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HomeMy WebLinkAbout07-11-1990 Planning Commission Minutes CITY OP SARATOGA PLANNING CONNISSION MINU~ES DATE: July 11, 1990 - 7:30 p.m. PLACE: City Council Chambers~ 13777 Fruitvale Avenue, Saratoga, CA TYPE: Regular Meeting Roll Call: Chairperson Tucker, Commissioners Burger, Caldwell, Moran and Tappan. Commissioners Kolstad and Siegfried were absent. Pledge of Allegiance Approval Of Minutes.Of .~une..27,. 1990: Planning Director Emslie noted that on page 9 in the last sentence of the third full paragraph the reference to "painted sheet fence" should be amended to "open wire fencing". Also on page 9 in the comments made by Mr. Gager the references to the fence should be amended to "fence and wall". Commissioner Caldwell noted that on page 4 after the motion was made for UP-90-005 she questioned whether there was outside seating at this restaurant and staff responded that to their knowledge there was not. On page 7 in the last paragraph Commissioner Caldwell clarified that in response to Commissioner Siegfried's question she responded that the house looks like a three-story house from the back yard or the northern viewpoint, In the last sentence of that same paragraph.Commissioner Burger's statement should.be clarified to indicate that "the only place the home could be seen by the Commissioners was at the next land use visit on Dr. Head's estate". Commissioner Caldwell requested that Mr. Emslie's response to her question in the last paragraph on page 8 be verbatim. BURGER/CALDWELL MOVED TO APPROVE THE MINUTES OF JUNE 27, '1990 AS' AMENDED. Passed 3-0-2; Commissioners Tappan and Tucker abstained. .ORAL COMMUNICATIONS: None. REPORT OF POSTING.,AGENDA: Pursuant to Government Code 54954.2, the agenda for this meeting was properly posted on July 6, 1990. PLANNING COMMISSION MEETING July 11, 1990 Page 2 Technical Corrections to Packet Material: Planner Walgren noted the following technical corrections: Regarding item 5 (LL-90-001), he noted that staff distributed a color-coded parcel map to the =Commissioners to more clearly illustrate the proposed property line configuration. On page 29 of item 6 (DR-90-026).under technical information the front setback should be 58 feet rather than the 74 feet indicated. PUBLIC HEARINGS CONSENT CALENDAR:. '1. DR-89-078 Gallo, 20087 Mendelsohn Ln., request for design review approval t6 construct a new two,story 4,518 square-foot residence per Chapter 15 of the City Code. The subject property is located within the R-i-20,000 zone district and is part of Tract 6531 (cont. to 7/25/90! at the request of 'applicant). 2. V-89-033 Matsuura, 21536 Saratoga Heights Dr., request for variance approval. to allow a 5-foot tall open bar fence within a required front yard in the NHR zone district per C~apter 15 of the City Code. Planning Commission approval is also requested to enclose a large portion of this 1.27 acre parcel with open wire fencing in a hillside zone district which only allows.a 4,000 square foot maximum area of enclosure (cont. to 9/12/90 per request of applicant). 3. SM-90-004 Morrison, 14170 Teerlink way, request for site modification approval to construct a swimming pool and retaining walls on a site with an average slope exceeding 1'0% in the NHR zone district per Chapter 14 of the City Code (cont. to 7/25/90 per request of applicant). 4. DR-90-015 Deiwert, 12272 Via Roncole, request for design review approval for 644 square-foot second story addition in the' R-l-10,000 zone district per Chapter 15 of the City Code (cont. to 8/22/90 at the request of applicant). 5. LL-90-001 Tai, Saratoga Villa Place, request for a lot line adjustment between three (3) parcels in the C-N zone district per Chapter 14 of the City Code. PLANNING COMMISSION MEETING July 11, 1990 Page 3 PUBLIC HEARINGS CONSENT CALENDAR Continued 6. DR-90-026 Rosengarten, 19396 Monte Vista Dr., ~equest for design review approval to remodel an existing 3,467 square foot one-story residence and add an additional 2,059.square feet. Design review iS required to allow the one-story structure to exceed 18 feet in height per Chapter 15 of the City Code. The subject property is located within the R-i-40,000 zone district. Commissioners Caldwell and Tappan'requested that item 6 be removed. MORAN/BURGER MOVED APPROVAL OF CONSENT CALENDAR ITEM 5. Passed 5-0. 6. DR-90-026 Rosengarten, 19396 Monte Vista Dr., request for design review approval to remodel an existing 3,467 square foot one-story residence and add an additional 2,059 square feet. Design review is required to allow the one-story structure to exceed 18 feet in height per Chapter 15 of the City Code. The subject property is located within the R-i-40,000 zone district. Commissioner Tappan stepped down from discussion of item 6 because he lives within 500 feet of the property. Commissioner Caldwell noted that page 30 of packet material is an exact duplicate of page 29 and questioned if there was a different page 30 or whether that was an error. Planner Walgren responded that the page was copied twice and there iS no additional information. BURGER/CALDWELL MOVED TO APPROVE DR-90-026 PER THE MODEL RESOLUTION. Passed 4-0. Commissioner Tappan was reseated on the Commission. PUBLIC HEARINGS: 7. V-90-018 Head, 14684 Pike Rd., request for variance approval to complete and legalize construction of 8-foot high fencing around the entire perimeter of the parcel within the NHR zone district per Chapter 15 of the. City Code (cont. from 6/27/90). Commissioner Burger reported on the land use visit. Planning Director Emslie presented the Report to the Planning Commission dated July 1!, 1990.. PLANNING COMMISSION MEETING July 11, 1990 Page 4 PUBLIC HEARINGS Continued Chairperson TuCker noted that a letter relevant to this matter was received from Ann Waltonsmith. The letter was dated July 4, 1990. In response to a question from Commissioner Moran, Mr. Emslie responded that his understanding is that the bottom fence as proposed is to look like the fence which has been constructed, which is an open-type fence, and that the chain link is being systematically replaced with a different type of fence. Commissioner Moran also questioned whether one of the conditions of the variance is that the bottom part of the fence will be changed. Mr. Emslie responded that the representation of the fence in the sketch is ambiguous and that would have to be clarified if the Commission were to pursue approval. Chairperson Tucker questioned the 8-foot fence and asked if the Department of Fish and Game (DF&G) indicated how high deer are capable of jumping. Mr. Emslie responded that deer would be able to'jump the 8-foot fence. From a standing start they can jump 6 to 8 feet and from a running jump they can traverse a 12-foot fence. It is clear this fence will not keep deer out. Commissioner Caldwell questioned whether replacement of the 6-foot base of fencing changes the legal status of the fence with regard to the nonconforming structure issue. City Attorney Toppel responded that the City has not had a situation exactly like this before but has had situations involving uses and structures where as long as the same type of use was continued an interpretation can be made either way, The interpretation that staff is making is that there already is an enclosure and staff is focusing on design. Mr~ Toppel stated an argument could probably be made that if the whole fence is torn down the nonconformity issue could be eliminated, but the approach staff is taking is that it is dealing with a site that was fully enclosed so all that is being done is the continuation of the enclosure although the material may change. Commissioner Caldwell wished a clarification as to whether any animals other than black tail deer were addressed in the staff's wildlife inquiry. Mr. Emslie said they were not. Commissioner Caldwell asked whether it was appropriate for the Commission to consider the cost of the fence or any alternative that is selected in its decision making. Mr. Emslie responded that the Commission's decision should be based on information and implementation of the zoning in the general plan related to land use policies and economics should not enter into the decision. PLANNING COMMISSION MEETING July 11, 1990 Page PUBLIC HEARINGS Continued Dr. Donald Head, applicant, addressed the Planning Commission. He said he was distressed by what he heard tonight and indicated the fence has been there 21 years. He is improving the look of the fence from all points of view and it is 'aesthetically much more appealing than it was. He stated before he bought the property a subdivision had been approved by .the City to build five houses on the acreage and he bought it to preserve the agricultural land. He displayed a picture of the property taken in 1938. He pointed out the reservoir for San Jose Water C'ompany in the picture and said he has planted and maintained the San Jose Water Company property at no cost to them. Dr. Head indicated he received' unsolicited calls from every neighbor bordering the property, except for Mr. Gromiko and Mrs. Chapin, asking if they could appear for him, but he responded to the neighbors that he did not think that would be necessary. He indicated the neighbors support the fence. He further indicated that he discussed the fence with Mr.-Gromiko after the last meeting and stated the fence could not. been seen from Mr. Gromiko's property except by climbing a hill. The fence is a cyclone fence with a foot of barbed wire on top and it is all landscaped. No deer can take a running leap over the fence because it is completely surrounded by trees. Dr. Head displayed a photo of the property as it exists today and an aerial photo of the trees planted four years ago. Each tree was put in an individual cage when planted but now the trees are too big for individual cages. Ms. Pamela Lavin, 15450. Pepper~ Lane, addressed the Planning Commission as a Saratoga resident and! as a volunteer with the Wildlife Department of the Humane Society. She said she spoke with Mr. Elliott of DF&G and questioned how high a deer can jump. Mr. Elliott responded that from a.standstill they can jump 10 feet and can jump high vertically but2not horizontally. According to Ms. Lavin, Mr. Elliott also indicated deer are.deterred by having two fences four feet apart because they feel they may get trapped in between. She said she also called Sunset Magazine regarding deer deterrents and repellents and was told that a double'fence is the best deterrent. She questioned the reasoning behind making the fence 8 feet all around since they will be jumping the fence anyway. She suggested that a double fence be looked into. Ms. Lavin stated she has had luck electrifying a garden on her property and indicated Commission and staff have viewed her fence. She suggested that if the orchard ~s the main concern possibly that area could be double fenced. She said there is not as much open space available for deer any moreland they are gradually being PLANNING COMMISSION MEETING July 11, 1990 Page 6 PUBLIC HEARINGS Continued deprived of habitat. Ms. Lavin indicated she has had calls regarding injured deer. She said there are certain types of fences that deer get caught in, particul.arly ornamental vertical posts. Commissioner Burger questioned which staff and Commissioners visited her property. Commissioner Caldwell responded that Ms. Lavin invited her to look at the electrical fence on her property and she did so along with Mro Emslie. Ms. Lavin described the fence. Mr. George Gromiko, 22071 Dorsey Way, addressed the Planning Commission. He stated he objects to the fence being higher than 6 feet and would like to see it left the way it is at 6 feet 'behind his house. Dr. David Hunt~ an owner and resident of the Pike Estate, addressed the Planning Commission and pointed out the importance of preserving the orchard, which is very well maintained. He said he too checked with wildlife experts' and commented that about 90% of black tail deer will be prevented from jumping over the fence because they will be of a smaller size. BURGER/TAPPAN MOVED TO CLOSE THE PUBLIC HEARING AT 8:10 P.M. Passed 5-0. Commissioner Burger recognized there seems to be some difference of opinion about how high deer can jump, how much of a running start they need and how far they can jump from a standing start. She said she, therefore, would assume it is not known exactly how high a deer can jump and how much of a running start is needed. Mr. Emslie reiterated it is Clear that an 8-foot fence will not keep deer out and they will still be able to get into the orchard although some may be screened out. Commissioner Burger questioned whether, given that information, staff still would recommend approval of an 8-foot fence. Mr. Emslie responded that it would because of the lack of impact of the fence. Commissioner Burger said the Commission should be focusing on whether the fence impacts the neighbors. She agreed with Dr. Head in that she did not believe Mr. Gromiko can see the fence at all from his yard and would have to take a hike to see the fence. However, the property next door can be seen and it was her feeling some adjustments could be made in the fence along those two properties that would make it less visible. She said she would like to see hog wire fencing along those property lines and would like the fence painted black because black would make the fence PLANNING COMMISSION MEETING July 11, 1990 Page 7 PUBLIC HEARINGS Continued disappear visually. She also requested that, as a condition for approval, all barbed wire be removed. She said the 8-foot fence is fine with her as long as it is not barbed wire. Commissioner Burger reported that a meeting was held last night regarding preservation of open· space. In the documentation distributed before the meeting, a reference was made to Government Code Section 65563(b) which defines open space in part as "open space for managed resource production" and as·a subclassification of that describes open space as "prime agricultural lands and lands for specialty crops such as flowers, vegetables, orchards or wine grapes". She felt that what Dr. Head is trying to do in preserving the Pike Estate is to preserve prime agricultural land for a specialty crop. There is more than one way to look at preservation of open space and, in Commissioner Burger's opinion, this particular case·is indeed preservation of open space--agricultural' land for orchards. Commissioner Burger said she 'is .able to make all findings along with staff with the conditions mentioned. Commissioner Tappan questioned whether one of the conditions for approval is that the barbed wire'be removed. He said there is a tradeoff in this situation between flora and fauna. In this instance there is someone trying to preserve prime agricultural lands, which is in the tradition of Saratoga. He said he has no problems with the application pursuant to the staff's findings. Commissioner Caldwell said she was concerned about the accuracy of the wildlife pathways inquiry that was conducted in that it only dealt with black tail deer. Ms. Waltonsmith's letter refers to other wildlife that may be availing themselves of this property, and Commissioner Caldwell said she would like Mr. Emslie to address the issue of the adequacy of the Wildlife pathway study in light of that fact that he·represented to the Commission at the last meeting that there would be a thorough study at the last meeting, Mr. Emslie responded that staff had hoped the Department of Fish and Game would make a physical inspection of the site and provide oral and written cQmments based On their· expertise that would· be part of the record. DF&G indicated they could provide a general sense of the growth and living characteristics of the deer population in the area and gave Staff the indication that due to their own'commitments and staff resources that would be the extent of their ability to comment. DF&G is considered an expert agency which the City would rely on to provide input. He said staff has gone to the limit with DF&G and Would not be able to go back and ask them to do any more as they indicated it would not be worth PLANNING COMMISSION MEETING July 11, 1990 Page 8 PUBLIC HEARINGS Continued their time to go out and inspect 'the area because they have other priorities. The alternative would be to indicate to the applicant that the Planing Commission would look to the applicant to provide this information. Staff has gone as far as it can go with its resources. Mr. Emslie said he had difficulty suggesting the City commit its own resources in pursuing outside consulting help to provide this information as that is the responsibility of the applicant if requested by the Commission. Commissioner Caldwell reported that her notes of the last meeting reflect that contacting someone other than Fish and Game would be appropriate in this case. Mr. Emslie reiterated that if at this point DF&G has not provided information which would satisfy Commissioner Caldwell's concerns it would be the responsibility of the applicant to provide that information~ if the Commission so directs, and it would be done under the supervision of the City. He said that after the last meeting the next step was to utilize the resources given to the City as an agency of the State and take it as far as it can go. Commissioner Caldwell stated the reason she is concerned about wildlife pathways is that there is an ordinance in the City which prohibits the erection of a fence where it might inhibit wildlife pathways or migratory pathways and was also 'concerned about the fence with respect to animals other than deer. Mr. Toppel stated that what the Commission had in mind when the ordinance was enacted was fencing going up where there was an identifiable trail that would be obstructed by the fence and there was, in fact, a particular piece of property that was the subject of discussion when that section was dealt with. If there is a migratory route, then there is a restriction in the ordinance that would prohibit fencing that would obstruct that 'kind of route. Commissioner Caldwell said she was also concerned about the fact that there is flowing water year round on the property, and it did not seem inconceivable that wildlife are going to the property on a regular basis to seek out that water especially in dry years. Commissioner Burger pointed out that if wildlife are going to this property to seek out water they have been doing so for some amount of time and the fence has also been there. There is already an established pattern that the wildlife have adjusted to on a fence that has been there 21 years. Commissioner Caldwell wondered whether it would make a difference to other animals, such as coyotes and bobcats, if the fence is 8 feet rather than 6 feet. PLANNING COMMISSION MEETING July 11, 1990 Page 9 PUBLIC HEARINGS Continued Commissioner Tappan questioned whether there is any evidence of any established migratory trail through the property. Mr. Emslie reiterated that the evidence was skimpy because there was no physical inspection and that would be the absolute way to determine that. He said he received a generalized response from DF&G about the different ~haracteristics regarding deer and the fact that they do not travel a great distance through this property. Localized deer will probably avail themselves of the water and vegetation of the property. Commissioner Caldwell expressed concern with respect to the staff evaluation of reasonable alternatives to the fence as proposed-. Mr. Emslie indicated staff did not look into other alternatives such as an electrical shock fences He said staff did discuss with DF&G other methods that would provide a natural deterrent to deer and also discussed organic repellents that could be used Which DF&G indicated can be effective but not as effective as the fence DF&G suggested as an alternative. Commissioner Caldwell said she was mentioning this because the type · of fence Ms. Lavin has is relatfvely unobtrusive and is a short fence. Commissioner Burger asked if Commissioner Caldwell was recommending the entire perimeter be enclosed. Commissioner Caldwell responded that she was working on that because it was acknowledged that the 8-foot fence probably will not address a majority of the deer problem for the applicant and maybe it is more appropriate to put something up fail safe around the orchard. She said there are other alternatives that have not been looked at that might be appropriate for around the orchard. Commissioner Burger stated if that line of thinking were followed would not the established migratory patterns that Commissioner Caldwell was concerned about be disrupted° Commissioner Caldwell responded she was contemplating disassembling the 8-foot extension, and she would need to know about other animals that might be using the .property for migratory or trail purposes. She said she was not satisfied with the wildlife pathways evaluation which was done and is trying to suggest some ideas given the information available. She thought it would be appropriate to complete the investigation with respect to wildlife. She pointed out that Dr. Head indicated he tried some type of electrical fence and requested he discuss that. PLANNING COMMISSION MEETING July 11, 1990 Page 10 PUBLIC HEARINGS Continued Dr. Head responded that the University of California visits his property twice a year to inspect poisons and the Dutch elms. He said he has tried everything and the University recommended the fence. The fence is there so that the trees can grow~ Once the trees grow the fence will not be'visible and the trees will keep the deer out because they will not leap where they cannot see. He said the only reason the trees were able to grow is because the 8- foot fence stopped the deer for a time. He said the cost of the fence shown in the drawing in the packet is $1 million. He said he is trying to preserve something for the City and if the City does not want it preserved he has other houses and will sell the property and let someone subdivide it. He said he is making a strong effort to preserve the parcel. He reiterated he bought the parcel because it was going to be subdivided and did not want to see five or six houses built on the property. He said the City should be proud of the property and mentioned he has appeared in about six issues of Sunset Magazine and this month his house is featured in Architectural Digest. Chairperson Tucker questioned how. long it would take for the trees to be established. Dr. Head responded that where the trees are currently the deer do not cross and it takes about six years for the trees to be established. He said if the Commission wanted to stipulate that he leave the existing 6-foot fence at the Chapin and Gromiko properties he would do so. He said there are coyotes, racoons, deer, gophers and egrets migrating across his property. Commissioner Tappan commented that the applicant is being very reasonable and the Commission is trying to search for a compromise. He said the issue could be studied extensively and staff could get any number of expert opinions but he did not lean that way. He agreed with the staff report and suggested that maybe some of the compromises could be conditioned in the approval. Commissioner Moran said she is sensitive to concerns expressed by Mr. Gromiko and thought he had legitimate concerns. She suggested pulling the fence back into the shrubbery that is on the Head property and off the property line or leaving it 6 feet on the Gromiko and Chapin property lines. She stated she noticed on the land use visit what she thought were deer tracks on Mr. Gromiko's property going up to the fence but the way she reads Mr. Elliott's comments these are local deer and they are not migrating much of anywhere. Chairperson Tucker commended Dr. Head for all he has done for the property. She said she looks at this as two issues. One is to protect the orchards and the other is to safeguard the deer. She said that since the 8-foot fence would not safeguard the deer or PLANNING COMMISSION MEETING July 11, 1990 Page 11 PUBLIC HEARINGS Continued protect the property she was having difficulty making a variance finding for the 8-foot fence. She did not see the necessity of tearing down the entire fence and suggested putting a double fence around the orchard to protect the orchard. COmmissioner Burger responded to the comment regarding the fence around the orchard. She indicated that at the last Commission meeting she said it would seem like putting the fence around the orchard would further chop up the. concept of open space and would probably be more visible around the orchard. Commissioner Caldwell questioned, given the definition of open space read by Commissioner Burger and her interpretation of that to include property that is fenced, what difference it would make if there is special deer fencing around the orchard. Commissioner Burger responded that the difference is that more fencing is being added to the property that is already totally fenced. Commissioner Caldwell said that if a decision is going to made tonight, and she would not recommend that, she would strongly advocate looking at just fencing in the orchard since that seems to be the issue as that is what Dr. Head is interested in protecting. She stated the Commission is sensitive to the historic value of the orchard and to the asset the property and the orchard confers on the community. She said she is also very sensitive to the broader issue of diminishment of open space that is available to wildlife in the hillsides and if a 6-foot fence is something that wildlife can get over maybe that is better. than an 8-foot fence which some of them cannot get over. If the i2ssue is really the orchard, that is what should be addressed. In response to a question from Commissioner Moran, Mr. Emslie responded that fences are a generally a concern because they are not natural and when they run through natural areas the City wants to discourage them because they are not really part of the landscape that goes there. He said he believes a fence in that kind of setting is less obtrusive'than one running through a more uncultivated area. The fence around the orchard is not nearly the concern it would be to open areas. BURGER/TAPPAN MOVED FOR APPROVAL OF V-90-018 PER THE STAFF REPORT WITH A CONDITION THAT THE FENCE THAT RUNS ALONG THE REAR OF THE GROMIKO AND CHAPIN PROPERTIES BE NO HIGHER THAN SIX FEET AND THAT PLANNING COMMISSION MEETING July 11, 1990 Page 12 PUBLIC HEARINGS Continued THE FENCE BE PAINTED BLACK; THAT ALL BARBED WIRE MATERIAL BE REMOVED; AND THAT THE MATERIAL THAT WILL GO ON THE PORTION OF THE FENCE THAT RAISES IT FROM SIX TO EIGHT FEET WILL BE THE KIND OF FENCING THAT WILL BE SAFE FOR DEER. Commissioner Moran questioned where the orchards are located on the property, and Dr. Head responded they are in four different locations on the property. Commissioner Tappan noted that fact is important when looking at the alternative of fencing the orchard area as that would mean there would be four separate fences around four separate orchard areas. Commissioner Caldwell emphasized that she is convinced that if a decision were to be made tonight it would be appropriate to only permit fencing on the orchards. Commissioner Burger stated she wished to have her motion as stated go to a vote and was not willing to amend the motion. The motion carried on a 3-2 vote. Commissioners Caldwell and Tucker were opposed. Break 8:45 p.m. - 9:00 p.mQ 8. V-90-010 Chin, 21427 Saratoga Hills Rd~, request for DR-90-036 variance to reduce required side yard setbacks and design review for'a two-story addition in the NHR zone district per Chapter 15 of the City Code (cont. from 6/13/90). Planner Walgren presented the Report to the Planning Commission dated July 11, 1990. Commissioner Burger wished a clarification that the upper portion of the additions have been changed. Mr. Walgren stated the recommendation was to have the additions mimic better the existing extensions. There were no setback or height reductions or changes in square footage. Commissioner Moran asked if staff attempted to work with the applicant on the variance issue since the last hearing. Mr. Walgren stated that the applicant has been adamant that if he had to reduce the structure by the amount of area it would take to not need the variance he did not feel he could go ahead with the project. PLANNING COMMISSION MEETING July 11, 1990 Page 13 PUBLIC HEARINGS Continued Chairperson Tucker stated that when the project was last discussed it was her understanding it would be difficult for the applicant to make an alternative plan because it would change the height. She requested staff address what possibilities exist to meet code requirements. Mr. Walgren said the applicant felt that any other option would not be feasible. Staff agrees that other options may not be as desirable or as functional but there were a number of other opportunities to expand the'floor area. The geodesic dome as it is right now is only a partial two-story structure on the interior. One option would be to complete the two story which would ruin the views the applicant currently has so that is not an option to him. Another option would be to have one story radial wing extensions off the other side of the structure which would not encroach into a setback. There was also the original option presented at the public hearing that the wing be pulled back 10 feet so it was not within the setback at all. The public hearing was opened at 9:08 p.m. Mr. Robert Chin, applicant, addressed the Planning Commission. He said that when he first presented' his case at the June 13 meeting there was a general discussion abut the variance and the design review. He believed the general consensus at that meeting was that a majority of Commissioners could make findings for the variance but there was Concern about the design review in terms of the elevation. Since that time that has been the only point he worked with staff on and believed a compromise had been reached. He said in the interest of time he would not try to convince the Commission about the need for a variance but did have the minutes of that meeting in which Commissioners stated they could make the findings for the variance. Regarding the design ~eview, he worked with staff regarding the elevation. He said that because he is stepping in on the upper story there is a reduction in square footage and he would be losing about 100 square feet. Commissioner Burger recalled she had a concern about the larger wing going into the side yard and questioned the amount of the variance. Mr. Chin said the larger bedroom has a 15-foot setback and because it is at an angle it is difficult to gain the 20-feet and he would need to cut it 'back dramatically. There was discussion about that at last Commission meeting. and the general consensus was it was not worth it if he had to cut it back that much. It-was basically a yes or. no type of decision because by cutting it back he does not gain anything because it is at an angle. At Commissioner Burger's request, Mr. Chin read her comments from the minutes of the meeting of June 13. PLANNING COMMISSION MEETING July 11, 1990 Page 14 PUBLIC HEARINGS Continued MORAN/TAPPAN MOVED TO CLOSE THE PUBLIC HEARING AT 9:15 P.M. Passed 5-0. Commissioner Moran noted that at the time the application was presented she had .problems with the variances that were requested and was hopeful that the design would be improved because she felt the variance was being favorably viewed by others. She had problems with the variances and believed they are large variances. She expressed concern that the property up the hill will be quite close to the closest wing as reflected in the staff report. Commissioner Caldwell said she agrees with the staff report with the exception that the design is acceptable. Commissioner Burger questioned clarification on the driveway to the neighboring property. Mr. Walgren responded that from memory the right of way through the adjacent' access was 60 feet. Commissioner Burger stated she shares the concerns regarding the variances and said that she is not as concerned about the design of the dome because that boils down .to whether or .not an individual likes a dome house. She felt the home itself is not impactful because it cannot be immediately seen from surrounding properties. She said the home is lovely and she was understood the applicant's need to expand need to expand to the area he is talking about because the other parts of the home where he could expand are not appropriate. However, she expressed concern over the variance for the master bedroom in particular. She said she has not seen any creativity in a redesign of the master bedroom to bring it out of the setback. She said she did not see how the other bedroom could be added onto without a variance'because of the way the home is placed on the property, but there could be a more creative solution on the master bedroom that would avoid the need for a variance. Chairperson Tucker said she studied the new drawings and initially when she looked at the possibility of moving the master bedroom off the living room she felt that was.not a very good place for it but suggested the family room could be placed on the bottom floor and the master bedroom on the upper floor. She said she was having trouble making the variance findings for the master bedroom at this time because when the Commission was discussing alternatives at the last meeting there was a height problem on the other side which she felt could be addressed by lowering the height or not having a two story. She stated it was difficult for her to make the variance findings. Commissioner Burger asked if variance were denied would the Commission be denying both of the.variances. She questioned how PLANNING COMMISSION MEETING July 11, 1990 Page 15 PUBLIC HEARINGS Continued both variances could be denied when the Commissioners have said to the applicant they may be able to make findings for the small room because there is no where else to go but do not like the other variance. Mr. Toppel responded that as the application is presently put together he did not think the two could be separated. The option would be to deny the entire variance and the applicant could appeal to the City CounCil. The applicant can voluntarily withdraw the one variance and proceed with the variance on the smaller part but then the design review would also have to be modified. The best thing would be to deny without prejudice and allow the applicant to come back with a modified drawing that would encompass both the design review and the variance. Mr. Toppel did not think there was any procedural, practical way to grant the one variance independent of the design review or independent of the second variance as the application is presently put together. Chairperson Tucker said she is sensitive to the applicant because she was sensing he felt that tonight he would probably get an approval. She stated she had the sense the application would be denied and questioned whether a study session would be in order. Commissioner Tappan indicated he agreed with that alternative. He said he thought that the applicant had been "blindsided" since the Commission said initially that if he sat down with staff and made some adjustments to his design it was highly probable the Commission would see its way clear to grant the variance. Commissioner Burger said she is willing to go to a study session. She did not feel the applicant had been blindsided because there were concerns indicated in the public hearing that were not corrected. Commissioner Moran agreed with Commissioner Burger. She said she did not feel she intentionally misled anyone about her concerns and felt this should be kept together as a package. She stated she would be willing to go to a study session on this but commented that she was concerned about both of the variances and is not convinced that a Study session on the matter will change much of anything. Commissioner Burger commented that the purpose of going to a study session would be to see what sort of a creative alternative the applicant would be able to bring2 to the Commission in terms of something that would eliminate, at least in her opinion, one variance. PLANNING COMMISSION MEETING July 11, 1990 Page 16 PUBLIC HEARINGS Continued Commissioner Caldwell said she shared Commissioner Moran's thoughts and wished to make it clear that she made no statement at the last public hearing on this application which were ever meant to suggest that she was favoring the variance request and in fact did not speak about it at all. She did not wish to have what Mr. Chin viewed to be the consensus of the group attributed to her. Commissioner Tappan questioned the purpose of suggesting a study session when it appeared nothing would be resolved or altered and no opinions would be swayed one way or another on the Commission. He said he felt it was unfair and the Commission would be misleading the applicant by even suggesting a study session. Chairperson Tucker disagreed with Commissioner Tappan's comments because staff believes there are' alternatives to make this come within code and if the applicant is willing to work on those alternatives and discuss them with the Commission she would be open to that. If he is not willing to'work on it, she would recommend that he accept a vote and appeal the decision. Commissioner Tappan said his comments were made for the benefit of the applicant because if he were in the applicant's place he would interpret that a study session would in no substantive way change anybody's Opinion particularly with respect to the variances. Mr. Chin said he felt he was blindsided as he said he specifically asked what would happen and something was said to that effect that if he worked with staff and got staff's approval it would be on the consent calendar. Chairperson Tucker responded she did not believe any commitment was made. Mr. Chin said he thought the variance issue was addressed and that is why he did not address that in his discussion. Given the choice he would request a study session to show the Commission the alternatives and how they may or may not work° Chairperson Tucker explained that at a study session the Commission would be looking for plans from the applicant as to how he would address the issue of the setbacks. Two Commissioners in particular said they would have difficulty finding for any variance on the side yard setback and what the Planning Commission is looking for is a redesign of the home in order to meet code. She suggested that Mr. Chin work with staff to see what alternatives were available to conform to the code. PLANNING COMMISSION MEETING July 11, 1990 Page 17 PUBLIC HEARINGS Continued Commissioner Moran stated that she was looking for the applicant to work with staff and come back width a package that could get the staff's 'support. She felt that perhaps that was not communicated clearly enough to the applicant. Commissioner Tappan commented that it is unfortunate that when it is suggested an item go to a study session because the Commission is trying to be sensitive to the needs of the applicant or neighbors the Commission occasionally has a tendency to mislead. There was some discussion on this item this evening where it was questioned whether it is possible to separate these two variances, and there was a clear implication that one of the variances would be acceptable. to at least one of the Commissioners. He felt that on occasion the COmmission has a tendency to lead someone down the path and he did not think that was fair to the applicant in this Case or others. Commissioner Burger said she made t.he comment in question and she made it for herself. She felt that perhaps part of the problem is that the Commission does its deliberations in a public forum and all ideas are thrown out on the table in a public forum because it is the only time when the Commissign gets together to discuss them. She suggested that perhaps what needs to be done is to caution the applicants that every idea they hear thrown out on the table during the discussion period is not a direction to the applicant nor is it a final decision by any Commissioner. She felt the Commission should be careful that an applicant understands that what is heard. is the Commission's public discussion of an issue the Commission is trying to wrestle with at the time. She suggested the Chair summarize items and inform applicants what they heard and what the concerns are which the Commission wishes to have addressed. CommiSsioner Tappan stated that an applicant could have a tendency to grab onto something in order to stay optimistic about a situation, He said he is Concerned about giving the applicant false hope. Mr. Emslie clarified that staff had indicated to Mr. Chin that it is staff's assessment that the findings are not present. One of the findings is that there is something unusual about the property. There are alternatives present, although they may be considered infeasible to Mr. Chin, to expand the square footage of the house without encroaching on the setbacK. That has been staff's position all along. He felt the Planning Commission is accepting that recommendation but still would like to keep the design review application open, that the staff recommendation shall be essentially affirmed and that staff should continue to work with PLANNING COMMISSION MEETING July 11, 1990 Page 18 PUBLIC HEARINGS Continued the applicant to come up with alternatives consistent with that which would conform to the code. He said that is what staff would intend on doing with Mr. Chin. BURGER/CALDWELL MOVED TO CONTINUE DR-90-036 AND V-90-O10 TO AUGUST 22, 1990 WITH A STUDY SESSION ON AUGUST 14. Passed 5-0. 9. DR-90-025 Shortino, 15252 Montalvo Rd., request for design review to construct a new 2,928 square-foot two- story single family dwelling in the R-1-40,O00 zone district per Chapter 15 of the City Code. Planning Director Emslie presented the Report to the Planning Commission dated July 11, 1990. ,He said staff received comments from the Montalvo Association which was concerned about any possible encroachment into the Wildcat Road which is an easement the Association has indicated it~ is its desire to utilize as an access to their activities. The Association requested it be given the opportunity to review the plans prior to the issuance of building permits. Staff is also suggesting an additional condition to require the Santa Clara Valley Water District's review of the proposal prior to issuance of building permits for any possible encroachment onto its easement. The public hearing was opened at 9:45. Mr. John Crace, 164 Gilman Avenue~ appeared for the applicant. He addressed the issue of the cut of the property and said the reason for it was to make it less visible from the street. MORAN/CALDWELL MOVED TO CLOSE THE PUBLIC HEARING AT 9:47 P.M. Passed 5-0. Commissioner Burger said she originally had concern regarding this application centering around the cut of 2,000 cubic yards as that seemed excessive. Since that time she has had a chance to view the site and read the staff report and agrees with the staff report that the cut and fill enhances the .proposal and results in a structure that fits into the neighborhood much better. She said she would be able to vote for the proposal per the staff report with the conditions. MORAN/BURGER MOVED TO APPROVE DR-90-025 WITH CONDITIONS THAT THE MONTALVO ASSOCIATION AND THE SANTA CLARA VALLEY WATER.DISTRICT BE GIVEN THE OPPORTUNITY TO REVIEW THE PLANS PRIOR TO ISSUANCE OF A BUILDING PERMIT. Passed 5-0. PLANNING COMMISSION MEETING July 11, 1990 Page 19 PUBLIC HEARINGS Continued 10. V-90-020 GTE Mobilnet, intersection of Lawrence Expwy. and UP-90-004 Quito Road, request for a use permit to construct a utility tower. and a variance to exceed the allowable 26-foot height limit in the P-A zone district per Chapter 15 of the City Code. CommissiOner Burger reported on the land use visit. Planner Walgren presented the Report to the Planning Commission dated July 11, 1990. The public hearing was opened at 9:53 p.m. A representative of the applicant, 3375 Scott Blvd., Santa Clara, addressed the Commission° In response to a question from Commissioner Tappan regarding the viability of a 30-foot tower, he responded that 40-45 feet is the ideal height for such a tower, Mr. Lary Colwill, Radio Engineer, 3375 Scott Blvd., Santa Clara, addressed the Commission. He responded that an antenna height of 30 feet would not work in this location or very few other locations. He said several heights were tested and the 40-45 foot height is optimum height for the tower. A photograph of the antenna was circulated. Mr. Colwill reviewed how cellular service will impact Saratoga. He said currently service to Saratoga is being provided by towers outside of Saratoga. As usage of cellular service grows, other sites must be provided. GTE is at a point where to provide the service it is obligated to provide it will have to put sites within Saratoga. Antennas of this height will be necessary if cellular service is to be provided to the City of Saratoga. In response to a question from Chairperson Tucker, Mr. Colwill responded that in the future further requests will be made to construct other towers in Saratoga° He said this tower will not provide good service to downtown Saratoga. MORAN/BURGER MOVED TO CLOSE THE PUBLIC HEARING AT 10:03 P.M. Passed 5-0. In response to a question from Chairperson Tucker, Mr. Toppel said a section of the zoning ordinance deals with radio antennas and is designed and applied exclusively.to amateur radio operators. It does not apply to a commercial .type of antenna and the normal zoning ordinance applying to structures is applied in this case., PLANNING COMMISSION MEETING July 11, 1990 Page 20 PUBLIC HEARINGS Continued Commissioner Moran said she could not make the findings for a variance and agrees with the staff report. She said perhaps an ordinance change should be considered in the future to accommodate this type of need. Commissioner Tappan stated if a statistical study were done Saratoga would be a large customer for this type of service. He said the Commission should want to enhance services for the citizens of the City. : Commissioner Caldwell stated she was not even in favor of the billboard on the property and'if given the option to make the decision On the tower today on a 30-foot structure she would deem that an appropriate use of the property. She said she agreed with the variance analysis in the staff report regarding this proposal. Commissioner Burger stated she believed the tower could probably be constructed at 45 feet and nobody would notice it because that entire parcel is generally a "mess" and this tower would probably not make much difference. She said she would like to see the tower at 40 feet instead of 45 feet. Mr~ Toppel noted the staff analysis was based primarily upon not being able to make a finding of special. privilege but an argument could be made of not being able to make a finding of exceptional or extraordinary circumstances. There are other options available. He expressed concern that if this is not resolved at the local level and if forced to defend the record of denying a variance he would like to deny on as many grounds as possible. He requested that the Commission predicate the denial on not only absence of conferring special privilege but also on the absence of any exceptional or extraordinary circumstances. MORAN/CALDWELL MOVED TO DENY V-90-020 AND UP-90-004 WITHOUT PREJUDICE AND DIRECTED STAFF TO AMEND THE'RESOLUTION TO INCLUDE A FINDING THAT THERE ARE NO EXCEPTIONAL PHYSICAL CIRCUMSTANCES RELATED TO THIS PROPERTY. Commissioner Tappan pointed out the members sit on a Commission in which part of the responsibility is to provide good service to the citizens of Saratoga. Saratoga, on a per capita basis, is likely a very large user of this type of service and the tower is proposed to enhance that service. He did not think the Commissioners should forget that. Chairperson Tucker said she fully understands Commissioner Tappan's comments but is having a problem that this is a special' privilege in how it has to be looked at. The other concern is that the PLANNING COMMISSION MEETING july 11, 1990 Page 21 PUBLIC HEARINGS Continued applicant stated this is not the only one they would be requesting and the next request may be in a neighborhood. Commissioner Tappan commented the Commission is hamstrung by the variance finding procedure with respect to this project. The motion for denial passed 3-2; Commissioners Burger and Tappan were opposed. 11. V-90-014 Houston, 14082 Chester Ave., request for variance approval to construct a pool 11 feet within the exterior side yard setback where 25 feet is required in the R-i-40,000 zone district per Chapter 15 of the City Code. Commissioner Moran reported on the land use visit. Planner Walgren presented the Report to the Planning Commission dated July 11, 1990. He said staff transmitted the site plan to the Santa Clara Valley Water District who was not interested in obtaining a dedication over the creekbed but did request that no development be allowed within 15 feet of the top of the bank. In response to a question from Commissioner·Caldwell, Mr. Walgren stated that because of the access road, the parcel is considered an exterior corner parcel and the street frontage would require a 3- foot fence. The fence that currently exists is a 6-foot fence and is considered to be an existing nonconforming fence. Mr. Toppel pointed out that there is a section of the building regulations that requires all pools to be enclosed with not less than a 5-foot fence. If for any reason the fence should come down it would have to be replaced with a 3-foot fence to conform to the ordinance. An inconsistency exists which is normally not an issue because pools are usually in the back yard but this type of situation would not address that and there would have to be a variance. Mr. Emslie clarified that if a variance is granted the Commission guarantees there will never be a code conforming 3-foot fence. Commissioner Moran questioned the=location of the proposed spa and waterfall. The public hearing was opened at 10:18 p.m. Mr. Jerry Houston, applicant, addressed the Planning Commission. He said he did not think the spa and waterfall should be made an issue because they are not part of the variance and questioned why they were. Mr. Walgren explained it was brought up due to the PLANNING COMMISSION MEETING July 11, 1990 Page 22 PUBLIC HEARINGS Continued Santa Clara Valley Water District's request that no Construction be allowed within 15 feet of the top of the bank and that if the variance were approved a condition would be that the waterfall be removed. Mr. Houston discussed the alternative pool sites suggested by staff. He said the first alternative, which is a kidney shaped alternative, is 4 feet from the house and he did not think that was a reasonable alternative. His main concern regarding the Second alternative was that it is a 12 x 40 lap pool and for this area a lap pool is not common. He also expressed concern about being close to the tree drip line. 'He said he had a letter from adjoining neighbors stating they are not opposed to the pool in the side yard. He said he was also concerned about getting leaves into the pool from the oak tree. He stated that due to the topography and location of the trees and the slope of the creek he could not see why it would be a privilege situation to be granted a variance. He said the Santa Clara Valley Water District has no jurisdiction over the creek, and the 100-year flood line is far away from the pool. The applicant's contractor addressed the Commission. He noted that the proposed pool location is not 11 feet off Chester but is 11 feet off the property line and there is another 13 feet to Chester. He also point'ed out that the plans the Commission received noting the proposed options for pool locations show an encroachment into the 15'foot setback on the corner and that is not the case. He said the Santa Clara Valley Water District has no jurisdiction over the creek and recommended the 15-feet for erosion control purposes only. Mr. Houston stated if there is a reasonable alternative to locating the pool he would be open to listening to' it but could not see a reasonable alternative per the staff report and could not see where it would have any impact on the neighbors. CALDWELL/MORAN MOVED TO CLOSE THE PUBLIC HEARING. AT 10:30 P.M. Passed 5-0. Commissioner Caldwell questioned what weight should be given to the Water District's recommendation. Mr. Toppel said that frequently the Water District wants a dedication of an easement. In this case the District is saying it does not want a dedication but still has some requirements. Whenever dealing with a Creek area the City routinely requests District review. In this situation the Water District has jurisdiction over the creek. PLANNING COMMISSION MEETING July 11, 1990 Page 23 PUBLIC HEARINGS Continued Mr. Emslie clarified that this is not a creek that the District maintains but is a private creek which is a responsibility of the owner. However, that does not diminish the District's expertise in providing the County with flood control advice. Whether the District has jurisdiction or not, the City treats the District as experts and takes that expert advice and incorporates it in conditions fairly consistently. Commissioner Caldwell asked what the City's policy is with reSpe?t to riparian areas in general and.development and improvements an the vicinity of riparian areas. Mr. Emslie responded that riparian corridors are identified in the general plan as significant features that the City strives to preserve and avoid any encroachment into or alteration to its natural state. Commissioner Burger stated she is'having a difficult time with the application because the proposed 'location is logical when viewing the site but the Commission is limited by the need to make the variance finding. She suggesting switching the pool location with the lawn area because the lawn area is far enough away from the home and would be well out of the 15-foot riparian corridor. She recognized it would be into the side yard setback but would be eliminating the problem of being=in the 15-foot area. She would then be inclined to perhaps taking a favorable look at having a slightly Smaller pool into the side yard Setback. Chairperson Tucker stated she felt the kidney-shape option could be achieved and still meet the code requirements and she would be in favor of that alternative. She said she supports the staff findings that there is another area for the p0ol. Otherwise the Commission would be granting a special privilege. TUCKER/CALDWELL MOVED TO DENY V-90-014 ON THE GROUNDS THAT TO GRANT THE VARIANCE WOULD BE A SPECIAL PRIVILEGE. Passed 5-0. DIRECTOR'S ITEMS 1. Upcoming planning applications and projects. COMMISSION ITEMS COMMUNICATIONS Written PLANNING COMMISSION MEETING July 11, 1990 Page 24 COMMUNICATIONS Continued Oral Commissioner Caldwell reported that at the City Council meeting of June 5 Councilmember Kohler gave direction for the Planning Commission to consider zoning ordinance changes. He also requested that a discussion be agendized that would enable individual Councilmembers to call up any Planning Commission decision. She also reported that Councilmember Monia suggested setting up a committee to investigate the Cocciardi incident. Commissioner Caldwell also reported on the City Council meeting of June 10. A discussion was held .at the Council meeting regarding the annexation of the Saratoga Country Club. The Council indicated that the NHR zoning designation will not be adequate and will be changed by the Council as soon as the "open space zone" becomes law and the owners should make no plans to utilize the NHR zone. Commissioner Tappan commented on Councilmember Kohler's directions discussed by Commissioner Caldwell. In response to his question regarding the state law concerningplanning commissions, Mr. Toppel responded that under state law a planning commission is designated as the advisory body in terms of planning matters. That means that any zoning amendments would come to the Planning Commission for recommendation to the City Council and any General Plan adoption amendments would come to the Commission. Most of the Commission's activity consists of administrative project review which is strictly a matter of local ordinance and Cities differ. He said there is nothing automatic under state law that mandates that planning commission action is final. He stated it is not unusual for a city council to have a mechanism that, even in the absence of an appeal, they can call a matter up to review it. He reminded the Commission that its recommendation to the Council on such a mechanism was that the Commission was not in favor of it but if it was done two councilmembers should agree to have the matter heard in order that no undue pressure put on any individual councilmember. Commissioner Tappan commented th'at perhaps Councilmember Kohler politically naive and should educate himself politically. ADJOURNMENT The meeting of the Planning Commission was adjourned at 11:00 p.m. Respectfully submitted, Rebecca Cuffman