chairman Steve Tye, Vice Chairman Dan Nolan, and Commissioners Steve Nelson, Joe Ruzicka and Jack Tanaka. Also present: James DeStefano, Deputy City Manager; Mike Jenkins, City Attorney; Linda Smith, Development Services Assistant, and Stella Marquez, Administrative Assistant. 2. MATTERS FROM THE AUDIENCEIPUBLIC COMMENTS: None Offered. DCM/DeStefano explained that tonight's meeting was scheduled to discuss certain issues with CA/Jenkins, one being the provision for the amount of English that would be required or appropriate on signs and two, standards for modifications to the political signs. C/Ruzicka felt strongly about commercial signs because he has received input from so many residents. He expressed his belief that the ability to co -exist in a framework of cultural diversity would be destroyed if citizens could not read and understand each other. Signs are the first step toward that mutual understanding. Once signs are created that only a certain segment of the population can read and understanding will undermine that framework. He believed the Planning Commission should exercise its unique and influential position with the City Council by forwarding a report that conveys the importance of retaining the "common language bond" in the community. In his opinion, more important than percentages is the City's obligation and responsibility to provide for the public need. Chair/Tye concurred. His children attended public school in which 15 different languages were spoken. This City would have difficulty administering percentages absent a common standard. Perhaps signage could be one issue and there could still be an aspect of expression to convey a message whether it is through advertising, etc. He would like to maintain a community of country living ratherthan a community with the look of Rowland Heights. AEF I AUGUST 13, 2003 Page 2 PLANNING COMMISSION CfTanaka concurred. As he travels through parts of other cities he is unable to determine what kind of business exists behind certain signs. He likes the direction taken by City Council with respect to signage. C/Nelson felt the concern was about Chinese characters. He asked himself if he would feel the same way about Spanish, Russian or Czech signage. Diamond Bar does not want to appear that it is fragmented. It does not set a good precedent -and he felt the same way about English only in schools. He felt it was important that people could pursue and remain proud of their ethnic and cultural backgrounds and that the issue of signage has nothing to do with suppression of any particular group but to show that Diamond Bar is united. C/Ruzicka asked why if that were true would the aviation community throughout the world use English -only? C/Nelson asked if the City could vote for English -only signs? CA/Jenkins stated that the People could not adopt an unconstitutional law. VC/Nolan said that everything the other Commissioners have talked about is a very "slippery slope." To him it is easier to craft where signs go than to determine what can be said on signs. What he took from the background information was that cities could not regulate what signs say. CA/Jenkins thanked the Commissioners for adjusting their schedules to fit his commitments.' This issue came up in 1998. At that time he advised the City Council that they could not, constitutionally, prevent businesses from placing on their business sign, other language and/or characters. He said that he felt confident that the City had a compelling interest in requiring businesses to at least identify themselves by having their name or type of business in English characters for public safety reasons. As a result, the fire department and code enforcement would know the nature of the business and could identify that business in the event of an emergency. In fact, as a direct result of that, the code currently provides that "each business must provide identification signage in English characters not less than4' inches in height. All commercial businesses shall contain the address or unit number or letter of the occupant. Units shall be in English alphabet. Address numbers shall be in Arabic numerals. All letters and numerals shall be provided in digits which are visible from the adjacent street or parking lot drive aisle. "That is what he considered to be a legitimate and compelling interest that was served by an ordinance that requires certain basic information to be English characters. L.A. AUGUST 13,2003 Page 3 PLANNING COMMISSION CA/Jenkins provided legal analysis and cited constitutional law regarding First Amendment Rights to Freedom of Speech. C/Ruzicka said that according to information he received, commercial speech is the least protected form of speech, CA/Jenkins said that the information provided to C/Ruzicka was not correct. CA/Jenkins said that in fact, commercial speech is accorded a very high degree of protection. "To be valid an ordinance that restricts commercial speech that concerns lawful activity and is not misleading the regulation must seek to implement a substantial government interest. It must directly advance that interest and it must reach no further than necessary to accomplish the given objective. "Also, it is the law that regulation of speech may not, be content based. We can only regulate speech with reference to time, place and manner — not content. CA/Jenkins said that if cities were to disallow non-English characters, whether Chinese or Russian, and also disallow words in foreign language, businesses such as Del Taco, El Pollo Loco and other businesses with names in foreign languages - most particularly Spanish -become verboten. So now we're telling major franchises that they have to change their names to English because we only want to see English on our signs. This is a complicated problem and the worst thing we can do is venture into this morass of sign law and First Amendment litigation. In most of the cases where these types of ordinances are challenged, cities lose. He cited the 1998 case Asian American Business Group v. City of Pomona. This case was decided by United States District Court in the Central District of California. It has never been overruled. It is published law. It is good law. The case involved a challenge to an ordinance passed by a neighboring city, the City of Pomona. It required that 50 percent of the sign area be devoted to English alphabetical characters. The ordinance was challenged and the Court found that the ordinance was unconstitutional on three distinct grounds: 1) That the city failed to meet the burden of having a compelling state interest and having the ordinance narrowly drawn to advance that interest. The interest that was cited by the city was "identification of the business." The Court said it was a legitimate business but you do not have to require 50 percent of the sign in order to advance that interest. You could require that the name and address be in English lettering without it necessarily being 50 percent and it would still be visible from the street and to fire and police personnel and it would serve your legitimate interest. Footnote: That is not the interest that you are asserting 2) The Court relies on a second ground to invalidate the ordinance, and that is, that it discriminates on the basis of national origin. Discrimination on the basis of national origin violates the constitution. The Court says that speech/language, is an important part of and flows from national origin. "People expressing themselves in their own language" is part of who they are and where they're from. When we tell people that they cannot speak in their own language we are discriminating against them based on their national origin. He cited two examples; and 3) That it is content based. In order to know whether the sign is legal or illegal you have to read the sign. Unless we have a compelling interest, we cannot regulate content. This case is good law and it has never been overruled. It was decided in -the Central District of California and other Courts have cited this case law being good law. As a lawyer, when a client says to him 'What is the law" he looks for case law because it is these cases that are decided by Courts that make up the law. And I say, "here is a case that is on all fours." There is no gray. And case law says, this type of ordinance is unconstitutional — not for one or two reasons, but for three reasons. So, I report that to my client. That is the law. If you do not follow the law, there is risk. That is all I do as a lawyer. And you have to be the judge of whether or not you are prepared to accept that risk. Other cities may very well have such ordinances on their books. It would not surprise him if there were cities throughout California and the United States that had many unlawful ordinances on their books. Just last March in the election campaign in another city he happens to represent, some enterprising citizen discovered that imbedded in the municipal code was a provision that made it unlawful for unmarried people to have sex in the city. He decided that this was worth talking about. He contacted a few newspapers and it made national headlines. The law was clearly unlawful, pre-empted by state law. It was an invasion of privacy and not enforceable. It has been on the books since 1958. 1 had never seen it and I have been that city's attorney for over 20 years. Newer cities like Diamond Bar do not have laws that incorporate ancient and archaic laws that have long -since left the books of most cities. There are lots of laws on the books of cities that are there because they were adopted before the law was cleared up or they were adopted without the benefit of legal advice, or, they simply have not been challenged. Whether they are enforced or not is another question. Whether they would withstand scrutiny if they were challenged is yet another q " uestion. Curiously and entirely unrelated, city attorneys have an email network and communicate on issues of the day. On any given day he receives 25 to 50 emails ' from other city attorneys on numerous issues. An attorney with a law firm in Fullerton asked if there were any cities that required commercial signs to be in English -only and are there any problems with such a requirement? The first response came from his partner to wit: "I do not, but there is a significant First Amendment issue. Unless there is a public healthy, safety or welfare issue I see no way for such a ruling. "He cited other emails that- read similarly. a\ ." � �r T L L AUGUST 13, 2003 Page 5 PLANNING COMMISSION CA/Jenkins spoke about the problem of liability. When a city enacts a law, the City Council has "legislative immunity." That means that individual city council members cannot be held liable in damages for violating people's rights by virtue of their voting toenact alaw. However, the flip side is that you are not just enacting a law, you are enforcing a law. And so, when you enact a law and then you say to your staff, go out and enforce that law, you are no longer protected by legislative immunity. Now all you have is something called "qualified immunity." Legislative immunity is absolute. It means that you cannot get past it. Qualified immunity is just what that states— it is qualified. You are only immune from liability for damages for violating someone's constitutional rights if you acted in "good faith." The question of whether or not you act in good faith depends, in part, on whether or not there is clearly established law. The Ninth Circuit Court of Appeals, in a case dealing with an ordinance that it found to be unconstitutional stated "here, the city officials are not entitled to qualified immunity. For over 50 years it has been clearly established that a licensing scheme is impermissible if it allows officials unfettered discretion to impose prior restraints on speech. Because the city officials, in attempting to enforce the ordinance, violated clearly established constitutional rights of which a reasonable person would have known, they are not entitled to qualified immunity. "In other words, if a city enacts unconstitutional law and the city has good reason to know that the law is unconstitutional, an aggrieved party can file a suit for violation of constitutional rights. They sue the city as an entity. The city, as an entity, has no immunities at all. If the law is found to be unconstitutional and to have violated someone's constitutional rights, the city is automatically libel. The city can be held libel in damages and for attorney's fees. The person may also sue individual officers of the city including Commissioners, Council Members, DCM/DeStefano, his code enforcement officer, and whoever else is out there enforcing an unconstitutional law. This case says that if everyone involved had good reason to know that the law was unconstitutional you have no "qualified immunity. "You cannot defend by saying "I thought it was valid — I thought it was constitutional. "You are personally "on the hook" for damages. The city is not in a position to compensate or reimburse you for damages that are imposed against you. Plaintiffs cannot recover punitive damages against cities. Cities are immune from punitive damages. Punitive damages are awarded when a person is found to be acting in bad faith or with malice. Punitive damages can be awarded against individuals, even if they are city officials. Punitive damage awards would be paid out of individual pockets if found libel for constitutional rights. Why do I emphasize this so strongly? Because there is risk and risk analysis involved. And the question is who wants to take that risk? If this were a questionable case and there weren't a case directly on -point decided right here in the Central District of California — if the law AUGUST 13, 2003 Page 6: PLANNING COMMISSION were fuzzy, I would tell you. I do not believe the law is fuzzy and I tell you that there is risk because it is not just the city's money we're talking about, it is the potential for personal liability. CA/Jenkins returned to the issue of his earlier footnote. Even if the City set aside the national origin discrimination problem and put aside the content regulation problem, is there a legitimate governmental interest? The standard is that the City must seek to implement a substantial governmental interest. To the extent that this City has content -based regulation, the interest must be a "compelling" interest. Are there any cases that suggest that this interest — this goal that you have put forth, is, as a legal matter, a compelling governmental interest? His sense is that when you are controlling your own employees or your own workplace there may be interests that are substantial. What is this City's interest in a government in assuring uniformity of speech? He said he had the sense from his passion about the subject that C/Ruzicka felt it was compelling and substantial that the City should have a community that in effect speaks with, if not one voice, in one language. He was not aware of any case that would say that that is compelling. Additionally, the Pomona case and other cases suggest that an equally compelling aspect of this country's citizens respect diversity of the population. While C/Ruzicka respects the diversity of the population and wants it to speak in one voice, there is an equal argument that suggests that one respects the diversity of the population by allowing people to speak in their own languages. C/Ruzicka said he was not trying to say he wanted everyone to speak with one voice. He was saying that when we speak to each other in the form of commercial signs we ought to speak in one language, or as close to it as we possibly can. That's what makes this City the great City that it is — because there is so much respect for culture, race, national origin— that we attempt to honor and respect all of those things. That's why he attempted to emphasize that this City would encourage fragmentation' if we segmented the population by allowing the kinds of signs that speak to only one segment of the population. . CA/Jenkins said he understood C/Ruzicka's message. Without making value judgments, it is a sociological issue — would it meet the test of being a compelling state interest so as to override those precious First Amendment rights? C/Ruzicka stated that he did not realize the risk was so great. Unless he was absolutely assured that Diamond Bar had a compelling interest he would not push anything that would put the City or its employees and residents at that great of a risk. He wondered if there was something that could be done that exceeded staff's report to communicate with residents and could the state and the constitution AUGUST 13, 2003 Page 7 PLANNING COMMISSION recognize that the City was attempting alleviate anguished feelings among and between .culturally diverse ethnic groups as well as, minimize social problems? CA/Jenkins said the City could certainly consider doing something beyond what it already does. He asked if C/Ruzicka had any ideas. He pointed out that it is an area that has a lot of land mines. There are many that would, for example, take an opposite point of view — people who would say, "go to Chinatown — go to Little Tokyo — go to Little Saigon, etc. One can go to areas of cities in Southern California that have character all their own that demonstrate the diversity of our population, that this is a country that draws people from all parts of the world and accommodates them by allowing free expression based on their own culture. There are many different points of view about what is best for our communities, what brings us together and what makes our communities desirable places to live. Bottom line, the question is what is constitutional and what is not based on the standard. He invited the Commissioners to offer some additional suggestions. He reminded them that the City does require businesses to be identified in English. Chair/Tye asked why someone would not challenge the City's current requirement for 4" English character letters? CA/Jenkins explained that the City determined four inches was the minimum height that allowed police and fire personnel to identify the business. In his judgment, the Court would uphold that it was a reasonable determination. Chair/Tye asked how it would infringe on freedom of speech rights to require a 24 - inch channel sign to have 15 inches devoted to English characters and six inches devoted to whatever language and characters the business owner wanted to use to communicate? How would reversal of today's code infringe on speech? CA/Jenkins responded "because our law has to advance our interest which is identification of the business. Chair/Tye asked what if his interest was the economic well being of his community and cohesiveness about which C/Ruzicka spoke? CA/Jenkins responded that a) he did not believe the Court would find that argument compelling enough to justify the incursion on the First Amendment rights of the speaker and b) that the Court would likely find that it was discriminatory based on national origin. And, it would be an end run around the Pomona case that says you cannot have a 50/50 rule because you would be relegating ±gi[ speech to 50 percent or less of a percent of the sign. If, on the other hand, you said that if you had a sign of X width you have a minimum of 4 inches. But if you had a sign of Y AUGUST '13, 2003 Page 8 PLANNING COMMISSION width then you must have a minimum of 10 inches, still leaving the rest of the sign for other.expression, that is possible. For instance, if you had a standard 14 x 48 - foot billboard and required 4 inch lettering, the rest of the message on the billboard might overpower it. One could certainly argue that 4 inches isn't enough in that situation. However, 4 inches would certainly be enough on the X dimension., Could the ordinance contain "relativity? He believed that it could. DCM/DeStefano asked if the City had the flexibility to base size on public safety wherein public officials were able to say that 4 inch letters was not sufficient and that they needed to be six or eight inches high in order to be clearly seen from the street? CA/Jenkins felt it was possible if evidence was placed in the record. DCM/DeStefano said there were several businesses that resided well away from the street and some were very near the public street. Perhaps there was a method for arriving at a standard that had to do with distance as well. DCM/DeStefano responded to C/Nelson that the minimum standard for monument signs is six inches. C/Nelson pointed out that monument signs are on the street. What was the reason for implementing those standards? DCM/DeStefano explained that the standard was implemented to eliminate the clutter of 10 signs that are all two inches high. Individual signage placement on monument signs is usually negotiated between the property owner and the tenant. VC/Nolan asked if the City could regulate fonts and color to create uniformity throughout the community? CA/Jenkins responded that cities were able to regulate the appearance of a sign with respect to color, font, etc., to achieve some uniformity. Some communities were very restrictive with respect to commercial signage, . color of buildings, etc. Some cities have been sued because they attempted to get franchise restaurants to change signage and/or building color, for instance. Cities have a lot of power to try to achieve aesthetic uniformity. VC/Nolan felt that part of the issue was aesthetics. AUGUST 13, 2003 Page 9 PLANNING COMMISSION Chair/Tye asked CA/Jenkins if he felt it would not be defensible from a "compelling interest of the community' if people were not able to identify the nature of the business. CA/Jenkins said that he not only believed it would not be compelling, he also believed it would not be necessarily credible because it is evident that businesses with foreign language signage thrive and that they may enhance economic viability of a community and attract people from other areas. If Diamond Bar attempted to support a law with evidence that diversity of language on its signage detracts from our economic vitality as a community, there would have to be evidence to prove that claim. VC/Nolan felt that masking those sorts of laws overrides what the City is trying to accomplish. To Chair/Tye's point on the 50/50,4 -inch rule and public safety issues, if it takes 10 strokes of the hammer to put the nail in you don't need a hundred strokes. That's where the 50/50 rule comes in. So instead, we're suggesting that it could be hidden under the guise of public safety and make it a 50/50 proposition when 50/50 is unrealistic. To him it seemed difficult to circumvent the law. If there were a sign about a business that was unfavorable to a majority of the residents they would not do business there and the business would close and go away. If it goes the other way it would mean that the demographics and/or the dynamics of the community were changing. He felt it was difficult to stem the tide based on litigation and code. To him, the best method would be to figure out how to control it through aesthetics or size. He felt there was real merit to alienation of people who were not aware of what business was being conducted. That needed to be remedied. He felt that over time, all neighborhoods had transitioned. C/Nelson felt that VC/Nolan had a point. As much as he did not disagree with Chair/Tye 'he felt that country living looked great on a logo but it was something more or less in the eye of the beholder. Chair/Tye agreed that things were changing. Even as dynamics change, the City is seeking uniformity and continuity. How is that accomplished? And, if economics is not a compelling interest, what is a compelling interest that works? CA/Jenkins could not cite a compelling interest that would work in this situation. He felt that there were some things over which municipalities had little control. C/Tanaka suggested that during the City's approval process for signage that staff and the Chamber could work with businesses to recommend a certain type of signage that would assist the business owner in reaching all segments of the community. AUGUST 13, 2003, Page 10 PLANNING COMMISSION CA/Jenkins said that the Chamber could play that role far more easily than could a government. The Chamber is a private organization. If they want to provide materials in an attempt to establish a certain business community character, that is exactly within their role. ' Richard Malooly asked if the Chamber could promote a suggested business standard? CA/Jenkins concurred that it was important for new businesses coming into the community to understand the prevailing sentiment about how they advertise and express themselves. The Chamber's job is to assist business in being healthy, vital and vibrant members of the business community. Chair/Tye felt that in order for the law to change, someone had to step forward and challenge it. C/Ruzicka said he was not interested in placing the City or its employees in a position that invited a lawsuit merely to challenge the law. CA/Jenkins assured the Commissioners that he would retain C/Ruzicka's well- written memorandum and report back to the City in the event that similar laws were challenged and overturned. CA/Jenkins reported that there was good guidance about what was and was not permitted with respect to political signs. Some communities allowed political signs on public property and many communities did not. Cities cannot discriminate or regulate on the basis of content, only on the basis of time, place and manner. One of the biggest problems with allowing for political signs on public property is that once it is determined that sign can be placed on the public right-of-way and if it conveys a message pertaining to acts, cities are then involved in content regulation. As a municipality, Diamond Bar is a government of "limited"powers. powers. Under the law, the United States is unlike other countries. This is essentially the only Country that is a government of limited powers that respects private and individual rights. We are not in the business of telling people what they believe and what they can and cannot say as long as it is not illegal, misleading or fraudulent. In short, once you open the public right-of-way to signage it becomes very difficult to control what people can put up. You can prohibit signs in the public right-of-way. However, if you do so, you must prohibit all signs in the public right-of-way except for traffic signs. And, you cannot discriminate on the basis of content. Some cities allow for AUGUST 13, 2003 Page 11 PLANNING COMMISSION political signs in the public right-of-way and, in his opinion, those ordinances are always subject to challenge to the extent that cities do not allow any other signs expressing any other message. Cities that do not allow political signs in the public right-of-way do so primarily because they think signs in the right-of-way add to clutter, they make a mess, they are distracting, and they usually don't get picked up following an election. Additionally, the signs are not really reflective of public sentiment about the candidate, they are only reflective of the candidate's wealth or willingness to devote resources to producing a large number of signs and plastering them about. So, these cities allow signs only on private property and they regulate them to make sure they fall within certain parameters. This community has allowed political signs. on public property. Do you want to recommend that we want them only on private property and not in the public right- of-way? If you do that, you get into issues of how big, how many and how long. He referred the Commissioners to his March 1, 2002, memorandum to DCM/DeStefano called "Political Signs" that accompanied an ordinance he prepared. He reiterated his recommendations if the Commission recommended placement of political signs on private property only. For instance, four square feet would probably be the minimum size. The City could regulate height of the sign. He felt that 60 days prior to an election would be the minimum standard. There are a number of cases that held that various different time limits were impermissible. One case said that 30 days was unconstitutional. Another case cited 45 days as unconstitutional. One case upholds 60. How many days after the election can you require they be removed? There is much more flexibility on this issue because after the election, the signs have no particular First Amendment value because the election is over. Therefore, the City could require removal within 3, 5, or 10 days. He was asked if the City could require a bond to assure sign removal. That particular question is most often raised when cities allow signs in the public right-of- way. We could say that within a certain number of days of the election the signs are to be removed. If those signs were on public property, the City could advise the party that the City would remove the signs and bill the individual for the removal cost. Cities cannot require owners to give written consent as a condition of placing signs on private property. However, he did write language that said the City could require them to show that the owner consented to placement on their property if the sign was in a location that wasn't visible from the house. The City's interest was in avoiding sign clutter, avoiding clutter of the rights-of-way by assuring that private property owners know their property is being used for signage. He believed that was not an issue when the sign was in the front yard and clearly visible. It was an issue when signs were placed on hillside slopes near streets and away from the 7 -age 12 PLANNING COMMISSION view of the house. Therewas also discussion about limiting the number of signs per property. There is case'law that says you cannot do that. He felt that in Diamond Bar the City would not have people puffing 100 signs on their property: If there are three candidates, there could be three signs in the front yard and three signs in the side yard. Again, the City could impose size limitation so those signs would not create a huge problem. CA/Jenkins reported that the Council brought up an issue recently that he continues to grapple with — the question of political signs in private commercial parking lots. For instance, candidates place their political signs high on a utility pole/light standard. It is private property; it is not a public right-of-way. The private property owner may or may not consent to it but he doesn't want to expend the resources to remove the sign. The Council wanted to know what could be done in that situation. He said he was still not quite sure what to do about that situation and how to address it in such a way that it would meet the standards set forth by the City. C/RUzicka had no problem with political signs going up 90 to 120 days ahead of the election. Getting them down after the election and making the City look good again is his only concern. Chair/Tye felt that 30 days was sufficient. He felt the biggest issue was eliminating signs from the public right-of-way. It is unbelievable to him that not allowing signs in the public right-of-way is not an infringement on someone's right to free speech, right of association and right to express constitutionally protected privilege. CA/Jenkins said the Court was very clear that cities could restrict placement of signs in the public right-of-way as long as cities did not discriminate on the basis of content. Cities could decide that its streets were for pedestrian and vehicular traffic only and that the only signage should be traffic signage. Other signage is a distraction to motorists and clutters up the community. To the contrary, in driving his community that only allows signs on private property during elections he can tell which candidates seem to have the grass roots support because they have more signs in his neighbors front yards. Signs can easily be placed in the public right-of- way. It doesn't mean anything to him other than it creates blight on the area. One point of view is not favorable over the other. CA/Jenkins pointed out that real estate signs could be prohibited in the public right- of-way. Real estate directional signs could not be prohibited on private property. AUGUST 13, 2003 Page 13 PLANNING COMMISSION Richard Malooly felt it would be difficult to maintain the meridian if it were filled with signs. Certain cities restrict the number of signs. It inhibits his real estate business not to be able to put up directional signs. However, it is in the agent's best interest to remove the sign on Sunday night. CA/Jenkins said that cities that prohibit signs in the public right-of-way would also include open house directional signs. However, cities could not prevent them from being placed on private property. As a practical matter, most cities do not conduct a lot of code enforcement between 10:00 a.m. and 4:00 p.m. on Sunday. VC/Nolan felt more signs were ripped from public property than from private property. Chair/Tye reiterated his concern about telling people they could not put signs on the public right-of-way. C/Ruzicka said he would favor eliminating signs in the public right-of-way. Responding to C/Nelson, CA/Jenkins said that to the extent the City allowed signs in the public right-of-way it could limit time, place and manner. Chair/Tye asked if the City currently limits time, place and manner. DCM/DeStefano responded that signs were not allowed to be any larger than the largest commercial sign. Therefore, someone could have a 72 square foot sign on private property. On public property, the limit is about 6 square feet. CA/Jenkins stated that height limitations do not apply to private parking lots. DCM/DeStefano said the City does not have a height restriction on public property. However, signs are not permitted on trees and utility poles, etc. VC/Nolan asked if the municipalities CA/Jenkins represents restrict political signs in the public right-of-way? CA/Jenkins responded "all signs." C/Nelson asked if cities enforce unequally? CA/Jenkins said he did not know that any of the cities he represented had routine code enforcement on Sundays. However, he knew that political sign enforcement was vigorous during elections. AUGUST 13, 2003 Page 14 Chair/Tye said he did not want to ban signs from the public right-of-way and he did not feel it should be the direction of the Planning Commission or the City Council. DCM/DeStefano stated this matter would be on the August 26, 2003, Planning Commission agenda for discussion and recommendation to the City Council. The Commissioners thanked CA/Jenkins for his assistance and insight. ADJOURNMENT: The meeting was concluded at 7:45 p.m. Respectfully Submitted, James DeStefano Deputy City Manager Attest: Chairman Steve Tye TO: Chairman and Planning Commissioners FROM: Ann J. Lung u, Associate Planner SUBJECT: Development Code Amendment No.2003-01 /Election Signs DATE: August 26, 2003 FETTIWTIFT;T*1�..11111 Development Code Amendment No. 2003-01 was first presented to the Planning Commission on May 13, 2003. This amendment included a variety of changes to the code (i.e., slope maintenance, setback regulations, driveways, protected trees, accessory structures such as a tennis court, guest house and second units, restrictions on nonconforming structures, telecommunications facilities and election signs). The Commission discussion on this matter continued on June 24, 2003 and July 8, 2003. The Commission concluded its work and recommended approval to City Council on all amended sections except the sections that related to election signs which is still before the Planning Commission. On August 13, 2003, the discussion at the City Attorney and Planning Commission meeting centered on the legalities related to the recommended changes of the City's sign standards pertaining to elections signs. The Commission's concerns related to whether or not election signs or other signs such as real estate signs should be allowed in the public right- of-way or just on private property, the right to free speech and the number of days prior to an election that signs could be erected. The following delineates the current standard related to temporary signs in the public right- of-way. The recommended amendment follows the City Attorney's guidance. Additionally, strikethroughs are utilized to delineated deleted text and Italics to emphasize the recommended amendment. 1 Article III �Qhapter--2-2.36 — Siqn Standards IN Current: (5) Temporary signs placed upon pubic property. The following provisions shall control the placement or proposed placement of signs on public property. a. No signs shall project over any public walkway, alley, street or public property except as may be expressly permitted pursuant to this section. On private property, in any outdoor area open to the public, no portion of any sign attached to the building and extending below a height of seven feet above ground level shall project more than six inches from the face of the building. b. Sign, other than those required for traffic safety or pursuant to law, shall be placed, located or maintained upon any center median of any street, or other improvement intended for utilization by vehicular traffic. C. No sign may be placed, located or maintained in, on or over any public walkway, parkway, alley, street or any other public property which interferes with the construction, maintenance or repair thereof or of any facility therein or thereon, including, but not limited to all landscape, hardscape, meters, or irrigation facilities. d. No sign shall be affixed to any trees or other plant materials located in any public walkway, parkway, alley, street or any other public property. e. No signs placed on public property pursuant to this Code shall contain more than six square feet of sign area. f. Only one sign advertising, identifying, displaying, or directing or attracting attention to a particular idea or event shall be placed in the public right-of- way on each side of any single block. For the purpose of this section, "block" shall mean that portion of the street lying between the nearest two intersecting or intercepting streets. g. Any sign advertising, identifying, displaying, directing or attracting attention to, or conveying an idea related to an event which is to occur on a certain date shall not be placed in the public right-of-way more than 30 days prior to that date and shall be removed not later than 10 days after the date. K Recommended Amendment: (Repeals Paragraph (5) of Section 22.3.6.050 referenced above and replaces it with language in this section as referenced below.) (5) Election signs. Temporary signs pertaining to a local, State or national elections are permitted on private property subject to the following limitations: a. Signs shall not exceed six square feet in residential . zones and twelve square feet in commercial and industrial zones; b. If freestanding on the ground, signs shall not be more than five feet in height, C. If mounted on a building, signs shall not project more than two feet from the building, d. Signs shall not be erected on utility poles, traffic signals, traffic signs, meters, tree wells, trees or other living things; e. Signs shall be erected no more than sixty days prior to the election to which they relate, and must be removed within ten days after the election,; f. Where a sign is erected on a vacant lot, or in a multi -tenant commercial center or in a location on a residential lot that is not visible from the residence, the candidate causing the sign to be erected shall upon request provide evidence to the city of the property owner's permission. Section 22.36.080. Prohibited signs. ( Note: This section lists signs that are inconsistent with the purpose and standards of this chapter, therefore, prohibited in all zoning districts) Current: (22) Signs on public property or projecting within the public -right -of way, except political signs and signs with an encroachment permit issued by the city; Recommended Amendment: (22) Signs in the public right-of-way, except official traffic control, directional and identification signs erected by the City or another governmental agency with jurisdiction. The recommended text changes will prohibit all signs (except official traffic control, directional and identification signs) in the public right-of-way. The text also changes with when election signs may be installed. The current standard is 30 days. The recommended 3 change is 60 days. The recommended text changes coincide with the City Attorney's advice and discussion on August 13, 2003. OPTIONS: The Planning Commission has several options to contemplate with regards to the temporary sign standards. The Commission may: 1. Retain the existing code; 2. Recommend approval to the City Council of Development Amendment No 2003-01 as presented above; 3. Alter the recommended text changes; or 4. Study the matter further. CONCLUSION: The staff does not necessarily want to change the current sign standards. If the Planning Commission desires to change the sign standards, staff recommends the text changes presented in this staff report that reflects the City Attorney's guidance and as represented in the attached draft Resolution. Staff recommends that the Planning Commission consider adoption of the draft resolution and direct staff as appropriate. Attachments: 1 Draft Planning Commission Resolution for Development Code Amendment No. 2003-01 for election signs; 2. Planning Commission Adjourned Regular Meeting Minutes dated August 13, 2003; 3. Excerpt from the Planning Commission Staff Report dated June 13, 2003; 4 4. Memorandum dated March 1, 2002 faxed to the City on August 12, 2003 from Jenkins & Hogin, LLP: and 5. Planning Commission Minutes dated May 13, June 24, and July 28,2003. 61 0 PLANNING COMMISSION RESOLUTION NO. 2003 -XX A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DIAMOND BAR RECOMMENDING THAT THE CITY COUNCIL APPROVE DEVELOPMENT CODE AMENDMENT NO. 2003-01 PERTAINING TO ELECTION SIGNS AND NEGATIVE DECLARATION NO. 2003-01. 1A *ei 110 1 1. The City of Diamond Bar has initiated an application for Development Code Amendment No. 2003-01 and Negative Declaration No. 2003-01. Hereinafter in this Resolution, the subject Development Code Amendment and Negative Declaration shall be referred to as the "Application." 2. On May 13, 2003, the Planning Commission of the City of Diamond Bar conducted a duly noticed public hearing on the Application. On this date, the Planning Commission approved certain section of Development Code Amendment No. 2003-01 and set aside the following sections for further deliberation at June 24, 2003 and July 8, 2003. On July 8, 2003, the Planning Commission requested a meeting with the City Attorney to further discuss the following sections. Article III Chapter 22.36 — Sign Standards Section. 22.36.050. Exemptions from Sign Permits Section. 22.36.080. Prohibited Signs 3. At August 13, 2003 adjourned regular meeting, the Planning Commission and the City Attorney further discussed and deliberated on this matter. At that time, the public hearing was closed and the Planning Commission directed staff to bring this matter back at the August 26, 2003 meeting with a resolution recommending approval to the City Council of said sections. 4. The Community and Development Services Department has determined that the above referenced sections of the existing development standards within the Development Code requires modification in order to implement the General Plan and comply with State Statute A. B. 1866. 1 5. On April 18, 2003, notice for this project was published in the Inland Valley Bulletin and the San Gabriel Valley Tribune. Pursuant to Planning and Zoning Law Government Code Section 65091 (a)(3), if the number of property owners to whom a public hearing notice would be mailed is greater than 1,000, a local agency may provide notice by placing a display advertisement of at least one -eight page in at least one newspaper of general circulation. The City placed a one -eight page display advertisement in the above mentioned newspapers of general circulation. Furthermore, on April 18, 2003, public notices were posted in nine public places (City Hall/South Coast Air Quality Management District, Diamond Bar Library, Country Hills Town Center Community Board, Vons/Sav-On Community Board, Ralph's shopping center - Diamond Bar Boulevard, 21070 Golden Springs Drive - JoAnne Fabrics, 990 Diamond Bar Boulevard - Oak Tree Lanes, 1235 Diamond Bar Boulevard - Albertson's and Heritage Park). 5. On August 26, 2003, the Planning Commission, after due consideration of public testimony, staff analysis and the Commission's deliberations, has determined that Development Code Amendment No. 2003-01 attached hereto as Exhibit "A" implements the Strategies of the General Plan. NOW, THEREFORE, it is found, determined and. resolved by the Planning Commission of the City of Diamond Bar as follows: This Planning Commission hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Resolution are true and correct. 2. The Planning Commission hereby finds that the Initial Study review and Negative Declaration No.2003-01 have been prepared by the City of Diamond Bar in compliance with the requirements of the California Environmental Quality Act (CEQA) of 1970 and guidelines promulgated thereunder, pursuant to Section 15070. Furthermore, Negative Declaration No. 2003-01 reflects the independent judgement of the City of Diamond Bar. 3. The Planning Commission hereby specifically finds and determines that, having considered the record as a whole including the findings set forth below, and changes and alterations which have been incorporated into and conditioned upon the proposed project set forth in the application, there is no evidence before this Planning Commission that the project proposed herein will have the potential of an adverse effect on wild life resources or the habitat upon which the wildlife depends. Based upon substantial evidence, this Planning Commission here - 2 by rebuts the presumption of adverse effects contained in Section 753.5 (d) of "title 14 of the California Code of Regulations. 4. Based on the findings and conclusions set forth above, the Planning Commission hereby recommends that the City Council adopt Development Code Amendment No. 2003-01 and Negative Declaration No. 2003-01 attached hereto as Exhibit "A" and incorporated herein by reference. The Planning Commission shall,: (a) Certify to the adoption of this Resolution; and (b) Forthwith transmit a certified copy of this Resolution to the City Council forthwith. APPROVED AND ADOPTED THIS 26TH OF AUGUST 2003, BY THE PLANNING COMMISSION OF THE CITY OF DIAMOND BAR. AN Steve Tye, Chairman 1, James DeStefano, Planning Commission Secretary, do hereby certify that the foregoing Resolution was duly introduced, passed, and adopted by the Planning Commission of the City of Diamond Bar, at a regular meeting of the Planning Commission held on the 26th day of August 2003, by the following vote: ATTEST: AYES: NOES: ABSENT: ABSTAIN: James DeStefano, Secretary 3 DEVELOPMENT CODE AMENDMENT NO. 2003-01 August 26, 2003 7--:v M ,A,i T, am, Subsection (5) of Section 22.36.050. Exemptions from sign permits of Article 111, Title 22 of the City of Diamond Bar. Municipal Code is hereby repealed and replaced with language to read as follows: (5) Election signs. Temporary signs pertaining to a local, State or national .elections are permitted on private property subject to the following limitations: a. Signs shall not exceed six square feet in residential zones and twelve square feet in commercial and industrial zones; b. If freestanding on the ground, signs shall not be more than five feet in height; C. If mounted on a building, signs shall not project more than two feet from the building; d. Signs shall not be erected on utility poles, traffic signals, traffic signs, meters, tree wells, trees or other living things; e. Signs shall be erected no more than sixty days prior to the election to which they relate, and must be removed within ten days after the election; f. Where a sign is erected on a vacant lot, or in a multi -tenant commercial center or in a location on a residential lot that is not visible from the residence, the candidate causing the sign to be erected shall upon request provide evidence to the city of the property owner's permission. Subsection (22) of Section 22.36.080. Prohibited signs of Article III, Title 22 of the City of Diamond Bar Municipal Code is hereby amended to read as follows: (22) Signs in the public right-of-way, except official traffic control, directional and identification signs erected by the City or another governmental agency with jurisdiction CALL TO ORDER: Chairman Tye called the Adjourned Regular meeting to order at 5:30 p.m. at City Hall, Conference Room B, 21825 East Copley Drive, Diamond Bar, California 91765. Present: Chairman Steve Tye, Vice Chairman ban Nolan, and Commissioners Steve Nelson, Joe Ruzicka and Jack Tanaka. Also present: James DeStefano, Deputy City Manager; Mike Jenkins, City Attorney; Linda Smith, Development Services Assistant, and Stella Marquez, Administrative Assistant. 2. MATTERS FROM THE AUDIENCEIPUBLIC COMMENTS: None Offered. DCM/DeStefano explained that tonight's meeting was scheduled to discuss certain issues with CA/Jenkins, one being the provision for the amount of English that would be required or appropriate on signs and two, standards for modifications to the political signs. C/Ruzicka felt strongly about commercial signs because he has received input from so many residents. He expressed his belief that the ability to co -exist in a framework of cultural diversity would be destroyed if citizens could not read and understand each other. Signs are the first step toward that mutual understanding. Once signs are, created that only a certain segment of the population can read and understanding will undermine that framework. He believed the Planning Commission should exercise its unique and influential position with the City Council by forwarding a report that conveys the importance of retaining the "common language bond" in the community. In his opinion, more important than percentages is the City's obligation and responsibility to provide for the public need. Chair/Tye concurred. His children attended public school in which 15 different languages were spoken. This City would have difficulty administering percentages absent a common standard. Perhaps signage could be one issue and there could still be an aspect of expression to convey a message whether it is through advertising, etc. He would like to maintain a community of country living rather than a community with the look of Rowland Heights. L -F T AUGUST 13, 2003 Page 2 PLANNING COMMISSION C/Tanaka concurred. As he travels through parts of other cities he is unable to determine what kind of business exists behind certain signs. He likes the direction taken by City Council with respect to signage. C/Nelson felt the concern was about Chinese characters. He asked himself if he would feel the same way about Spanish, Russian or Czech signage. Diamond Bar does not want to appear that it is fragmented. It does not set a good precedent -and he felt the same way about English only in schools. He felt it was important that people could pursue and remain proud of their ethnic and cultural backgrounds and that the issue of.signage has nothing to do with suppression of any particular group but to show that Diamond Bar is united. C/Ruzicka asked why if that were true would the aviation community throughout the world use English -only? C/Nelson asked if the City could vote for English -only signs? CA/Jenkins stated that the People could not adopt an unconstitutional law. VC/Nolan said that everything the other Commissioners have talked about is a very "slippery slope." To him it is easier to craft where signs go than to determine what can be said on signs. What he took from the background information was that cities could not regulate what signs say. CA/Jenkins thanked the Commissioners for adjusting their schedules to fit his commitments. This issue came up in 1998. At that time he advised the City Council that they could not, constitutionally, prevent businesses from placing on their business sign, other language and/or characters. He said that he felt confident that the City had a compelling interest in requiring businesses to at least identify themselves by having their name or type of business in English characters for public safety reasons. As a result, the fire department and code enforcement would know the nature of the business and could identify that business in the event of an emergency. In fact, as a direct result of that, the code currently provides that "each business must provide identification signage in English characters not less than 4 inches in height. All commercial businesses shall contain the address or unit number or letter of the occupant. Units shall be in English alphabet. Address numbers shall be in Arabic numerals. All letters and numerals shall be provided in digits which are visible from the adjacent street or parking lot drive aisle. "That is what he considered to be a legitimate and compelling interest that was served by an ordinance that requires certain basic information to be English characters. F -N\ AUGUST '13, 2003 Page 3' PLANNING COMMISSION CA/Jenkins provided legal analysis and cited constitutional law regarding First Amendment Rights to Freedom of Speech. C/Ruzicka said that according to information he received, commercial speech is the least protected form of speech. CA/Jenkins said that the information provided to C/Ruzicka was not correct. CA/Jenkins said that in fact, commercial speech is accorded a very high degree of protection. "To be valid an ordinance that restricts commercial speech that concerns lawful activity and is not misleading the regulation must seek to implement a substantial government interest. It must directly advance that interest and it must reach no further than necessary to accomplish the given objective. "Also, it is the law that regulation of speech may not be content based. We can only regulate speech with reference to time, place and manner — not content. CA/Jenkins said that if cities were to disallow non-English characters, whether Chinese or Russian, and also disallow words in foreign language, businesses such as Del Taco, El Pollo Loco and other businesses with names in foreign languages - most particularly Spanish - become verboten. So now we're telling major franchises that they have to change their names to English because we only want to see English on our signs. This is a complicated problem and the worst thing we can do is venture into this morass of sign law and First Amendment litigation. In most of the cases where these types of ordinances are challenged, cities lose. He cited the 1998 case Asian American Business Group v. City of Pomona. This case was decided by United States District Court in the Central District of California. It has never been overruled. It is published law. It is good law. The case involved a challenge to an ordinance passed by a neighboring city, the City of Pomona. It required that 50 percent of the sign area be devoted to English alphabetical characters. The ordinance was challenged and the Court found that the ordinance was unconstitutional on three distinct grounds: 1) That the city failed to meet the, burden of having a compelling state interest and having the ordinance narrowly drawn to advance that interest. The interest that was cited by the city was "identification of the business." The Court said it was a legitimate business but you do not have to require 50 percent of the sign in order to advance that interest. You could require that the name and address be in English lettering without it necessarily being 50 percent and it would still be visible from the street and to fire and police personnel and it would serve your legitimate interest. Footnote: That is not the interest that you are asserting 2) The Court relies on a second ground to invalidate the ordinance, and that is, that it discriminates on the basis of national origin. Discrimination on the basis of national origin violates the constitution. The Court says that speech/language, is an important part of and flows from national AUGUST 1352003 Page 4 PLANNING COMMISSION origin. "People expressing themselves in their own language" is part of who they are and where they're from. When we tell people that they cannot speak in their own language we are discriminating against them based on their national origin. He cited two examples; and 3) That it is content based. In order to know whether the sign is legal or illegal you have to read the sign. Unless we have a compelling interest, we cannot regulate content. This case is good law and it has never been overruled. It was decided in the Central District of California and other Courts have cited this case law being good law. As a lawyer, when a client says to him "what is the law" he looks for case law because it is these cases that are decided by Courts that make up the law. And I say, "here is a*case that is on all fours." There is no gray. And case law says, this type of ordinance is unconstitutional — not for one or two reasons, but for three reasons. So, I report that to my client. That is the law. If you do not follow the law, there is risk. That is all I do as a lawyer. And you have to be the judge of whether or not you are prepared to accept that risk. Other cities may very well have such ordinances on their books. It would not surprise him if there were cities throughout California and the United States that had many unlawful ordinances on their books. Just last March in the election campaign in another city he happens to represent, some enterprising citizen discovered that imbedded in the municipal code was a provision that made it unlawful for unmarried people to have'sex in the city. He decided that this was worth talking about. He contacted a few newspapers and it made national headlines. The law was clearly unlawful, pre-empted by state law. It was an invasion of privacy and not enforceable. It has been on the books since 1958. 1 had never seen it and I have been that city's attorney for over 20 years. Newer cities like Diamond Bar do not have laws that incorporate ancient and archaic laws that have long -since left the books of most cities. There are lots of laws on the books of cities that are there because they were adopted before the law. was cleared up or they were adopted without the benefit of legal advice, or, they simply have not been challenged. Whether they are enforced or not is another question. Whether they would withstand scrutiny if they Were challenged is yet another question. Curiously and entirely unrelated, city attorneys have an email network and communicate on issues of the day. On any given day he receives 25 to 50 emails from other city attorneys on numerous issues. An attorney with a law firm in Fullerton asked if there were any cities that required commercial signs to be in English -only and are there any problems with such a requirement? The first response came from his partner to wit: "I do not, but there is a significant First Amendment issue. Unless there is a public healthy, safety or welfare issue I see no way for such a ruling. "He cited other emails that read similarly. L AUGUST 13, 2003 Page 5. PLANNING COMMISSION CA/Jenkins spoke about the problem of liability. When a city enacts a law, the City Council has "legislative immunity." That means that individual city council members cannot be held liable in damages for violating people's rights by virtue of their voting to enact a law. However, the flip side is that you are not just enacting a law, you are enforcing a law. And so, when you enact a law and then you say to your staff, go out and enforce that law, you are no longer protected by legislative immunity. Now all you have is something called "qualified immunity." Legislative immunity is absolute. It means that you cannot get past it. Qualified immunity is just what that states — it is qualified. You are only immune from liability for damages for violating someone's constitutional rights if you acted in "good faith." The question of whether or not you act in good faith depends, in part, on whether or not there is clearly established law. The Ninth Circuit Court of Appeals, in a case dealing with an ordinance that it found to be unconstitutional stated "here, the city officials are not entitled to qualified immunity. For over 50 years it has been clearly established that a licensing scheme is impermissible if it allows officials unfettered discretion to impose prior restraints on speech. Because the city officials, in attempting to enforce the ordinance, violated clearly established constitutional rights of which a reasonable person would have known, they are not entitled to qualified immunity. "In other words, if a city enacts unconstitutional law and the city has good reason to know that the law is unconstitutional, an aggrieved party can file a suit for violation of constitutional rights. They sue the city as an entity,The city, as an entity, has no immunities at all. If the law is found to be unconstitutional and to have violated someone's constitutional rights, the city is automatically libel. The city can be held libel in damages and for attorney's fees. The person may also sue individual officers of the city including Commissioners, Council Members, DCM/DeStefano, his code enforcement officer, and whoever else is out there enforcing an unconstitutional law. This case says that if everyone involved had good reason to know that the law was unconstitutional you have no "qualified immunity. "You cannot defend by saying "I thought it was valid — I thought it was constitutional. "You are personally "on the hook" for damages. The city is not in a position to compensate or reimburse you for damages that are imposed against you. Plaintiffs cannot recover punitive damages against cities. Cities are immune from punitive damages. Punitive damages are awarded when a person is found to be acting in bad faith or with ' malice. Punitive damages can be awarded against individuals, even if they are city officials. Punitive damage awards would be paid out of individual pockets if found libel for constitutional rights. Why do I emphasize this so strongly? Because there is risk and risk analysis involved. And the question is who wants to take that risk? If this were a questionable case and there weren't a case directly on -point decided right here in the Central District of California — if the law AUGUST 13, 2003 Page 6 PLANNING COMMISSION were fuzzy, I would tell you. I do not believe the law is fuzzy and I tell you that there is risk because it is not just the city's money we're talking about, it is the potential for personal liability. CA/Jenkins returned to'the issue of his earlier footnote. Even if the City set aside the national origin discrimination problem and put aside the content regulation problem, is there a legitimate governmental interest? The standard is that the City must seek to implement a substantial governmental interest. To the extent that this City has content -based regulation, the interest must be a "compelling" interest. Are there any cases that suggest that this interest — this goal that you have put forth, is, as a legal matter, a compelling governmental interest? His sense is that when you are controlling your own employees or your own workplace there may be interests that are substantial. What is this City's interest in a government in assuring uniformity of speech? He said he had the sense from his passion about the subject that C/Ruzicka felt it was compelling and substantial that the City should have a community that in effect speaks with, if not one voice, in one language. He was not aware of any case that would say that that is compelling. Additionally, the Pomona case and other cases suggest that an equally compelling aspect of this country's citizens respect diversity of the population. While C/Ruzicka respects the diversity of the population and wants it to speak in one voice, there is an equal argument that suggests that one respects the diversity of the population by allowing people to speak in their own languages. C/Ruzicka said he was not trying to say he wanted everyone to speak with one voice. He was saying that when we speak.to each other in the form of commercial signs we ought to speak in one language, or as close to it as we possibly can. That's what makes this City the great City that it is — because there is so much respect for culture, race, national origin — that we attempt to honor and respect all of those things. That's why he attempted to emphasize that this City would encourage fragmentation if we segmented the population by allowing the kinds of signs that speak to only one segment of the population. CA/Jenkins said he understood C/Ruzicka's message. Without making value judgments, it is a sociological issue — would it meet the test of being a compelling state interest so as to override those precious First Amendment rights? C/R ' uzicka. stated that he did not realize the risk was so great. Unless he was absolutely assured that Diamond Bar had a compelling interest he would not push anything that would put the City or its employees and residents at that great of a risk. He wondered if there was something that could be done that exceeded staff's report to communicate with residents and could the state and the constitution AUGUST 13, 2003 Page 7 PLANNING COMMISSION recognize that the City was attempting alleviate anguished feelings among and between.cu Itu rally diverse ethnic groups as well as, minimize social problems? CA/Jenkins said the City could certainly consider doing something beyond what it already does. He asked if C/Ruzicka had any ideas. He pointed out that it is an area that has a lot of land mines. There are many that would, for example, take an opposite point of view — people who would say, "go to Chinatown — go to Little Tokyo — go to Little Saigon, etc. One can go to areas of cities in Southern California that have character all their own that demonstrate the diversity of our population, that this is a country that draws people from all parts of the world and accommodates them by allowing free expression based on their own culture. There are many different points of view about what is best for our communities, what brings us together and what makes our communities desirable places to live. Bottom line, the question is what is constitutional and what is not based on the standard. He invited the Commissioners to offer some additional suggestions. He reminded them that the City does require businesses to be identified in English. Chair/Tye asked why someone would not challenge the City's current requirement for 4" English character letters? CA/Jenkins explained that the City determined four inches was the minimum height that allowed police and fire personnel to identify the business. In his judgment, the Court would uphold that it was a reasonable determination. Chair/Tye asked how it would infringe on freedom of speech rights to require a 24 - inch channel sign to have 15 inches devoted to English characters and six inches devoted to whatever language and characters the business owner wanted to use to communicate? How would reversal of today's code infringe on speech? CA/Jenkins responded "because our law has to advance our interest which is identification of the business. Chair/Tye asked what if his interest was the economic well being of his community and cohesiveness about which C/Ruzicka spoke? CA/Jenkins responded that a) he did not believe the Court would find that argument compelling enough to justify the incursion on the First Amendment rights of the speaker and b) that the Court would likely find that it was discriminatory based on national origin. And, it would be an end run around the Pomona case that says you cannot have a 50/50 rule because you would be relegating jt2k speech to 50 percent or less of a percent of the sign. If, on the other hand, you said that if you had a sign of X width you have a minimum of 4 inches. But if you had a sign of Y AUGUST 13, 2003 Page 8 PLANNING COMMISSION width then you must have a minimum of 10 inches, still leaving the rest of the sign for otherexpression, that is possible. For instance, if you had a standard 14 x 48 foot billboard and required 4 inch lettering, the rest of the message on the billboard might overpower it. One could certainly argue that 4 inches isn't enough in that situation. However, 4 inches would certainly be enough on the X dimension. Could the ordinance contain "relativity? He believed that it could. DCM/DeStefano asked if the City had the flexibility to base size on public safety wherein public officials were able to say that 4 inch letters was not sufficient and that they needed to be six or eight inches high in order to be clearly seen from the street? CA/Jenkins felt it was possible if evidence was placed in the record. DCM/DeStefano said there were several businesses that resided well away from the street and some were very near the public street. Perhaps there was a method for arriving at a standard that had to do with distance as well. DCM/DeStefano responded to C/Nelson that the minimum standard for monument signs is six inches. C/Nelson pointed out that monument signs are on the street. What was the reason for implementing those standards? DCM/DeStefano explained that the standard was implemented to eliminate the clutter of 10 signs that are all two inches high. Individual signage placement on monument signs is usually negotiated between the property owner and the tenant. VC/Nolan asked if the City could regulate fonts and color to create uniformity throughout the community? CA/Jenkins responded that cities were able to regulate the appearance of a sign with respect to color, font, etc., to achieve some uniformity. Some communities were very restrictive with respect to commercial signage, color of buildings, etc. Some cities have been sued because they attempted to get franchise restaurants to change signage and/or building color, for instance. Cities have a lot of power to try to achieve aesthetic uniformity. VC/Nolan felt that part of the issue was aesthetics. AUGUST 13, 2003 Page 9 PLANNING COMMISSION Chair/Tye asked CA/Jenkins if he felt it would not be defensible from a "compelling interest of the community' if people were not able to identify the nature of the business. CA/Jenkins said that he not only believed it would not be compelling, he also believed it would not be necessarily credible because it is evident that businesses with foreign language signage thrive and that they may enhance economic viability of a community and attract people from other areas. If Diamond Bar attempted to support a law with evidence that diversity of language on its signage detracts from our economic vitality as a community, there would have to be evidence to prove that claim. VC/Nolan felt that masking those sorts of laws overrides what the City is trying to accomplish. To Chair/Tye's point on the 50/50,4 -inch rule and public safety issues, if it takes 10 strokes of the hammer to put the nail in you don't need a hundred strokes. That's where the 50/50 rule comes in. So instead, we're suggesting that it could be hidden under the guise of public safety and make it a 50/50 proposition when 50/50 is unrealistic. To him it seemed difficult to circumvent the law. If there were a sign about a business that was unfavorable to a majority of the residents they would not do business there and the business would close and go away. If it goes the other way it would mean that the demographics and/or the dynamics of the community were changing. He felt it was difficult to stem the tide based on litigation and code. To him, the best method would be to figure out how to control it through aesthetics or size. He felt there was real merit to alienation of people who were not aware of what business was being conducted. That needed to be remedied. He felt that over time, all neighborhoods had transitioned. C/Nelson felt that VC/Nolan had a point. As much as he did not disagree with Chair/Tye 'he felt that country living looked great on a logo but it was something more or less in the eye of the beholder. Chair/Tye agreed that things were changing. Even as dynamics change, the City is seeking uniformity and continuity. How is that accomplished? And, if economics is not a compelling interest, what is a compelling interest that works? CA/Jenkins could not cite a compelling interest that would work in this situation. He felt that there were some things over which municipalities had little control. C/Tanaka suggested that during the City's approval process for signage that staff and the Chamber could work with businesses to recommend a certain type of signage that would assist the business owner in reaching all segments of the community. AUGUST 13,.2003 Page 10 PLANNING COMMISSION CA/Jenkins said that the Chamber could play that role far more easily than could a gove mment. The Chamber is a private organization. If they want to provide materials in an attempt to establish a certain business community character, that is exactly within their role. Richard Malooly asked if the Chamber could promote a suggested business standard? CA/Jenkins concurred that it was important for new businesses coming into the community to understand the prevailing sentiment about how they advertise and express themselves. The Chamber's job is to assist business in being healthy, vital and vibrant members of the business community. Chair/Tye felt that in order for the law to change, someone had to step forward and challenge it. C/Ruzicka said he was not interested in placing the City or its employees in a position that invited a lawsuit merely to challenge the law. CA/Jenkins assured the Commissioners that he would retain C/Ruzicka's well- written memorandum and report back to the City in the event that similar laws were challenged and overturned. �-Ill K-11 CA/Jenkins reported that there was good guidance about what was and was not permitted with respect to political signs. Some communities allowed political signs on public property and many communities did not. Cities cannot discriminate or regulate on the basis of content, only on the basis of time, place and manner. One of the biggest problems with allowing for political signs on public property is that once it is determined that sign can be placed on the public right-of-way and if it conveys a message pertaiding to acts, cities are then involved in content regulation. As a municipality, Diamond Bar is a government of "limited" powers. Under the law, the United States is unlike other countries. This is essentially the only Country that is a government of limited powers that respects private and individual rights. We are not in the business of telling people what they believe and what they can and cannot say as long as it is not illegal, misleading or fraudulent. In short, once you open the public right-of-way to signage it becomes very difficult to control what people can put up. You can prohibit signs in the public right-of-way. However, if you do so, you must prohibit all signs in the public right-of-way except for traffic signs. And, you cannot discriminate on the basis of content. Some cities allow for political signs in the public right-of-way and, in his opinion, those ordinances are always subject to challenge to the extent that cities do not allow any other signs expressing any other message. Cities that do not allow political signs in the public right-of-way do so primarily because they think signs in the right-of-way add to clutter, they make a mess, they are distracting, and they usually don't get picked up following an election. Additionally, the signs are not really reflective of public sentiment about the candidate, they are only reflective of the candidate's wealth or willingness to devote resources to producing a large number of signs and plastering them about. So, these cities allow signs only on private property and they regulate them to make sure they fall within certain parameters. This community has allowed political signs on public property. Do you want to recommend that we want them only on private property and not in the public right- of-way? If you do that, you get into issues of how big, how many and how long. He referred the Commissioners to his March 1, 2002, memorandum to DCM/DeStefano called "Political Signs" that accompanied an ordinance he prepared. He reiterated his recommendations if the Commission recommended placement of political signs on private property only. For instance, four square feet would probably be the minimum size. The City could regulate height of the sign. He, felt that 60 days prior to an election would be the minimum standard. There are a number of cases that held that various different time limits were impermissible. One case said that 30 days was unconstitutional. Another case cited 45 days as unconstitutional. One case upholds 60. How many days after the election can you require they be removed? There is much more flexibility on this issue because after the election, the signs have no particular First Amendment value because the election is over. Therefore, the City could require removal within 3, 5, or 10 days. He was asked if the City could require a bond to assure sign removal. That particular question is most often raised when cities allow signs in the public right-of- way. We could say that within a certain number of days of the election the signs are to be removed. If those signs were on public property, the City could advise the party that the City would remove the signs and bill the individual for the removal cost. Cities cannot require owners to give written consent as a condition of placing signs on private property. However, he did write language that said the City could require them to show that the owner consented to placement on their property if the sign was in a location that wasn't visible from the house. The City's interest was in avoiding sign clutter, avoiding clutter of the rights-of-way by assuring that private property owners know their property is being used for signage. He believed that was not an issue when the sign was in the front yard and clearly visible. It was an issue when signs were placed on hillside slopes near streets and away from the AUGUST 13, 2003 Page 12 PLANNING COMMISSION. view of the house. There was also discussion about limiting the number of signs per property. There is case law that says you cannot do that. He felt that in Diamond Bar the City would not have people puffing 100 signs on their property. If there are three candidates, there could be three signs in the front yard and three signs in the side yard. Again, the City could impose size limitation so those signs would not create a huge problem. CA/Jenkins reported that the Council brought up an issue recently that he continues to grapple with — the question of political signs in private commercial parking lots. For instance, candidates place their political signs high on a utility pole/light standard. It is private property; it is not a public right-of-way. The private property owner may or may not consent to it but he doesn't want to expend the resources to remove the sign. The Council wanted to know what could be done in that situation. He said he was still not quite sure what to do about that situation and how to address it in such a way that it would meet the standards set forth by the City. C/Ruzicka had no problem with political signs going up 90 to 120 days ahead of the election. Getting them down after the election and making the City look good again is his only concern. Chair/Tye felt that 30 days was sufficient. He felt the biggest issue was eliminating signs from the public right-of-way. It is unbelievable to him that not allowing signs in the public right-of-way is not an infringement on someone's right to free speech, right of association and right to express constitutionally protected privilege. " CA/Jenkins said the Court was very clear that cities could restrict placement of signs in the public right-of-way as long as cities did not discriminate on the basis of content. Cities could decide that its streets were for pedestrian and vehicular traffic only and that the only signage should be traffic signage. Other signage is a distraction to motorists and clutters up the community. To the contrary, in driving his community that only allows signs on private property during elections he can tell which candidates seem to have the grass roots support because they have more signs in his neighbor's front yards. Signs can easily be placed in the public right-of- way. It doesn't mean anything to him other than it creates blight on the area. One point of view is not favorable over the other. CA/Jenkins pointed out that real estate signs could be prohibited in the public right- of4ay. Real estate directional signs could not be prohibited on private property. AUGUST 13, 2003 Page 13 PLANNING COMMISSION Richard Malooly felt it would be difficult to maintain the meridian if it were filled with signs. Certain cities restrict the number of signs. It inhibits..his real estate business not to be able to put up directional signs. However, it is in the agent's best interest to remove the sign on Sunday night. CA/Jenkins said that cities that prohibit signs in the public right-of-way would also include open house directional signs. However, cities could not prevent them from being placed on private property. As a practical matter, most cities do not conduct a lot of code enforcement between 10:00 a.m. and 4:00 p.m. on Sunday. VC/Nolan felt more signs were ripped, from public property than from private property• Chair/Tye reiterated his concern about telling people they could not put signs on the public right-of-way. C/Ruzicka said he would favor eliminating signs in the public right-of-way. Responding to C/Nelson, CA/Jenkins said that to the extent the City allowed signs in the public right-of-way it could limit time, place and manner. Chair/Tye asked if the City currently limits time, place and manner. DCM/DeStefano responded that signs were not allowed to be any larger than the largest commercial sign. Therefore, someone could have a 72 square foot sign on private property. On public property, the limit is about 6 square feet. CA/Jenkins stated that height limitations do not apply.to private parking lots. DCM/DeStefano said the City does not have a height restriction on public property. However, signs are not permitted on trees and utility poles, etc. VC/Nolan asked if the municipalities CA/Jenkins represents restrict political signs in the public right-of-way? CA/Jenkins responded "all signs." C/Nelson asked if cities enforce unequally? CA/Jenkins said he did not know that any of the cities he represented had routine code enforcement on Sundays. However, he knew that political sign enforcement was vigorous during elections. AUGUST 13,2003 Page 14 PLANNING COMMISSION Chair/Tye said he did not want to ban signs from the public right-of-way and he did not feel it should be the direction of the Planning Commission or the City Council. DCM/DeStefano stated this matter would be on the August 26, 2003, Planning Commission agenda for discussion and recommendation to the City Council. The Commissioners thanked CA/Jenkins for his assistance and insight. ADJOURNMENT: The meeting was concluded at 7:45 p.m. Respectfully Submitted, James DeStefano Deputy City Manager Attest: Chairman Steve Tye MAY 13, 2003 Page 4, PLANNING COMMSSION AYES: CONMSSIONERS: Nelson, Ruzicka, Tanaka, VC/Nolan, Chair/Tye NOES: CON WISSIONERS: None ABSENT: CONMSSIONERS: None 7.3 Development Code Amendment No. 2003-01 (pursuant to Code Section 22.44) is a request to amend the following Articles/Sections of the Development Code: Citywide City of Diamond Bar AssocP/Lungu explained the following proposed amendments. Sections 22.38.010 22.38:030 and 22.38.060 — Tree Preservation and Protection: Amendment relates to the preservation of naturalized California pepper trees where appropriate and changes "naturalized California pepper trees" to just pepper trees. Section 22.16.090 — Setback Regulations and Exceptions: Amendment relates to setbacks for walls and fences on a reverse corner lot. Gi ves the director authority to reverse the required setback from 10 feet to 5 feet on a reverse corner lot if the clear line of site is maintained for vehicles and pedestrian traffic. This is a housekeeping amendment to clean up the typos. C/Tanaka asked AssocP/Lungu to give him an example of a reverse corner lot and she sketched an example on the overhead. Section 22.42.110, Table 3-15 --Residential AccessoryUses and Structures: Amendment relates to setbacks for a tennis court and guesthouse. Table 3-15 does not currently list setbacks for tennis courts . and guesthouses. The recommendation is to make the language clearer by including in the table for tennis courts, that they have side and rear setbacks of 10 feet and tennis courts on a street side would have the same setback as the main structure. For guesthouses, staff is recommending that setbacks be the same as the main structure. The next change is for housekeeping purposes and specifies overall parcel coverage as ,The in each of the residential zoning districts. MAY; 13, 2003. Page 5 PLANNING COMMISSION Section 22 42 110 Residential Accessory Uses and Structures: Amendment relates to the maximum height of tennis court fencing and walls. Experience shows that tennis courts need 10 foot fencing. Section 22 34 030 Single Family Standards Section 22.34.040 -- Multi-Farnilv Standards, Section 22.34.050 — Commercial Standards and Section 22.34.060 — Industrial Standards: Amendment relates to landscape maintenance standards for slopes. This section relates to maintenance of slopes on private property that are adjacent or back up to a thoroughfare. Chair/Tye noticed some rather unconventional slopes. Where would this code leave those people? Or, in the instance of the elderly lady whose property backs up to Diamond Bar Boulevard that Paint the Town helped one year. She is not in a position to vegetate and irrigate the slope. DCM/DeStefano responded that the area across from Lorbeer owned by the lady that Paint the Town helped about three years ago may be an area, due to its high visibility, that the City could include in an assessment district. Code Enforcement is a tool, but would the elderly, perhaps fixed income and handicapped property owner deal with the situation? In other areas, Code Enforcement may be appropriate. There is an entire tract of homes in Duarte for which front yards were planted in Cape weed. It is a species that other homeowners pull out of their front yards. It is difficult to arrive at standards. C/Ruzicka felt that any type of landscape situation should take into consideration that Diamond Bar is in a desert area. Whatever the City decides should take into account today's water usage and the population forecast for 20 years from today and what kind of water usage would be faced at that point. He felt the City would do itself a great service by making certain that sustained growth and water use is taken into consideration now so that this section of the code does not have to be rewritten down the line. DCM/DeStefano stated that during the past 14 years Diamond Bar began a process to green up. Brown native landscaping was the appropriate palate of choice prior to that time. Projects approved 10, 12, and 14 years ago were predominately utilizing those types of plant palates — brown, seasonal, lower water usage overall. As the community and its population has grown it now wants green slopes. Case in point — Chino Hills and the development projects along Grand Avenue. The City has added trees and flowers to medians — a lot more green and a lot more water — because that is what the public is telling the City they want. Hillside projects MAY 13, 2003 area lot greener in their landscaping palate at this point in history that they were a few years ago. C/Ruzicka's point is well taken. However, the City is being pulled in a different direction. C/Ruzicka said the public should have what it wants as long as everyone bears in mind that there will be an increased price for the additional water the City uses. Section 22.30.080 —Driveways and Site Access: Amendment relates to the pavement width of a driveway in a single-family residential zoning district. This amendment would require that a Minor Conditional Use Permit be obtained through the public hearing process if the property owner wanted to increase the width of the driveway area beyond 12 feet in excess of the garage width. The purpose of this Section is to prevent people from cementing their front yards. Chair/Tye said his house rested on a flag lot. If he wanted to extend his driveway to the right side of his garage back toward the back yard he could do so without a Minor Conditional Use Permit if he kept the width to 12 feet or under. If he wanted 13 feet, it would require a public hearing. How do you measure a flag .lot? DCM/DeStefano said that the majority of the single-family lots in the City are traditional. Flag lots are unusual. A Variance may be necessary to achieve an appropriate goal for a flag lot. Sections 22.36.050 and 22.36.080 — Exemptions from Sign Permits and Prohibited Signs- Amendment i ns:Amendment relates to the placement and size of election signs and signs in the public right- of-way. The recommended amendment would paragraph 5 would be repealed. It would be replaced with the language under the recommended amendment that reads —Election signs, temporary signs pertaining to a local, state or national election, are permitted on private property subject to the following limitations: (as listed within the staff report and forwarded to staff by the City Attorney).. According to the City Attorney, he felt that 60 days was the most appropriate restrictive time -period for sign placement. The next section eliminates signs in the public right-of-way except official, traffic control, directional and identification signs erected by the City or other government agencies with jurisdiction. DCM/DeStefano said that this amendment responds to adverse reactions during recent elections. MAY 137 2003 Page 7 PLANNING COMMISSION Chair/Tye said he thought people were entitled to place election signs in the public right-of- way within 30 days of an election. DCM/DeStefano responded that according to the City Attorney, individuals are not entitled to place election signs in -the public right-of-way even though it has become common practice. If the Commission wishes to allow signs within the public right-of-way, that would be the recommendation to the Council. VC/Nolan asked if staff could determine other municipalities that have adopted a similar sign ordinance. He applauded the language and the effort to remove election signs from the public right-of-way. Section 22.42.060 — Guesthouses: amendment relates to lot coverage for guesthouses. Section 22.42.130 — Radio and Television Antenna and Wireless Telecommunications Antenna Facilities: amendment relates to the number of telecommunications facilities on a parcel in residential zoning districts. Currently, the code does not specify these types of facilities with respect to whether more than one would be allowed per property. Section 22.42.120 — Secondary Housing Units: amendment relates to changing the current Minor Conditional Use process to a ministerial review process to comply with Government Code 65852.2. Section 22 68 030 — Restrictions on Non -Conforming Structures: amendment relates to when a structure shall be deemed non -conforming. Staff recommends that the Planning Commission adopt a resolution recommending City Council approval of Development Code Amendment No. 2003-01. C/Tanaka was concerned about the sign standards. He would favor approval of the remaining items and would like further consideration of sign standards with additional input from staff about how other cities handle sign standards. VC/Nolan felt it would benefit the Commission to understand what other jurisdictions are doing. MAY 13, 2003 Page $ PLANNING COMMISSION C/Nelson agreed. He felt that the concept of restricting public property for placement of election signs made sense. Given what took place during a recent election, it would add an element of accountability and responsibility to the election process. On the other hand he did not want to diminish the excitement of political debate. He too, favored discussing the sign standards further and approving the balance of requested amendments. Chair/Tye concurred. He was surprised that the City Attorney found it defensible to ban election signs in public right-of-way. His understanding is that it would infringe on his freedom of speech. He realized there may be a need for limitations and the limitations may have been requirements that were ignored. He has a problem banning election signs from public right-of-ways and would like additional information on the subject including other jurisdictions that have found it to be successful and those that have been able to ban election signs and found it to be defensible. DCM/DeStefano asked if the Commission was comfortable with the recommended standards for landscaping. Chair/Tye said he did have reservations about approving the recommended standards. To C/Ruzicka's point about water usage he would like to see more data on that subject. VC/Nolan reiterated his desire to see what other communities similar to Diamond Bar are doing with regard to landscaping. He brought up the matter of cell sites. DCM/DeStefano asked if the Commission had a desire to limit or reduce the number of items on church and school properties as it does on residential properties. C/Tanaka felt the Commission should consider each type of slope. Some have steep grades and other slope grades are relatively -mild. Additionally, the City has slopes that have been cut into the hillside as opposed to a fill and they would be difficult to work with. VC/Nolan felt the City should have restrictions and as a review body have some recourse before it gets out of hand. Regarding the sign ordinance, his vision of people having signs in their yards is that someone sold the property owner on the notion that he would vote for the individual. Private businesses do the same thing. The race to lace them up and down Diamond Bar Boulevard does not speak to that. As a voter it would be more compelling to see a sign on private property than on a major boulevard. He does not want Diamond Bar to be the first City with a sign ordinance that adopts a restrictive ordinance. If there are other municipalities that have been successful in adopting such an ordinance and there have been no issues, he would feel a lot more comfortable. MAY 13, 2003 Page 9 PLANNING COM MISS ION DCM/DeStefano stated that based on the comments received from Commissioners, staff would like an opportunity to bring additional inforrnation back to the Commission for further consideration at the June 24 meeting. If the Commission isi comfortable in adopting the balance of the items, it could excise the three categories of concem. Chair/Tye opened the public hearing. C/Tanaka moved, C/Nelson seconded, to recommend adoption of a resolution approving Development Code Amendment No. 2003-01 extricating Sections 22.34.030, 22.34.040, 22.34.050, 22.34.060, 22.36.050, 22.36.080 and 22.42-130, and continue the public hearing on those items to June 24, 2003. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Nelson, Ruzicka, Tanaka, VC/Nolan, Chair/Tye NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: None 8. PLANNING COM1VIISSION COMMENTS: C/Nelson said he watched with keen interest the telecommunications tower at St. Denis go up and he is very pleased with the result of the installation. His only comment was that next time the tree should not look so perfect and that the bolts tying the tree to the ground should be camouflaged. Chair/Tye agreed that it was a good installation. 9. INFORMATIONAL ITEMS: DCM/DeStefano earlier joined the City Council for tonight's study of the City's current and next year's goals and objectives. Council is working on next year's budget. Some of the items that staff would likely bring to the Commission would be some hillside residential projects, zone changes to coincide with the City's General Plan, General Plan changes and other projects yet to be determined. In 2004 staff should be presenting the Commission with larger retail projects. to be constructed on some vacant remaining land — one on the Calvary Chapel site and Site D. Similar to Council's recognition of "Business of the Month" it is considering "House of the Month" to acknowledge well -kept properties. The same format could be used to showcase a "Business of the Month." DCM/DeStefano stated that the Extended -Stay America project was withdrawn at the last second. Extended -Stay America, a partner in the project, would have exceeded its debt ratio with its expansion campaign so all projects not physically under construction were stopped. DCM/DeStefano reported that he, Council Members, the City Manager and other staff members would be attending the Retail Developers Conference in Us Vegas next week. JUNE 24, 2003 Page 6 PLANNING COMMISSION 7. CONTINUED PUBLIC HEARINGS: 7.1 Development Code Amendment No. 2003-01 (pursuant to Code Section 22.44) is a request to amend the following Article/Sections of the Development Code. (Continued from May 13, 2003). AssocP/Lungu presented staffs report on the following items. S , taff recommends that the Planning Commission direct staff to prepare a resolution recommending City Council approval of Development code Amendment No. 2003-01, relative to Section No.'s 22.34.030; 22.34.040; 22.34.050; 22.34.060; 22.36.050; 22.36.080; and 22.42.130. Section 22.34.030 — Single -Family Standards, Section 22.34.040 — Multi - Family Standards, Section 22.34.050 — Commercial Standards and Section 22.34.060 — Industrial Standards: amendment relates to landscape maintenance standards for slopes. C/Ruzicka was concerned about the language of the recommended amendment. Does "appearance at the immediate neighborhood" mean the same thing as "appearance of the immediate neighborhood?" And, should that hold true throughout the recommended changes? Chair/Tye asked if no plant material meet the intent of the amendment? He did not see language requiring a slope to have landscaping. Is the City trying to clean up the look or obtain a certain look? He believed the City was trying to clean up the hillsides.. If by stripping the hillside it has thus "been cleaned up" and has the City accomplished its purpose or, is the City going to require the homeowner plant something? AssocP/Lungu said the amendment could say that there must be landscaping if that is what the Commission wants. DCM/DeStefano stated that if the recommended language is not clear the language should be amended accordingly. The beginning section states that yards and setback areas be landscaped with lawns, trees, shrubs, etc. A slope is not necessarily a setback. You could have a slope that exceeded the 25 -foot setback. That may be the area that needs to be clarified to insure that the entirety of slope is landscaped, irrigated, etc. He believed that the City was generally looking to have all slopes landscaped and 11 JUNE 24 2003 Page 7 PLANNING COMMISSION irrigated, not necessarily a consistent landscaping theme. Absent the City's ownership/easement, it may not be feasible to require consistent citywide landscaping. VC/Nolan said it seems to him that if residents elect to maintain a barren hillside and take appropriate steps for irrigation, it should be allowed. Chair/Tye agreed. DCM/DeStefano said that the City is not interested in properties that appear well groomed but are just dirt. The City would prefer to deal with slopes that share the commonality of at least a green palate and maintenance that deals with erosion control. AssocP/Lungu responded to VC/Nolan that the reference is to the entire slope, not just the setback area. As suggested by Chair/Tye, the language should probably be more specific so that the beginning statement says, for instance, "that yard and slope areas shall be landscaped, etc." C/Tanaka said he did not want to require, for instance, that the entire slope must be filled in within two years. C/Ruzicka agreed with C/Tanaka. He referred to page 5 of the San Dimas ordinance. DCM/DeStefano suggested language to wit: the ground cover "substantially" rather than "completely." Chair/Tye submitted that the City has current ordinances that are not enforced. He wanted to understand if it was the City's objective to enforce this amendment. DCM/DeStefano said that there are literally hundreds of codes that the City's Code Enforcement Officers are obligated to enforce. This, like any other aspect of law enforcement boils down to priorities and time -management issues. This issue is of substantial importance to the community and to the City Council. Upon adoption of such an amendment by City Council the officers would be out in the field using the tools they now have to gain compliance. Most likely, the most obvious candidates will receive imminent consideration. JUNE 24, 2003 Page 8 PLANNING COMMISSI.ON C[Tanaka was concerned about vegetable gardens that face the street. Chair/Tye opened the public hearing on the property maintenance item. There being no one present who wished to speak on this matter, Chair/Tye closed the public hearing. C/Ruzicka recommend including language to require some type of ground cover that would substantially cover the slope within two years of planting. The Commission concurred. Sections 22.36.050 and 22.36.080 — Exemptions from Sign Permits and Prohibited Signs: Amendment relates to the placement and size of election signs and signs in the public right-of-way. AssocP/Lungu reported that the City Attorney is recommending 60 days rather than 30 days for the number of days before an election that a sign could be installed. Most cities do not allow signs in the public right-of-way. The City Attorney wanted Item 5.e. deleted and the following statement inserted in its place: "Where a sign is erected on a vacant lot or in a multi - tenant commercial center in a location on a residential lot that is not visible from the residence, the person causing the sign to be erected shall, upon request, provide evidence to the City of the property owner's permission." C/Ruzicka asked if Item 5.B. on page 7, should have "than" added so that it reads "more than"? VC/Nolan felt there was no need to change the current resolution from 30 days. He felt 30 days was appropriate. Additionally, he agreed with the majority of communities that ordained removing signs from the public right- of-way. Chair/Tye respectfully disagreed because he felt that signage along the public right-of-way was an effective communication tool. He wanted to know how it could be determined who caused the sign to be erected. DCM/DeStefano responded that the City deals with inappropriate signage by going directly to the candidate and asking that the sign be brought into compliance or removed. M M JI JUNE 24, 2003. Page 9 PLANNING COMMISSION Chair/Tye asked what the City does when signage is erected that has nothing to do with any specific candidate that appear on private property? DCM/DeStefano responded that the City might allow the sign to remain and inquire of the property owner whether they granted permission for it to be there. From a free speech standpoint the sign can remain as long as it meets the other requirements of the City's code. VC/Nolan felt that signage in the public right-of-way reached staggering proportions during election campaigns. To him, the high road would be to limit signs in the public -right-of-way. He felt.that it was unrealistic to expect candidates to show restraint. Therefore, it is incumbent upon the City to lay foundation and direction. C/Tanaka agreed with Chair/Tye's comments that an individual's right to freedom of speech should not be limited. At the same time he appreciated VC/Nolan's concerns about the amount of signage that goes up during elections but he felt it was part of the process and should not be eliminated. C/Ruzicka said that so long as signs do not go up more than 60 days prior to election and come down 10 days after the election, he believed that whatever anyone wanted to do they should be allowed to do. He would agree with the 30 -day program that is in place if the balance -of the Commission agreed. There was no one present who wished to speak on this item. C/Ruzicka felt that with the foregoing comments, staff could write a recommended code for consideration at the Commission's next meeting. Chair/Tye said he did not agree with the City Attorney's proposed change for Item 5.e. He would like "only" stricken. In addition, the Commission wanted 5.f. to read "30 -days." Chair/Tye asked if prohibited signs in the public right-of-way would eliminate real estate signs? DCM/DeStefano responded yes, and also other similar one-time notification signs. JUNE 24, 2003 Page 10 PLANNING COMMISSION DCM/DeStefano felt that the City Attorney would say that political speech is the highest form of speech and that the City would less likely be able to establish more strident standards for political speech than for commercial speech. DCM/DeStefano agreed with Chair/Tye that absent complete prohibition, there are no alternatives. Section 22.42.130 — Radio and Television Antenna and Wireless Telecommunications Antenna Facilities. Amendment relates to the number of telecommunications facilities on a parcel in residential zoning districts. AssocP/Lungu said her survey revealed that the majority of cities do not limit the number of telecommunications facilities on a parcel. Some use separation distance as a way to limit the number per parcel. The City Attorney wondered why the City would want to limit the number of facilities to one. He felt it would be too constricted. Chair/Tye asked for a clarification of co -location and multiple. C/Ruzicka asked for clarification of the bullet point on page 11 "wireless telecommunications antenna facilities may be allowed in residential zoning districts onlv if the facility is buildinq mounted stealth design architecturally integrated with the building or --concealed. There could be many telecommunications facilities from several different entities without detracting from the'original architecture of the building. AssocP/Lungu responded to C/Ruzicka that after analyzing the data different suggestions were extracted to help control the number of sites for a parcel. To Chair/Tye's comment, the Commission may want to reconsider definitions because the definitions include co -location, piggybacking and antenna farms. We may want to -eliminate antenna farms and not co -location and piggybacking. Antenna farms is a 5 -acre site with -as many facilities as possible whereas co -location is one structure with several facilities on it and, if it is imbedded in the architecture there may be no concern about the number. Chair/Tye cited the installation in the St. Denis Church tower. Ultimately, a good product was erected. However, they initially objected to placement of the facilities in the bell tower. Chair/Tye would not mind if there were four facilities in the tower. When the applicant first brought the project to the JUNE 24, 2003 Page 11 PLANNING COMMISSION Planning Commission it was hideous, the neighbors did not like it and it did not look good. There was no creative thought given to it by the. applicant. After several iterations, we have a very well designed and camouflaged tower. He is not opposed to co -location — he is not in favor of what the applicant originally proposed. C/Ruzicka said he did not agree with the church's decision about not wanted facilities in their bell tower. Now that there is a way to approach multiple sites on this piece of property he would not mind if they replaced every one of the Italian Cypress at the front of the church. Chair/Tye felt the City would need to set a standard. He was glad that the Development Code did not restrict facilities to one per site. He felt St. Denis shows how you can work together to accomplish what all three parties want to accomplish. DCM/DeStefano said staff discussed the aesthetics of this matter and was not necessarily concerned about how many are on a site, but whether or not you can see them. This City has sites that have co -locations such as the Vineyard Bank (3 facilities) and other similar facilities. Diamond Bar High School, for instance, has several facilities, some you can see and some that are not so easily detected. Also of concern was whether the number of devices on a particular piece of property violated the intended use i.e., residential properties with multiple cell sites. When does it draw a conclusion that it is now a commercial piece of property versus its residential intent? When does it eliminate the intended use of the property for commercial purposes in the future if it happens to be vacant property now? From Staff's perspective,'we believe we can reach a conclusion that meets the current goals which would be to add a third bullet that C/Ruzicka spoke about (page 11 of the staff. report) that discusses permissible facilities in residential sites with the facilities being building -mounted stealth design, etc. Additionally, page 12 discusses where multiple facilities could be located and that they would not be located on residential properties developed with residential structures or cited for residential development. Also, that the citing of the antennas in a form that would create an antenna farm would be prohibited and piggybacking would be permissible. Staff would offer a possible solution being the third bullet on page 11 and the two bullets on page 12 and come back to the Commission with a resolution. The Commission concurred. JUNE 24, 2003 Page 12 PLANNING COMMISSION DCM/DeStefano confirmed that the resolution would not be punitive to a specific property. VC/Nolan asked if someone could be given a time period such as one or two years to meet the new code? DCM/DeStefano said he wanted to consult with the City Attorney before answering VC/Nolan. Chair/Tye asked if the City could ask people to remove inactive sites? DCM/DeStefano asked how you would determine whether a facility was inactive? C/Tanaka asked staff to refer to actual zoning districts in reference to whether sites are located. There was no one present who wished to speak on this matter. 8. PLANNING COMMISSION COMMENTS: Chair/Tye thanked staff for their input and their business -like and helpful attitude with the public. 9. INFORMATIONAL ITEMS: DCM/DeStefano reported that * during tonight's Administrative Review he approved several items, not the least of which was the architectural and site planning changes for the former Texaco Station at Golden Springs and Brea Canyon Road as it converts to Shell. The project is slated for completion around October. The SR57/60 freeway construction takes place over the next four years. Already, closures are occurring .in the middle of the night to deal with various portions of the project. CalTrans held a study session with the City Council and staff. CalTrans is working closely with Council and staff to reduce the number of closure days. This project represents about 10 percent of current CalTrans projects in Los Angeles County. CalTrans will hold weekly update meetings. DCM/DeStefano stated that on June 17, City Council adopted the FY 2003/04 Budget. As a result of the new budget, the City will be adding a part time weekend neighborhood improvement officer. DCM/DeStefano pointed out that the Commissioners' packets include the "What's Happening" list requested by Chair/Tye at the last meeting. Staff will attempt to get this information to you via email. I JULY 8, 2003 PAGE 3 PLANNING COMMSSION DCM/DeStefano said that because of the substantial change it would need to be unoccupied during reconstruction. Mr. Lai concurred. Chair/Tye opened the public hearing. There was no one present who wished to speak on this matter. Chair/Tye closed the public hearing. C/Ruzicka said that in view of the applicant's agreement that they would properly maintain the property and abide by the resolution, he moved approval of Development Review No. 2003-02, Findings of Fact, and conditions of approval as listed within the resolution. C/Tanaka seconded the motion. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Ruzicka, Tanaka, Chair/Tye NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: Nelson, VC/Nolan 5. OLD BUSINESS: 5.1 Development Code Amendment No. 2003-01 (pursuant to Code Section 22.44) is a request to amend the following Article/Sections of the Development Code. DCM/DeStefano explained that staff prepared a resolution for the Commission's consideration that incorporates comments made during the last Planning Commission meeting. Staff is requesting that the signage component of the Code Amendment be continued to a special meeting of August 6 to allow the City Attorney to be present and to officially consider the Sign Ordinance on August 26. C/ Nelson arrived at 7:23* p.m. The Commission asked if the special meeting could be held on August 13 or August 20 in order for all Commissioners to be present. Accordingly, Commission consideration would be continued to the August 26 meeting. JULY 8, 2003 - --100394 PAGE 4 PLANNING COMMUSSION (a) Section 22.34.030 — Single -Family standards, Section 22.34.040 — Multi - Family Standards, Section 22.34.050- Commercial Standards and Section 22.34.060 — Industrial Standards: Amendmentrelates to landscape maintenance standards for slopes. (b) Sections 22.36.050 and 22.36.080 - Exemptions from Sign Permits and Prohibited Signs: Amendment relates to the placement and size of election signs and signs in the public right-of-way. (c) Section 22.42.130 - Radio and Television Antenna and Wireless Telecommunications Antenna Facilities. Amendment relates to the number of telecommunications facilities on a parcel in residential zoning districts. Chair/Tye asked why "schools" was not included under the section "where sites are not allowed, with the exception of church property, water tanks or similar facilities"? AssocP/Lungu pointed out that "schools" is included on the last page of Exhibit A. C/Ruzicka moved, C/Tanaka seconded, to recommend City Council approval of Development Code Amendment No. 2003-01 (a) and (c) and continue consideration of 2003-01 (b) to August 26. AYES: COMMISSIONERS: NOES: COMMISSIONERS: ABSENT: COMMISSIONERS: Nelson, Ruzicka, Tanaka, Chair/Tye None VC/Nolan 6. NEW BUSINESS: None 8. PLANNING COMMISSION COMMENTS: C/Tanaka commended staff on an excellent 4th of July Celebration. It was the largest crowd he had seen at a "Concerts in the Park" event. The fireworks were fantastic. 9. INFORMATIONAL ITEMS: DCM/DeStefano reported that the City received a grant award in the amount of $84,338 from the State Department of Housing and Community Development. The City applied for a grant entitled "Jobs Housing Balance Incentive Programs." The City was eligible for that program because it had an adopted, approved and certified by the state, Housing Element — thanks to the Planning Commission and the City Council. In spite of its title, the grant money can be used for any type of capital improvement program. The Community Services JC-i-1IYJ a MUU. 1'4 L.Lr - IIA HOGN y. LLP A LAW PARTNERSHIP ' MANHATTAN ToWERS 1230 ROSECRANS AVMS LM, SUIm 110 MANHATTAN BEACHy CALIFoRNIA 90266 (310) 643-8448 ® FAX (310) 643-8441 www. LocalGovL.aw-com r FAX NUMBER TRANSMn'TED TO: (909) 861-3117 To: Jim DeScefano CC: CC: From: Mike Jenkins Clicnt/Matter: Political signs Date: August 12, 2003 Memo COMMENTS: The information contained in this facsimile is confidential and may be protected by attorney-client communication or work product privileges. The information is intended solely for the use of the individual or entity to whom it is addressed. if you are not the intended recipient, you are hereby notified that any use or distribution of this material is prohibited. Please notify us by telephone and return the original by U.S. mail to the address above. Thank you. If there are problems with the transmission of this documents, please call (3 a0) 643.8448 r— C*"� CJ: inn i-jentetar FROM: Michael Jenkins DATE: March 1, 2002 RE: Political sign CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY-CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBI P RECORDS. Attached is a draft ordinance regulating election signs for your review and comment. In. this memorandum, I will briefly discuss the ordinance and some of the constitutional limitations on the regulation of sig -ns. Keep in mind that this ordinance, as do most, establishes criteria based on the content of signs. Given how strictly the courts view these ordinances, there is some risk. But, most cities establish criteria based on type of sign (i.e. identification, real estate, subdivision directional, etc.) so it is a risk we share with most cities. The ordinance does the following: 1. Prohibits all signs in the public right-ofway, except for specified official signs. Under the case law, when it comes to regulating signs in the right -of way we cannot discriminate on the basis of content; that is, we cannot allow some signs and not others. So, it is an all or nothing proposition. As it now reads, the Code allows signs in the right-of-way, which means that we must allow any sign if it meets our time, place and manner requirements — sips advertising concerts, realtor open houses, private parties, garage sales, lost cats, motor vehicle sales — all are on, the same footing as election signs. This ordinance would, as do most cities, prohibit all but official signs in the right-of-way. This means that we cannot issue encroachment permits on a selective basis, allowing some signs but not others. Note that realtors who place open house directional signs on ri b! 4.41 Z d ri Z, Lj:;. tlt & huuih L -LI'' PAGE 03 May 20, 2001 Page 2 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY- CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS. weekends may object to this prohibition (see my discussion in the last paragraph below) . Note that I use "richt-of-way," and not "Public Property," as the Code currently reads. This is because signs are Permitted on public property that is riot right-of- way — i.e. the AQMD property, the City's parks, the new Community Center and the library. Presumably these properties are allowed identification signage just as are commercial buildings. 2. Repeals the current provisions that allow political signs in the right-of- way. - 3. Establishes time, place and manner restrictions on election signs on private property. Case law permits a city to establish certain restrictions, and the restrictions in the ordinance (with one possible exception, noted below) would comply with the case law. Some observations: a. Note that I use the word "elecrion!' instead of "political." Arguably, a homeowner may place a sign on his/her property, year-round, with a political message(i.e. protesting the war in Afghanistan, protesting the president's tax policies, etc.) . By limiting this section to "election" signs, we neither invite nor prohibit such a fort -a of political expression. It might even be a good idea to add a clause at the end of the sign ordinance saying: "Nothing -herein shall be interpreted to abrogate any rights of expression protected by the United States and California Constitutions." b. There is room to P12Y with the standards. We can clearly allow more than 6 and 12 square feet, but priobably not much less (4 square feet would, in my judgment, be the minimum). Since we limit real estate signs to 4, we*would be treating election signs similarly. Cities get in most trouble when they limit election signs to a considerably smaller size than other signs. We could drop the height to 4 feet, or raise it higher, The 60 days prior is the least I believe is defensible, considering how long before election day campaigns get going. We could change 5 days after to 10 if 5 is not enough. ..�tl4hlf4� G4 NUUIN LLi'' PAGE 04 CONFIDENTIAL THIS MATERIAL IS SUBJECT TO THE ATTORNEY- CLIENT AND/OR THE ATTORNEY WORK PRODUCT PRIVILEGES. DO NOT DISCLOSE THE CONTENTS HEREOF. DO NOT FILE WITH PUBLICLY ACCESSIBLE RECORDS.- c. ECORDS. c.Thin we cannot do: Require posting of a bond; require the owner to sign a written consent; limit the number of sighs per property (or the number of issues or candidates a property owner may support or oppose). Some ordinances purport to establish a maximum square footage of signage; the problem with this is that it bears no relation to the size of the property -- in some instances, the maximum would be too much, and in the case of very large properties, not enough. d. My one concern: My solution to the problem of signs on private slopes is to require the signs in the front or side yards. The other solution I considered was to require that the suns be no further from a main structure than a designated number of feet. Assuming all the slopes that lead down to a street are rear yards, this would address the problem. Being that it is a "place" limitation, it fits within our- "time, place and manner" authority. My only reservation is trying to explain our legitimate purpose behind such a requirement. In any event, let me know if this presents any practical issues. e. I have reviewed and believe that I have covered most of the types of standards contained in the matrix of regulations you provided 'from other cities (except for those noted above.that I believe are unconstitutional). I did not address lighting, but we could add "unlighted" if you think it important. I did not address signs on fences, as I was unsure how to deal with those. Finally, wholly apart from the above, I would note that State law (see California Civil Code Section 713) * requires that cities allow open house directional signs (i.e. signs with an arrow that point to ari open house at some other location) on private property with the owner's consent. So, while we can prohibit such signs in the public right-of-way (the rea(tors may become very unhappy with such a prohibition), we cannot prohibit private property owners from allowing realtors to place such directional signs on their property. We can, however, regulate the signs —i.e. how many, location, etc. In West Hollywood, the realtors complained about our prohibition on public right-of-way, so we added a provision allowing the signs on private property, with the owners' consent, subject to some restrictions. I made it very clear that we could not allow real estate directional signs on public right-of-way without allowing all other signs as well. 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Items for consideration are listed on the attached agenda. 1, Stella Marquez declare as follows: I am employed by the City of Diamond Bar. On August 22, 2003, 1 posted a copy of the Notice for the Regular Meeting of the Diamond Bar Planning Commission, to be held on August 26, 2003, at the following location: South Coast Quality Management Heritage Park District Auditorium 2900 Brea Canyon Road 21865 East Copley Drive Diamond Bar, CA 91765 Diamond Bar, CA 91765 I declare under penalty of perjury that the foregoing is true and correct. Executed on August 25, 2003, at Diamond Bar, California. Stella Marquez Community and Development Services Department g:\\affidavitposting-doc