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HomeMy WebLinkAbout08/07/2012 Minutes - Regular MeetingMINUTES OF THE CITY COUNCIL REGULAR MEETING OF THE CITY OF DIAMOND BAR AUGUST 7, 2012 CALL TO ORDER: Mayor Ling -Ling Chang called the Regular City Council meeting to order at 6:31 p.m. in the South Coast Air Quality Management/Government Center Auditorium, 21865 Copley Drive, Diamond Bar, CA, PLEDGE OF ALLEGIANCE: Council Member Carol Herrera led the Pledge of Allegiance. INVOCATION: Monsignor James Loughnane, St. Denis Catholic Church, gave the invocation. ROLL CALL: Council Members Carol Herrera, Steve Tye, Mayor Pro Tem Jack Tanaka, and Mayor Ling -Ling Chang. Absent: Council Member Ron Everett was excused. Staff Present: James DeStefano, City Manager; David Doyle, Assistant City Manager; Michael Jenkins, City Attorney; Dianna Honeywell, Finance Director; David Liu, Public Works Director; Greg Gubman, Community Development Director; Bob Rose, Community Services Director; Rick Yee, Senior Civil Engineer; Ryan McLean, Assistant to the City Manager; Ken Desforges, IS Director; Kimberly Young, Associate Engineer; Grace Lee, Senior Planner; Lauren Hidalgo, Public Information Specialist; Raymond Tao, Building Official, and Tommye Cribbins, City Clerk. APPROVAL OF AGENDA: As presented. SPECIAL PRESENTATIONS, CERTIFICATES, PROCLAMATIONS: 1.1 Presentation by Rick Meza, Southern California Edison Public Affairs. Mr. Meza spoke about system capacities and stated that this year there is an additional challenge with San Onofre units 2 and 3 shut down for repair. To mitigate the loss SCE Independent System Operator (ISO) along with Orange County Gas and Electric, have in place a contingency plan for this summer that includes four key components more specific to Orange County and Southern Orange County as well as, portions.of Riverside. The four key elements are as follows: Transmission — earlier this year SCE accelerated the upgrades of a couple of its 220 KB transmission lines to create additional transmission capacity and those lines came online June 1; Generation — CAL ISO requested Huntington Beach Steam Plant AUGUST 7, 2012 , PAGE 2 CITY COUNCIL return two units to service which have been online since the early part of June, Engaging in Outreach to the Communities -- conservation briefings and social media have been engaged to inform the public; and, Conservation — every year throughout the SCE service territory conservation is key. One such program is the Air Conditioning Recycling Program wherein SCE places a device on the air conditioning unit and when there is a critical need for conservation the air conditions will be turned off. In turn, those that participate on a residential basis get a rebate or credit on their bills during the months of June through September. Another critical component of conservation is with regard to simple tips for conservation. Peak hours during summer months are from 12:00 noon to 6:00 p.m. To compensate for these peak hours homeowners can set their thermostats to 78 degrees or higher, use electric fans instead of air conditioning units when practical, turn off appliances not needed and not in use, shut off lights when leaving a room, give your appliances the afternoon off, limit how often one opens the refrigerator door and in the event residents have swimming pools, pool pumps should be set to operate during off- peak hours. He referred residents to the following websites for additional information: www.caliso.com; www.se.com; Twitter and Facebook. CITye said he visited a retailer today about 2:00 p.m. and the store made an announcement that in cooperation with Edison they would dim the lights in their store between 2:00 and 6:00 p.m. CITye asked Mr. Meza how many retailers were participating in this program. Mr. Meza said he was not aware of how many retailers participate but there are programs for businesses to participate in to reduce their power which is called the "On Demand" program. As there is for retail, there are incentives for businesses to reduce consumption during certain hours for .which they receive financial benefit. 2. CITY MANAGER REPORTS AND RECOMMENDATIONS: None 3. PUBLIC COMMENTS: None 4. RESPONSE TO PUBLIC COMMENTS: None AUGUST 7, 2012 PAGE 3 CITY COUNCIL 5. SCHEDULE OF FUTURE EVENTS: 5.1 Concerts in the Park — NATIONAL. NIGHT OUT — August 8, 2012 — 6:30 p.m. to 8:00 p.m., "The Alley Cats" (Dao Wop) — Sycamore Canyon Park, 22930 Golden Springs Drive. 5.2 Movies Under the Stars — August 8, 2012 — Cars 2 — Immediately following Concerts in the Park, Sycamore Canyon Park, 22930 Golden Springs Drive. 5.3 Traffic and Transportation Commission Meeting — August 9, 2012 — 7:00 p.m., Windmill Community Room, Diamond Bar City Hall, 21810 Copley Drive. 5.4 Planning Commission Meeting —August 14, 2012 — 7:00 p.m., Windmill Room, Diamond Bar City Hall, 21810 Copley Drive. 5.5 Concerts in the Park — August 15, 2012 — 6:30 p.m. to 8:00 p.m., "Mike Sullivan Band" (Acoustic Melodies). — Sycamore Canyon Park, 22930 Golden Springs Drive. 5.6 Movies Under the Stars — August 15, 2012 — Tin Tin — Immediately following Concerts in the Park, Sycamore Canyon Park, 22930 Golden Springs Drive. 5.7 City Council Meeting — August 21, 2012 — 6:30 p.m., SCAQMDIGovernment Center Auditorium, 21865 Copley Drive. 5.8 Last Concerts in the Park — August 22, 2012 — 6:30 p.m. to 8:00 p.m., "Cash Up Front" (Tribute to Johnny Cash) — Sycamore Canyon Park, 22930 Golden Springs Drive. Sponsored by the Diamond Bar Community Foundation. 5.9 Movies Under the Stars — August 22, 2012 — "Puss in Boots" — Immediately following Concerts in the Park, Sycamore Canyon Park, 22930 Golden Springs Drive. 6. CONSENT CALENDAR: CITye moved, MPT/Tanaka seconded, to approve the Consent Calendar as presented. Without objection, the motion was so ordered with C/Everett being absent. AUGUST 7, 2012 PAGE 4 CITY COUNCIL 6.1 CITY COUNCIL MINUTES --- Regular Meeting 'of July 17, 2012 — Approved as submitted. 6.2 RECEIVED AND FILED PARKS AND RECREATION COMMISSION MINUTES — Regular Meeting of May 24, 2012. 6.3 RATIFIED CHECK REGISTER - Dated July 12, 2012 through August 1, 2012 totaling $3,267,611.39. 6.4 APPROVED TREASURER'S STATEMENT— Month of June 2012. 6.5 APPROVED SECOND READING AND ADOPTED ORDINANCE NO. 11 (2012): AMENDING THE DIAMOND BAR MUNICIPAL CODE TO ADD SECTIONS 12.00.430, 12.00.440, 12.00.450 AND 12.00.460 ESTABLISHING RULES FOR THE SAFE AND HEALTHY OPERATION OF THE DOG PARK AT PANTERA PARK. 6.6 APPROVED AMENDMENT NO. 1 TO THE CONTRACT WITH ARCHITERRERA DESIGN GROUP FOR DESIGN OF CONSTRUCTION DOCUMENTS FOR THE ADA RETROFIT OF THREE (3) MINI -PARKS IN LIGHTING AND LANDSCAPE ASSESSMENT DISTRICT (LLAD) #39 FOR ADDITIONAL SERVICES IN THE DESIGN OF SILVER TIP PARK AND CONSTRUCTION OBSERVATION SERVICES FOR SILVER TIP PARK IN THE AMOUNT OF $14,000 FOR A TOTAL AUTHORIZATION OF $77,300 AND EXTENDED THE CONTRACT TO JUNE 30, 2016; PLUS APPROPRIATED $14,000 IN PARK DEVELOPMENT FUNDS WITHIN FISCAL YEAR 2011-2012 TO THE PROJECT'S BUDGET FOR A TOTAL AUTHORIZATION OF $77,300. 6.7 APPROVED AMENDMENT NO. 1 TO THE CONTRACT WITH ARCHITERRERA DESIGN GROUP FOR SYCAMORE CANYON PARK TRAIL PHASE IV IN THE AMOUNT OF $4,250 TO DESIGN THREE INTERPRETIVE PANELS TO BE PLACED ALONG THE SYCAMORE CANYON AND SUMMIT RIDGE PARK TRAILS, FOR A TOTAL AUTHORIZATION OF $70,250 AND EXTENDED THE CONTRACT TO J U N E 30, 2013. AUGUST 7, 2012 PAGE 5 CITY COUNCIL 7. PUBLIC HEARING: 7.1 ADOPT RESOLUTION NO. 2012-40: DENYING THE APPEAL AND AFFIRMING THE PLANNING COMMISSION'S DECISION TO DENY REVISIONS TO DEVELOPMENT REVIEW AND MINOR VARIANCE NO. PL 2011-387, A REQUEST TO APPROVE AS - BUILT CHANGES TO A NEW SINGLE-FAMILY RESIDENTIAL PROJECT UNDER CONSTRUCTION BY INCREASING BUILDING PAD AND FINISHED GRADE ELEVATIONS ON A LOT LOCATED AT 22909 RIDGE LINE ROAD, DIAMOND BAR, CA 91765, AND FURTHER IDENTIFIED AS ASSESSOR'S PARCEL NUMBER 8713-005-006 ("PROJECT SITE"). CDDIGubman provided the Council with guidance on approaching the public deliberation of this matter. The changes to this previously approved project as proposed to the Council and the Planning Commission meets all of the Development Code standards. However, if the approval or denial of a project was strictly based on code consistency there would be no reason for this matter to receive a public hearing. The issue before Council this evening is whether the Findings of Fact which are the standardized benchmarks upon which decision -makers reach their judgments, can be made. In order to overturn the Planning Commission's decisions the Council must make all of the Findings in the affirmative. If the Council cannot make all of those Findings, it must reject the appeal and deny the project. There are two contrasting viewpoints by the parties most directly affected by this project that go beyond the black and white question of code consistency. The property owner and his agents will argue that the circumstances leading up to tonight's hearing started with a survey error through no fault of the owner which was not discovered until a substantial amount of earthwork and foundation construction was completed. Moreover, they will attempt to demonstrate that the two -foot increase in grade elevations is not substantial given the area's terrain, and will be essentially erased .once the landscaping associated with the project establishes itself. The neighbors to the west will provide testimony to the affect that the original project design as approved, given the elevations of the building pads and proximity of retaining walls to their property would, on its own, have had an impact on the use and enjoyment of their property and that elevating these structures by as much as two more feet would be unacceptable. The Council may take into account these contrasting viewpoints when weighing all of the evidence in the record to determine whether to approve the revised project as AUGUST 7, 2012 PAGE 6 CITY COUNCIL submitted, approve the project subject to additional stipulations, or reject the project altogether. There are a total of six findings that the Council must make which will be discussed in greater detail during SP/Lee's presentation. Staff believes that four of those findings are fairly straightforward and can be made in the affirmative. Therefore, staff would suggest that the Council focus on the two much more nuanced Findings that ask the Council to make a judgment on how the proposed project would affect surrounding properties. SP/Lee presented staff's report stating that the property owner and applicants who are referred to as appellants are requesting approval of "as built" changes to a new residence which is currently under construction. The appellants are requesting approval of elevated pads and finished grid elevations to be approximately two feet higher than the original approval. Construction of this project was halted at the foundation stage after it was discovered that a survey error resulted in the building pad elevation to be approximately two feet higher than what was originally approved by the Planning Commission in 2007. The project is located at 22909 Ridgeline Road (north side of Ridgeline Road) within "The Country Estates". The neighboring down slope residence is located at 22835 Ridgeline Road to the west of the subject property. On July 24, 2007 the Planning Commission approved a Development Review application to build a 11,321 square foot three-story single family residence and a minor Variance to reduce the front setback from 24 feet where 30 feet is required and increase the height of the retaining walls up to eight (8) feet where six (6) feet is the maximum height. SP/Lee provided a slide presentation depicting the front elevation and rendering of the proposed structure. SP/Lee stated that the appellants are requesting that the City Council approve the following modifications to their project currently under construction: Maintain the "as -built" elevated height of the building pad by approximately two feet, lower the overall height of the structure by two feet so that the building envelope remains consistent with the height that was originally approved. The project architect has revised the architectural plans to reduce the overall height of the house by two feet in order to offset the raised pad elevation. The appellant is also requesting to reduce the exposed height of the retaining walls to comply with the heights originally approved. However, because the finished grades adjacent to the walls are higher than originally approved the walls would remain at a higher elevation. There are several retaining walls that were AUGUST 7, 2012 PAGE 7 CITY COUNCIL found to be constructed with exposed heights that was substantially taller than the original approval a result of the survey error. Some of the walls have since been cut down to the approved heights and the project engineer has devised a plan to reduce the exposed heights for the rest of the retaining walls. The appellant is proposing to add a retaining wall approximately three to four feet in exposed height at the west property line adjacent to the neighbor's down slope (22835 Ridgeline) and install additional landscaping along the westerly portion of the property to screen the retaining walls and the house in order to mitigate the visual impact of the elevation change between the subject property and the neighboring down slope residence. SP/Lee further stated that as previously mentioned the project was approved by the Planning Commission in 2007. On August 13, 2007 the grading plans were approved and a grading permit was issued. Retaining wall permits were issued on April 26, 2010 and on June 30, 2011 the City's grading inspector visited the site and found that the retaining wall heights were not in conformance with the approved grading. plans: On July 19, 2011 staff met with Jim Gardner, "The Country Estates" General Manager to discuss the property. Mr. Gardner informed staff that "The Country Estates" hired an engineer to survey the project site and found the walls and building pad elevations were on average two feet higher than the approved plans. On July 20, 2011 Mr. Gardner served the property owner with a letter to stop all work on the property until the height of the retaining walls and building pads were lowered to comply with the approved plans. On February 28, 2012 the Planning Commission reviewed and denied the request after determining that all of the required Findings for approval could not be made. The Planning Commission's denial left the appellants with two options -- to demolish the improvements completed to date which includes the retaining walls and the foundation slab and re - grade the site to the previously approved elevations or, request the City Council's reconsideration of the Planning Commission's decision to deny the revision. On March 23, 2012 the appellants appealed the Planning Commission's decisions to the City Council and submitted additional supporting information. As also previously mentioned, the proposed changes comply with the Development Code standards; however, the Planning Commission revisited the Development Review Findings in light of the proposed changes and determined that the Findings cannot be made in the affirmative. Specifically, Findings 2 and 5 were required to be revisited. To summarize, the Commission deliberated on the information AUGUST 7, 2012 PAGE 8 CITY COUNCIL presented to them and determined that the proposed changes would have a negative visual impact and interfere with the use and enjoyment of down slope and adjacent parcels with sightlines to the project site. SP/Lee showed photos of the project when it was under construction. The photos showed that the building pads have been graded, the concrete foundation has been poured for the lower basement level and the retaining walls have been constructed. Further, the Power Point presentation showed the approved grading plan which shows the basement level as well as the main floor and garage finished floors and various retaining walls on the property. The photos also show the proposed changes to the finished floors of the basement level and the main floor as well as, changes to the building height. The overall pads are elevated two feet higher; however, the building envelope would remain the same since the ceiling height is being reduced by one foot on the first and second floors respectively. The presentation showed the elevation of reductions in wall heights that exist and are proposed. Currently, the walls range in height from four and one-half (4 Y2) to as high as 11 feet; however, the appellants are proposing to lower the walls to a maximum height of eight.(8) feet to be consistent with the original approval. The appellants are also proposing to modify the landscape plan to plant additional landscaping within the side and rear yards adjacent to the neighboring down slope residence to provide for additional screening which would include shrubs such as Texas Privet and New. Zealand Flax, both of which grow up to eight (8) feet in height. The presentation showed a section view of the proposed landscaping within the sloped area. The appellants are proposing to construct a three to four foot high retaining wall along the westerly property line to support the 2:1 slope. The appellant submitted additional documents supporting the basis for their appeal. After reading the appeal staff believes that the appellant's arguments can be reduced down to the following four key points: 1) The property is located in the hillside community with development challenges due to the natural topography of the hill- side. The existing lots and private streets were created when the subdivision was approved in 1969, hence the street grades determine the relative position of each house; 2) the two -foot increase in finished grades doesn't result in a substantially different visual impact to the down slope property. To mitigate any negative visual impacts to the property to the west, the following mitigations are being proposed: Constructing a three to four foot high retaining wall along the westerly property line and the planting of trees and shrubs along the westerly sloped area to screen the retaining walls and the house. Therefore, the exposed portions of the retaining AUGUST 7, 2012 PAGE 9 CITY COUNCIL walls would be screened and camouflaged in a relatively short time. The top of the roof remains the same from the original approval and the building envelope remains consistent with the height that was originally approved. If the revisions are not granted the appellant will need to tear everything down and start all over again which would result in a waste of materials and resources and in addition, would be cost -prohibitive for the appellant causing an extreme financial and emotional hardship to continue with the project. The street grade in front of the appellant's property is at an approximate seven percent slope. The proposed pad and finished grade elevations will be relatively at level with the street grade. The street grade in front of the down slope neighboring property located at 22835 Ridgeline is at an approximately eight percent slope and a portion of the neighbor's house, the side adjacent to the appellant's property, is approximately nine (9) feet lower than the street. As shown in the photo, the construction chain link fencing which abuts the street is approximately in line with the first floor of the -house. The building pad of the property directly across the street at 22840 Ridgeline is approximately fifteen feet above the street grade. As can be seen, a two -foot increase in finished grade does not result in a substantially different visual impact to the down slope property. Additionally, the exposed portions of the retaining walls and the house will eventually be screened with landscaping. As CDDIGubman mentioned, specific Findings must be made before a decision-making body may approve a land use application that is quasi-judicial in nature. These Findings are an analysis of Fact, Regulations and Policies that explain how the conclusions of the decision -makers were reached and should provide a framework for making principled decisions and ' enhance integrity of the administrative process, help make analysis orderly and reduce the likelihood that the Agency will randomly leap from evidence to conclusion and help to persuade the parties that the decision- making is careful, reasoned and equitable. SP/Lee concluded by stating that the key issue for the Council in this matter is to determine whether or not the appellants provided new evidence or information that in light of all other evidence and testimony comprising the entire record would lead the Council to conclude that all of the Findings can be made in the affirmative. The two Findings that are to be discussed tonight are Finding No. 2 — will the design and layout of the proposed development not interfere with the use and enjoyment of neighboring existing and future developments, and will it create traffic and pedestrian hazards; and Finding No. 5 — would the proposed entitlement not AUGUST 7, 2012 PAGE 10 CITY COUNCIL be detrimental to the public interest, health, safety, convenience or welfare of the city. In order to determine if Findings No. 2 and No. 5 can be made in the affirmative the Council would need to answer the following two questions: Is a vertical difference of raising the building pad two feet severe and does it have a substantially visible impact on neighboring properties in a hillside area that has deep terrains and roadway grades and if. so, have the impacts been effectively mitigated. The appellants argue that there are extreme topographical variations of the shared property line between the appellant's property and the neighbor down slope. The appellant is proposing a building pad that is relatively at level with street grade and follows the slope of the street by having the garage level stepped lower than the main floor of the house. In addition, the proposed house is set back approximately 36 feet away from the down slope neighbor's house providing more than the minimum 25 foot setback between structures which is required by the City's Development Code. The appellants are also proposing to mitigate the visual impact as previously mentioned. In light of the new information submitted by the appellant, staff recommends that the City Council take all factors, history and issues into account, consider the appellant's request and after holding. the public hearing and considering all testimony, take one of the following actions: Reject the appeal and affirm the Planning Commission's decision to deny the proposed revision; or, if the Council determines that there is new evidence or information to support Findings for approval, continue the matter to August 21 and direct staff to prepare a Resolution of Approval. Paul Ghotra, property owner and appellant, 24251 Delta Drive, explained that this project began about two years ago and was halted about a year ago due to a surveyor's error. He has hired a new team to resolve the matter and provide additional information. Ashok Dhingra, 3168 Windmill Drive, "The Country Estates" said that prior to moving to DB he lived in San Dimas and served on that city's Planning Commission for 16 years and is completely familiar with the "Findings" process. By profession, he is a civil and structural engineer, primarily working on municipal environmental concrete structures. He said that for him it is a privilege and honor to address the leaders of the community on behalf of the property owner. He stated that as the Council just learned, this project was approved by the Planning Commission in 2007, grading plans were AUGUST 7, 2012 PAGE 11 CITY COUNCIL approved in 2008, retaining wall permits were pulled in April 2010, and in July 2011 the pad was discovered to be two feet higher than permitted due to a survey error. At the lower level, two feet of dirt was removed once the discovery was made but at the upper level when the contractor began to remove the dirt it was discovered that the footing would be left exposed, so at that point, the project was halted to see if any other mitigating measure could be found. The project architect went back to the drawing board and essentially maintained the overall height of thirty --five feet by reducing the story height of each of the two stories by one foot. These plans were submitted to the Planning Commission which denied the request. He asked the Council to look at the overall setting of the lot. This is a view lot. The Planning Commission's staff report of 2007 mentioned that the slope at the rear of the lot was in excess of fifty percent. This property is further subject to the,hillside ordinance since it resides within "The Country Estates" and because of the topographical variations, etc. Ridgeline Road in front of the proposed house is at a seven percent slope. The residences along Ridgeline Road are either below street level, at street level or above street level depending on how the natural terrain was when the lots were cut. Primarily, that was done to take advantage of the lots that were afforded. The Tract Map was approved in August 1969 by the LA County Board of Supervisors. At that time the road gradient was defined and the relative location of each lot came into being. Tract Map No. 30091 dated August 1969 shows Lot 30, the subject property, plus Lot 29, the property to the west (22835 Ridgeline Road) and Lot 31 the property to the east (22925 Ridgeline Road). The road was approved when the Tract Map was approved. Mr. Dhingra said that the property owner ordered a new survey because he wanted to know where he stood with this project and in so doing he asked the surveyor to plot the elevations of the tops of both adjacent properties. He presented an overhead with a cut section showing the relative location of the two adjacent houses to scale with the new approved house. The elevation shows two items: The upper as approved and the lower as constructed. What the owner also did was take the same scale drawing and super imposed actual pictures from the street level and the street grade. As SP/Lee mentioned in her presentation the slope gradient slope in front of 22835 and 22909 goes from seven percent to in excess of eight percent and by the time it gets to the third house — 22925 Ridgeline Road, it is a relatively flat grade at about a two (2) percent level. The property AUGUST 7, 2012 PAGE 12 CITY COUNCIL directly across the street is actually fifteen plus feet higher than the street grade. He also showed a view from across the street at 22840 looking north to the property line between 22835 and 22909. This elevation difference is primarily caused by the road being where it was which gives the ability for each homeowner to build below grade, above grade or at street level. The visual mitigation that is being proposed with landscaping is shown in the front elevation and side view which is cut at a level view above the retaining wall as one looks from west to east. The landscape along 22835 Ridgeline Road primarily shows three 24" Brisbane boxed trees along the property line for additional screening and shrubs such as Texas Privet and New Zealand Flax. These proposed shrubs are essentially evergreen or perennial so there will be greenery year round and the exposed portions of the wails would be camouflaged as soon as the landscaping takes hold. He showed a view of the neighbor's house and the slope in question and showed the terraces being built by the neighbor as the same type of terracing affect that would be proposed for the project site. The applicant/appellant is proposing three to four feet high walls. He does not know how high the neighbors walls are because when he went to the City he was told there were no permits for the walls. There is a purpose for Hillside Ordinances which allows property owners to be able to build in a difficult terrain. Typically, these types of properties require a lot of challenges, foresight, innovation and solutions so that one can afford the view for which one bought the lot initially. As such, it is not uncommon to have minor deviations from the standards. As a matter of fact, the July 2007 staff report acknowledged that for this house the design solution is unique and can be considered necessary because of the site's topography. The rear elevation of the house contained slopes in that year that were in excess of fifty percent so to be able to utilize the parcel and have a nice backyard one needs to build retaining walls and the owner is grateful that the City allowed the minor variance from six to eight feet. Mr. Dhingra said that he would focus his comments on the matter at hand, Finding No. 2 and Finding No. 5. The project, as approved, had a first floor pad elevation of 1189 feet. Street elevation in the middle of the house is 1190 feet. The pad, as approved, was at one foot below street level. The project as constructed first floor pad elevation is 1190.9 feet and the street elevation is 1190, roughly one foot above street level. The top of the roofline is the same as approved and as proposed. He offered AUGUST 7, 2012 PAGE 13 CITY COUNCIL to the City Council that there is not much appreciable difference between the approved plan and the as -constructed plan, one which was one foot below the road and the other which is 11" above the road. Furthermore, in the design, the garage pad has been stepped lower than the first floor pad to be more in line with the road slope. The setback between 22835 Ridgeline and the subject property is thirty-six feet. The minimum required is twenty-five feet. The other point is that the heavily year-round landscaping and terraced retaining walls would mitigate the visual impact. The Finished grade pad across the street is over fifteen feet above street level. Finished grade of the southeast corner of 22835 is roughly nine feet below grade. He believes that a Finding can be made that the design and layout of the proposed development will not interfere with the use and enjoyment of neighboring existing and future developments. Relative to Finding No. 5, construction on the property has been stopped for more than a year and if construction is not resumed it will result in deteriorated site conditions, which is not aesthetically pleasing. If one were to drive by the project site at this time because of the weeds and other materials, one could see that it is not aesthetically pleasing now. It would also pose unsafe conditions if the project is not restarted and will negatively impact property values. With these considerations he would suggest to the Council that a Finding can be made that the proposed development will not be detrimental to public health, safety or welfare, or material injurious — in explanation, have negative values on the property. With that, the applicant/appellant most humbly requests that the City Council overturn the Planning Commission's decision and approve the project as constructed and that a permit be issued to restart the project with the pad "as -is" with the mitigation measures that have been incorporated in the landscaping. MPT/Tanaka asked if all of the retaining walls have been reduced to a maximum of eight feet and confirmation that there are no retaining walls in excess of eight feet. Mr. Dhingra said there are walls that are in excess of eight feet which will be brought down to eight feet as soon as construction is allowed to resume. M/Chang asked if the height of the proposed structure is the same as the height of the approved structure. AUGUST 7, 2012 PAGE 14 CITY COUNCIL MPT/Tanaka asked if the retaining wall on the west side of the property is proposed to be between three and four feet. Mr. Dhingra responded that it would be terraced three to four feet with landscaping to camouflage the exposed concrete. MPT/Tanaka asked how the applicant proposes to camouflage the three to four foot wall on the property line that faces the adjoining property. Mr. Dhingra responded that it will be built inside of the project site so there is room for landscaping between the project site and the neighbor's property to the west. With no further questions from Council, M/Chang opened the Public Hearing. George Madanat, 22835 Ridgeline Road, said he had been a property owner in "The Country Estates" since 1985 and is the owner of the property adjacent to the subject property. He said he did not want to create any animosity with his neighbors but felt he has rights that he feels have to be protected. He invited the City Council to look at his back yard. The 22909 lot was originally about the same slope as his lot. If the owner had gone five or six feet below street level he could have built a gorgeous home next to the speaker's home and would not have had to build a dam of dirt and concrete that buried his house. Mr. Madanat said his home burned down on March 18, 2007. He was given a permit to rebuild in 2009 and is still working on his house but cannot finish his backyard because there is now an avalanche of dirt and mud which buried the five foot wall on his side of the property and is only four to five feet from his pool. The project site walls were to have been built at six feet. The City granted a Variance to eight feet but they were built at twelve feet. The problem is that the neighbor dumps dirt next to the wall and the visible portion of the wall is only eight or nine feet but if one goes to the foundation which is the actual height of the floor, the wall is fourteen feet. So the two feet of the pad is meaningless if one compares how the lot looks now compared to the way it looked before construction started. The walls have been double poured and are unsafe. A contractor who builds freeways came to his home to look at putting decking around his pool and said the walls were double poured and were not safe. He said that if there were an earthquake less than the magnitude of the Northridge Earthquake, all of the dirt would be in his backyard and AUGUST 7, 2012 PAGE 15 CITY COUNCIL pool. He said he has had nightmares about the walls. Paul Ghotra said he will cut down the walls. His pool is lower than his neighbor's pool and he does not understand how the dirt will adversely affect his neighbor. Fadi Madanat, 22835 Ridgeline Road, said he was concerned about the presentation. While topography can be a challenge to construction it does not make it impossible. When he looks at pictures of adjacent properties he wonders if it is a minor variation when one is set to build a four foot wall and builds it to eight or nine feet or builds a double poured fourteen foot wall. At the heart of Mr. Ghotra's argument is a survey error. When one looks at. all of the facts in the record it does not seem that there is evidence of a survey error. The fact is that Mr. Bhogal applied for the plans. He sat in the HOA meetings and sat with the Planning Commission at every stage was given the approval to construct. Mr. Bhogal supervises the project. He hires and fires the employees and calls all of the shots. He orders pouring dirt to hide the height of the walls. He has photographs and video footage of him standing on the top of the walls and ordering bulldozers to come in to pack in more dirt. So he questions how this can be called a "survey error." And if there is a survey error what is the purpose of packing in more and more dirt and what is the purpose of double pouring walls. Is the survey error the possibility that the plans were not properly drawn and the only way to come anywhere near compliance was to double pour the walls? Where is the survey error? Regarding Finding No. 5, the public well-being, emotional and financial hardship, if one takes a willful action that is contrary to any approvals and those actions cause harm to a third party and the City or governing body wants to come in and enforce corrective sanctions, does it make sense to come in and wave a flag and say hold on - if we're forced to correct our mistakes we're going to suffer financial and emotional hardship, when one willfully takes those actions that are contrary to law, contrary to principle and completely goes beyond the scope of due process that folks are typically afforded in these types of appeals. When all facts and circumstances are considered no rational neutral decision -maker could come to the conclusion that this never happened because it makes a mockery of planning, codes and regulations. It was clear from day one that the applicant/appellant was in violation and it was proven by an HOA, by independent surveyors, by the Planning Commission, and by staff. An appeal of this decision would afford a party that made a willful action to essentially evade corrective AUGUST 7, 2012 PAGE 16 CITY COUNCIL sanction. Mr. Dhingra asked to have a letter from a neighbor entered into the record. He said he wanted to clarify two items that have been misrepresented by the last two speakers. First, the staff report said that there were poor joints before the double pours. They are looking at the form work and construing it to be a poor joint. Second, the dirt that was above the retaining wall is to bring it up to the first level which is per the approved grading plan. There was no dirt poured over a wall to hide a wall. It was the wall in front above which the floor of the garage needed to be poured which is all permitted grading. The walls that are in excess of eight feet will all be cut down to eight feet once the construction resumes and the project will fully comply with the landscaping plan shown to the Council tonight. Lastly, to state that this property owner could have built the home exactly like the neighbors home is not legitimate. Property owners have a choice about the type of home they wish to build. He pointed out that survey errors are not uncommon. Vinod Kashap, 21452 Chirping Sparrow Road is a licensed civil engineer in the State of California and says as an engineer that he visited the subject site and that it looks like a disaster zone because work has been stopped for a year. I his line of work errors are fairly common and that there are provisions which allow projects to perform mitigating measures. There is not a single job built anywhere that does not involve changes. Mr. Madanat asked for the opportunity to rebut the appellant. CA/Jenkins stated that the rules for the hearings are set forth on the Council agenda. Those rules provide that persons are given one opportunity to speak except for the appellant who is given the opportunity for a rebuttal. Five minutes is a very generous time allocation for speakers and there is a substantial written record before the City Council from which the City Council can certainly consider the evidence. M/Chang closed the Public Hearing. CITye said that he had a discussion with Mr. Kashap as a person representing Mr. Ghotra. The reason for the discussion was because an effort was made to have a meeting to go over the information presented this evening. During that discussion, CITye informed Mr. Kashap that it would not be necessary because the AUGUST 7, 2012 PAGE 17 CITY COUNCIL Council would see all of the information tonight and make its decision based on the information the Council sees. His question is, how in the world did this happen and how does someone an applicant trusts with his project make an error like that. The error is made and here we are and now what do we do about it. The time he was on the Planning Commission he would often tell people that he was a utilitarian. He does not believe in wasting anything if it can be helped and he felt it would be a shame to destroy what is there if it can be made to work. So for him the question is, how do we make that work? He sees in all of the presentations that if this were being presented to the Planning Commission as it is being suggested now it would probably be approved by the Planning Commission. That is not the case. There are a few things in the way and he wants clarification from staff about the information that was given that walls that were approved at four feet are actually eight feet and some walls are eleven feet. His question for the applicant is, how does that happen? There is a difference to Mr. Kashap's point about changes being made. He believes changes have to be made or nothing would get done. But what he is concerned about. is that changes that were made versus a wanton disregard relative to the plans that were approved. So, how does the City fix this and how does the City make this work and how does the City monitor it going forward because what he heard Mr. Dhingra say is that walls that are eleven feet are going to be brought into compliance 'at eight feet — well, what is the monitor from staff's perspective that indeed that will happen and will move forward. How does the City set up the procedure to make sure that what the Councilis hearing is suppose to happen tonight will happen if the Council decides to move this project forward. Also, he wanted everyone to understand the difference between the wall's height and what is considered the base or anchor of the block wall. CMIDeStefano asked that the appellant address CITye's questions and concerns after which staff would address staff's role in overseeing through an inspection process of the project and staff's role with respect to ensuring that any changes made to the project such as the walls being brought back down to the appropriate height, would be properly monitored through a procedure staff will articulate. M/Chang asked if the proposed modifications met all of the City's Code requirements. AUGUST 7, 2012 PAGE 18 CITY COUNCIL CDDIGubman responded affirmatively, the proposed modifications are in conformance with the Development Code standards. MlChang said she heard comments about playing by the rules and she is assuming that the rules have been broken. CDDIGubman responded that clearly the retaining walls have been constructed significantly beyond the maximum height limitations that were originally approved by the Planning Commission's action in 2007 and after the building permits were granted for walls at the specified heights. So those discrepancies in the field will have to be corrected and brought back into compliance with the approved height limits and the monitoring and inspection at remediation would be set forth in the Conditions of Approval should this appeal be granted. ClHerrera asked if the walls are measured from dirt level up or does it include the concrete foundation. How does staff deter -mine the overall height that is within the code? CDDIGubman responded that with any structure whether it is a building, garden wall or retaining wall it will have a foundation or what is called a footing. That is the counterbalancing support that is subterranean that provides the stability for the structure above- ground. The footing is buried below ground for a retaining wall depending on the amount of dirt it is going to be supporting which is one of the factors that dictates how deeply the footing must be buried. There will be soil that backfills above that footing level. The total height of a wall to a footing could be twice the height of the actual wall height which is measured from the ground level to the top of the wall. The overall structure exposed is always going to be higher than when all of the finish grading backfills that initial grading. ClHerrera disclosed that she received a phone call from a DB resident regarding this agenda item but she did not talk with the property owner. MPT/Tanaka asked if the proposed project is approved as amended, is the westerly wall the only modification that is necessary to allow the pad to be two feet above the original level? AUGUST 7, 2012 PAGE 19 CITY COUNCIL CDDIGubman responded that MPT/Tanaka was correct. The wall that would need to be constructed at or close to that site property line is necessary to maintain a 2:1 slope as the side slope works its way up to the building pad. For every two feet horizontally a slope can only go up one foot vertically. Since the pad at the top of the slope has been elevated two feet there is a vertical gap that needs to be made up because the steepness of the slope cannot be increased. Therefore, that wall needs to go at the bottom to maintain the 2:1 slope as the steps of the retaining walls are stepped up. That is the only new structure that would be required. The rest of the work would involve restoring or correcting the discrepancies where retaining walls currently standing are in excess of what was approved. MPT/Tanaka said that minus the proposed landscaping the issue is the three to four foot height of the retaining wall on that property line. CDDIGubman said "correct." Mr. Dhinga stated that to C/Tye's question about how the walls came to be higher than what was proposed, it was not discovered until the first floor pad was to be built that everything was two feet higher. The basement floor level was two feet higher but the walls before that were not, so as the contractor progressively built up it went two feet up and another two feet up and by the time it was stepped up to the first floor level the walls were maybe eleven feet higher. As mentioned earlier, the walls will be out back and brought into compliance to the eight foot wall which has been engineered and preliminary sketches were provided to the staff and are included in staff's report this evening. M/Chang reiterated the issue before Council to make its decision. In her opinion, the appellant has proposed mitigation to provide evidence that both Finding No. 2 and Finding No. 5 are in the affirmative. C/Herrera said she believed everyone recognizes that the topography within "The Country Estates" is very steep and irregular which does not provide the opportunity for all houses to be built on the same level and at the same grade. Some of the photos illustrate that point well. The house across the street from the project site is fifteen feet higher than the street level. She finds that there have been modifications on the part of the property owner, AUGUST 7, 2012 PAGE 20 CITY COUNCIL particularly to bring the height of the house down two feet so that the overall impact is the same as what was approved by the City and she is also prepared to make a decision finding Finding No. 2 and Finding No. 5 in the affirmative. MPT/Tanaka said it was very unfortunate that the final grading ended up being two feet above the original approved height but he believed that under the circumstances, the proposed modifications meet all of the City's requirements and with the proposed reduction of the walls that were initially approved and with the landscape mitigation that these are probably the best solutions the applicant could provide. C/Tye said he would say that the Council can answer affirmatively to Finding No. 2 and Finding No. 5. He does not think when the Council has to decide whether the proposed project would interfere or not interfere with the use and enjoyment of the doctor's residence and as the City watches these buildings rise up they are huge and spectacular. He thinks in a year, two or five one will drive down Ridgeline Road and not think twice about whether that pad at 22909 was originally two feet higher than it should have been and some of the concessions were that it can only be 35 feet from the finished grade to peak of the roof. So it is going to be within 35 feet because of the modifications that they are making in ceiling height. He does not believe that the proposed entitlement will be detrimental to the public interest, health, safety, convenience or welfare of the City or the neighbors or "The Country Estates" or anyone else. As he said earlier, how does the City make this work and he thinks that the City makes this work with the mitigations as proposed and go forward. He hoped that if this body decides to go forward the applicant will follow the letter of the approval and not after the fact try to fix things that went awry. C/Herrera moved, MPT/Tanaka seconded, that the City Council determine that there is new evidence and information to support findings for approval and that the City Council continue the matter to August 21, 2012 and direct staff to prepare a Resolution for Approval based on the positive Findings articulated by the Council. Motion carried by the following Roll Call vote: AYES: COUNCIL MEMBERS: Herrera, Tye, MPT/Tanaka, MIChang NOES: COUNCIL MEMBERS:None ABSENT: COUNCIL MEMERS: Everett AUGUST 7, 2012 PAGE 21 CITY COUNCIL CAIJenkins clarified that the Council's final action will occur when the Council adopts a Resolution at the next meeting. This is not an action but merely a direction to staff to return with a final Resolution. 7.2 ADOPT RESOLUTION NO. 2012-41 FINDING THE CITY OF DIAMOND BAR TO BE IN CONFORMANCE WITH THE 2010 CONGESTION MANAGEMENT PROGRAM (CMP) AND ADOPTING THE CMP LOCAL DEVELOPMENT REPORT, IN ACCORDANCE WITH CALIFORNIA GOVERNMENT CODE SECTION 65089 FOR LOS ANGELES COUNTY AS PREPARED BY THE METROPOLITAN TRANSPORTATION AUTHORITY. SP/Lee presented staff's report stating that staff is asking the City Council to adopt a Resolution finding Diamond Bar to be in compliance with the LA County CMP for the reporting period of June 1, 2011 through May 31, 2012. All counties in the state are required to have a congestion management program in place. The CMP's are mandated under the provisions of the Traffic Congestion Relief and Spending Limitation Act of 1990. The CMP has two primary goals: 1) to mitigate traffic impacts in the County that are associated with new development and 2) to develop a partnership among transportation decision -makers on devising appropriate transportation solutions that include all modes of travel. The LA County Metropolitan Transportation Authority is the . agency responsible for preparing and monitoring compliance with the County's CMP. DB, along with all other local agencies, is required to meet the program requirements in order to be eligible to receive state gas tax funds and maintain eligibility for other transportation funding. DB is expected to receive approximately $1.6 million in gas tax funds for the prior fiscal year. The CMP Program mandates self certification at the local level through the adoption of a Resolution demonstrating compliance with the 2010 CMP and submittal of a local development report to MTA. A Public Hearing is required prior to adopting this Resolution and as described in staff's report, DB remains in compliance with the CMP for LA County and staff therefore recommends City Council adoption of the Resolution. M/Chang opened the Public Hearing. With no one present who wished to speak on this matter, MlChang closed the Public Hearing. AUGUST 7, 2012 PAGE 22 CITY COUNCIL C/Tye moved, MPT/Tanaka seconded, to Adopt Resolution No. 2012-41 finding the City Of Diamond Bar to be in Conformance with the 2010 Congestion Management Program (CMP) And Adopting the CMP Local Development Report, In Accordance with California Government Code Section 65089 for Los Angeles County as prepared by the Metropolitan Transportation Authority. Motion carried by the following Roll Call vote: AYES: COUNCIL MEMBERS: Herrera, Tye, MPTITanaka, M/Chang NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMERS: Everett 8. COUNCIL CONSIDERATION: None. 9. COUNCIL SUBCOMMITTEE REPORTS AND MEETING ATTENDANCE REPORTSICOUNCIL MEMBER COMMENTS: C/Tye said that it is with sadness that DB says goodbye to staff member Rick Yee who moves to Yorba Linda as Assistant City Engineer. He wished Mr. Yee all the best and thanked him for the difference he made and the help he has given the City over the years. He acknowledged an article in State Tech highlighting staff member Ken Desforges and his article entitled One Small Move, One Giant Leap for IT. C/Tye said he had a difficult time understanding all that was involved in the move to the new City Hall and it was nice to see Ken get the recognition he deserves. He said he is very proud of the staff. C/Tye said he hoped to see everyone at Concerts in the Park tomorrow night. C/Herrera expressed her appreciation for the wonderful July 28 celebration honoring the opening of the new library. Residents visited the facility during the day and The Friends of the Library hosted a dinner that evening. Everyone was thrilled with the new facility and it was a great and happy day for DB concluding many years of work toward this unveiling. Some have worked for 20 and 30 years on this dream and she thanked everyone who made such a great effort. MPT/Tanaka congratulated Rick Yee and wished him well. The past three weeks on Wednesday evenings he has enjoyed Concerts in the Park and Movies Under the Stars, great events for residents and folks from surrounding cities. On Friday, July 20 he attended Teen Night Out hosted by DB4Youth and held at Sycamore Canyon Park. Last Monday he attended the DB Day at the Fair Committee meeting, Thursday, July 26 he attended the Public Safety Committee meeting and attended the DB AUGUST 7, 2012 PAGE 23 CITY COUNCIL Seniors Luau Dinner Dance. This coming Saturday will be the end of the season for the Children's Reading Program at the library with activities at Pantera Park from 2:00 to 4:00 p.m. On Saturday, July 28 he attended the ribbon -cutting ceremonies for the new LA County Library and thanked staff for coordinating another successful event. That evening the DB Friends of the Library hosted a celebration and gala dinner in the new Library with music provided by DBHS musicians and last night he attended the PUSD Board meeting. He asked that tonight's meeting be adjourned in memory of Ilse Boykin. MlChang stated that her comments on Facebook and Twitter are time stamped. She congratulated Rick Yee on his new appointment. She and CITye attended the Contract Cities Executive Board meeting. She attended the League Board meeting at Northrop Grumman and was installed as the Vice President of the LA Division. She attended the wonderful grand opening of the library and thanked Congressman Miller, Congressman Royce, State Senator Huff and Supervisor Don Knabe for attending. Remarks were given by "Friends of the Library" representative Rosette Clippinger and County Librarian Margaret Todd. She also attended the "Friends of the Library" gala that evening which was a great event during which CM/DeStefano and ACM/Doyle, Project Manager, were honored. She thanked them for completing the library and building on time. She announced that one again the has been awarded the Certificate of Achievement for Excellence in Financial Reporting by the Government Finance Officers Association for the City's Comprehensive Annual Financial Report; thanked the Finance Department for doing such a great job; and, congratulated Ken Desforges and his team on a great story. ADJOURNMENT: With no further business to conduct, MlChang adjourned the Regular City Council Meeting at 8:20 p.m. in memory of Ilse Boykin and Ruth Pitkin, mother of Tricia Bowl r. TOMMYE C.RIBBINS, CITY CLERK The foregoing minutes are hereby approved this 21 st-day of _ a1,g;,gt , 2012. LING-LI%lG JHANG`AYO